2003-2010

The Botswana Network on Ethics, Law and HIV/AIDS (BONELA) would like to announce the withdrawal from the Village Magistrates’ Court the Appeal on Mthandazo Sibanda’s deportation. Whilst it was with shock and dismay that the organization learnt of this development, it respects Mr. Sibanda’s decision.

Sibanda’s decision is based on the harsh reality that being in confinement whilst receiving treatment for a minimum of two years in Botswana, means he is unable to meet his socio-economic obligations to his family. BONELA is disappointed with this decision because Sibanda has resigned himself to death when his disease is curable.

BONELA has established that there is no Multi-drug Resistant Tuberculosis (MDR TB) treatment in Zimbabwe, a fact Sibanda himself is aware of, and that the public health delivery system in that country has collapsed. This poses the risk of MDR TB finding its way back into Botswana, uncontrolled, unmonitored and opening wide a door for Extreme Drug resistant Tuberculosis (XDR TB). This is because TB is a communicable disease and there is high mobility between Botswana and Zimbabwe. BONELA hopes adequate measures will be put in place to ensure Sibanda’s deportation does not pose a risk to both Botswana and Zimbabwe.

The leadership of Botswana has a mandate to reflect on future cases and how they can handle them in a transparent and sustainable manner. There is clearly a need to strike a balance between human rights and public health considerations. Contrary to some reports in the public domain, there is evidence of negligence and medical malpractice as Sibanda’s medical records reveal that he received conflicting HIV diagnoses and his doctor ‘forgot’ to include Amicacin from Sibanda’s treatment regime, making him vulnerable to resistance in the future. BONELA has since confirmed he is HIV negative.

Whether an MDR TB patient is a citizen or a foreigner, they all face serious socio-economic challenges once a patient has to be isolated for a lengthy period of time. Government should consider stepping in to sustain the families of MDR TB patients who are in most cases the breadwinners. The Government of Botswana can consider giving grants to patients on MDR TB treatment so that they can still sustain their families and thereby not resist confinement. We therefore urge the Government of Botswana to expedite inquiry into these issues and possibly upscale its National Response to MDR and XDR TB.

Sibanda’s case is part of BONELA’s bigger campaign to raise awareness about TB and advocate for improved service delivery in TB care. The organisation remains committed to building the capacity of healthcare providers to fully understand the importance of consistent and timeous provision of TB treatment and that patients understand the consequences of treatment and adherence. BONELA therefore continues to emphasise the importance of treatment literacy, both for TB and HIV prevention and care.

The Botswana Government has admitted to negligence in a case involving Kgakgamatso Sekgabetlela represented by the Botswana Network on Ethics, Law and HIV/AIDS (BONELA) and the state for a wrong HIV diagnosis. The case was heard before Justice Dr. Key Dingake on Thursday 28th of August 2008 at Lobatse High Court.

In an agreed summary of facts, the Government of Botswana agreed that the plaintiff was wrongfully diagnosed as HIV positive, that such false diagnosis was a result of negligence on its part and that the plaintiff had suffered damages as a result of such negligence.

Sekgabetlela sued the Attorney General and the Permanent Secretary of the Ministry of Local government for P500 000.00 for pain and suffering caused by the wrong diagnosis. The wrong test result had nearly wrecked her marriage as her husband accused her of infidelity.

The case will go for trial with regards to the quantum of damages on the 12th of September 2008 where the judge will hear submissions on other cases as this is a test case for Botswana.

The details of the case are that:

  • In 2003, Sekgabetlela underwent an HIV test at an antenatal clinic to determine if she would need to be on the Prevention of Mother to Child Transmission (PMTCT) programme.
  • Her results were misplaced.
  • She was retested together with her husband and she tested HIV positive whilst her husband tested HIV negative.
  • She requested a retest and was told: “Do you think you are too smart not to get HIV?”
  • After trying on numerous occasions she gave up and enrolled on PMTCT.
  • 2 years later was retested as a prerequisite for a Netefatso Study for discordant couples
  • She tested HIV negative
  • Subsequent tests have consistently confirmed she was HIV negative

BONELA is concerned with the growing number of cases of wrong HIV diagnosis. Last year BONELA represented another client whose nine year old son had been wrongfully diagnosed as HIV positive when she was HIV negative. However, subsequent tests confirmed the son was HIV negative. The lack of tolerance and flagrant disregard for human rights displayed by health service providers in denying people a retest is also a cause for concern as they are denying those they serve the basic human right of access to the health services at their disposal.

Today, the Industrial Court handed out a heavy judgment against an employer who discriminated against an employee who revealed his HIV status to the said employer.

The brief facts of the case are that, 49 year old Mr. Benson Modukanele, (employee) who is a BONELA client, was employed by HITECON, (employer) a construction company, as a Driver. Mr. Modukanele started working for the said company from the 15th February 2007 at a monthly salary of P1 800.00.

He was later diagnosed with HIV and decided to tell the employer, through its owner Mr. Hu Zhongwen with the hope that he will treat the information maturely, sensitively and with understanding. Instead the employer told the employee that he should cease to work for him as he does not want to deal with employees infected with HIV.

The employee tried in vain to impress upon the employer that he is fit and able to perform optimally. In the end, he was fired on the 8th October 2007 without any reason. In fact, the employer gave him a handwritten note saying “we do not need your service for the future”. That was the only explanation proffered.

