Not so much, as far as I read it. The 40 pharmacorpos which are "suing Mandela" (as the WSJ put it a couple of weeks ago) have grounded their case in SA's own liberal/soc.dem. rights rhetoric, and in the process want to establish not only their own property rights, but also a variety of other entitlements given to human being and "juristic persons" (corpos) in the Bill of Rights.
(As a trivial footnote, two SA comrades and I, supported by Nader's people, tried to block adoption of the juristic person clause, unsuccessfully, in mid-1996 when the constitution was ratified. The ever-sleazy Paul Krugman last year labeled Nader anti-democratic for his support; the NYT refused to print the clarifying letter that the three of us, including one ANC member of parliament, sent along the next day.)
Anyhow, the plaintiffs' case specifically avoids all mention of HIV/AIDS, focusing instead on rights and feasible actions that can be taken by Pretoria outside the Medicines Act (e.g. patent exemptions in existing law). For tactical reasons, the activists (Treatment Action Campaign) went in with a friend-of-court brief supported by government, and the judge ruled they could join, and gave the pharmacorpos three weeks to reply to the substantive addition of the AIDS pandemic as justifying large-scale state intervention. Sadly, Pretoria is relying upon the most minimalist reading of the Act in its defense, and is in the process potentially undermining the possibility of future local generic drug production (according to the some readings). Activists say that doesn't matter, they'll force Pretoria to wratchet up the attack at a later point, but the main thing is to win the position that the pharmacorpos are killing people now, if even merely to justify parallel importation of branded drugs from sites where price discrimination doesn't generate monopoly profits. The implications for import of Brazil/Thailand/India generics remain a bit fuzzy.
But I think no one disputes that the Medicines Act is WTO-compliant (given the "emergency" exemptions clause in TRIPS).
Resolving the issue is still fraught by political rhetoric and positioning. Activists (including even the erratic Winnie Mandela) have claimed Pretoria is in bed with the pharmacorpos because of the genocidal lack of government action in making antiretrovirals available to date; the pharmacorpos claim that Pretoria is ignoring their good faith efforts to do some deals (e.g. yesterday's papers revealed that the Dep't of Health has rejected $50 mn worth of free AIDS tests because of -- read it and weep -- lack of refrigeration and tendering complications); and Pretoria (Thabo Mbeki specifically) claimed last year that the activists are shills for the pharmacorpos because after all, "HIV does not cause AIDS," so it is pointless to push anti-retrovirals "instead of" (hah) fighting poverty (which Mbeki still believes, judging by an appalling talk given to the Davos WEF in late January, is the "cause" of AIDS... and of course in reality poverty has skyrocketed since the ANC adopted neoliberal policies even before coming to power in 1994 ... details of which are to be found in John Saul's excellent Jan 2001 Monthly Review cover article).
To give you a bit more detail, on behalf of Multinational Monitor I did an interview with the key activist, Zackie Achmat, and the January 2001 issue of MM carries part of this, plus some additional commentary by Zackie on the character of campaigning. I think the final version is on the Nader website, but here's what's handy from my hard-drive...
Gates, Merck, Bristol-Myers-Squibb,
Pfizer and other companies
on SA activist's campaign list
Zackie Achmat runs South Africa's Treatment Action Campaign (TAC), the organisation most responsible for raising issues of pharmaceutical product access, as a crucial link in the strategy to combat the HIV/AIDS pandemic. He spoke to Multinational Monitor on January 5, 2001.
MM: You've led intense struggles to get better drug access for South Africa's 4.2 million HIV-positive people, yourself included. This has pitted you against both multinational corporations and the South African government, especially president Thabo Mbeki. Late last year, Mbeki reportedly called the Treatment Action Campaign a "front for the drug companies" during an internal caucus with his African National Congress (ANC) members of parliament, because of your campaign's emphasis on treatment.
ZA: Let's deal with this forthrightly. Mbeki also said that TAC had infiltrated the trade unions, and that we wanted to embarrass him because of his statements from a year ago questioning the link between the HIV virus and AIDS. In reality, Mbeki embarrassed himself.
As for the trade unions, they had just demanded, at their September congress in front of Mbeki himself, that government reject this bizarre theory of AIDS and government policy. Are we a front? We get no donations from drug companies, and we were the first and loudest organisation to tackle them. So after Mbeki's outburst, we went to the South African government Public Protector to demand that he retract the statement, but that office hasn't responded yet.
