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ABSTRACT
The principle of equality and non-discrimination anchors this article's jurisprudential analysis of a Botswana High Court's case, in which non-citizen inmates of Botswana prisons were excluded from potent HIV treatment availed to citizen inmates. The case's judgment shows that there can be no ‘positive’ discrimination which is reasonably justifiable in a democratic society and/or in the public interest when prisoners are denied their right to health and right to life. The article argues that the judgment affirmed the human rights to life, freedom from inhuman treatment and freedom from discrimination by interpreting the right to life to entail the right to health. The article argues that the judgment is predicated upon the idea of human dignity and the principle of pro person interpretation of human rights provisions in constitutions. The article also emphasises the interplay between civil and political rights and socioeconomic rights, which is rooted in the principle of the universality, indivisibility, interrelatedness and interdependence of human rights. The article concludes as follows: human rights naturally involve human dignity; the principle of pro person and broad constitutional interpretation is imperative for human rights' protection; and, such interpretation is critical to the global fight against the HIV/AIDS pandemic.
Notes
1 John Humphrey, No Distant Millennium: The International Law of Human Rights (UNESCO 1989) 20.
2 Dickson Tapela (1st Applicant), Mbuso Piye (2nd Applicant), Botswana Network on Ethics, Law and HIV/AIDS (3rd Applicant) v Attorney General (1st Respondent), The Permanent Secretary, Ministry of Health (2nd Respondent), The Permanent Secretary, Ministry of Justice (3rd Respondent) High Court of Botswana held at Gaborone MAHGB-000057-14 (22 August 2014)
3 Botswana Network on Ethics, Law and HIV/AIDS (BONELA), 3rd applicant in the Tapela case.
4 Ministry of Health, Botswana National Policy on HIV/AIDS, approved and adopted by the Botswana Government through Presidential Directive CAB:35/93, 17 November 1993.
5 See Constitution of Botswana, 30 September 1966, s 4.
6 ibid s 7.
7 ibid ss 3, 15 .
8 State Proceedings (Civil Actions by or against Government or Public Officers) Act, Law 24, 1966, s 9(1) [Chap 10:01] bars ‘ … the grant of relief by way of interdict or specific performance against the government … but in lieu thereof the court may make an order declaratory of the rights of the parties’.
9 This was part of the answering affidavit of Dr Seipone, the medical officer responsible for the applicants’ health in prison.
10 See section 6, below.
11 See Dickson Tapela and Others v Attorney General and Others (n 2) [21], 15.
12 ibid [22].
13 See Botswana Constitution (n 5) ss 3, 15.
14 Dickson Tapela and Others v Attorney General and Others (n 2) [18], 12.
15 ibid.
16 ibid.
17 See e.g. Botswana's Constitution (n 5) s 18(1), which vests the High Court with power to enforce human rights.
18 As Justice Sechele noted, this Presidential Directive, the basis of the respondents’ action, was not even tendered in evidence in court. The savingram, which was tendered in evidence by the 2nd Respondent, provided as follows: ‘PROPOSED CHANGES TO PRESIDENTIAL DIRECTIVE CAB LS/C 2002 ON THE PAYMENT FOR MEDICAL SERVICES BY NON CITIZENS: Addressees are hereby informed that the following have been approved through Presidential Directive Cab 5(b) of 2004 … Provision of free treatment to non-citizen prisoners suffering from ailments other than AIDS.’ See Dickson Tapela and Others v Attorney General and Others (n 2) [24], [25], 16.
19 See Botswana Constitution (n 5) s 7.
20 This is a Latin expression meaning, literally, where there is a right there is a remedy.
21 Botswana Constitution (n 5), s 3 vests the individual with ‘fundamental rights and freedoms … whatever his or her race, place of origin, political opinions, colour, creed or sex’; s 4 provides for the protection of the right to life; s 7 provides for protection from torture or inhuman or degrading treatment or punishment; s 15 provides for protection from discrimination.
22 See Dickson Tapela and Others v Attorney General and Others (n 2) [43], 27–28.
23 ICESCR, United Nations General Assembly (UNGA) Resolution 2200 A (XXI), (adopted 16 December 1966, entered into force 3 January 1976), 993 United Nations Treaty Series (UNTS) no I-14531.
