Programming for access to justice and care Strategic Litigation to Uphold the Rights to Health of Foreign Inmates Living with HIV in Botswana Presented by Felistus Motimedi Botswana Network on Ethics, Law and HIV/AIDS (BONELA) 30 th November 2015

THE BOTSWANA CONTEXT Legally use a dual system -Customary law -Received law (English Common law, Roman Dutch law) The Botswana Constitution is supreme law governing the country The Botswana Prisons Act Botswana National HIV Policy -Population size est. at 2,1mil -National HIV Prevalence of 18.2% No 3 rd party litigation in Botswana

PROBLEM STATEMENT HIV and TB prevention in Prisons -HIV and TB Information -HIV/TB Prevention (prevention commodities, infection control) -Treatment, Care and Support Services in prisons -Alternative to incarceration Human rights issue -Right to health (access to services) -Stigma and discrimination (nationality) -Set jurisprudence -Create public dialogue Research on HIV and TB in Prisons - A study commissioned by NACA in 2012 but stalled at PS level (MoH/MoDS &J) - UNDOC did an assessment on ‘human rights and health’ issues in Botswana Prisons but not working in Botswana

ACTION TAKEN Started in 2009 with 6 litigants and remained with 2 Statutory notices served Meetings with PS-Ministry of Defence, Security and Justice Heads of Arguments -The 2 foreign prisoners and BONELA argued that the government’s decision refusing foreign prisoners access to ARV treatment was unlawful and unconstitutional for violating the Prisons Act, the common law, and the rights to life, freedom from inhuman and degrading treatment, and the prohibition against discrimination. -The government parties argued that there was no legal obligation to provide the medication and that it could not afford to do so.

ACTION Cont’d… Mobilising resources: SALC came on board to financially and technically support the case Engaging the media throughout (press statements, radio and tv shows) Engage with the public on through Facebook and Twitter A 3rd party foreign prisoner (Mwale) sought to enforce the August 2014 judgment to gain access to ARV treatment. -In response, the government parties applied for the Stay of Execution of the Tapela case on an urgent basis to the High Court, pending the appeal. - BONELA opposed the application and argued the State was in contempt of court. - The High Court, per Rannowane J dismissed the applications reasoning that they lacked urgency. -The Mwale case then came before Dingake J who held that the State was in contempt of the August 2014 order and ordered that the prisoner be provided with ARV treatment immediately. -The appeal in the Mwale case then joined to the State’s appeal in the Tapela case. Create visibility and pressure (people filling the Courts, IEC materials)

OUTCOMES Provisional judgement in February 2014 after Govt absconded court The High Court, per Sechele J, held in August 2014 that the government is under an obligation to provide the ARVS to HIV-positive foreign prisoners and ordered the medicines to be provided to all prisoners who meet the treatment criteria immediately. The government parties appealed judgement with the Court of Appeal. On 26 August 2015, the Court of Appeal, in a unanimous judgment by the full bench, ruled that the policy was contrary to the Prisons Act and unlawful. - The Court, per Kirby JP, ordered the immediate provision of free HIV testing and treatment to all HIV positive foreign prisoners on the same terms as citizen prisoners.

In Conclusion… Strategic litigation can not be done independent of other advocacy components Advocacy is a long term commitment (human resource +financial resources) so need investment Strategic Litigation can be very expensive (but more effective as it directs law reform) Working with the other stakeholders, esp the media and partner organisations add value

SO WHAT…..WAYFORWARD BONELA remains committed to work with the government to ensure an effective HIV response that respects human rights Hold Govt accountable to provide treatment and monitor the provision Finalising a Guide on ‘Using the Legal System to make changes’ with emphasis on strategic litigation Work more with Prisons to realise human rights for all for improved health and well being through the HIV and TB Prevention interventions

THANK YOU We acknowledge: SALC Kewagamang Rantao Law Firm Network Members and IPs Media Houses in Bots MISA Botswana International AIDS Alliance Follow us on: Facebook: BONELA