Posts tagged Treatment Action Campaign
Many children live a short, hungry and brutal life in the richest country on the African continent and one of the wealthiest in the developing world.
In 2008, nearly 12 million or 64% of all children lived in households with a monthly income (excluding social grants) of less than R569.00 per month. This rate varies within and between provinces. The most rural provinces such as Limpopo had more than three times the number of children living in poverty (nearly 2 million) than children in the Western Cape (656 000).
The national racial breakdown shows that 71% of African children, 37% of Coloured children, 11% of Indian children and 4% of White children lived in households that had an income of less than R569.00 per month.
This data comes from the South African Child Gauge 2009/2010 published by the Children’s Institute at the University of Cape Town. Their survey is one of the most comprehensive annual evaluations on the lives of children in South Africa.
Unemployment is usually measured by the number of workers who are not economically active. In this report one learns that 6.4 million children live in households where not one adult is employed. one of the most important policies of the national government (despite resistance from the Treasury and conservatives in society) has been the introduction of the Child Support Grant (CSG). More than 9.6 million children access this and other grants such as the Foster Care Grant. Contrary to popular myth, the Children’s Gauge points out that:
There is substantial evidence that grants, including the CSG, are being spent on food, education and basic goods and services. This evidence shows that the grant not only helps to realise children’s right to social assistance, but also improves their access to food, educationand basic services.
These grants must stay in place until our economy employs many more people and income is more evenly distributed. The creation of employment and the building of an equal and quality education system for every child in South Africa are necessary conditions to reduce inequality in the long-term. Till then social justice activists have a duty to ensure that people have access to social security.
This Child Gauge focuses on the ill-health and death of children. According to the report, he prevention of mother-to-child HIV transmission and the provision of ARVs to children have assisted in the extremly slow reversal of the under-five mortality rate which remains unacceptably high.
Children under five account for over 80% of all child deaths in South Africa. UNICEF estimates that under‐five mortality increased from 56 deaths per 1,000 live births in 1990 to 73 in the year 2000. This increase has been ascribed to the HIV pandemic and deteriorating health care services. The increase was followed by a slow decline to 67 deaths per 1,000 live births in 2008, which coincided with the rollout of the prevention of mother‐to‐child prevention programme.
As a consequence, the report expects the Constitutional Court to address and remedy all the social injustices children in South Africa face. It argues:
The Constitutional Court has played a pivotal role in protecting children’s rights by ordering the State to roll out the prevention of mother‐to‐child transmission programme (PMTCT) in 2000. The comprehensive roll‐out of the PMTCT has contributed to reducing the numbers of babies that contract HIV from their mothers’ during birth or breastfeeding. However, the Constitutional Court did not prioritise children’s rights in its recent judgment on free basic water despite lack of access to water and sanitation contributing to the high number of children under five that die from diarrhoea. Given children’s lack of political power to influence the Executive or Parliament, the Constitutional Court needs to be more pro‐active as the upper guardian of children and actively consider children’s rights and best interests in all cases before it.
This is an argument with which I take serious issue. Active citizenship — the patient, hard work of movement building and insisting that Parliament plays an active role in transforming the social and economic inequalities in South Africa is the most sustainable way to ensure justice for children. Children do not exist in a political vacuum devoid of “political power to influence the Executive or Parliament” — they have parents or care-givers, they live in communities, they are the children of parents who pray and work. No court could substitute for the patient mobilising of people to transform social inequality.
The TAC PMTCT judgment followed five years of intense discussion, negotiations, petitions, alliance building with trade unions, religious bodies, students, nurses, doctors, women, children’s and other human rights organisations, international activists and agencies.
All this work was premised on the building of a social movement by women and men who were directly affected by HIV denialism — the members of the Treatment action Campaign then active in more than 100 townships and villages across the country. This has to be the lesson of the TAC PMTCT case — the Constitutional Court judgment was based on one of the most persistent and sustained campaigns of the last two decades. Even after the judgment, it took many marches and campaigns to really ensure delivery. To imagine that we can avoid this work to ensure that children are healthy, educated, safe, fed, clothed and happy is to live in a world that does not exist.
Despite this criticism — every activist and person who is interested in social justice for children should study South African Child Gauge for 2009/2010 — its economic, epidemiological, demographic and social analysis and evidence-gathering on children’s health is indispensable to transformation.
The South African Child Gauge is produced annually by the Children’s Institute, University of Cape Town, to monitor government and civil society’s progress towards realising the rights of children.
See news report below.
SA failing to keep tots alive by Philani Nombembe
Like Afghanistan, it has not reduced number of child deaths
South African infants are among the worst off in the world and have one of the lowest chances of survival.
A damning report, the “South African Child Gauge for 2009/2010″, released by the University of Cape Town’s Children’s Institute, blames the crumbling public health system for much of our children’s woes.
South Africa holds the dishonorable distinction of being one of only 12 countries – including war-torn Afghanistan – to have failed to reduce child mortality since 1990.
It ranks in the company of the Democratic Republic of Congo and Burundi.
South African child deaths have risen from 56 deaths per 1000 births in 1990 to 67 deaths per 1000 births in 2008, according to Unicef.
This is despite South Africa’s high GDP and the billions of rands pumped into providing public health services.
Unicef’s deputy representative in South Africa, Malathi Pillai, said the recent spate of infant deaths at the Charlotte Maxeke Academic Hospital, in Johannesburg, was shocking.
“It is important that we recognise that, in many of our communities, the poor quality of other basic services, such as water, sanitation, electricity and dwellings, along with health services, has a profound impact on child mortality and paediatric health.
“For example, a majority of neonatal deaths in South Africa could be averted by improving the quality of care at district hospitals,” said Pillai.
The report said that most 2007 child deaths, 81%, were of infants younger than five.
Experts from the Children’s Institute lambasted the government and its health department.
But Dr Nathaniel Khaole, the department’s acting cluster manager for maternal, child and women’s health, denied that the institute’s findings were shocking.
