BY NORM DIXON
South African President Thabo Mbeki on March 14 declined to declare South Africa's debilitating AIDS epidemic a national emergency. Such a declaration would have allowed Pretoria to immediately invoke World Trade Organisation provisions that would allow it to override patents owned by Western pharmaceutical corporations and import or manufacture "generic" versions of essential medicines at a fraction of the price charged for brand-name counterparts.
Massive worldwide sympathy has been generated for South African and Third World AIDS sufferers following the callously selfish legal attack by the world's largest drug companies on a South African law designed to provide people with HIV access to more affordable life-prolonging treatment.
The court case, which began in the Pretoria High Court on March 5 and has been adjourned until April 18, has highlighted the brutal fact that millions of poor people throughout the Third World die every year because they cannot afford medicines that have, in the West, turned AIDS into a manageable disease. Meanwhile, the drug corporations make billions in profits.
The giant Western drug corporations are now under tremendous political pressure to provide massively discounted, or even free, medicines to Africa's estimated 25 million people with HIV. The drug corporations are also under heavy pressure to end their monopoly control of the production and marketing of life-saving medicines by allowing the Third World to manufacture or import generic versions of anti-AIDS and other vital medicines.
By any reckoning, South Africa is in the midst of what could justifiably be described as a national emergency. Around 4.2 million South Africans are HIV positive — about 20% of the adult population — and the country has one of the fastest growing rates of infection in the world. Around 250,000 South Africans died of AIDS last year.
On March 7, CIPLA, an Indian maker of generic medicines, asked the South African government to grant it the right to sell its versions of eight anti-AIDS medicines currently available only from Western patent-holders. At US$600 per patient per year, CIPLA's versions are as much as 50% cheaper than the Western corporations' African prices (and around 30 times cheaper than they sell for in the US). This offer could not be taken up unless the South African government officially declared the country's AIDS crisis a "national emergency" so as to legally override existing patents.
Pressed by the Congress of South African Trade Unions and AIDS activists to declare such an emergency, Mbeki balked. He refused to take advantage of world public opinion and defy the drug lords. Instead, Mbeki's government has chosen to continue its policy of doing little to save the lives of the hundreds of thousands of South Africans who die of AIDS-related diseases every year. It is estimated that around 400,000 South Africans have died from AIDS-related conditions since Mbeki became president.
Mbeki has openly expressed doubts that there is a link between HIV and AIDS. Until February, when he finally relented to mass pressure, his government refused to provide free anti-AIDS medications to pregnant women to prevent mother-to-child transmission of HIV.
Mbeki also appointed a controversial panel of AIDS "experts" — the Presidential Advisory Council Team — to advise him on policy. The panel includes a number of AIDS "dissidents" who deny the existence of AIDS.
One panel member, Professor Peter Duesberg, claims there are 75,000 people in Africa with AIDS and that the idea that HIV causes AIDS is "inconsistent, paradoxical and absurd". Another panel member, Dr Roberto Giraldo, argues that the promotion of the use of condoms and clean needles is a conspiracy by medical supplies manufacturers. Professor David Resnick, who is also on the panel, has called HIV a "harmless virus" and stated that "the evidence is overwhelming that AIDS is not contagious, [not] sexually transmitted [and not] caused by HIV".
AIDS activists and the South African left charge that Mbeki's sudden "AIDS scepticism" is motivated by his government's need to please local and international investors with a policy of continuous reductions in company taxes and charges — and therefore ever-shrinking public spending, including on public health — rather than any commitment to scientific or medical truth.
Mbeki told parliament on March 14 that the "comprehensive" provisions of South Africa's 1997 Medicines and Related Substances Control Act would be adequate to address the country's AIDS crisis. He stated that the government would wait for the outcome of the court case before reassessing its AIDS policy. He added that it would also wait for the report of his panel of "experts".
However, the medicines act has not been invoked because it has been tied up by the pharmaceutical corporations' legal action ever since it was passed. The Pretoria High Court is not expected to rule on the constitutionality of the Medicines Act for at least six months. In that time, another 120,000 South Africans will die of AIDS.
Contrary to the claims of the Western pharmaceutical corporations — and repeated ad nauseum by the Western capitalist media — the medicines act is not a radical challenge to the big drug companies. It does not empower the government to produce or import generic versions of anti-AIDS medicines that are still under patent. The law simply makes possible parallel importation (the importation of brand-name medicines from another country where they are sold cheaper than in South Africa), establishes a committee with the power to set the prices of medicines and requires chemists to dispense the cheaper generic medicines, rather than brand-name products, after the brand-name medicines' patents have expired.
In fact, the ANC government has always had the legal power to seize the patents of vital drugs in situations where companies cannot, or will not, meet demand. Under South Africa's patent act, passed in 1978 during apartheid, the government can ask the patent commissioner to force patent-holders to grant licences to local medicine manufacturers (this is known as compulsory licensing). Despite the terrible AIDS toll in South Africa, the ANC government has never done so.
The South African Treatment Action Campaign, the organisation that is leading the struggle for affordable anti-AIDS medications, has pointed out that South African law is in fact "TRIPS-plus". This means that it gives stronger protection to intellectual property rights than the WTO's agreement of Trade Related Aspects of Intellectual Property Rights (TRIPS) demands. Both South Africa's Patent Act and the Medicines Act are TRIPS compliant, that is they respect the Western drug companies' 20-year patents on essential medicines.
However, the WTO TRIPS agreement allows exceptions in cases of "national emergency" or in "circumstances of extreme urgency". In such cases, compulsory licensing is allowed if royalties are paid to the patent-holder. Mbeki's refusal to utter the word "emergency" has cut off this option.
Mbeki only hinted at the real reason for the ANC government's reticence to act to make generic medicines available to South Africans when he addressed parliament. "There are other consequences [of declaring a national emergency and overriding drug patents] which are not desirable", he told parliament.
In the March 15 Washington Post, the newspaper's correspondent Jon Jeter spelled out what Mbeki's words meant: "The government is wary of taking steps that would scare off needed foreign investment or raise questions about its commitment to free markets... Many in the country's business community have raised concern over the kind of signal that would send abroad."
Greg Mills, executive director of the ruling-class South African Institute of International Affairs told Jeter: "On the one hand, we face a massive AIDS crisis. But on the other hand, if we declare a state of emergency, we run the risk of looking like another unstable player in an unstable region."
Mbeki and the ANC have opted to place the maintenance of "investor confidence" for Western big business before the lives of the 250,000 or so South African who die each year from AIDS-related diseases.