Meanwhile, the union leaders, like Zwelinzima Vavi, were furious about this insult to their integrity. The South African Democratic Teachers Union, for example, headlined their newspaper the next month in huge letters, "Sorry Mr President, we can't infiltrate ourselves."
MM: Mbeki soon backed down and said he wouldn't make further statements on AIDS.
ZA: Yes, but he had already done a tremendous disservice to the country, particularly to the ANC. There is no doubt in my mind that a lot of people didn't vote ANC in the recent municipal election because of the AIDS issue. The ANC vote went from 67% in the 1999 general election to 60% in December. Thankfully, the trade unions pushed Mbeki into silence, saying very explicitly, "You're wrong on HIV and we want treatment!"
But the other point that most critics are making now is that while Mbeki claimed that poverty was the key cause of AIDS deaths, in fact if you look at the SA government's position on poverty reduction, it is also a disaster. The country's worst-ever outbreak of cholera, which affected 12,000 people in low-income rural areas with more than fifty fatalities during the last five months of 2000, was catalysed by the inhuman cutoffs of clean water by government bureaucrats because people couldn't pay a R51 ($6.80) connection fee.
TAC hopes that the ANC's municipal election promise of free water and free electricity is implemented, but we desperately need the leading advocacy groups in South Africa, like Jubilee 2000 and Cease Fire, to work closely with trade unions to redirect the budget to that end, and to increase the health budget. We need a 33% increase to develop infrastructure, to train, and to employ more staff, up from R24 billion ($3.2 bn) to R32 billion ($4.3 bn). Recently, per capita health spending has been declining, which can only be considered politically irresponsible, in the midst of the AIDS disaster.
MM: This would be aimed, mainly, at assuring all who are HIV+ ultimately get treatment.
ZA: Yes, but for us, a move away from the multinational corporate producers to local generic production is the only way. We actually need not only state production of drugs, but also private generic competition here in South Africa.
MM: But states in this region appear a long way from that kind of challenge to corporate prerogatives. Even Winnie Madikizela-Mandela declared that the ANC government, which she serves as a member of parliament, is "an obedient servant of multinational companies that continue to put their profits above our people." And the greatly-respected HIV+ activist and judge Edwin Cameron said in a keynote speech to the Durban AIDS conference last year that "The drug companies and African governments seem to have become involved in a kind of collusive paralysis."
ZA: The problem is partly that the African governments not being able to imagine an alternative. However, we are slightly more optimistic now. Over the past few months, there has been a strong joint statement by health ministers from the Southern African Development Community on bulk drug procurement. Even our own health minister, who we are taking to court for failing to implement a country-wide mother-to- child transmission programme, is showing some spine with the drug companies.
However, we have to be vigilant, because as our minister has publicly commented, drug companies and other donor agencies are trying hard to divide the African countries on questions of how to attain sustainable healthcare provision, and particularly drug provision. It's easy to do that, because a country like Malawi doesn't have money to buy medication, compared to South Africa.
MM: Which companies and donors was she referring to?
ZA: In my mind, there's no doubt that she was citing, in relation to the Botswana donation, Merck and the Bill/Melinda Gates Foundation. The drug company donations are extremely limited, and are self-interested in warding off a more serious challenge to their monopoly control of patents on some crucial drugs. Likewise, we all understand the Gates Foundation's self-interest in defending intellectual property rights.
The Botswana prototype for drug company philanthropy has generated a rising level of disgust. What has happened, according to activists and objective observers, is that Merck and Gates have virtually moved in to run a parallel health programme to the Botswana ministry of health.
However, after this lesson in manipulation, the Southern African health ministers set out a good set of guidelines regarding donations from companies, insisting that these should not undermine the structure of the health system, should not undermine either potential generic production-- like Brazil, India and Thailand do--and should not dissuade countries from using the exemption in the World Trade Organisation's TRIPS treaty that provides for parallel imports in the case of an emergency, like AIDS.
Another encouraging factor was our minister's statement that she would not give up the right for generic production. She also took a trip to Brazil, where she made positive noises about generics, though without a real commitment to start production here.
MM: What, realistically, can you expect government to do on treatment?
