The Botswana Network on Ethics, Law and HIV/AIDS (BONELA), is shocked by the introduction of a Public Health Bill which our Parliament is currently debating. This Bill has some provisions that have no place in a democratic and modern day Botswana. It has provisions that are counter-productive, discriminatory, unconstitutional and barbaric. In a nutshell, this is what the Bill seeks:

  1. To empower medical practitioners to force clients (you and I) to undergo HIV tests without their consent. The rationale for this is not provided for in the Bill. Despite it being unacceptable, it can be abused by curious doctors. See clause 104 (3) b 
  1. Also empowers doctors to test clients without their knowledge. In essence, doctors can just test a client for HIV without informing them that they are being tested and without any counselling. The wisdom of that is unknown. See clause 105 (2) b

Essentially, the two foregoing provisions throw the right to privacy which is entrenched in our constitution out of the window.

  1. Clients due for surgical or dental procedure can be required to undergo an HIV test before the procedure. In other words, your dentist may refuse to remove your tooth before you test for HIV. Is there a medical justification for this? NO!!!! See clause 109 (3) 
  1. Force doctors to report HIV cases to Director of Health Services in the same breath as TB, smallpox, cholera and yellow fever. We understand why some diseases such as TB are notifiable but we do not understand why the Director has to know that so and so has HIV unless they sleep with them without protection. This will certainly push clients away from health facilities for fear of their HIV status becoming a public knowledge. See clause 52 as read with the definition of notifiable diseases under clause 2. 
  1. To force people living with HIV to tell whomsoever they have sexual relations with to tell them of their HIV status. This provision is regressive in that it undermines the value of knowing ones status. People are better off not knowing their status if knowledge of one’s status forces one to tell whoever they have sex with. Furthermore, not knowing one’s status can be a good line of defence in a court of law if one is charged with infecting another person with HIV. Emphasise should be on promoting safe sex by all, irrespective of whether one knows their status or not. Women, who are normally the first to test, will be hard done by this law because an assumption will be created that since they came to know of their status first, then they infected their male partners who ordinarily test through their partners, or after their partners or never test at all. See clause 116 
  1. To empower doctors to tell one’s sexual partner of their HIV status without their consent. The checks and balances put in place are not pragmatic and can be susceptible to abuse. 
  1. To limit the right to freedom of movement for HIV positive persons. For instance an HIV infected person may be detained and isolated if there is evidence that they are likely to infect other persons. How is that going to be assessed? Why emphasis can’t be put on providing whoever is exposed to the virus with PEP? Clause 116 
  1. To take away the parental consent and guardianship and place them in the hands of doctors. This is unconstitutional and unlawful as the upper guardian of all children is the High Court and not doctors. Doctors’ duty is to treat and not to make decisions about the interests of the children when they have legal guardians. If the legal guardians unreasonably withhold their consent then we have the High Court to intervene. See clause 151 

Remarkable provisions

  1. Allows any person from the age of 16 to test for HIV. As BONELA we have long pushed for this and we are excited about it. Clause 105 (1) b
  1. We are more delighted that the Bill seeks to expressly prohibit pre-employment HIV testing. See clause 104 (2) 

Lastly, we are concerned by government attitude and tendency of introducing Bills in Parliament and debate them before engaging all stakeholders including the civil society and Batswana as a whole. We know that the Botswana Health Professions Council is not aware of this Bill for they have not been consulted on it. As custodians of health we expect them to be intimately involved as this Bill is going to affect the way they work. This bill is significant in the lives of all of us and we therefore call upon Reverend Dr. John G.N. Seakgosing to withdraw it and if he refuses to, we urge MPs to reject it. Participatory democracy is about engaging communities. 

Signed by

 Uyapo Ndadi

Executive Director   

The Botswana Network on Ethics, Law and HIV/AIDS (BONELA), celebrates and welcomes the decision  by  Judge  Key  Dingake  which  declared  the  Ngwaketse  Customary  law  rule  that excluded female siblings  from inheritance as  unconstitutional  in that  it  violates the  rights to equal protection of the law. 

At BONELA; we believe  in  the full  realisation  of  rights  by  all irrespective  of  gender, sex and sexual  orientation,  among  others.  It  is  embarrassing  that  as  a  nation  we  still  have  such practices in our communities where women are treated as children of their husbands, brothers and  worst  still,  as  children  of  their  sons.  We trust that this decision has now levelled the ground and, that women rights organisations as well as active citizens will take the decision to educate Batswana to understand what this truly means.

