Applying evidence-based judicial review to assess the constitutionality of the law requiring HIV-testing before surgical and dental procedures: The case of the Botswana Public Health Act 2013

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.