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Millions of lives should take priority in South Africa

By James Ensor - posted Sunday, 15 April 2001

On 18 April the South African government meets 39 drug companies in court again, continuing a three-year struggle over drug patents and pricing. At stake is the future of millions of South Africans like Swazi.

Swazi (not her real name) is the human dimension of South Africa’s HIV/AIDS crisis. A 43-year-old widow from Kwa Zulu Natal province with five children, Swazi’s husband died from AIDS-related illness in 1994. She is also HIV positive.

"My husband became so sick that he could not go to work," Swazi says. "I was struggling to raise money in order to maintain my children, my sick husband and myself. I used to find little jobs here and there. There was no money to buy medicine or to take him to the doctor."


Swazi is one of the 10% of South Africans now living with HIV/AIDS. The rate averages 32% amongst pregnant women in Kwa ZuluNatal province where Oxfam Community Aid Abroad does most of our work on HIV/AIDS prevention. Given these grim statistics it is not surprising that HIV-AIDS is expected to leave close to a million South African children orphaned by 2005.

In an attempt to help South Africa combat HIV/AIDS and other infectious diseases, President Nelson Mandela introduced a law in 1997 making it possible for South Africans to obtain the cheapest possible medicines from abroad and from local suppliers. If implemented, this law would see the price of many essential medicines drop more than tenfold.

Taking exception to the law, 39 of the world’s largest drug giants have taken legal action against the South African Government preventing the new law from being implemented. The case began in March – after a three year delay, which has stopped South Africa buying cheap drugs to treat infections related to HIV/AIDS. The Southern Africa Treatment Action Campaign, a non-government organisation which campaigns on health issues, estimates that 40,000 people have died from AIDS-related illnesses in the intervening period.

At the crux of the debate are drug patents – rights to the inventor of a new medicine to sell that product exclusively and protect against copying and marketing of their product by rival manufacturers for 20 years. Less clearly stated but equally at issue is the right to set the level of profit.

The drug companies claim that the South African law is unconstitutional as it gives the Government the power to override pharmaceutical patents when public health is at stake. This, they claim, violates their intellectual property rights under the World Trade Organisation’s Trade Related Aspects of Intellectual Property (TRIPS) agreement signed by numerous Governments, including South Africa. They argue that South Africa’s domestic laws cannot override this agreement.

A handful of drug companies have offered to donate some drugs for a fixed period or to discount to a limited extent. These offers have been too limited in their scope to present real solutions to the challenges of meeting people’s rights to health care. Some companies have stated that the issue is not just AIDS drugs, but that the court case has implications for all medications. This is true. In an AIDS affected context "AIDS drugs" are just a small part of the solution. A life long course of anti-retrovirals, drugs that slow the transition of HIV to AIDS, will continue to be beyond the reach of the majority of people. Drugs that treat secondary illnesses suffered by people with weakened immune systems are also vitally important. Access to fungicides, antibiotics and TB treatments are also at issue. It is broad spectrum and flexible systems of treatments that governments need access to.


Also weighing into the debate is the Australian drug industry. The Australian Pharmaceutical Manufacturers Association (APMA) – many of whose member companies are linked to the drug companies involved in the court case – has launched a spirited defence of the legal action claiming the case is about "protecting property from arbitrary seizure".

The APMA also claim that the battle against HIV/AIDS involves not only access to affordable medicines, but also a commitment from a country’s healthcare system, government and community to tackle the crisis. They are right and South Africa presents an important example of a country attempting to meet these requirements, and improving access to medicine is an important part of their strategy. A more responsible approach from the APMA would be to encourage all Australian pharmaceutical manufacturers linked to those taking the court action to pressure their parent companies to immediately withdraw from the case and consider more constructive ways forward.

Patent protection is needed for innovation, but this must be balanced against the needs of millions of people for affordable medicines. Every day 30,000 people in the developing world die from curable diseases. What is needed is a more flexible approach to patent rights in developing countries rather than a one size fits all, 20-year patent period for drugs in all countries.

Let’s not lose sight of the fact that the HIV/AIDS epidemic is about millions of real people like Swazi and her children.

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About the Author

James Ensor is Director of Public Policy at Oxfam Australia.

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