UNIVERSITY OF PENNSYLVANIA - AFRICAN STUDIES CENTER
AFRICA ACTION Africa Policy E-Journal March 24, 2003
South Africa: AIDS Treatment Action (Reposted from sources cited below)
This posting contains an announcement of a civil disobedience
campaign by the Treatment Action Campaign in South
Africa, demanding that the South African government
provide antiretroviral treatment for people living
with AIDS who need this treatment to survive. It also
contains excerpts from an indictment by the TAC against
two government ministers for culpable homicide, for
their repeated refusal to act to provide such treatment.
(The full text of the indictment, too long to include
here, will be available later today in the on-line
archive of this posting at http://www.africaaction.org/docs03/tac0303.htm)
The campaign was timed to coincide with the anniversary
of the Sharpeville Massacre on March 21, 1960, The
March 21 anniversary is recognized internationally
as the International Day for the Elimination of Racism.
According to news reports, TAC protesters were arrested in Cape Town and dispersed by police with water cannons in Durban, Demonstrations were also held in Sharpeville, The protests continue this week.
For additional background on this latest action see
the website of the Treatment Action Campaign (http://www.tac.org.za)
and the international solidarity page of the Healthgap
(http://www.healthgap.org/camp/tac.html). For more background on treatment access, see http://www.africaaction.org/action/access.htm
Editor's note: Africa Action continues engaged with
other U.S. groups and individuals in speaking out against
the unilateral and illegal U.S. invasion of Iraq. For
an earlier statement of Africa Action's position, see
http://www.africaaction.org/docs03/war0303a.htm For current coverage of Africa and the war, we recommend http://allafrica.com and BBC (http://www.bbc.co.uk).
Among the invisible "collateral damage" from the war is lessened public attention to other continuing threats to human security. The Africa Policy E-Journal will continue to highlight a range of critical issues, such as the action campaign covered in this posting.
Treatment Action Campaign
TAC Civil Disobedience Campaign - 20 March 2003
Statement on civil disobedience campaign, which begins today
Docket of charges of culpable homicide against Mantombazana Edmie Tshabalala-Msimang and Alexander Erwin handed over to police
CIVIL DISOBEDIENCE CAMPAIGN BEGINS TODAY
Tomorrow is Human Rights Day. On 21 March 1960, thousands of black African people in South Africa left their passes at home. They marched peacefully to police stations where they handed themselves over for arrest. Our parents and ancestors chose to go to jail rather than to obey unjust laws or to allow an immoral and illegitimate regime to continue take away their dignity and equality. Mandela, Sisulu, Mbeki, Sobukwe, Ngoyi, First, Slovo, Kathrada and many thousands more sacrificed for democracy, equality and justice.
Today, we have a democratic and legitimate government of the people. Yet, today we are once again breaking the law. We accept our Constitution. We voted for this government, we accept its legitimacy and its laws.
But we cannot accept its unjust policy on HIV/AIDS that is causing the deaths of more than 600 people every day. Today we break the law to end an unjust policy not an unjust government. For four years, we have done everything in our power to persuade government to change this policy: we have provided information and given evidence, campaigned successfully to lower the price of drugs such as Fluconazole as well as anti-retrovirals. Eleven months ago, the Cabinet tantalized people with AIDS by recognizing that anti-retroviral drugs do "improve the condition of people with AIDS". But the policy of non-provision of these medicines has not changed.
So today, in Durban, Cape Town and Sharpeville 600 TAC volunteers, many of them people living with HIV, are marching to police stations to lay charges of culpable homicide against the Ministers of Health and Trade and Industry. They are acting on behalf of people who have died or who are dying because government policy denied them the medicine needed to treat their HIV infection.
We demand a real partnership that prevents new infections and saves lives.
We demand that the government immediately announce an antiretroviral treatment programme in the public sector and that it signs the NEDLAC treatment and prevention plan.