“We know what has been happening, we know what to do,” he said
He said his department will study the report.
This report appeared in The Times 27 July 2010 ENDS
The Constitutional Court’s 2009 judgment on access to water is one of its most important cases. Pierre de Vos has criticised the judgment as a conservative retreat from the Court’s jurisprudence. In my view, the judgment despite one or two errors is fundamentally sound.
For the first time the Court properly opens the debate on the role of litigation in the enforcement of rights and it uses the TAC case as central to its reasoning. As part of preparation for the Students for Law and Social Justice Seminar at the end of the month, I am posting Pierre’s really useful critique along with a link to Eusebius McKaiser’s article (taking a different view) and the comment of the Anti-Privatisation Forum who led the case.
Your view will be appreciated.
Water is life (but life is cheap)
Oct 13th, 2009 by Pierre De Vos.
“Water is life… Without it, we will die,” writes justice Kate O’Regan in the Constitutional Court judgment of Mazibuko and Others v City of Johannesburg and Others, handed down late last week. But if water is life, do the lives of poor people in Soweto count for less than, say, the lives of rich people living in Sandton?
This is the question that comes to mind when one reads the carefully argued (but, to my mind, utterly unconvincing) judgment of the Constitutional Court in the above mentioned case. The Court was asked to answer the question of whether the policy of the City of Johannesburg to install pre-paid water meters in poor areas like Phiri, Soweto, coupled with a policy to cut off the water supplies of households who had used more than their 6 kiloliters of free water for the month, contravened section 27(1)(b) read with the right to equality in section 9 of the Constitution.
Both the High Court (in a brilliantly innovative judgment by Tsoka J) and the Supreme Court of Appeal (SCA) had found that the City Council did not have the legal authority to install pre-paid meters and cut off water supplies when residents had no money to pay for more than their free allocation of water, that the system discriminated unfairly against Phiri residents because residents in rich areas were not subject to the installation of pre-paid meters and that the 6 kiloliters of free water per household per month was not constitutionally adequate.
The Constitutional Court judgment demonstrates a limited (and quite conservative) understanding of its role in enforcing social and economic rights and shows an over eagerness on the part of the Court to endorse the essentially “neo-liberalism-with-a-human-face” pay-as-you-go water provision policies of the Municipality. To some extent the judgment represents a retreat for the Court from its hey-day when (in the TAC case) it ordered the state to take steps to make Nevirapine available to all HIV positive pregnant mothers in order to prevent HIV transmission to their babies.
The Court argued in Mazibuko that in the TAC case “in a sense” it did no more than to “render the existing government policy available to all”. This is a rather innovative (re)interpretation of the TAC case (hence the “in a sense” rider, one suspects) as the government argued then that Nevirapine was probably toxic, that giving it to mothers would probably lead to resistance to other drugs, that it might not be effective in preventing mother to child transmission of HIV and hence that the state was reasonable in restricting the use of Nevirapine to pilot sites until such time as these questions were definitively answered. When the case was argued there was a policy NOT to provide the drug to those who needed it to save the lives of their babies, so there was “in a sense” no existing policy to be extended.
In any case, despite this rather unconvincing interpretation of precedent, the Mazibuko case does add two interesting and welcome innovations to the jurisprudence on social and economic rights. First, it states that the government has a duty continually to review its policies to ensure the progressive realisation of social and economic rights – something the City of Johannesburg was willing to do in this case. Second, the judgment views social and economic rights adjudication as part of a broadening of democracy as it help to hold the government accountable for its actions.
Thus the national government had a duty to set the targets it wishes to be achieved with respect to social and economic rights. This was consistent with accountable, open and responsive government as it required the state to explain and justify its choices regarding the realisation of social and economic rights.
If the process followed by government is flawed or the information gathered is obviously inadequate or incomplete, appropriate relief may be sought. In this way, the social and economic rights entrenched in our Constitution may contribute to the deepening of democracy. They enable citizens to hold government accountable not only through the ballot box but also, in a different way, through litigation.
One assumes where no targets are set by the government, it would be difficult for the state to show that it has acted reasonably because it would make it very difficult for ordinary citizens to hold the government to account for the progressive realisation of the rights. This is potentially a very significant gain for social and economic rights jurisprudence.
Where the judgment really fails to convince is where the Court (re)interprets section 4(3) of the Water Services Act to ensure that it does not apply to cases such as the one before it.
The implications of this move are rather startling. The Court endorses the neo-liberal paradigm of water provision adopted by the city, a policy which would often deny poor people access to adequate water because they would be unable to pay for the water needed to live. This is something that would happen often, given the fact that 6 kiloliters of water for large families are wholly inadequate and given further that many poor residents stay on plots where one water meter serves two or three families living on that plot. Many such families are unemployed and do not have money to pay for the very water that would sustain their lives.
The judgment seems to be based on an assumption that people do not pay for water because they are bad or dishonest people: they want something for free when they need to (and can) pay for the water. It fails to take account of the fact that even if we all wanted to be good little capitalists like the government wants us to be, we cannot all afford the basic necessities that would sustain our lives.
One might well argue (as others have done) that it is not the role of the Constitutional Court to second guess the policy choices of the government. If the government decides to implement neo-liberal policies on water provision, it is constitutionally allowed to do so – as long as it acts reasonably in the context of the logic and assumptions of the economic paradigm it has chosen. The problem in this case is that it is far from clear that the national government had chosen the path endorsed by the Court.
Section 4(3) of the Water Services Act – which sets minimum standards that must be followed by municipalities – states that where water services are limited or discontinued, a fair and equitable process must be followed, reasonable notice had to be given of “intention to limit or discontinue” water services and must not result in the termination of water services where a person can show that he or she is unable to pay.
The Constitutional Court interpreted the words “limit or discontinue” to mean the permanent discontinuation of the water supply and in doing so ignored some of the wording (”limit”) of section 4(3) of the Act.