24 See United Nations Human Rights Council (UNHRC), Universal Periodic Review (UPR), Report of the Working Group on the UPR – Botswana, UN Docs A/HRC/WG6/3/L1 and A/HRC/10/69, 13 January 2009.
25 ICESCR (n 23) art 12.
26 ICCPR, UNGA Resolution 2200 A (XXI), (adopted 16 December 1966, entered into force 23 March 1976), vol 999 UNTS no I-14668 and no A-14668.
27 UNAIDS, Access to Antiretroviral Therapy in Africa: Status Report on Progress Towards the 2015 Targets (UNAIDS Geneva 19 December 2013).
28 ibid.
29 African Comprehensive HIV/AIDS Partnerships (ACHAP), Advanced HIV/AIDS Care: The MASA Program (ACHAP Gaborone January 2002). ‘MASA’ is a Setswana word meaning ‘new dawn’; it signifies the rising of a dawn in terms of Botswana's struggle against the HIV/AIDS epidemic.
30 WHO, Introducing ARV Therapy in the Public Sector in Botswana: Case Study (WHO Geneva 2004); see also WHO, Fact Sheet: Countries Offering Free Access to HIV Treatment (WHO Geneva 2005).
31 See WHO, Fact Sheet (n 30).
32 As stated in para 1 of General Comment no 3 on art 4 of the African Charter on Human and Peoples’ Rights, ‘[t]he right to life is universally recognised as a fundamental human right. It is often described as the supreme human right, upon which all other human rights depend.’ See African Commission on Human and Peoples’ Rights (AComHPR), General Comment No 3 on the African Charter on Human and Peoples’ Rights: The Right to Life (Article 4); adopted during the 57th Ordinary Session of the African Commission on Human and Peoples Rights held from 4 to 18 November 2015 in Banjul, The Gambia <www.achpr.org/instruments/general-comments-right-to-life/general_comment_No_3_english.pdf> accessed 8 September 2016.
33 As noted by the UN Committee on Economic, Social and Cultural Rights (ComESCR), ‘Health is a fundamental human right indispensable for the exercise of other human rights’: see ComESCR, General Comment No 14: The right to the highest attainable standard of health, E/C12/2000/4, 11 August 2000, para 1.
34 AComHPR, Communication No 241/2001, Sixteenth Activity Report 2002–2003, Annex VII.
35 UN, Universal Declaration of Human Rights, UN Doc A/RES/217A (III), (adopted 10 December 1948), see art 25.
36 These instruments include the following: the ICESCR (n 23) (art 12); the International Convention on the Elimination of All Forms of Racial Discrimination, UNGA Doc A/RES/2106 A (XX), 21 December 1965 (art 5); the Convention on the Elimination of All Forms of Discrimination against Women, UNGA Doc. A/RES/34/180, 18 December 1979 (art 11); the Convention on the Rights of the Child, UNGA Doc A/RES/44/25, 20 November 1989 (art 24); the European Social Charter, 1966 (as revised), Council of Europe Doc ETS no 163, 3 May 1996 (art 11); the African Charter on Human and Peoples’ Rights, OAU Doc CAB/LEG/67/3/Rev5, 27 June 1981 (art 16); the Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights, OAS Doc OAS/SerL/V/1.4 Rev 13, 17 November 1988 (art 10).
37 See UNAIDS, Access to Antiretroviral Therapy in Africa (n 27) para 2.
38 ibid para 9.
39 ibid para 11.
40 As the Committee states, inter alia: ‘The Committee interprets children's right to health as defined in article 24 as an inclusive right, extending not only to timely and appropriate prevention … ’; see UNCRC, General Comment No 15 on the Right of the Child to the Enjoyment of the Highest Attainable Standard of Health (art 24, CRC, 1989); adopted by the Committee at its 62nd Session (14 January–1 February 2013) CRC/C/GC/15/2013.
41 See UN, Vienna Declaration and Programme of Action adopted at the World Conference on Human Rights (UN 1993), UN Doc A/CONF/24, 25 June 1993, pmbl, para 2.
42 See S v Makwanyane and Another 1995 (6) BCLR 665 (CC), [83].
43 Thomas Hobbes, Leviathan (Clarendon Press 1651; repr 1947) 97.
44 UN, Human Rights: Questions and Answers (United Nations Department of Public Information, New York 1987) 4.
45 ibid (emphasis added).
