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African Union wants vaccine patent waiver

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It may not have been a leading headline, but one notable aspect of the 34th summit of the African Union (AU) assembly, held from 6-7 February, was its focus on the response to Covid-19. Although the election of the leadership of the AU Commission attracted much of the media attention, the gravity of the pandemic was not lost on the participants of the session.

As the outgoing chairperson of the AU, South African President Cyril Ramaphosa observed in his opening address, Covid-19 “is not only a severe health emergency, it is also a grave economic and social crisis”. 

As the report on the pandemic submitted to the summit rightly notes, “the only way in which we can prevent Covid-19 transmission and deaths while at the same time protecting African economies and societies is to successfully immunise a critical mass of the African population with safe and efficacious Covid-19 vaccines”.

Africa will need 1.5-billion doses in order to vaccinate 60% of its population — the estimated minimum requirement for achieving “herd immunity”. 

Yet, there is increasing public concern across the continent that Africa’s path to equitable access to the vaccine is very narrow. The current supply of vaccines is very limited.

As South Africa’s foreign affairs minister Naledi Pandor pointed out in her opening address to the ministers’ meeting during the summit, the economically well-off countries of the north have “purchased the largest stock, while we in Africa are struggling to get our fair share”. Thus countries with only 16% of the world’s population have bought up 60% of the world’s vaccine supply. 

This “artificial scarcity”, to use the apt description of World Health Organisation’s chief Tedros Ghebreyesus, has mostly to do with the market-based approach to the production of and access to the vaccine, from which the pharmaceutical industry and those dominating the existing global economic system benefit the most. 

The result is that Africa is once again at the tail end of the queue, this time for access to the vaccine.

So, what is the AU’s plan for avoiding the imminent risk of Africa being left behind in Covid-19 vaccination? What new measures have been adopted? 

The AU, through the Africa Centres for Disease Control (CDC), has developed a vaccine development and access strategy, endorsed by the AU’s bureau of heads of state and government in August 2020. Although this is good, the strategy covers only three areas: to accelerate African involvement in the clinical development of the vaccine; to access a sufficient share of the global supply; and to remove barriers to widespread delivery and uptake of the vaccine. 

In pursuit of access, Ramaphosa established the Covid-19 African Vaccine Acquisition Task Team (AVATT) on 7 November 2020 to accelerate funds for procurement and delivery of the vaccine doses. 

The estimated cost is $9.1-billion. Considering that the Covax facility is set to deliver 20% of the required vaccine doses, Africa currently faces a funding gap of $6.1-billion. 

After the work done by the AVATT, two avenues of financing were presented. The first involves a total of $5-billion to be made available from the World Bank. The other is the two funding mechanisms proposed by African Export-Import Bank (Afrexim Bank) namely, commitment by Afrexim Bank of up to $3-billion to guarantee Africa CDC’s vaccine order for payment upon delivery and funds to be sourced from capital markets via a proposed vaccine bond issued to raise about $3-billion.   

It is clear that this strategy is premised on the market-based approach to the production and acquisition of the vaccine. Its point of departure is accepting the prevailing power relations that are skewed in favour of the pharma industry and countries housing those producing the vaccine doses. 

There are several issues with this approach. It adds an enormous debt burden on African economies at a time when these economies are battered by the consequences of the pandemic. 

Equally, it does not address the structural issues limiting Africa’s path to equitable access to the vaccine. Such an approach shies away from including access to the technological know-how of the vaccine for the generic production and distribution of the vaccine on the African continent. 

Significantly, it is premised on treating the pandemic as an ordinary event whose solution is to be achieved through ordinary market-based approaches. As a global pandemic of unprecedented nature and consequences, a most crucial approach is to have the vaccine against Covid-19 as a global public good.   

For some months the African Commission on Human and Peoples’ Rights – which I chair – has been calling for the creation of conditions for the generic production of the vaccine. In its Resolution 449 of its 66th ordinary session held in 2020, it called on the AU to develop a strategy for making arrangements for the production and distribution of a Covid-19 vaccine within the continent. 

In an important development, in the 2020 chairperson’s report on the response to Covid-19, the AU Assembly acknowledged “the need for equitable and timely, access to the Covid-19 vaccine to all AU Member States which will require additional mechanisms to ensure at least 60% of the continent’s population is vaccinated”. 

Indeed, the most effective way of speedy production and distribution of the vaccine without leaving developing countries behind, including many in Africa, is through the creation of conditions for the generic production and distribution of the vaccine. As Ghebreyesus pointed out, these conditions include “openly sharing vaccine manufacturing technology, intellectual property (IP), and know-how through the Covid-19 Technology Access Pool, temporarily waiving intellectual property barriers, and expanding voluntary contracting between manufacturers”.

Now supported by nearly 100 countries, the proposal India and South Africa put forward in October 2020 calling on the World Trade Organisation (WTO) to pause enforcement of IP regulations under the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) for Covid-19 treatment, would allow for the more affordable production of generic treatments for the duration of the pandemic. 

Unfortunately, this call is facing stiff resistance from many developed countries and indeed from the major pharmaceutical companies themselves. 

The AU has now thrown its collective weight behind this proposal as an important additional mechanism in the quest for herd immunity in Africa. As Pandor told her counterparts, the temporary waiver by the WTO of specific IP obligations related to the prevention and treatment of Covid-19 “would enable countries in Africa and elsewhere to access active pharmaceutical ingredients and benefit from technology transfer, including the know-how to manufacture vaccines in Africa at a cheaper cost”. 

The AU Assembly, noting that exceptional circumstances exist that justify a waiver from the obligations of the TRIPs agreement specifically for the prevention, containment and treatment of Covid-19, decided to support the call.

This constitutes a critical addition to the current AU Covid-19 strategy to achieve, in the words of the AU chairperson’s statement, the containing of “the ever-changing toll of the pandemic in Africa”; hence the protection of people on the continent from the continuing threat of Covid-19 to their rights to health and life.

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Solomon Dersso
Dr Solomon Ayele Dersso is a legal scholar specialising in human rights and transitional justice and an analyst of African affairs. He is also the chairperson of the African Commission on Human and Peoples’ Rights and spearheaded the drafting of both the AU Transitional Justice Policy and the African Commission’s Study on Transitional Justice.

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