The ordinary meaning of “discontinuation” is that something is made to cease to exist. The water supply does not cease to exist when a pre-paid meter temporarily stops the supply of water. It is suspended until either the customer purchases further credit or the new month commences with a new monthly basic water supply whereupon the water supply recommences. It is better understood as a temporary suspension in supply, not a discontinuation….
Could section 4(3) mean that every time a water supply, provided through a pre-paid meter is about to be suspended because the credit purchased for the water supply is at its end, reasonable notice and an opportunity to be heard must be provided to the relevant customer by the municipality? This would, in my view, have a result that borders on the absurd.
The Court here comes close to subverting the democratic will of the people as expressed through the legislature. Parliament had passed a law which required that where water supply was either limited or discontinued reasonable notice had to be given to those whose supply was to be cut off. Because it first decided (using contorted reasoning to re-interpret section 3(2) of the Act in a completely unconvincing way) that the Act allowed for the installation of pre-paid water meters (so much for interpreting a statute holistically!), it could then, second, argue that the next section had to mean that reasonable notice had only to be given when the water supply was permanently discontinued.
To reach this conclusion, the Court had to ignore the fact that the Act also includes the word “limit”, which could surely not mean anything but the “temporary suspension in supply”. In effect this aspect of the judgment ignores the express words of the legislature (”limit”) in order to justify its endorsement of the neo-liberal water policies of the City of Johannesburg. This was done not to show an adequate respect for the legislature to uphold the separation of powers doctrine but, on the contrary, to undermine that very doctrine in order to achieve a specific ideologically desired result.
The Court also rejected the argument that the implementation of pre-paid water meters to Phiri and other areas of Soweto (but not to wealthy, mostly white, suburbs) constituted unfair discrimination on the basis of race. Because water meters were not introduced in all townships and because households with pre-paid meters paid less for their water, this was not discrimination at all.
This argument does not seem plausible to me. First, it is based on the premise that unless all black residents of Johannesburg had been affected by the move, it would not really amount to discrimination. If followed in other non-discrimination cases this reasoning would make it almost impossible to prove indirect discrimination.
Second, although the users of pre-paid water meters pay less for water, they have no choice in the matter and they do suffer a disadvantage: when the free water runs out they have to pay – even when they have no money. If they had the same system than in Sandton, they would be able to pay their account at the beginning of the month when they are paid or receive their social grants and the chances of having an uninterrupted water supply would be far greater. There is a clear disadvantage for poor people to be put on a pre-pad system and the fact that the Court denies this shows a rather cavalier attitude towards the real lived experience of poor South Africans.
Previously the SCA used to hand down conservative judgments which were then overturned on appeal to the Constitutional Court. But as the latter court becomes more conservative, the SCA might emerge as the court championing the rights of the marginalised and downtrodden while the CC might become the court for those who run the country from the back of their R1.2 million BMW’s.
ENDS Read the Anti-Privatisation Forum’s comment here
Corporate profiteering has the protection of the state in South Africa, the European Union and India. This is illustrated in the two issues reported by the Treatment Action Campaign and Section 27 incorporating the AIDS Law Project in the posts below.
1) The first post deals with a court judgment on the 2008 ARV tender that has cost the state millions of rands.
2) Trade pressure by the European Union on the Indian Government to allow drug companies to make excessive profit for life-saving medicines for longer than the World Trade Organization demands.
THE IRREGULAR ARV TENDER AND THE US DRUG COMPANY
One of the world’s top ten drug companies Merck (MSD) and also one of the most lawless in pursuit of profit won the 2008 tender for the ARV drug efavirenz (EFV) from the South African government despite the fact that a good quality generic version was available.
In 2007, TAC and the ALP laid a complaint at the Competition Commission against Merck the US multinational drug company. The Competition Act holds that a dominant firm (holding more than 45% of market share) may not charge an excessive price to the detriment of consumers.
TAC argued that Merck was profiteering from efavirenz one of the most important drugs of the first line ARV regimen. In six months, between January to June 2007, MSD sold ± 296 000 units of EFV… at a cost of R46.3 million. Merck controlled 80% of the market.
ARV treatment involves using three or more drugs — efavirenz is one of at least four drugs that the government buys. However, 64 cents of every rand spent on ARV medicines by government was spent on Merck’s drug alone. Higher prices means less treatment. Less people on treatment means more illness and death.
In 2008, following the complaint Merck informed the Competition Commission that it would grant licences to four generic companies. TAC withdrew its complaint on the basis that Merck would follow the rules.
We were then surprised that Merck won the tender. The generic medicines were cheaper and this meant more than half of the ARV drug budget would go to Merck. The North Gauteng High Court has now exposed the irregularity of that tender. The Indian generic manufacturer Aurobindo approached the Court on the grounds that the tender was unfairly awarded. In a judgment handed down 02 July 2010 Court ruled against the government and Merck.
This case illustrates that a degree of collusion (between Merck, the US-based multinational and the South African government) ensured that it was awarded the licence. The statement from Section 27 incorporating the AIDS Law Project on the case and the judgment shows that government must guard against corruption from business.
THE EUROPEAN UNION PRESSURES INDIA
Trade pressure is the weapon of choice by rich countries when dealing with their poorer counter-parts.
When Bill Clinton took office in the US, President Mandela’s government wanted to make medicines more affordable in South Africa. The Mandela administration wanted to make generics available on the same basis as US law provides for people in that country.
The Clinton administration placed South Africa on a sanctions watch list until US activist and international pressure forced them to lift it.
Today, the European Union also places profit before life in the same way. Six of the twelve top drug companies are European and the others American. The EU drug companies use their governments to prevent Indian generic competition. In negotiations for a new trade treaty, they demand that India should give greater protection to drug companies than the World Trade Organization demands. In November 2001, the WTO members issued the Doha Declaration which states:
We agree that the TRIPS Agreement does not and should not prevent members from taking measures to protect public health. Accordingly, while reiterating our commitment to the TRIPS Agreement, we affirm that the Agreement can and should be interpreted and implemented in a manner supportive of WTO members’ right to protect public health and, in particular, to promote access to medicines for all.