At BONELA, we are more excited by the decision chiefly for two reasons: 

  1. We feel vindicated in our position that dignity of individuals is and should be important to all of us irrespective of what the majority practice.  For instance, and for our context, gays and lesbians right to dignity is important and that it is immaterial that the majority of Batswana are heterosexuals.
  2. The decision  has  validated  that  the  mood  of  the  society  is  not  a  decisive  factor  on whether  there  is  violation  of  constitutional  rights.  The constitution, therefore, has to protect the rights of the minority. The court went on to say it cannot be an acceptable justification  to  say  it  is  cultural  to  discriminate  against  women.  We add, so is discriminating against gays and lesbians.

 In the premises, we hold the view that this decision will benefit all marginalised groups such as gays, lesbians to approach our courts in pursuit of claiming their rights to equality.

Signed by

Uyapo Ndadi
Executive Director

Last year the Minister for Presidential Affairs and Public Administration sought Parliament to adopt the Botswana National AIDS Policy on HIV and AIDS. BONELA then lobbied Members of Parliament to reject the policy calling it REGRESSIVE. The Minister withdrew the draft policy to enable for further consultations. The policy was this week tabled before Parliament. Having reviewed the Draft, thanks to one Member of Parliament who provided us with a copy of it, after NACA refused BONELA with a copy, we urge Members of Parliament to adopt it as most of our concerns raised last year have been dealt with.

Be that as it may, we hold the view that the following amendments and points of clarity need to be made before its adoption:

  1. The foreword by the Minister at page 3 indicates that the policy ‘takes cognisance of the fact that due to …sexual orientation, some Batswana are more vulnerable to the devastating effects of HIV and AIDS’ The policy contents, however, do not make reference to this issue and does not guide on how to deal with the challenges faced by sexual minorities. We therefore need to reconcile the foreword with the policy itself.
  1. At page 12, Article 4.4: does access to appropriate prevention methods inclusive of the prisons setting since we find citizens of Botswana therein? Are we also saying non-citizens should have access to prevention methods such as condoms?
  1. At page 12, Article 4.5.1: we assume, with delight, that the policy covers all women in need of PMTCT services irrespective of their nationality. Such that Batswana men who have children with non-citizens could benefit.
  1. At page 13, Article 5.2.1: and page 15, Article 6.1.1: these provisions exclude non-citizens and citizen couples, which therefore goes against the spirit of couple testing as espoused in Article 4.5.3 of the policy.
  1. At page 17, Article 7.1.1: why leave room for mandatory pre-employment HIV testing of non-citizens. Should Batswana aspiring to work abroad be subjected to the same test? Are we not creating a bad precedent hence the difficulty we have in condemning countries that test Batswana students abroad.
  1. At page 17, Article 7.1.2: could we spell out circumstances under which HIV testing maybe required. Leaving it open may result in the provision being abused. We are particularly happy that the army service men and women have been removed from the previous Draft that allowed for their HIV testing.
  1. At page 17, Article 7.1.3: we welcome the move to include access to insurance without discrimination or stigma. However, how does government intend to enforce this provision in the light of the fact that this policy is not legally binding on the private companies.

In conclusion, we trust that the Honourable Members of Parliament will fully engage with the Draft Policy and come up with the best policy possible to serve the nation and facilitate getting to zero AIDS deaths, zero HIV infection and zero discrimination by the year 2016.

