The HRC’s capitulation on this week’s court challenge to the government HIV/Aids policy gives rise to questions over the commission’s independence
Thuli Nhlapo and Nawaal Deane
The Human Rights Commission (HRC) pulled out of helping the Treatment Action Campaign (TAC) in its landmark challenge to the government on HIV/Aids after the commission’s then chair, Barney Pityana, got a phone call from the state’s advocate.
After speaking to the state’s senior counsel, Marumo Moerane, in early October, Pityana sent an e-mail to his co-commissioners, saying he agreed the commission should withdraw from the case as it had nothing to add.
Pityana’s interpretation, accepted by a majority of his co-commissioners, contradicted the HRC’s own legal argument by then already submitted to the Pretoria High Court which argued that the HRC could contribute unique evidence, some of it based on exclusive government documents.
The commission’s withdrawal from the court case which was heard in Pretoria this week raises serious questions about its independence. The HRC is a statutory body guaranteed autonomy by the Constitution.
The commission was to have participated in the case as amicus curiae an interested party or “friend of the court” and filed its legal argument on October 1. These court papers make it clear that the HRC would have sided substantially with the TAC in its attempt to force the government to provide anti-retrovirals to prevent mother-to-child transmission of HIV.
If the commission had gone ahead and taken sides in court with the TAC, it would have increased the embarrassment factor for the government.
It also emerged this week that the commission has since 1997 had an HIV/Aids policy endorsing the distribution of anti-retrovirals but it is now fudging the status of this policy.
Pityana, in a weekend report, scoffed at allegations that the withdrawal was linked to political pressure but did not deny having received a telephone call from state council Moerane. The Mail & Guardian has established that Pityana wrote the e-mail to his co-commissioners soon after his conversation with Moerane, which was within days of the commission’s filing its court papers.
But it seems Pityana was not the only commissioner to receive “advice” from the government. It is alleged that advocate Mojanku Gumbi from President Thabo Mbeki’s office discussed the HRC’s intended participation with one of Pityana’s co-commissioners. Gumbi was not available for comment.
Last week the M&G quoted Shirley Mabusela, who has taken over as chairperson from Pityana, as saying: “I am not aware of any pressure from anywhere. The decision to withdraw was based on the fact that we had nothing new or additional to contribute to the TAC case.”
This week she was reluctant to comment. Other commissioners were either unavailable or failed to comment.
The HRC’s affidavit withdrawn in mid-October after the commission abandoned its intended participation argued that the commission could contribute a “unique perspective, backed by evidence not introduced by any of the parties, on [the government’s] duty to fulfil the right of access to reproductive health care”.
The HRC pointed out that it is responsible for “monitoring the progress of the government in the realisation of the socio-economic rights as stated in the Bill of Rights of the Constitution”, and in exercising this duty it has garnered information from the government on its HIV/Aids programme.
“The Commission is of the opinion that the information received from the government will be of considerable assistance to the Court in considering that part of the TAC’s challenge based on the right to have access to health care services,” it says in its affidavit.
The HRC’s intended legal argument challenging the government to provide anti-retrovirals rested on two legs: that it is the government’s duty, in terms of the Bill of Rights, to provide health care and is related to citizens’ constitutional right of access to information.
The HRC’s affidavit pointed out that official HIV/Aids policy fails to advise HIV-positive pregnant women that nevirapine can reduce the chances of the virus passing to their babies. The affidavit argued that, regardless of whether the state provides the drugs, it is nevertheless obliged to inform pregnant women of their options.
“Patients who approach a public hospital for advice and treatment are entitled to be proactively informed about alternative drugs that are available in the private sector so that they can make an informed choice,” the affidavit says.
The HRC further skirted the issue of its role in the case when Mabusela last week said that the commission has “not sat down and come up with a position on the government policy on Aids or mother-to-child transmission”. She said the HRC drafted a policy in 1997 but “we have not said this is our stance on the government’s policy as yet”.
But according to Ann Routier, former chairperson of the HRC’s policy and planning committee, the commission’s HIV policy was not a draft but was ratified in August 1997. Said Routier: “It is crap [to say the commission does not have a stance on government’s HIV policy]. The process was undertaken so that the commissioners would speak with one mouth on policies regarding the Bill of Rights.”
The policy document lays down the “role of the commission” on HIV/ Aids, stating that the HRC “recommends that urgent measures be taken to provide women with HIV/ Aids access to treatment …” and defines for the commission a role to “lobby government for adequate budgetary allocations for HIV/Aids education and treatment”.
A spokesperson for the HRC said Pityana was unavailable for comment as he was no longer with the commission. Pityana this week took up the vice-chancellorship of Unisa.
Additional reporting by Khadija Magardie