Today, corporate European Union is again trying to take away the rights of people across the world to life, dignity and health. The Indian government should not give in to trade blackmail at the cost of people’s lives.
All drug companies “brand” or generic are interested in profits — it is the duty of governments to regulate them in the interest of people. Make your voice heard against the European Union’s blackmail and India’s willingness to compromise.
Transparency and fairness must be enforced in 2010 ARV tender process — Section 27 incorporating the AIDS Law Project
High Court finds part of 2008 ARV tender procedurally unfair
Company with lowest prices unfairly excluded from bidding
Questions raised as to motive for company’s exclusion
Invitations to bid for the next tender antiretroviral (ARV) tender are expected to be announced shortly. As previously indicated, SECTION27 supports the Minister of Health’s intention – as indicated in his budget speech of 13 April 2010 – to procure ARV medicines “at the lowest possible cost from whatever source that can guarantee us the lowest prices”. It is with this in mind that we are concerned about the findings in Aurobindo Pharma (Pty) Ltd v The Chairperson, State Tender Board and Others, a case which addressed one aspect of the 2008 tender for ARV medicines.
On 19 May 2010, the North Gauteng High Court handed down its judgment in this case which considered a challenge by Aurobindo – a local subsidiary of a major Indian-based generics manufacturer – to its disqualification from participating in the 2008 efavirenz tender. Efavirenz is a key ARV medicine that is used by over two-thirds of people accessing ARV treatment in the public sector.
In his judgment, Justice Prinsloo came to the conclusion “that there was a lack of procedural fairness in the process”. In other words, Aurobindo should not have been disqualified from participating. In addition, he found that Aurobindo would most likely have been awarded the efavirenz tender because its prices were significantly lower than those of its competitors:
It appears to be probable that, if the point scoring system had been correctly applied, the applicant could have been awarded the tenders in respect of each of the products tendered for, in that its tendered prices were significantly lower than the prices of its competitors. Had this happened, the tax payer may also have been saved a considerable amount of money.
The 2008 efavirenz tender was awarded to the following companies:
MSD (Pty) Ltd – 200mg capsules (100% of tender);
Adcock Ingram Healthcare (Pty) Ltd – 600mg tablets (70% of tender); and
Pharmacare Ltd (t/a Aspen Pharmacare) – 600mg tablets (30% of tender).
At the time of bidding, Aurobindo had secured Medicines Control Council (MCC) registrations for both products and had been licensed by Merck & Co. – MSD’s parent company – to bring generic efavirenz products to market. It was the only licensed generic company that had secured MCC approval for the 200mg product.
In a follow-up tender in mid-2009, which – like the 2008 tender – was to run until 31 May 2010, Aurobindo was awarded the contract for 50mg and 200mg versions of efavirenz. Interestingly, its 200mg product was to be delivered to the state at R142.50 for 30 days’ supply – some 52% lower than MSD’s 2008 price (R297.22) for the same product.
The judgment in Aurobindo v State Tender Board raises serious questions regarding the motive for Aurobindo’s exclusion from the process. Was the disqualification simply a technical error, or rather a deliberate attempt to exclude Aurobindo? If the latter, was the exclusion made to benefit any other company? At the very least, National Treasury needs to answer these questions, particularly in the light of the upcoming 2010 ARV tender and the urgent need for the Department of Health to be able to procure medicines at the best available prices.
Why was Aurobindo disqualified?
The official reason provided for Aurobindo’s disqualification is that the company “failed to submit a letter from the manufacturer confirming a firm supply of the items offered”. It was common cause that the products were to be manufactured by Aurobindo’s parent company in India.
Aurobindo argued that, as the authorised importer, it was not obliged to provide such a letter. It based this argument on its reading of the questions posed to potential bidders in the tender documentation. In expressing no firm view on whether such a letter should have been attached, Justice Prinsloo agreed as follows:
At worst for the applicant, the questions referred to, read with clause 7(a) , are ambiguous and create confusion which, if not responded to in a satisfactory manner, should have prompted the Bid Adjudication Committee to seek clarification rather than to disqualify the bid as unresponsive.
Why was this unfair?
MSD “also failed to comply with a condition that could invalidate its bid … but was afforded an opportunity to rectify the mistake before … the evaluation took place.” Its bid failed to provide particulars relating to price structure explanations – information on foreign currency, foreign exchange rate, import percentage and minimum order quantity. Yet instead of invalidating the bid, MSD was provided with an opportunity to supply the mandatory information – which it duly did.
In defending this unequal treatment, the Chief Director: Contract Management, National Treasury and the Minister of Finance – in the answering affidavit put up on their behalf – argued that after Aurobindo’s disqualification, MSD was “the only remaining tenderer offering [efavirenz 200mg] and it was necessary to ensure that the award was made.” A further, even less convincing argument, was also made – and dismissed by Justice Prinsloo. He therefore concluded as follows:
The present case may not involve “subterfuge and deceit” but it is common cause that was afforded the opportunity to augment its tender after the closing date and before the evaluation date. This opportunity was also granted to to overcome the problem caused by the disqualification of . In my view there was no equal evaluation of tenders in this case so that the tender process was “stripped of an essential element of fairness” …. Moreover, given the ambiguous nature of the questions posed to …, this is clearly a case where it would be “fair to ask a tenderer to explain an ambiguity in its tender” and “fair to allow a tenderer to correct an obvious mistake” and “fair to ask for clarification or details required for the proper evaluation of the tender” ….
What is the impact of the case on the ARV supply in the public sector?
