sexual health and human rights in the african region - The ICHRP

as only extending to permanent residents. Other categories of immigrants and
other groups that are vulnerable to political and economic marginalization are to
be regarded as included unless the state can come up with sufficiently good
reasons why it would be reasonable to exclude them.
6.7 Access to Health Services by Incarcerated Persons
[46] Incarceration renders incarcerated persons vulnerable to barriers to access to
health services. The fact of being compulsorily confined to one location means
that incarcerated persons reliant upon the incarcerating authority for access to
health care services. Prisoners cannot easily exercise choice about when to access
health services or what type of services to obtain. Laws, policies and practices
that are oblivious to the reality of the sexual needs of those that are incarcerated,
create opportunities for undermining sexual health. The fact of incarceration
does not diminish sexual needs. Sexual activities do take place in correctional
facilities. Incarcerated persons have the same need of protecting themselves from
sexually transmitted infections as their counterparts that are not incarcerated.
Failure to supply condoms to prisoners makes correctional facilities not only
high risk environments for the prisoners, but also the bridgehead for the
transmission of disease to communities.
[47] Among the surveyed countries, it is only South Africa which has begun to
develop jurisprudence relating to access to treatment for those that are
incarcerated. The South African Constitution has provisions that address
incarcerated person directly in respect of health services. Section 35(2)(e) of the
South African Constitution guarantees an incarcerated person a right to receive
‘adequate medical treatment’ at state expense. Section 35(f) (iv) guarantees an
incarcerated person a right to be visited and examined by a medical practitioner
of his or her choice. These provisions have been litigated albeit at the level of the
High Court only.
[48] The issue that arose in B and Others v Minister of Correctional Services and Others 810
was whether refusal by the Department of Correctional Services to pay for the
cost of antiretroviral therapy for four prisoners who were HIV-positive was a
breach of the right to receive “adequate medical treatment” under section
35(2)(e). The Court held that in respect to prisoners for whom antiretoviral
therapy had been medically prescribed, there had been a breach. The
Department of Correctional Services had pleaded lack of resources, but had
failed to submit convincing supporting evidence. The Department failed to
persuade the court that the treatment in question would be unaffordable.
810 B and Others v Minister of Correctional Services and Others (1997) (12) BCLR 1696 (High Court of South
Africa).
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