How the Constitution changed the HIV/Aids epidemic’s trajectory in SA

In 1988, the UN General Assembly officially recognised the World Health Organisation (WHO) declaration that 1 December would be internationally commemorated as World Aids Day. The virus was first identified in 1981 and it was named human immunodeficiency virus/acquired immunodeficiency syndrome (HIV/Aids) in 1982. 

The WHO realised that it posed a global health threat and that a united effort was needed to fight against it. Annually, the day aims to garner support for people living with HIV and to commemorate those who have died from Aids-related illnesses. 

The day also presents an opportunity for governments and civil society to take stock of and evaluate their respective responses to the epidemic. While the first waves of the Covid-19 pandemic have swept across the globe and demanded much attention and resources, the ongoing HIV/Aids epidemic seems to have been sidelined — pushed to the background, if not dropped completely as a matter of urgency. 

One reason for this might be that HIV/Aids is more prevalent in poorer and developing countries, whereas Covid-19 — with death rates sparing no country — significantly affects the entire globe.

What HIV/Aids and Covid-19 do have in common, however, is that they each pose a challenge to political leadership, put governments to the test and expose the weaknesses and vulnerabilities of societies. The following statistics are a reminder that South Africa is still at war in terms of combating HIV/Aids and may — in fact — be further away from winning the battle than it was before Covid-19. 

South Africa – the epicentre of the HIV/Aids epidemic

Africa, a continent with a predominantly young population, is hardest hit by the epidemic — with an estimated average of 3.9% of the population infected by the virus — a higher prevalence than on any other continent. South Africa finds itself in the epicentre of the epidemic. The following statistics provide insights into the scope and seriousness of the HIV/Aids crisis in the country but fall short of revealing the emotional burden and human suffering associated with the disease. 

According to Statistics South Africa, in 2021 the estimated overall HIV prevalence rate among the South African population was approximately 13.7%. In the same year, the total number of South Africans living with HIV was estimated at about 8.2-million.

That said, according data from UNAids, the number of new infections per year in South Africa has dropped by more than half in the last two decades — from 510 000 in 2001 (at a time when the South African government was still in denial about the illness) to 210 000 in 2021. This is, however, no reason to celebrate or become complacent.

Aids-related deaths are still unacceptably high in South Africa. In 2022, the estimated number of deaths from Aids-related illnesses reached about 85 800. This was lower than the previous year, when Aids-related deaths in the country reached nearly 88 000. Adding up all Aids-related deaths since the 1990s, South Africa has lost up to five million people to the disease — a figure comparable to the population of Cape Town. Had the millions of South Africans been casualties of a war or a natural disaster, a monument would likely have already been erected for them. 

HIV/Aids has the devastating attribute that it affects young adults in particular — those of reproductive and economically productive age who are considered the backbone of society. In 2021, an estimated 19.5% of the population from 15 to 49 years old were HIV positive. In addition to age, the virus seems to have an unfair gender bias, with women significantly more at risk of contracting it than men. Almost a quarter of women of reproductive age (15 to 49 years old) are HIV positive.

Thanks to the ground-breaking constitutional court judgment of 2002 and the free availability of antiretroviral (ARV) treatment, being HIV positive is no longer a death sentence. However, the risk of contracting and succumbing to tuberculosis (TB) and other opportunistic diseases is significantly higher due to a compromised immune system. 

While the infection and death rate statistics are unacceptably high and require urgent political intervention, one should not forget that progress has been made — not least thanks to the dedication and activism of civil society organisations working in this field. 

When leaders fail, the human costs are high

While there are many individuals and organisations in South Africa that have done (and still do) remarkable work in combating and treating HIV/Aids since the disease first caught public attention more than three decades ago, there is one organisation that stands out and has managed to force the South African government to take action. 

In 2002, the Treatment Action Campaign (TAC), an organisation founded just four years earlier in 1998, took the South African government to the constitutional court for its refusal to widely roll out lifesaving ARVs to HIV-positive pregnant women and prevent mother-to-child transmission of the virus. The bitter court battle was preceded by intensive advocacy work and was widely seen as a kind of last resort to change the government’s stance towards HIV/Aids in general, and the roll-out of ARVs in particular. 

When Thabo Mbeki assumed the presidency in May 1999, the death toll as a result of the Aids epidemic was frightening. It is estimated that in that year alone, around a quarter of a million people died of Aids-related causes in South Africa. The most populous provinces, such as KwaZulu-Natal, Gauteng and the Eastern Cape, were hit the hardest in terms of absolute numbers. 