BONELA learnt with utter great shock that life-saving drugs; antiretroviral drugs (ARVs) are not available to those who need them most in health facilities country wide. 
  1. The Botswana's national antiretroviral treatment program, known as the MASA program, has received international acclaim for being one of the first successful programs in sub-Saharan Africa. Yet, with the increase in drug stock-outs and the simultaneous drug disposal by the Ministry of Health Central Medical Stores (CMS) department, raises great concerns related to the effectiveness of the national antiretroviral program.       The uncertainty around treatment accessibility, its quality and overall effectiveness is creating public distress, especially among people living with HIV. 
  1. Not only does this situation of drugs unavailability show inefficiency on the part of Ministry of Health but it is a clear indication that Minister Seakgosing does not care about his constituency; that lack of antiretroviral drugs in health facilities will result in non-adherence, drug resistance and death. 
  1. Minister Seakgosing and his technocrats have proven over and over again that they can misuse tax payer’s money in running the Ministry of Health, robes the nation millions of Pula in wasted drugs. 
  1. Reacting to this; the BONELA Director said “we are shocked that there is a short supply of antiretroviral drugs. Clearly this is a crisis of unprecedented proportions. Does it make sense to burn P21 million worth of drugs and a month later experience a serious crisis of short supply? Someone must take responsibility and that should be the Minister. He must GO now!!’ He went on to say that ‘ Our health is our treasure and we should jealously guard against throwing it out of the window by addressing this situation immediately as many people’s lives hang on the antiretroviral drugs’. 
  1. The BONELA Director further said ‘I have repeatedly said that there is lack of political will and commitment to HIV treatment, care and support. This crisis bears testimony to my assertion. I don’t think this is as a result of money but of bad management in procurement. I dread the day the central government took health care from local government without capacity and adequate preparation. Our clinics were doing just fine. Is central government able to perform to expectations in taking health care services to the people? The answer is No!’ 

BONELA, therefore, appeal to the Ministry of Health to normalize this situation immediately because the consequences for lack of continued access to ARV treatment are catastrophic. Given the high rate of HIV-infected Batswana, such a catastrophe will impact every aspect of society, ranging from those directly affected, to their family and friends to the market-economies that depend on the health and survival of its human resources.

Finally, we call on the Reverend Minister Seakgosing to do the right thing and resign from his ministerial position because he has failed repeatedly Batswana.

A judgement was reached today at the High Court in the case between Pako Mcintire Luke (the applicant) and the Botswana Network on Ethics, Law and HIV/AIDS (BONELA-the respondent). The brief facts of the case are that, the applicant; a former employee of BONELA had brought a motion proceedings on the 2nd December 2011 against BONELA praying for a declaration that his termination of employment in November 2011 was procedurally unfair, and null and void; that he should be paid full salary arrears and benefits; be restored to his financial position had the respondent not unfairly dismissed him and that he should be awarded a 10% interest from the time of contract termination to its end.

In response; BONELA opposed the application mainly on two grounds; that the Applicant had brought the matter to a wrong court, that the High Court had no jurisdiction to hear the matter and also that Applicant had brought the matter on wrong proceedings. In his judgement, the learned Judge Tafa, did not make a determination as to the issue of the court with competent jurisdiction. However he opined in regards to the termination of contract that in fact the Applicant had on investigations accepted and admitted to having stolen the phone and in the process used it and returned it as well. The Judge found that in that respect there was no need for the Applicant to have called witnesses as he claimed that his dismissal was unfair and procedural.

At Paragraph 14 of the judgement he states that

“I do not believe however, that where an employee is alleged to have committed an offence for which summary dismissal is a sanction and when called by a supervisor to say his side of the story and he confesses to the commission of the offence there is a need for setting up of a full board of enquiry. This would be both superfluous and unnecessarily time consuming’’.

Further that this was a case for a claim of damages to which the Applicant brought wrong proceedings where there was a serious dispute of fact which could not be solved on affidavits but with oral evidence. The Applicant should have brought the proceedings by way of action. 

The Learned Judge stated thus at Paragraph 26 of his judgment that;

‘’In answering the question whether a claim for liquidated damages may be initiated by way of application or whether the claimant should have commenced proceedings by way of action. Hence there is no doubt that in order to prove damages oral evidence will be necessary and for this reason application proceedings were inappropriate’’.

The Learned Judge therefore dismissed the matter on those grounds with costs.

Speaking on behalf of the organization, BONELA Executive Director, Mr. Uyapo Ndadi said that BONELA naturally welcomes the judgement as justice has been served. He also said ‘this case chiefly demonstrates two things, on the one hand that clients are not properly advised at times and that judgement is sending a message to all lawyers to operate above board and advise their clients on proper cause of action when faced with difficult situations because had the proper cause of action been taken, the court would have had an opportunity to listen to the evidence while on the other hand the case has clearly shownthat BONELA is accountable to its policies, the board, members of BONELA and donors’.

In evoking a sense of accountability in all of us; Mr Ndadi further said, ‘imagine an organisation that has no consequences for theft! So BONELA subscribes to the same principles.’

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