46 See UN Declaration on the Right to Development, UNGA Doc A/RES/41/128, 4 December 1986, art 1(1).
47 Malcolm N Shaw, International Law (5th edn, Cambridge University Press 2003) 249.
48 Oscar Schachter, ‘Human Dignity as a Normative Concept’ (1983) 77 AJIL 848, 849.
49 UN Charter, pmbl, para 2.
50 ibid arts 1(3), 13(1)(b), 55(c), 62(2), 68, 76(c)
51 ibid arts 14, 23, 24, 56. Any reference to the purposes and/or principles of the UN is an indirect reference to human rights and fundamental freedoms as these principles are set out in art 1, which includes art 1(3).
52 UN Charter, pmbl, para 3; for sources of international law, see UN, Charter of the United Nations and Statute of the International Court of Justice (United Nations Department of Public Information, New York, 1990) art 38.
53 ICESCR (n 23).
54 ICCPR (n 26).
55 See Humphrey (n 1) 154–66.
56 Second Optional Protocol, ICCPR, pmbl, para 1 supports this argument as it fuses human dignity to all human rights by contending ‘ … that abolition of the death penalty contributes to enhancement of human dignity’: UNGA, Second Optional Protocol to the International Covenant on Civil and Political Rights, aiming at the abolition of the death penalty, UNGA Doc A/RES/44/128, 15 December 1989.
57 See UN, Human Rights: Questions and Answers (n 44) para 5.
58 Lemo v Northern Air Maintenance, 2004 (2) BLR 317 (IC) 320, 321. In the case, Lemo, the applicant, was dismissed from his job a day after disclosing his HIV status to his employer, the respondent. The applicant's allegation of unfair dismissal was upheld by the Industrial Court (of High Court status).
59 State v Makwanyane and Another Case No CCT/3/94 [1995] 1 LRC 269, [328].
60 Kenneth Good v Attorney General 2005 (1) BLR 462 (CA).
61 As quoted in VB Monsalve and JA Roman, ‘Tensions of Human Dignity: Conceptualization and Application to International Human Rights Law’ (2009) 6(11) Int’l J Hum Rhts 39, 55.
62 Kenneth Good v Attorney General 2005 (1) BLR 462 (CA).
63 Attorney General v Unity Dow (1992) BLR 119.
64 ibid 172.
65 Generally, the term ‘life’ may be defined as follows: ‘The ability to breathe, grow, reproduce, etc., which people, animals and plants have before they die and which objects do not have … ’: see Sally Wehmeier and others (eds), Oxford Advanced Learner's Dictionary (6th edn, Oxford University Press 2000) 683.
66 Dickson Tapela and Others v Attorney General and Others (n 2) [39], 25.
67 ibid [41], 26.
68 ibid [41].
69 ibid [42].
70 ibid [38], 25.
71 ibid.
72 Kenneth Good v Attorney General 2005 (1) BLR 462 (CA).
73 Unity Dow v Attorney General (1992) BLR 119, 154 D–E; see Dickson Tapela and Others v Attorney General and Others (n 2) [34], 24.
74 Unity Dow v Attorney General (1992) BLR 119, 154 D–E.
75 Section 2 of South Africa's Constitution, 1996, titled ‘Supremacy of Constitution’, states: ‘This Constitution is the supreme law of the Republic; law or conduct inconsistent with it is invalid, and the obligations imposed by it must be fulfilled.’
76 AComHPR, General Comment No 3 (n 32).
77 ibid para 27.
78 ibid para 29. This paragraph and paras 27 and 28 of the General Comment come under the subtitle ‘Interpreting the right to life broadly’.
79 Constitution of India, adopted 26 November 1949; in effect 26 January 1950.
80 See e.g. SP Sathe, Judicial Activism in India (Oxford University Press 2002).
81 Francis Coralie Mullin v The Administrator, Union Territory of Delhi (1981) 2 SCR 516.
82 ibid 529 B–F.
83 See Dickson Tapela and Others v Attorney General and Others (n 2) [28], 18.
84 AComHPR Communication Nos 137/94, 154/96 and 161/97 (1998) [31 October 1998]. Ken Saro-Wiwa was one of the leaders of MOSOP (Movement for the Survival of the Ogoni Peoples), which aimed at protecting and defending the interests and rights of those living in oil-producing areas of Ogoni land, which had been devastated by the activities of oil-producing companies. He and a number of people were arrested following the death of four Ogoni leaders consequent to a riot that took place after a public meeting organised by MOSOP. He was severely maltreated in detention and ended up being executed by the government of General Sani Abacha after a trial condemned by human rights advocates as not meeting the basic principles of the right to a fair hearing.