AZ: We would like to see, by mid-year, the implementation of what the government said it would do last August on prevention/treatment of opportunistic HIV-related diseases. For example, the tuberculosis budget is just R500 million per year, which just scratches the surface of what's needed. We have a TB case rate in South Africa of more than 350 per 100,000 people, which is the world's worst. In the mining industry, it's as high as 3,000 per 100,000. The main problem in the lowest-income provinces is that between a quarter and three-quarter of rural clinics don't have TB drugs. This is partly because of limited managerial capacity in rural areas, combined with budget cuts, especially to hospitals, which always drop consumables like medicines first. So the TB budget needs a massive increase.
We are also demanding introduction of cotrimoxazole to prevent PCP-pneumonia, which kills mainly HIV+ infants. A monthly supply would cost R4 ($0.53) for children and R8-24 ($1.06-3.18) per adult, which is a great savings over hospitalisation costs, which are up to R150,000 per patient ($20,000). But right now, there's not sufficient political commitment from the government to get access to drugs even for these extremely obvious areas of treatment.
MM: What do you say to critics who claim that expanding treatment through cheap parallel imports, as you advocate, risks introducing drugs of questionable quality, is infeasible due to lack of health-system capacity to administer drugs properly, and consequently will expand drug-resistance strains of HIV?
ZA: First, on the quality of imports, we now have official clearance to import Fluconazole, at 2.2% of the price charged private-sector clinics, and we've shown that the drug is high quality. Even the Medicine Control Council, which charged me with illegal importation of medicine when I brought in 10,000 Fluconazole capsules from Thailand last year just to make the point, also concedes that the quality is fine.
By the way, TAC is still being investigated by the SA Revenue Services for that civil disobedience, and they'll probably charge me for tax evasion. They won't get more than R2,800 from Value Added Tax on the symbolic shipment I brought in, so it's clearly petty harassment by the ANC loyalist who runs the tax system.
Second, we should not underestimate the difficulties of providing anti-retrovirals, and we don't. If it's done on the basis of a clear, well-defined plan, it shouldn't be beyond our capacity in South Africa to establish an effective system for administering treatment.
Third, we agree that if you have weak implementation, drug resistance strains will emerge. Certainly, our health professionals need more training in prescription techniques.
Still, 12% of new infections in the US are found to be based on drug-resistant strains. Is anyone saying that the US must stop providing treatment? Moreover, it is well known that rich countries have witnessed a dramatic overprescription of antibiotics, leading to many kinds of drug-resistance diseases. So this isn't just a problem of HIV/AIDS treatment, and we shouldn't be the class of patients denied access as a result.
The problem of drug resistance can be addressed through other means as well. Our private medical-aids insurance system puts an excessive limitation on payment for therapy, which leads doctors to prescribe a dual therapy treatment instead of triple-therapy, or even to prescribe AZT as monotherapy, which gives rise to much quicker drug- resistance. In addition, South Africa is the most frequent site for clinical trials in the developing world, due to good infrastructure. After treatment is halted when trials are finished, there is a problem of drug resistance. But none of these problems should be grounds for saying, no more treatment, especially since it is mainly low-income black women who are the beneficiaries of treatment.
MM: Is the South African government moving towards establishing a clear, well-defined plan?
ZA: Right now, the minister simply does not have a plan for anti-retrovirals. But there are two other ministers who are also blocking progress. The finance ministry does not provide enough money, and the ministry of trade and industry has not taken a clear position on local production.
This is important, because the minister, Alec Erwin, is scared to offend the WTO and the investment community by allowing local generic production. He knows that this will send negative signals to other corporate investors.
But what these South African ministers are dead wrong about, is that every other well-informed business leader in the world now realises that unless there is generic production, then too many people will die, and overall health system costs will be much higher, than the cost of alienating the pharmaceutical firms by violating their patents.
MM: It looked like you won the first major battle in the war with pharmaceutical companies in September 1999, when then- vice president Al Gore agreed to back off the pressure he put on Mbeki and Erwin to withdraw a South African law which made it possible to import drugs and license generics for local production. Then came Mbeki's turnaround. What did you learn from that struggle?
ZA: As I said, the bigger problem is the government's unfounded fear of alienating investors in general. But on the positive side, we had the most exciting experience in rallying international solidarity since the anti-apartheid struggle. The most helpful research organisation was the Consumer Project on Technology. The most important voice to help generate a global consensus that drug companies were committing genocide against the poor was Medecins sans Frontieres. The most serious activists fighting against profiteering on AIDS and other diseases were ACT UP in New York, Philadelphia and Paris.