The employee with the help of BONELA approached court seeking help. But firstly the dispute was taken to a District Labour office whereat the employee was given a total award of P19 979.70, which the employer refused and/ or ignored to pay. The matter was then referred to the Industrial Court, and the said court today awarded the total sum of P24 425.85. The breakdown of this amount is as follows: (6 months salary as compensation for unfair dismissal =P10 800.00, unlawfully withheld accrued leave pay = P192.40, overtime = P13 433.45).

This case chiefly demonstrates two things, on the one hand that employers continue to discriminate against employees who are HIV infected and on the other hand that the courts in some cases, even in the absence of specific laws, are able to condemn these discriminatory tendencies by awarding stiff awards against such employers.

However, in order to provide comprehensive protection from HIV related discrimination at the workplace, specific laws need to be enacted consequently BONELA continues to call for the enactment of a specific law dealing with issues of HIV and AIDS in the workplace.

A settlement was reached today at the High Court in the case where Mthandazo Sibanda was seeking to be reinstated on medication for Multi-drug Resistant Tuberculosis (MDR TB). Following recommendation by the High court, the two parties agreed to settle outside court, where they agreed that Mr. Sibanda would be reinstated on medication pending judgement on the appeal of his deportation to Zimbabwe.

This is a major victory for Mr. Sibanda and BONELA as his life, the lives of the inhabitants of Botswana were at stake. Cindy Kelemi, BONELA’s Treatment Literacy Coordinator said that whilst BONELA acknowledges the victory for Sibanda to be on treatment, the case had unearthed serious discrepancies and grave concerns in the handling of TB patients.

Kelemi said: “This case echoes some concerns on the general management of TB in Botswana. As BONELA, we are especially concerned about issues of infection control, access to proper diagnostics and treatment. We are ultimately concerned with the rise in MDR TB cases which is a pointer to non adherence, thereby questioning whether direct observation is effective and whether there are comprehensive structures in place to support patients who go on MDR treatment. In this regard we would like to urge the Government of Botswana to scale up its national response to TB to avert a looming human crisis.”

Sibanda was today removed from Prison’s clinic and transferred to Princess Marina Hospital where treatment will be resumed.

BONELA is extremely disturbed by the unacceptable degree of the tuberculosis (TB) epidemic in Botswana, and the inadequate national response to this crisis. According to 2005 World Health Organization estimates, Botswana has the fifth highest rate of new cases of tuberculosis in the world. TB is linked to, and driven by, the HIV/AIDS pandemic. People living with HIV are at a much higher risk of developing and dying from active TB disease, which remains the leading cause of AIDS-related deaths – despite TB being an entirely curable disease.

In response to these concerns, BONELA organized a TB stakeholders meeting at the end of April which brought together Ministry of Health officials, public sector clinicians and treatment literacy trainers to discuss this crisis. The aim of the meeting was to assess the current state of the TB response in Botswana, identify the main challenges that we face in eliminating tuberculosis, and develop a set of corresponding recommendations that need to be acted on urgently by government, health care workers and civil society.

Several critical areas were identified as being in need of urgent intervention, one of the most concerning being the extremely poor infection control that is practiced in our hospitals, clinics and communities. TB is an airborne disease that is transmitted through droplets released when people who have not been treated for active disease sneeze, cough or spit. There are simple measures that can be taken – both in institutions and homes – to reduce the airborne spread of TB: improving ventilation, covering one’s mouth when sneezing or coughing, and reducing  exposure to people during the infectious period are a few such measures. However, very little has been done to educate communities about these measures, and they are not being widely practiced in health care facilities. Even more disturbingly, many hospitals and clinics function as breeding grounds for the spread of TB, due to their failure to separate TB patients from the general population: allowing for rapid cross-infection to take place in wards and waiting rooms.

This is especially concerning given the high prevalence of HIV in Botswana, which is the most significant risk factor for TB. TB and HIV are often referred to as ‘married’ or ‘twin’ epidemics. Botswana has made significant progress in its efforts to administer Isoniazid Preventive Therapy (IPT) to people living with HIV, in order to reduce the risk of them acquiring active TB infection. Nonetheless, much more work is needed to improve the collaboration between TB and HIV programmes, particularly on integrating the provision of care and treatment services to co-infected people (people living with HIV as well as TB).

Another worrying trend is the increasing number of drug-resistant TB cases, which are much more difficult to treat, are concentrated among HIV positive populations, and are associated with extremely high mortality rates. Over 100 cases of Multiple Drug Resistant (MDR –TB) have been identified in Botswana in the past year, as well as at least 2 cases of the rarer Extremely Drug Resistance (XDR - TB). Urgent action is needed to stem the spread of these even more dangerous sub-epidemics before they explode in our communities. Such action would include improving diagnostics and increasing access to treatment, which are two other critical action areas that were identified at this meeting.

The sad truth is that these figures – frightening as they are – probably do not reflect the full extent of the crisis. Lack of diagnostic capacity and inadequate monitoring make it likely that many TB cases are not captured by the health system, meaning that the reality of the TB situation in Botswana is much worse than the official statistics indicate.

Too many governments and communities around the world waited for HIV/AIDS to devastate populations before they took serious action on it. We need to learn from our mistakes – this cannot happen again. TB is curable – it can be stopped, and it should be stopped now. Now is the time for decisive, swift and radical action, from all of us. Although the government has plans and strategies to deal with the tuberculosis epidemic, we are concerned that the national response and allocation of resources to TB does not reflect the alarming urgency of the situation. We are running out of time, and urgently call upon our leaders and communities to take responsibility to Stop TB before it is too late.

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