[excerpts only: for full text see http://www.africaaction.org/docs03/tac0303.htm]
THE PEOPLE versus MANTOMBAZANA EDMIE TSHABALALA-MSIMANG alias "MANTO", MINISTER OF HEALTH (RSA) and ALEXANDER ERWIN alias "ALEC", MINISTER OF TRADE AND INDUSTRY (RSA). Hereinafter respectively referred to as Accused No. 1 and Accused No. 2.
Both accused are charged with the crime of culpable homicide in that during the period 21 March 2000 to 21 March 2003 in all health care districts of the Republic of South Africa, both accused unlawfully and negligently caused the death of men, women and children. They also breached their constitutional duty to respect, protect, promote and fulfill the right to life and dignity of these people.
1. Both accused Ministers knew that failure to provide adequate treatment including anti-retroviral therapy for people living with HIV/AIDS would lead to their premature, predictable and avoidable deaths.
2. In their capacities as Ministers in the government of South Africa, both accused had the legal duty and power to prevent 70% of AIDS-related deaths during this period through developing a treatment and prevention plan, providing medicines and using their legal powers to reduce the prices of essential medicines for HIV/AIDS including anti-retroviral therapy.
3. Both accused Ministers had in their possession scientific, medical, epidemiological, legal, social and economic evidence of the devastation of potential and actual AIDS deaths on individuals and communities. They not only ignored this evidence but suppressed it.
4. Both accused Ministers consciously ignored the efforts of scientists, doctors, nurses, trade unionists, people living with HIV/AIDS, international agencies, civil society organisations, communities and faith leaders to develop a treatment and prevention plan, to make anti-retroviral therapy available and to ensure that medicine prices in the public and private sector were reduced to save lives.
5. Both accused Ministers were under a legal duty, by virtue of their public office and the provisions of the Constitution of the Republic of South Africa, to provide access to health care services by reducing the price of essential medicines for HIV/AIDS including anti-retroviral therapy, and by providing them through the public health sector. They remain under this legal duty.
6. Both accused Ministers negligently failed to carry out their legal duties. ...
7. During the period 21 March 2000 and 21 March 2003, this failure caused the death of between 250 and 600 people every day as a direct result of premature, avoidable and predictable AIDS-related illnesses.
SUMMARY OF SUBSTANTIAL FACTS
1. During the period 21 March 2000 to 21 March 2003, many people throughout the Republic of South Africa died from AIDS or diseases caused by AIDS.
a. Information on the prevalence of HIV/AIDS and HIV/AIDS related deaths each year has been available to both Accused Ministers throughout their terms in office.
b. It is estimated that at least 600 people in South Africa die from AIDS-related illnesses each day.
c. In the past 12 years, the HIV sero-prevalence among first time antenatal clinic attenders, as indicated by the Minister of Health's own Department's Annual Antenatal Clinic surveys has risen from 0.76% in 1990 to 10.44% in 1995 to 28.4% in 2001. Based on these surveys, it is estimated that there are currently 5 million South Africans infected with HIV. ...
d. In the Department of Health's Second Interim Report on Confidential Enquiries into Maternal Deaths in South Africa (1999), non-pregnancy related sepsis mainly caused by AIDS was recorded as the leading cause of maternal deaths. In the Report, 35.5 percent of women whose deaths were reported were tested for HIV and 68 percent of these were HIV positive. The Report noted that HIV is significantly under-diagnosed.
e. A study by the Medical Research Council, estimated that about 40 percent of adult deaths aged 15-49 that occurred in 2000 were due to HIV/AIDS and that, if combined with the deaths in childhood, it was estimated that AIDS accounted for about 25 percent of all deaths in 2000 and was the single biggest cause of death. ...The Minister of Health was directly involved in attempts to suppress this report.