By the time the case was argued in court on 28 April 2010, the 2008 ARV tender had almost expired – it was used to procure medicines for the period 1 June 2008 to 31 May 2010. Because of this, the application to review and set aside the tender had “for practical purposes, become moot.” In addition, setting aside such a tender may have had a serious impact on the supply of ARV medicines. With this in mind, Aurobindo decided to abandon the application and only focus on the issue of costs. To be able to make a decision on who should carry the costs of the litigation, Justice Prinsloo had to make a determination as to whether the tender process was flawed.
In short, therefore, this decision has no practical impact on the supply of ARV medicines in the public sector. However, it does raise concerns about the manner in which National Treasury conducted the 2008 ARV tender, what will be done to determine why this happened, and how the state will ensure that the upcoming 2010 ARV tender is not similarly flawed. As already indicated above, there is an urgent need for the state to be able to procure medicines at the best available prices. This requires fair tender rules and a fair application of those rules, as well as a guarantee that the various bid committees are appropriately constituted.
For more information, please contact Jonathan Berger on 011 356 4112, 083 419 5779 or firstname.lastname@example.org
 Case no: 59309/2008 (19 May 2010)
 At paragraph 51
 At paragraph 20
 At paragraph 40
 At paragraph 48
 See paragraph 48
LETTER TO THE HIGH COMMISSIONER FOR INDIA TO SOUTH AFRICA
1 July, 2010 – 20:47 — moderator
Mr R K Bhatia
High Commissioner for India to South Africa
Post Box No. 40216
Arcadia – 0007 Pretoria
By Fax: +27 12 342 5310
23 June 2010
Dear Mr Bhatia
OUR CONCERNS REGARDING INDIAN TRADE NEGOTIATIONS WITH EU
Over a million people with HIV in South Africa are receiving antiretroviral (ARV) treatment. At least 100,000 additional people receive treatment via private or non-profit sources. ARV treatment is saving lives and stemming the decline in life-expectancy that has occurred due to the HIV epidemic.
One of the main reasons this has happened is because the prices of ARV regimens fell from over R3,000 per month in the 1990s to less than R150 per month for a standard first-line regimen used in the public sector today. Even the private sector price of one of the best first-line regimens is R532 including VAT, a fraction of the lowest 1990s prices of far less optimal regimens. If these prices were corrected for inflation, the drop would be even more dramatic. Lower prices have made the HIV treatment programme affordable for the state. Lower prices have also allowed medical schemes and non-profit private organisations to cover HIV treatment, thereby alleviating some of the public sector’s treatment burden. Without these massive price reductions, nearly a million additional people would be dead or dying now in South Africa. But these price reductions have benefited people far beyond South Africa’s borders; there are programmes in many sub-Saharan African countries providing quality ARV drugs because they are now affordable.
As this letter explains, the prospect of making new ARVs available in South Africa at affordable prices is under threat because of events unfolding in India. In particular, pressure is being applied by the European Union on the Indian government to sign a bilateral trade agreement that will stifle competition on essential medicines still under patent. The problem goes beyond ARVs. It will apply to any new medicine that is developed, whether it be for cancer, diabetes, tuberculosis or a future epidemic. Undoubtedly, this will prove to be detrimental to everyone regardless of social class and geographic location. We should all be concerned.
How ARVs became affordable
Until the early 2000s, each ARV was marketed exclusively by at most one company in South Africa usually under patent or via an exclusive license agreement with the patent-holder. Consequently there was no competition on ARVs. There is a clear chain of causation that led to most of the price reductions. In general:
1. Generic manufacturers based mainly in India (but also in Brazil and elsewhere) produced dramatically cheaper generic versions of ARVs. They could do so because medicines were not patented in India. Previously, these drugs had not been available in South Africa.
2. Activists in South Africa, the rest of the African continent, and across the world forced patent holders to license generic manufacturers to sell their medicines in sub-Saharan countries and elsewhere. Such activism included protests, successful complaints at the South African Competition Commission and threats of litigation.
3. Following this pressure the companies manufacturing ARVs and other important HIV-related medicines under patent either dropped their prices substantially or allowed generic competition.
Many ARVs manufactured in India are now sold in South Africa at affordable prices. So too are ARVs manufactured in South Africa using active ingredients ordinarily imported from India. They are registered with the Medicines Control Council, the US Food and Drug Administration and approved by the World Health Organisation. Therefore they meet stringent requirements ensuring these are safe, effective and of good quality.
The Indian Patent Act
But in 2005, the Indian government passed legislation that allowed medicines to be patented, as it was required to do in terms of its World Trade Organisation (WTO) obligations. This means that medicines developed since 1995 cannot as easily be produced by generic companies operating in India. This essentially breaks step one in the above chain of causation and makes it much harder to campaign successfully for lower medicine prices. Notwithstanding these new limitations, Indian patent law – as permitted by the WTO – still contains a number of flexibilities that allow for the market entry of generic medicines prior to patent expiry.
Since 2005, the AIDS Law Project (now SECTION27) and TAC have worked closely with civil society organisations in India to ensure the existence and use of such flexibilities. In early 2005, for example, we were part of a group of international activists who met with Indian parliamentarians in New Delhi during final deliberations on the Patents (Amendment) Bill, 2005. Our intervention sought to ensure that India’s amended patent legislation took full advantage of the flexibilities permitted under WTO law. In early 2007, we supported an international call on the Swiss-based pharmaceutical company Novartis to drop its High Court challenge to one of the Indian Patents Act’s key flexibilities – section 3(d). Although the challenge proceeded, it was ultimately unsuccessful, resulting in a key public health safeguard remaining on the statute books.
Despite these flexibilities newer drugs are being patented in India. For example, raltegravir is a relatively new and important ARV, especially for people who are resistant to standard ARV regimens, which has been patented in India. It currently costs R2,396 including VAT monthly. It is priced far too high for the South African public health system or for general use in the private sector. There is no generic equivalent of it in India or anywhere else, nor does it look likely that one will be made in the short-term. This makes it extremely difficult for activists to apply pressure on the pharmaceutical company Merck, which owns the patent on it. With no competition there is no downward pressure on the price, and it is extremely unlikely to be accessible to people in South Africa in the near future.