Often, the cause of death of a loved one was kept secret and officially attributed to other illnesses due to the relatives’ fear of stigmatisation and ostracisation by the community. The stigma attached to the disease caused a severe underreporting of HIV/Aids-related deaths in South Africa, making it difficult for health experts and policymakers to grasp the full extent of the epidemic. 

To be infected came close to a death sentence since no cure had been found and no treatment was available. Widespread testing for HIV was not conducted, leaving individuals in the dark about their status and thereby increasing the risk of unknowingly spreading the virus and promoting new infections. As the virus spreads mainly via sexual transmission, the shame and stigma attached to HIV/Aids prevented people from openly talking about it and seeking help. 

Not many public figures admitted that they or their family members were affected by the virus. A noteworthy exception in this regard was Prince Mangosuthu Buthelezi, the leader of the Inkatha Freedom Party, who — at his son’s funeral in Mahlabathini in northern KwaZulu-Natal in 2004 — openly stated that the cause of his son’s death was HIV/Aids. Buthelezi was one of the few politicians who spoke out strongly against the government’s slow response to the pandemic and actively helped to combat stigma around the disease. 

Mbeki was criticised for how he handled the health crisis within his own party. Against unwritten ANC protocol, former president Nelson Mandela lambasted the Mbeki government’s “lacklustre” response to HIV/Aids. In 2002, Mandela told the Johannesburg-based Sunday Times: “This is a war. It has killed more people than has been the case in all previous wars and in all previous natural disasters. We must not continue to be debating, to be arguing, when people are dying.”

To the horror of scientists, health practitioners and activists, Mbeki publicly contradicted scientifically accepted research by expressing the view that HIV did not cause Aids. His minister of health at the time, Dr Manto Tshabalala-Msimang and other dubious experts supported his views and went as far as officially promoting herbal remedies — such as garlic and beetroot — as an alternative to ARVs. 

The failure of Mbeki’s government to respond adequately to the HIV/Aids crisis and enact the countrywide roll-out of free ARV intervention came at a huge human cost. According to an article by Pride Chigwedere published by the Harvard School of Public Health, more than 330 000 people died prematurely from HIV/Aids between 2000 and 2005 due to the Mbeki government’s obstruction of life-saving treatment, while at least 35 000 babies were born with HIV infections that could have been prevented.  

A constitutional court judgment that saved lives

“The magnitude of the HIV/Aids challenge facing the country calls for a concerted, co-ordinated and co-operative national effort in which government in each of its three spheres and the panoply of resources and skills of civil society are marshalled, inspired and led. This can only be achieved if there is proper communication, especially by government.”

The constitutional court delivered this statement on 5 July 2002 as part of its judgment in Minister of Health and Others v Treatment Action Campaign and Others. The judgment upheld the constitutional right of all HIV-positive pregnant women to access healthcare services to prevent mother-to-child transmission of HIV.

“The court found that the government had not reasonably addressed the need to reduce the risk of HIV-positive mothers transmitting the disease to their babies at birth. More specifically, the finding was that the government had acted unreasonably in (a) refusing to make an antiretroviral drug called Nevirapine available in the public health sector where the attending doctor considered it medically indicated, and (b) not setting out a timeframe for a national programme to prevent mother-to-child transmission of HIV,” the judgment stated.

The judgment supported the applicants’ view that the government’s restrictions in terms of rolling out ARVs were unreasonable when measured against the Constitution – which demands that the state and all its organs give effect to the rights guaranteed by the Bill of Rights, including the right of everyone to access public healthcare services and the right of children to be afforded special protection. 

The constitutional court judgement was a huge victory for the applicants and paved the way for access to ARVs in the public health system, which has saved millions of lives since its implementation in 2004.

In the following years, the TAC was instrumental in securing a universal, government-provided Aids treatment programme. In 2007, the National Strategic Plan on HIV, TB and STIs 2007-2011 was adopted by parliament. 

Today, more than five million people are on ARV treatment in South Africa and are able to live normal lives.

Christina Teichmann is a political consultant and board member of the FW de Klerk Foundation. She holds a master’s degree in education from the Rand Afrikaans University and the University of Landau, and a master’s in philosophy from the University of Cape Town.  

The views expressed are those of the author and do not necessarily reflect the official policy or position of the Mail & Guardian.