HIV activist in landmark Supreme Court challenge

HARARE - A civil rights activist denied access to anti-retroviral (ARV) treatment during his detention in police cells has asked the Supreme Court to declare the action a flagrant violation of his constitutional rights and to condemn the holding cells as unfit for HIV-positive people.

Douglas Muzanenhamo said his denial of ARVs while in police custody after his February 19, 2011 arrest violated Section 15 (1) of the Zimbabwe Constitution by disrupting the manner of taking his medication prescribed by his medical doctor.

In the application, officer in charge CID Law and Order Harare and the officer commanding Harare central district police are cited as first and second respondents respectively.

Police commissioner general Augustine Chihuri and the two co-ministers of Home Affairs Theresa Makone and Kembo Mohadi are cited as the third and fourth respondents, while commissioner general of prisons Paradzai Zimondi is the sixth respondent.

The other respondents are the minister of Justice and Legal Affairs Patrick Chinamasa, Attorney General Johannes Tomana and officer in charge of Harare Central Prison.

Muzanenhamo says he was one of the 45 activists detained together with socialist and university professor Munyaradzi Gwisai on charges of planning an “Egyptian-style” revolution to topple President Robert Mugabe in February last year.

In the court papers, Muzanenhamo claims he was denied access to his ARV regimen which he had become depended on for survival.

He says the police’s refusal to allow him to use his cell-phone to arrange for the conveyance of his medication contravened his right to freedom of expression as contained in Section 20 of the Constitution.
With the help of the Zimbabwe Lawyers for Human Rights (ZLHR), he lodged the Supreme Court application on Wednesday saying his rights were violated during his detention.

He wants the Supreme Court to declare Harare Central Police Station holding cells inhuman and degrading and a danger to individuals who are HIV positive.

He further says the solitary confinement he was subjected to contravened Section 15(1) of the Constitution.

Muzanenhamo says the treatment that he got in custody exposed him to opportunistic diseases.

“Apart from the obvious torturous mental distress, missing my ARV treatment has a profoundly negative effect on my physical health and consequently my right to life,” he said in the court application.

“The denial of access to my ARVs which to me are life sustaining contravened the constitutional protection against inhuman treatment and the right of life.”
 
“The ARVs literally saved my life as I was on the brink of developing full (blown) Aids. At the time, my CD4 count was below 200,” Muzanenhamo said, stating the medication had become an integral part of his existence and survival.

The social activist’s court papers say even though his relatives brought him his ARVs, he could not access them when he needed them and this militated against his right to life and healthy existence.

“I was subjected to cold baths and the diet was not appropriate for a person with HIV,” the court papers say. We were fed with stale bread, black tea, sadza and beans. It was hardly a balanced diet suitable for a person living with HIV and on ARVs. There were no fruits, vegetables milk or peanut butter which essential elements of my diet.”

ZLHR director Irene Petras said the case questions the constitutionality of certain practises and treatment of people living with HIV by police and prison officials.

Section 12 (1) of the Constitution says: “No person shall be deprived of his life intentionally save in execution of the sentence of a court in respect of a criminal offence of which he has been convicted.”

Petras told a news conference yesterday: “ZLHR takes this opportunity to remind the government, the Zimbabwe Republic Police and the Zimbabwe Prison Services to safeguard citizens’ right to life which is enshrined in the Constitution, Article 3 of the Universal Declaration of Human Rights and in the International Covenant on Civil and Political Rights.

“In any event suspects only lose their right to liberty while in police or in prison detention and they must continue to enjoy all their other rights.”

In the application, Muzanenhamo further exposes inhuman conditions that prisoners and detainees are subjected to in Zimbabwean correctional services facilities.

Muzanenhamo says he was detained in an overcrowded and dark cell in Harare Central Police Station holding cells.

“There were no blankets, mattresses and this further compromised his immune system,” Muzanenhamo’s application says.

“The cell was cold and dirty, l slept on the concrete slab without blankets and running water for five days and never bathed. This again was deeply distressing and depressing for me. In short conditions were inhuman and degrading to live in.”

In the Harare Remand Prison, Muzanenhamo claims that his health was put into further risk as he was housed in a dirty section and was given blankets infested with lice.

“Each time we returned to our cells we were made to undress completely and jump several times to make sure no tablet was taken into the cells. This procedure was not only dehumanising but embarrassing and an affront to human dignity.”

Muzanenhamo is seeking a Supreme Court declaration that government take immediate steps to ensure that every individual who is HIV positive (and notifies authorities as such) and is incarcerated in the facilities is given every opportunity to access ARVs in the manner prescribed by medical practitioners.

They also want Chihuri and the Harare Central Police Station chief to ensure the holding cells “have toilets that are screened off from the living area, with flushing mechanisms from within the cells.”

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