2. Many of these people would not have died if they had access to anti-retrovirals
a. HIV/AIDS is a progressive disease of the immune system that is caused by the Human Immunodeficiency Virus (HIV).
b. When left untreated HIV profoundly depletes the immune system and may prove fatal because of the inability of the body to fight opportunistic infections such as tuberculosis, pneumonia and meningitis.
c. The scientific evidence indicates that without effective treatment, the majority of people with HIV/AIDS die prematurely of illnesses that further destroy their immune systems, quality of life and dignity.
d. Early diagnosis, clinical management, medical treatment of opportunistic infections and the appropriate use of anti-retroviral therapy prolongs and improves the quality of life of people living with HIV/AIDS.
e. Anti-retroviral drugs are a class of drugs that suppress viral load activity and replication. When used effectively they reduce the volumes of HIV to undetectable levels in the blood. This leads to immune reconstitution. It also prevents and delays the destruction of a person's normal immune system.
f. In its HIV/AIDS Policy Guideline, entitled Prevention and Treatment of Opportunistic and HIV-related diseases in Adults (August 2000), the Department of Health (which operates under the direction of The Minister of Health) has recognised the efficacy of anti-retroviral treatment, stating as follows: "Current research also strongly indicates that suppressing HIV viral activity and replication with anti-retroviral therapy or Highly Active Antiretroviral Therapy (HAART) combinations prolongs life and prevents opportunistic infections". ,,,
h. The World Health Organisation (WHO) has included anti-retrovirals on the Core List of its Model List of Essential Drugs (12th edition, April 2002). The Minister of Health is aware of the inclusion of anti-retroviral medication in the World Health Organisation's Essential Drugs List.
i. With access to anti-retrovirals people with HIV/AIDS are able to lead longer and healthier lives and it directly results in an improved quality of life and the restoration of dignity, allowing people with HIV/AIDS who were previously ill to resume ordinary everyday activities, such as work.
j. A comprehensive plan to treat people living with HIV/AIDS as advocated by civil society organisations, faith based organisations, scientists, health care workers, trade unionists, activists and communities over the past four years, would have reduced the number of people dying of AIDS related illnesses and would have mitigated the horrendous impact of AIDS on people in South Africa.
3. Both Accused were aware of need to make anti-retrovirals available to prevent these deaths.
a. The Minister of Health has had direct knowledge of the serious impact of HIV/AIDS and the need for care and treatment of people living with HIV/AIDS, before she took up her position as Health Minister. As early as 1994 The Minister of Health was a key drafter or the NACOSA National AIDS Plan for South Africa 1994 - 1995. ,,,
b. The Minister of Health and the Minister of Trade and Industry were aware of the Joint Statement issued by the then Minister of Health, Dr Nkosazana Dlamini-Zuma and Treatment Action Campaign, which confirmed that all treatment for HIV/AIDS and all related medical conditions is a basic human right (30 April 1999). ...
c. The Minister of Health has herself confirmed that "access to affordable drugs is a matter of life and death in our region" (World AIDS Day speech, 1 December 2000). ...
d. In its Cabinet statement of 17 April 2002, Cabinet, and the Accused as members of the Cabinet, recognised that anti-retrovirals can improve the conditions of people with HIV "if administered at certain stages ... in the progression of the condition, in accordance with international standards."
e. After taking up office, The Minister of Health and the Minister of Trade and Industry have consistently been reminded of the need to improve access to treatment for people living with HIV/AIDS since 1999 (e.g. Speech by Edwin Cameron at the 2nd National Conference for People Living with HIV/AIDS on 8 March 2000, in the presence of the Minister of Health; ...).
4. Both Accused had the legal duty to protect health and prevent deaths.
a. Our Bill of Rights mandates the state to "respect, protect, promote and fulfil" all rights including the rights to health, life and dignity.
b. The state is obliged to create an enabling framework by putting in place laws and regulations so that individuals will be able to realise their rights free from interference.
c. The state may be obliged to provide "positive assistance, or a benefit or a service, creating the conditions in which the rights can be realised by the individual". This extends to the direct provision of basic resources or devices where a failure to do so would result in a denial of the realisation of rights.
d. At minimum, the state is required to take reasonable steps towards creating the legal framework necessary for accessing affordable treatments for HIV/AIDS. The right of access to health care services, as entrenched in section 27 of the Constitution, therefore places a positive obligation upon the state to take all reasonable measures to ensure that anti-retrovirals are made affordable.
e. This interpretation of section 27 is strengthened by the recently issued document entitled "Revised Guideline 6: Access to prevention, treatment, care and support", which updates the International Guidelines on HIV/AIDS and Human Rights, jointly issued by the Office of the United Nations High Commission for Human Rights (OHCHR) and the Joint United Nations Programme on HIV/AIDS (UNAIDS). ...
f. Adding to these specific international human rights instruments, all Member States of the United Nations adopted a Declaration of Commitment on HIV/AIDS in June 2001 which pledged to scale up the response to HIV/AIDS within a human rights framework. ...