At least two new tuberculosis drugs are likely to be ready for registration in the next few years. These are urgently needed especially in light of the growing drug-resistant TB epidemic. It is a matter of deep concern that they might not be accessible where they are most needed: in poor countries.
Bilateral trade negotiations with the European Union
This is a bad situation, which is about to get worse. The European Union (EU) is conducting trade negotiations with the Indian government. A leaked draft of the negotiating texts has shown that the EU is pushing for the following in a bilateral trade agreement:
• Data exclusivity: Generic medicines are usually registered by showing that they are bioequivalent to the original medicine. This is a relatively inexpensive procedure. It means that a generic drug does not have to be put through expensive clinical trials since these were already conducted for the purpose of registering the original version of the drug. The EU however wants a period of data exclusivity to be enforced for new drugs. During this period the Drugs Controller General of India (the equivalent of South Africa’s Medicines Control Council) will not be able to rely on available clinical data to register a medicine. Since it would be unethical and too costly to repeat a clinical trial during this period, this condition would essentially block the registration of a generic drug during the original drug’s data exclusivity period. The length of the data exclusivity period being negotiated is five to nine years. Of concern is that data exclusivity provisions apply even in cases where patents have not been granted or where licences have been granted to generic manufacturers, undermining the public health flexibilities and safeguards that currently exist in Indian patent law.
• Longer patent periods: Currently patents are granted for 20 years –at some point before the product is submitted to a drug regulatory authority for registration. The EU is pushing for patent periods to be extended by the length of time the drug regulatory authority takes to examine an application for registration, or by the length of time a patent office takes to examine a patent application.
• Border measures: The EU wants to be able to seize medicines that are in breach of EU patents at EU borders, even if these medicines are in transit on their way to a country outside the EU, such as a sub-Saharan African one, where their use would not infringe any patents. This is not a theoretical possibility. It has already happened where the EU seized a shipment of abacavir sulphate on its way from India to Africa. The shipment was procured by UNITAID and was funded by the Clinton Foundation. 17 such seizures took place until worldwide condemnation for the EU’s actions began. Now the EU wants to legitimise such laws by pushing them into the EU-India FTA. By doing so it threatens to stop at the Indian or EU borders the export of Indian generic medicines that most African countries rely on.
None of these measures are required by the WTO. All will critically hamper the prospects for generic competition on patented ARVs in sub-Saharan Africa.
We ask you to convey our concerns to the Indian government, in particular those responsible for the trade negotiations with the EU. We call on the Indian government not to limit the options available to it under the WTO Trade-Related Aspects of Intellectual Property Rights agreement.
TREATMENT ACTION CAMPAIGN
SECTION27 (incorporating the AIDS Law Project)
Five years ago Ronald Louw died of HIV-related TB. He was a friend and comrade. He is remembered by thousands of people whose lives he touched. Below is an obituary I wrote after his death and a video insert by Jack Lewis and the Community Media Trust team.
Ronald, why didn’t you get tested ?
One of my closest friends and a long-time comrade, Ronald Louw, has died. Two major Aids related factors caused his death: HIV denial and undiagnosed tuberculosis (TB). Denial meant that he did not test for HIV until almost too late. And unreliable TB diagnostics developed more than 100 years ago meant that as his immune system was destroyed by HIV, TB could not be detected until it was too late. He vomited, soiled his linen and his health did not improve. Sadly, he was not treated presumptively for TB until four weeks after his admission to hospital. His TB diagnosis was confirmed by a lung biopsy only three days before his death.
Early this year, as his sabbatical started, Louw learnt that his mother Doreen had cancer. Together with his siblings they took turns to travel from Durban, Cape Town and Johannesburg to look after their mother in Port Elizabeth. The experience was traumatic for all of them. As she lay in a coma on May 16, Louw collapsed and was admitted to hospital with AIDS. Until then, he did not know that he had HIV. His mother died on that day, but she had had a full life. He could not attend her funeral a few days later because at nearly half her age Louw was fighting for his own life.
Without any hesitation, Louw immediately told friends, family, colleagues and strangers that he had Aids and sought medical care. He was privileged. He had never gone hungry. He occasionally drank a glass of wine but had never done drugs. He was a workaholic. Smart, educated and surrounded by friends who understand HIV/AIDS, yet even Louw failed to get tested early.
In early May, with advanced Aids and a CD4 count under a hundred, all of us hoped that he would recover. Maybe his anti-retroviral medicines would work. But they did not because his TB was treated much too late. Although surrounded by countless friends, family and well-wishers, AIDS removes dignity and autonomy.
Louw had been exemplary in almost all aspects of his life, except the fact that he did not get tested for HIV. We all hoped that when he got better, Louw would himself explain this to all of us. His life shows that none of us are exempt from HIV infection and denial.
I remember the Saturday afternoon drizzle in Mowbray, Cape Town, that day in June 1981 when I met Ronald Louw. We attended an African Studies seminar run by Neville Alexander. Anne Mayne, Farid Essack and Shamil Jeppe were also class mates but it is only with Louw that I established the firmest bond of friendship that endured — endurance on his part, fullest enjoyment on mine.
Friendship has been the most remarkable part of my life. I have great friends and Louw’s illness and death allows me to reflect on what friendship means. Friendship means laughter, conscience, engagement with life — politics, philosophy, activism, romantic dreams and disasters, family issues, generosity and personal pain. Without friends, I would not have survived childhood, a different sexual orientation, political activism and HIV/Aids. I would not have been educated but for my friends. Louw was a friend in every one of the senses mentioned above. I can only hope my friendship meant as much to him.
Louw was a law lecturer and became an associate professor of law at the University of KwaZulu-Natal, but he was irritated at the sign in his hospital room that identified him as a professor. Back in 1981 he was employed as a teacher at Livingstone Senior Secondary School in Cape Town. Louw joined the Factreton Youth Movement, the nemesis of Minister of Finance Trevor Manuel and Lionel October, and was actively involved in struggles to lower rents, food prices and debates on the nature of a post-apartheid South Africa. He was a “workerist” and I was an African National Congress hack.