85 In the words of the Commission: ‘The protection of the right to life in Article 4 also includes a duty for the state not to purposefully let a person die while in its custody. Here at least one of the victims’ lives was seriously endangered by the denial of medication during detention.’ See AComHPR Communications (n 84).
86 Estell v Gamble 429 US 97. In the case Justice Marshall held that the Eighth Amendment to the American Constitution, which prohibits cruel and unusual punishment, had been violated by the Texas Department of Corrections through its deliberate indifference to the medical needs of the Plaintiff, a prisoner.
87 ibid.
88 See AComHPR Communications (n 84) para 112.
89 ibid; See section 7 below.
90 See Dickson Tapela and Others v Attorney General and Others (n 2) [33], 23.
91 See Botswana Constitution ss 15 (1) and (4).
92 Imre Szabo, ‘Historical Foundations of Human Rights and Subsequent Developments’ in Karel Vasak (gen ed), The International Dimensions of Human Rights (Greenwood Press/UNESCO 1982) 38.
93 UDHR (n 35) art 1.
94 UN, Human Rights: The International Bill of Human Rights: Fact Sheet No 2 (United Nations Centre for Human Rights, Geneva 1989) 6.
95 Ernest Baker (tr), The Politics of Aristotle: Book III, xii. (Oxford University Press 1946) 1282b.
96 Ernest Baker (tr), The Politics of Aristotle: Book V, i. (Oxford University Press 1946) 1301a.
97 See McKean Warwick, Equality and Discrimination under International Law (Clarendon Press 1983) 10.
98 See Unity Dow v Attorney General 1992 BLR 119, 154 D – E.
99 See Dickson Tapela and Others v Attorney General and Others (n 2) [31], 22.
100 ibid [32], 22 (italics added).
101 This is why the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families, 1990 (MWC), stipulates, in its arts 17(7) and 28, that migrant workers and members of their families subjected to any form of detention or imprisonment shall enjoy the same rights as nationals in the same situation and that such rights include that of receiving any medical care that is urgently required for the preservation of their life or the avoidance of irreparable harm to their health.
102 International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families UNGA Res Doc A/RES/45/158, 18 December 1990.
103 See Dickson Tapela and Others v Attorney General and Others (n 2) [32], 22.
104 ibid [33], 23.
105 David Cole, ‘The Idea of Humanity: Human Rights and Immigrants’ Rights’ (2006) 37 Colum Human Rights L Rev 627, 629.
106 See UNHCHR/UNAIDS, Consolidated International Guidelines on HIV/AIDS and Human Rights, UNHCHR and UNAIDS Doc HR/PUB/06/9, January 2006.
107 Botswana both signed and ratified the ICCPR 1966 on 8 September 2000. See ICCPR Ratifications, UN Treaty Series vol 999, 171.
108 Inter-American Court of Human Rights, Advisory Opinion, OC-18/03 of 17 September 2003.
109 AComHPR Communication No 245/2002, para 169.
110 UN Human Rights Committee, Communication No 1153/2003.
111 UN Committee on Elimination of Discrimination against Women, Communication No 22/2009.
112 See UN Convention on the Elimination of all Forms of Discrimination against Women, 1979, UNGA Doc A/RES/34/180, art 12.
113 See Godfrey Ganetsang, ‘Botswana to Start Providing Foreign Inmates with ARVs’, The Botswana Gazette (Gaborone, 17–23 September 2014) 3.
114 ibid.
115 See John W Harris, Legal Philosophies (2nd edn, Oxford University Press 2004) 1.
116 See Hobbes (n 43).
117 Mohammed and Another v The President of the Republic of South Africa and Others (Society for the Abolition of the Death Penalty in South Africa and Another) 2001 (3) SA 893, 921.
118 Olmstead et al v United States 277 US 433 (1928) 485.
119 See SADC Treaty 1992 (as amended), art 4(c); art 4 sets out the Principles in accordance with which SADC and its member states shall act. The Treaty entered into force on 30 September 1993.
120 See Khonani Ontebetse, ‘Hollow Victory for HIV Positive Foreign Prisoners’ Sunday Standard (Gaborone, 3–9 May 2015) 2.