5. Both Accused had knowledge of the legal and other powers available to them to increase access to anti-retrovirals but did not act positively where there was a legal duty to do so.
a. The Minister of Health and the Minister of Trade and Industry have been aware of the different patents existing on HIV/AIDS medicines since the end of 1999, if not earlier. Both Accused were further aware of the remedies available to them in terms of the Patents Act and other legislation to facilitate access.
b. There have been repeated requests that the Minister of Trade and Industry issue compulsory licences for anti-retroviral treatment (e.g. Memorandum from TAC to Department of Trade and Industry dated 14 February 2001 and Meeting between Department of Trade and Industry and TAC on 23 February 2001). These requests came amidst independent statements by generic pharmaceutical companies on the availability of generic anti-retroviral and other HIV medications.
d. The Minister of Trade and Industry has been aware of the capacity existing within South Africa for the manufacture of generic anti-retroviral and other medication (e.g. letter by Department of Trade and Industry dated 25 September 2002). ...
f. The Minister of Health and the Minister of Trade and Industry have acknowledged the importance of the Medicines and Related Substances Amendment Act, in particular section 15C on parallel importation to ensure that the prices of medicines are reduced (e.g. Meeting between Department of Trade and Industry and TAC on 23 February 2001).
g. In a meeting with Minister Tshabalala-Msimang, as the new Minister of Health, on 29 September 1999, it was clear that the Minister of Health was aware of the possibility to issue compulsory licences or use parallel importation as mechanisms to increase access to medication, including medication to treat people living with HIV/AIDS. Instead she declined to use these provisions pending the resolution of the court case by the Pharmaceutical Manufacturers' Association against the South African government's Medicines and related Substances Control Amendment Act. ...
6. Accused did not reasonably make use of these powers, causing more harm than benefit in the process.
a. The Minister of Health and the Minister of Trade and Industry have repeatedly delayed the implementation of the Medicines and Related Substances and Control Amendment Act and its Regulations.
b. The Minister of Health and the Minister of Trade and Industry are aware of the measures implemented in other countries like Brazil to increase access to essential medicines, including anti-retrovirals, but has denied offers by such countries to transfer technology and provide other assistance.
7. Accused directed their will towards ensuring government policy is the non provision of anti-retrovirals. Accused knew and foresaw that this would cause the deaths of many people but remained undeterred by this probability.
c. The Minister of Health has repeatedly omitted to implement measures aimed at increasing access to anti-retroviral medication.
d. The Minister of Health ignored the recommendations of the National Health Summit which was convened by the Department of Health in 2001, and which recommended the implementation of pilot sites where anti-retrovirals would be provided.
e. The Minister of Health has suppressed a report from a conference of scientists convened by the Department of Health and the Health Systems Trust on 13-14 August 2002. This report recommended the establishment of anti-retroviral pilot treatment programmes in the public sector. ,,,
g. In the latest obstruction, the Minister of Health ignored the attempts to reach a negotiated NEDLAC Framework Agreement for a National Prevention and Treatment Plan, firstly holding back all sections of the original draft that refer to the use of anti-retroviral medicines and then denying the existence of the NEDLAC process.
h. The Minister of Health has further deliberately ignored wide-scale civil society attempts to engage her amicably on the issue of treatment provision for people living with HIV/AIDS.
Message-Id: <200303241400.h2OE0lc13160@marduk.africapolicy.org> From: "Africa Action" <email@example.com> Date: Mon, 24 Mar 2003 09:00:11 -0500 Subject: South Africa: AIDS Treatment Action
Editor: Ali B. Ali-Dinar
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