Over the years, Louw has also been active as an anti-militarist. He refused to serve in the apartheid military. Central to all his activism was a commitment to equality. This is evidenced by his legal work. He joined the law firm of Justice Joe Ebrahim in Athlone to complete his articles and his continued involvement in human-rights work — particularly in the areas of lesbian and gay equality, prisoner rights, criminal justice reform and HIV/Aids prevention, support and treatment work.
In December 1994, when the National Coalition for Gay and Lesbian Equality was formed, Louw represented the Sexual Orientation Forum at the University of Natal, Durban. Louw played a central role in the formulation of its principles, strategies and tactics. Louw, together with Nonhlanhla Mkhize, Vasu Reddy, the late McDivitt Hove and other activists, was responsible for the creation of the KwaZulu-Natal Coalition for Gay and Lesbian Equality. Today, they work in the Durban Lesbian and Gay Community and Health Centre.
Louw was also the consummate committee person. He was faultlessly fair and though he promoted consensus as the best solution, it was always done on the basis of principle.
He was also pedantic and pessimistic. But these were important qualities to ensure that neither people nor institutions were given false expectations. He always made up for this with a sense of humour — I remember when he taught at the Wittebome School for the Deaf, he told his friends how impressed he was with his own abilities to teach children whose hearing was impaired until he discovered that every time he entered the class they turned off their hearing aids.
He was a remarkable teacher. Loved by most of his students and as the Proctor of the University of KwaZulu-Natal, many of the students he prosecuted often turned to him for advice because of his sense of justice and fairness.
Despite legendary parsimony, his generosity has made him a great friend and comrade over the last seven years. Since the early days of the Treatment Action Campaign (TAC), I have stayed in Louw’s Queensborough house whenever I was in Durban for work (his more snobbish colleagues hated travelling to a former white working-class area).
TAC has never had to pay a cent of accommodation expenses and very rarely local transport costs for my work in KwaZulu-Natal. Louw always carried the cost and the burden of cups of tea, Marie biscuits, disruptive phone calls, an untidy bedroom, my ill-health and much more. Louw was also the first treasurer of TAC in KwaZulu-Natal, but work pressures and his commitment to the Durban Lesbian and Gay Community and Health Centre meant he became a passive TAC supporter.
I originally wrote this article (with Louw’s permission) to ask him to fight to live longer. He is now dead. He died because he did not get tested early. And, when he discovered his HIV status, his lungs and immune system were destroyed. I also write to ask every person to get tested. If you are HIV-negative, practise safer sex and stay negative. If you have HIV, live positively and openly — eat well, reduce stress, exercise, practise safer sex and get treated immediately for any infections. When you need it, start anti-retroviral treatment.
As he lay dying, Louw was surrounded by friends, colleagues and family who loved him — Vasu Reddy, Nonhlanhla Mkhize, Alan Rycroft, Imelda Diouf, Judy Parker, Libby Morris, Jonathan Berger, Nathan Geffen, Jack Lewis and many others. His siblings Patricia Leaver, Alan and Deon Louw gave their love and support.
Louw’s memory demands that we intensify the struggle for new, accurate diagnostics for TB. It demands that we mobilise to ensure that everyone gets tested for HIV to prevent and treat the illness. His death, together with hundreds of thousands of others in our country, demands that personal, cultural, scientific and political denial is ended. Above all, it requires that we reaffirm the struggle for freedom, equality, dignity and social justice.
This article was first published in the Mail and Guardian on 11 July 2005.
Ironically, the Soccer World Cup has highlighted the fact that access to justice is the scarcest commodity in our country.
Every person in our country lives with a deep physical and psychological insecurity because of violent crime. The Mail and Guardian article below is an indictment of government and FIFA because it treats some “criminals” and “victims” more equal than others. The women charged for wearing orange dresses are the most egregious example of corporate and state discrimination in access to justice. Wearing orange dresses are a crime at the World Cup because it promotes “unauthorised commercial activities inside an exclusion zone”. Such clothing as the orange dress is also an “unauthorised possession of a commercial object”. The orange dress sounds as if it is a weapon of mass destruction and yet the unknown victims of the WMD do not exist.
Our country’s Constitution holds that:
Everyone is equal before the law and has the right to equal protection and benefit of the law. Section 9 (1)
Everyone has the right to freedom and security of the person, which includes the right to be free from all forms of violence from either public or private source. Section 12 (2) (c)
Every accused person has a right to a fair trial, which includes the right to have their trial begin and conclude without unreasonable delay. Section 35 (3) (d)
Crime affects everyone but the most vulnerable in all societies are often worst affected. The pensioner who is robbed and stabbed going to the toilet in informal settlements, the 1000 women who are raped every day, the 50 people (mainly men) who are murdered every day and the more than 2000 people who are violently assaulted every day, the hate crimes against stateless people, lesbian, gay, bisexual, transgender and inter-sex people are denied justice as these crimes largely go unheard and mostly unpunished. These crimes exclude the largest category of crimes domestic violence including violent abuse of children. Citizens are also robbed on a daily basis by the state and its business partners through corruption. Then there are the people accused of crimes who often spend years in jail without bail either to see charges withdrawn or be acquitted of any crime.
There can be no doubt that these crimes disproportionately affect the most vulnerable people in our society: Black working class and poor people particularly women and stateless people. The FIFA Courts provide swift and stern justice for crimes against corporations, tourists and a few others. These courts and the broader criminal justice system unfairly discriminate on the basis of race, gender, class, sexual orientation and nationality. There are campaigns to join to end this discrimination and make the country more safe and secure for all its people.
