What started two weeks ago with Treatment Action Campaign (TAC) activists occupying the Human Rights Commission (HRC) offices in Cape Town may end with the pressure group taking President Thabo Mbeki to court in an attempt to get Health Minister Manto Tshabalala-Msimang fired.
The lobby group says there are several legal avenues that could be explored if the president — who is responsible for the hiring and firing of Cabinet ministers — were to be brought before the court. One of these includes reviewing the president’s decision not to fire the minister if it is proven that she has violated the oath she took when being sworn into office. This oath requires her, among other things, to ”obey, respect and uphold the Constitution and all other laws of the republic”.
During mass protests in the past fortnight the TAC has vehemently decried the lack of political leadership in the fight against the HIV/Aids pandemic, and Tshabalala-Msimang’s dismissal has been at the forefront of their demands.
But before taking legal action, TAC general secretary Sipho Mthathi said the organisation would be sending a letter to Mbeki detailing its views on ”what the problems are regarding the HIV/Aids crisis and [Tshabalala-Msimang’s] failures. We will ask him to respond publicly on why he is keeping her in office.” The letter was to be delivered to the president on September 1.
The TAC’s Nathan Geffen, who was involved in drafting the letter, said it would ”outline the problems in the healthcare system and express the degree of responsibility for these problems due to the minister of health. We have set a deadline for a response and, if there isn’t an appropriate response, we will consider litigation,” said Geffen. He didn’t specify the deadline, except to say it would be a reasonable one.
Mthathi added that if Mbeki doesn’t respond they ”will feel snubbed by the president’s silence and consider it a statement of disregard for ourselves, as part of a constituency that voted the government into power, and for those dying from Aids. We hope the president will respond.”
The Aids Law Project’s Jonathan Berger, who acted on behalf of HIV-positive Westville inmates in their recent legal battle for anti-retroviral treatment, said he believed that the TAC might have a case: ”We would argue the case if asked to.”
Tshabalala-Msimang faced renewed criticism this week when the South African Medical Association (Sama) accused her of breaking the law by making unproven claims about the effectiveness of ”alternative treatments” for Aids.
Sama chairperson Dr Kgosi Letlape said that any claims of therapeutic effectiveness made without clinical trials and approval by the Medicines Control Council were illegal: ”In terms of the laws of this country, anything considered therapeutic should be registered for that purpose, and people have to submit proof that it is therapeutic.”
Meanwhile, TAC protests continued this week with about 200 activists converging on the Mahatma Gandhi Hospital in Phoenix, just outside Durban. Among their list of demands was that an urgent provincial HIV/Aids crisis meeting be held and that more community health centres in the area be accredited for anti-retroviral rollout.
”At the moment, Mahatma Gandhi has more than 1 200 people on a waiting list to receive anti-retroviral treatment. They have appointments for June next year, which in many people’s cases may be too late,” said Lihle Dlamini, TAC provincial coordinator.
Stressing the countrywide backlog in the government’s anti-retroviral rollout, Dlamini said 160 000 people nationwide were receiving treatment, but there were still 450 000 more who needed the drugs urgently.
TAC protests will continue in the next few weeks, including a gathering at the Cape High Court on September 7 when 48 members of the TAC face trespassing charges for their occupation of the HRC offices.
A day later — which is when the government is supposed to comply with a deadline, set by Judge Chris Nicholson this week, to provide the courts with proof of its treatment plan for the 15 HIV-positive prisoners and all ”similarly situated prisoners” at the correctional facility — there will be a protest at the Durban High Court.
A night vigil will also be held outside Parliament on September 19, the day before the parliamentary portfolio committee on correctional services is due to meet.
Not the spice of life
The pepper spray used by the police to evict Treatment Action Campaign (TAC) protesters from a correctional services building in Cape Town last week could have been dangerous, even deadly, for those activists whose immune systems have been compromised.
This is the claim being made by some of the protesters and supported by the Black Cross Health Collective, an organisation of healthcare workers in Portland, Oregon, that provides health relief in mass protests and seeks to neutralise pepper sprays.
Jared Chaitowitz, who participated in the TAC protest, claims that pepper spray is dangerous when used on pregnant women and people with compromised immune systems — like some of the HIV-positive activists who were part of the group. ”The pepper spray felt terrible,” said Chaitowitz. ”The police did not only spray it into the air around us — which causes skin irritation, a burning sensation in your mouth and eyes and severely restricts your breathing — they aimed directly at our eyes.
”I can understand why they would do this if they were defending themselves from violent or dangerous criminals but, as I’ve explained, we were protesting in a non-violent manner according to TAC’s principles.”
Explaining his experience of the defensive aerosol, Chaitowitz said: ”For a moment I feared I was actually blind, then uncontrollable tears began. Then your skin begins to feel as if it is on fire. These sensations last intensely for up to an hour after contact with the spray and then linger for hours,” he said.
Chaitowitz said he has read that ”pepper spray is especially bad for people with immune system related illnesses such as HIV”.
The Black Cross Health Collective claims: ”For most healthy people, the effects of tear gas and pepper spray are temporary. However, for some people the effects can be long lasting and life-threatening.
”Vulnerable people such as infants, the elderly and the immune compromised risk intensified and possibly life threatening responses.”
In South Africa, pepper sprays and other tear gas aerosols used by the South African Police Service, metro police services, National Defence Force and Reserve Bank, as well as Chubb Electronic Security and Anglo American Security, are supplied by a company called SWAT Laboratories, which manufactures non-lethal weapons.
SWAT Laboratories claims: ”The active ingredient used is oleoresin capsicum, the concentrated extract of hot chilli peppers, used in the food industry (greatly diluted) to spice up pre-packaged foods such as Fritos chips and Mexican specialties.”
The police had not responded at the time of going to press. — Zukile Majova