Gaborone, Botswana – Dickson Tapela and Mbuso Piye are two of nearly 1,000 foreign prisoners languishing in Botswana’s 23 state prisons.
The pair, from Zimbabwe, are both serving 10-year prison sentences for armed robbery. They shot to fame after filing a court case challenging the Botswana government’s policy of denying AIDS treatment to foreign inmates.
Both men have been living with HIV/AIDS for several years and have no access to anti-retroviral drugs (ARVs).
Tapela says that after being sentenced to a decade behind bars, his girlfriend informed him that she had been diagnosed with HIV and advised him to go for a test, which turned out to be positive.
Piye could not explain the circumstances that led to his infection. But another prisoner, George Vingaso, who is not party to the case, told Al Jazeera that after he was extradited from South Africa’s North West province and convicted of car theft in Botswana, he was denied ARV treatment, though he was receiving it in South Africa.
Tapela and Piye hope that their legal battle against the Botswana government might change the policy that denies foreign prisoners access to ARVs.
The government only provides non-citizen prisoners with treatment for opportunistic infections, such as tuberculosis.
Foreign inmates are expected to finance their own HIV/AIDS treatment, according to Botswana government’s HIV/AIDS policy guide.
The prisoners say the government has denied them “the right to life” and are fighting to have “freedom from inhuman and degrading treatment, discrimination, and inequality”.
“Prisoners, particularly foreign prisoners, are a vulnerable group who usually have no means to access life-saving medication if the government does not supply it,” Cindy Kelemi, executive director of the Botswana Network on Ethics, Law and HIV/AIDS (BONELA), told Al Jazeera.
“These prisoners face great suffering and even death if the government continues to deny them ARVs.”
The nongovernmental human rights support group is also listed as a litigant in the case.
Priti Patel, deputy director of the Southern Africa Litigation Centre (SALC), which is providing assistance in the matter, noted: “The decision to deny foreign prisoners ARVs is irrational, as it not only puts their health at severe risk, but also places other prisoners at risk of illness, including tuberculosis and HIV.”
However, the Botswana government’s official representative on the case, principal state counsel David Moloise, argued that the Botswana government could not afford to provide such treatment.
“This is purely on public interest grounds. If more money comes in, [in] the future and when the cost of ARV goes down, the state may consider [it],” he said.
Botswana government’s attorney also stated that the diamond-rich nation – whose economy grew 6 percent in 2013, owing to the improved performance of the mining sector – is not depriving the prisoners of their right to life, as argued by lawyers representing the litigants.
A quick market survey shows that a month-long supply of ARVs retails for about 180 Botswana Pula ($22), slightly cheaper than in neighbouring Zimbabwe, where ARVs cost $30.
Prisoners, particularly foreign prisoners, are a vulnerable group who usually have no means to access life-saving medication if the government does not supply it
Dr Khumo Seipone, the director of health services, says that Botswana’s health policy defines persons who are eligible for ARV treatment as being “citizens of Botswana who meet the criteria established by [the] government”.
Tshiamo Rantao, a lawyer representing Tapela and Piye, accused the government of failing to provide any facts supporting the reasoning behind the refusal to provide ARV treatments to foreign inmates.
Rantao also challenged the government to explain the basis on which it could lawfully or justifiably restrict access to ARV treatment or confer preferential treatment on citizens as opposed to foreign nationals, and to demonstrate to the court that they lack the resources to provide treatment to HIV-positive foreign prisoners.
The case has stoked a debate on prisoners’ rights among politicians and civil society activists in both Botswana and Zimbabwe.
An advocate from South Africa, Gilbert Marcus, says that the refusal by the Botswana government to provide medication to foreign prisoners is a violation of their right to life, as well as the right of freedom from discrimination.
Meanwhile Gaborone High Court judge Bengbame Sechele has reserved judgement of the case until a later date.
The pair’s case comes at a time when Botswana’s National AIDS Coordinating Agency is saying that the country’s HIV prevalence rate has been stabilising over the past few years.
The agency says Botswana has recorded an estimated 73 percent decline in HIV incidence between 2001 and 2011. The data provided by the agency to Al Jazeera indicates that in 2001, Botswana was losing close to 21,000 people annually due to AIDS but the figure has since plummeted to 5,700 in 2012, representing a 73 percent decline.
Botswana has a small population of just over 2 million, according to the country’s 2001 national census.