But what ultimately also is critical for us, is the conscientisation now underway in broader civil society, here and elsewhere. Last year, the Congress of SA Trade Unions and their Southern African allies pushed through a resolution supportive of generics at the Durban conference of the International Confederation of Free Trade Unions. This issue is resonating with trade unions across the South, including Korea and indeed throughout Africa.
MM: The drug companies are claiming that with their donations, they are now doing as much as can be expected. UN AIDS is under pressure because they aren't monitoring the donations in Africa, but was the UNAIDS/Industry initiative fatally flawed from the outset?
ZA: Well, first, the various donations have come only because of protest. These are, in any case, just holding operations for the drug companies, which hope they can delay the import or local production of generics in Africa. And the very large South African private sector is still not covered in one of the largest deals, between Pretoria and Pfizer, for Fluconazole.
Whatever the nature of a particular donation, we can't afford to let up pressure on the drug companies, otherwise prices will go way up again after they capture the market. In any event, some of these programmes are also financially self-interested. In Botswana, for every dollar Merck gives, the Gates Foundation gives a dollar, which comes back to the company when they buy Merck drugs at wholesale price, which can be added to Merck's tax deduction on the donation. The big question about the drug companies' donations is how long they can be sustained, and how many people will be reached? Evidence so far is not encouraging.
What is, however, most disturbing about the drug companies' philanthropy, is their ability to buy off potential protest from the established AIDS organisations and researchers. Bristol-Myers-Squibb, for instance, has given $120 million to a "Secure the Future" programme over three years, directed at women, children and NGOs. That gives them the clout to go into established AIDS organisations and literally purchase loyalty by researchers and NGO leaders. Some NGOs have become much less critical than they should be. And BMS' two drugs are ddI and D4T, which in any case were developed by the US National Institute of Health and Yale University. Yet both are still priced prohibitively in South Africa.
MM: Finally, from your perspective, is progress being made on a vaccine, and how are drug companies doing in R&D more generally?
ZA: Of course we would support a vaccine, but in reality, there's no chance of getting even a 50% effective vaccine within 7-10 years, according to the main scientific researchers. The World Bank, Gates and other funders, including our government, all hope for a magic bullet.
In the meantime, millions are due to perish, and millions more will contract HIV. We wish they would spend a lot more of the resources now going into vaccine work into something more practical, namely a microbicide gell or spray which can prevent HIV transmission during vaginal and anal sexual intercourse, because it kills off lots of STD bugs. It's much more promising, but it's massively underfunded. I think that so few companies are doing serious work on microbicides because people who will use it most are poor women. If the perception within the drug companies is that the rich, white heterosexual market doesn't need it, you can expect it to become a fatally low priority.
TABLE: Comparison shopping for life-giving drugs
Product SA Pub.Sector SA Priv.Sector Thailand Fluconazole(200mg) R28.57 R80.24 R1.78 AZT(100mg) *R2.38 R5.54 R2.38 ddI(150mg) NA R10.90 R6.00 d4T(40mg) NA R26.00 R2.75 3TC(150mg) NA R22.80 R16.30 Nevirapine(200mg) NA R31.75 R12.00
(NA: Not Available) (R8 = $US1)
*Lower cost AZT is the result of activism. The AZT
price was reduced from R5.54 in the public sector
following TAC demonstrations and protests. The same
applies to the lower cost of Nevirapine for mtct.
Sources: Thai GPO and Biolab; India CIPLA; South
Africa Department of Health; Private Discount
Pharmacy. Prices valid as of 16 October 2000.
(Drugs and dosages are used to compare prices rather
than proposed treatment regimens.)
The following are the holders of the patents on the above drugs, responsible for the extremely high prices paid by South Africans:
Bristol-Myers-Squibb (ddI _ didanosine)
Bristol-Myers-Squibb (d4T _ stavudine)
Glaxo-Wellcome (AZT _ zidovudine)
Glaxo-Wellcome (3TC _ lamivudine)
Glaxo-Wellcome (AZT/3TC)
Pfizer (Fluconazole)
Boehringer Ingelheim (Nevirapine)
Patrick Bond (pbond at wn.apc.org) home: 51 Somerset Road, Kensington 2094 South Africa phone: (2711) 614-8088 work: University of the Witwatersrand Graduate School of Public and Development Management PO Box 601, Wits 2050, South Africa work email: bond.p at pdm.wits.ac.za work phone: (2711) 717-3917 work fax: (2711) 484-2729 cellphone: (27) 83-633-5548 * Municipal Services Project website -- http://www.queensu.ca/msp