Ebrahim Harvey
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Nothing depicts the ugly and brutal face of capitalism more than the court battle between this government and pharmaceutical companies over the right to import or locally produce cheaper drugs to combat the ravaging Aids epidemic. At stake is saving or prolonging the lives of millions of children and adults. Today, aside from war casualties, most deaths in the Third World are due to Aids, starvation or poverty-related disease, or often a combination of these.
What lies at the bottom of the concerted fight by these companies, represented by the Pharmaceutical Manufacturers’ Association (PMA), is their determination which is implicit in their claim that the Medicines and Related Substances Control Amendment Act of 1997 undermined their patent rights to defend their astronomical profits against the desperate need and right of millions of people to have access to cheap drugs.
We are daily bombarded with the patented intellectual property rights of these companies while the basic rights of those suffering from the dreaded disease are not recognised. For too long has their profiteering interests taken precedence over the plight and health of HIV/Aids sufferers. For too long have they rode roughshod over the needs of millions of sick, dying and poor people. This in spite of the fact that the pharmaceutical industry is already one of the most profitable industries in the world.
The PMA’s claim that the government, to morally discredit it and thereby strengthen their case, was never serious about fighting the Aids epidemic is, while partly true, calculated to deflect attention from its members’ greater responsibility for keeping HIV/Aids drugs out of the reach of poor people.
Not even the devastating horrors of the Aids epidemic could temper their greed for profits. That is what lies at the bottom of their litigation battle against the government.
And if the government was not at all serious it would not have amended the law in 1997 to allow for the importation of cheap generic drugs.
The whole question of patented intellectual property rights, and the gamut of legislation to uphold it, is meant to bolster the rule of multinational giants that invoke it to protect their monopolies and profits. To invoke these rights while Aids is decimating the Third Word is moral bankruptcy.
But it is true that this government has not been as serious as it should have been about combating the Aids epidemic. In this regard nothing serves to indict the government more than the fact that while it said it could not afford to provide HIV-positive pregnant mothers with anti-retroviral drugs, it could afford to purchase arms at a staggering cost. To prioritise arms over the lives of children is an inexcusable evil that will be one of the biggest blights upon this government.
The government also has to provide satisfactory answers to valid questions raised by the PMA and Democratic Alliance leader Tony Leon: why did it not use the Patent Act of South Africa and the World Trade Organisation’s Agreement on Trade-related Aspects of Intellectual Property Rights, which both make provision for the production or importation of these drugs under certain circumstances? Only now is the government considering declaring a state of emergency, which would allow them to produce or import these drugs.
And the statement by the PMA that the government had first used excuses of high prices and then toxicity not to provide anti-retroviral drugs is also true. But not even this can conceal or mitigate their own bigger responsibility for keeping these drugs at a cost far too high for poor people who often don’t even know where the next slice of bread will come from, let alone the drugs. The fact is that the government and the PMA have been accomplices in deepening the HIV/Aids crisis.
For the PMA to further state that the 1997 law could lead to companies who spent much on research and marketing disinvesting from this country is plain blackmail, which ignores the profound moral basis of the right of Aids sufferers to affordable treatment. Last week this paper also reported that pharmaceutical big bosses in America, as a result of the clash between the PMA and the government, are considering requesting that South Africa be put back on a United States watch list for possible trade sanctions. This smacks of typical American imperialist arrogance. Behind this blackmail lies one word: profits.
But nothing this government has done or not done must serve to deny it the utmost support in its fight against the PMA. Why? Because so devastating is the Aids crisis that fighting it has become the responsibility of the whole of society. It will represent and bring to a head a fight between the rich and powerful and the sick, poor and needy. Therefore it is necessary that civil society rally behind the government and support it in spite of the fact that it has not done as much as it could have in combating the crisis.
The postponement of the case to April 18 will give civil society the time to harness the greatest possible support for the government. In fact, because the outcome of the case would set an international precedent that could have far-reaching implications for the future handling of the crisis, it is so important that were the presiding judge inclined to rule in favour of the PMA the sheer weight of public support for government’s stand must be so strong that he finds in its favour. It will not be a great victory for all present and future HIV/Aids sufferers only but also for the fight against the brutal power of multinational corporations.
No constitutional law or trade agreement, no matter what it says, should serve to obstruct a finding against the PMA. Since the Aids epidemic poses the greatest health risk ever it will not be only the greatest travesty of justice for this case to be won by those who profit from it but also a very big setback in the fight against the disease. No law can be more important to uphold than the justice this calamity demands.