The Social Justice Coalition’s Campaign on safe, private and clean toilets consonant with human dignity is an attempt to improve safety and security for the most vulnerable people in informal settlements. The One in 9 Campaign and Treatment Action Campaign works to bring health services and justice to survivors of gender-based violence, the Coalition to End Discrimination campaign against the murder and rape of Black working class lesbians and other hate crimes. The Anti-Xenophobia Network in Johannesburg defends the rights of stateless people.
The FIFA Courts are an insult to the people of South Africa and all the organisations working for safety and security for individuals and communities. President Jacob Zuma and the ministers charged with safety and security must be asked to account for this injustice and blatant discrimination. Our organisations must demand equal and speedy access to justice for all.
I watch and enjoy the World Cup matches but I abhor the criminality of FIFA.
Facing justice, Fifa style
MARINA HYDE | JOHANNESBURG, SOUTH AFRICA – Jun 21 2010 07:15
The Johannesburg magistrate’s court is the sort of unloved municipal building whose corridors smell of damp and bureaucracy, and whose chilly courtrooms recall Bismarck’s observation that those who love sausages and believe in justice should never see either being made.
Enter this structure at present, however, and you are greeted by large signs proclaiming the “Fifa World Cup Courts”, directing you to the courtrooms which have been specially established to deal swiftly with anyone besmirching the good name of this football tournament. Unsure of when the next case is up? Then do take your seat in the “Fifa World Cup Court Waiting Room”.
If it feels inevitable that football’s world governing body should finally have slapped its branding on justice itself, you are strongly urged just to submit. Consider this a little pocket of Zurich in an area of Johannesburg in which Fifa president Sepp Blatter is unlikely ever to dine.
Keen to dispel its crime-ridden image before the tournament, South Africa agreed to the establishment of 56 World Cup Courts across the country, staffed by more than 1 500 dedicated personnel, including magistrates, prosecutors, public defenders and interpreters.
Intended to dispense speedy justice, they sit late into the night — or rather they twiddle their thumbs late into the night, because a mere 25 cases have been heard at the time of writing. As the the Mail and Guardian reported, that clocks in at a competitively priced R1,75-million a conviction.
The most high-profile cases have been the two Zimbabweans who robbed some foreign journalists on a Wednesday, were arrested on the Thursday, and began 15-year jail sentences on the Friday; and the Dutch women who wore orange dresses to Soccer City stadium and were charged with “ambush marketing” for Bavaria beer. The ladies appeared before Johannesburg magistrates last week — despite their arrest being denounced as “disproportionate” by The Netherlands foreign minister and an embassy official — and were bailed to return on Tuesday on criminal charges which carry a maximum penalty of six months.
And the others? “I don’t work for Fifa,” sighs the clerk at Johannesburg magistrate’s court, but he is sufficiently amused by the resources lavished upon the handful of petty cases dealt with so far to produce the relevant charge sheets.
LA Law it is not. With the exception of the Dutch causes célèbres, a typical case features a Soweto man who stole two cans of Coke, two mini cans of soda water, and one mini can of lemonade from a Soccer City corporate hospitality lounge. He admitted guilt and paid a fine. Elsewhere, a pair of tourists who assaulted a local were fined R15 000 between them, while another Jo’burg resident who stole a few bottles of alcohol from Soccer City had his bail opposed and remains in custody, presumably lacking an irate foreign minister to intervene on his behalf.
In a country in which many residents feel the wheels of justice turn at a glacial pace, if at all, the speed of the World Cup courts was initially welcomed. But as more details emerge of their cost, and the nature of crimes being tried, some have predictably begun to ask whether time might not be better spent bringing more serious matters to court. For largely petty offences, the harsh sentences being handed down have a distinctly showy quality to them. At the weekend, the National Prosecuting Authority was forced to insist it was possible to mount a fair trial in 24 hours.
‘Special Measures Act’
For all its superficial silliness, though, it is the Dutch case that touches on the most troubling issues. Placed on South Africa’s statute book in 2006 was something called the 2010 Fifa World Cup South Africa Special Measures Act. The women in orange are accused of contravening two sections of this law, namely the parts that prohibit “unauthorised commercial activities inside an exclusion zone” and “enter[ing] into a designated area while in unauthorised possession of a commercial object”.
What is so radical about the legislation, though, is the fact that it makes such activity a criminal rather than civil offence. Not only does this arguably debase what it is to be a crime, but it contravenes rights enshrined in South Africa’s Constitution. In March, Fifa successfully pursued a low-cost airline for using pictures of footballs, vuvuzelas, and stadiums in its advertising, causing a South African legal expert to voice amazement at the “excesses” of the World Cup legislation, and to lament the choice the government made “to placate Fifa” at the expense of freedom of expression.
Fifa praises South Africa for adopting this draconian stance — as well it might. It’s all very pour encourager les autres. Yet, when it is pointed out that even the Chinese government stopped short of actually criminalising this kind of marketing intrusion at the Beijing games, a Fifa spokesperson declares that similar legislation is in place in New Zealand ready for next year’s Rugby World Cup.
Does that constitute what questionable newspaper convention demands we style as a “growing trend”? It’s certainly not the most enormous stretch to imagine the International Olympic Committee demanding similar laws for London 2012, though one can only hope the coalition would roll over less easily on legislation affecting liberties than New Labour were given to doing.
In South Africa, alas, that horse has bolted, and it is difficult not to conclude the government was either browbeaten by Fifa or displayed an effectively unprincipled willingness to please. After all, under pre-existing laws, it would have been possible for Fifa to sue the Dutch beer company for what would amount to a compensatory royalty.
With the two offenders threatened with six months jail, however, all Fifa will tell the Guardian is that it is “considering” suing Bavaria. Yet if it truly believes it has suffered economic detriment, then why wouldn’t it? It appears that instead of the hassle of launching its own litigation, Fifa would far rather see local law agencies enforce its rapacious will through the criminal courts, at whatever preposterous cost to the host nation. – guardian.co.uk © Guardian News and Media 2010