Abstract:
In 2013 the legislature of Botswana passed a new Public Health Act (the Act). Section 109 of the
Act requires HIV-testing before non-urgent surgical and dental procedures. The legislators did
not explicitly state the purpose of the provision. Utilising the models and canons of interpretation,
the study demonstrates that section 109 of the Act was intended to prevent or reduce the risk of
HIV transmission from patient to healthcare professional during dental or surgical procedures. It
also demonstrates that section 109 limits the enjoyment of several of the patient’s constitutional
rights, including the right to life, the right to privacy and the right to equality and nondiscrimination.
The study contends that evidence-based judicial review should be adopted when determining the
constitutionality of the infringement of rights caused by a provision that prima facie places a
limitation on rights. It further demonstrates that the values of accountability, openness, democracy
and justification inherent in a constitutionality analysis may be successfully achieved through the
model of evidence-based judicial review. In the end, the study applies evidence-based judicial
review in its determination of the constitutionality of the infringements caused by section 109 of
the Act. It concludes that the lack of complete and reliable information proving that measures
prescribed in section 109 of the Act are proportional to the ends they seek to achieve renders the
provision unreasonable and therefore unconstitutional.
