6 December 2012:

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 
  2. 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) 
  2. 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. 
  3. 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 
  4. 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. 
  5. 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 
  6. 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
  2. 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