04/12/2017 06:12 SAST | Updated 04/12/2017 06:33 SAST

Zackie Achmat: Private Sector, Not The State, Stalling Access To Medicines

New Intellectual Property Policy will make access to healthcare services much more affordable, across the public and private healthcare sectors, says Achmat.

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South African activist and founder of the Treatment Action Campaign, Zackie Achmat, whose work has significantly shaped the contours of social justice in South Africa, in conversation with Achal Prabhala, a fellow of the Shuttleworth Foundation, about what the Intellectual Property Policy released by the Department of Trade and Industry, which is in the final stages of implementation, means for the country.

Achal Prabhala: Zackie, so much of what is happening in South Africa today around access to medicines, especially the government's new Intellectual Property Policy, is directly inspired by the astonishing work you did in the late 1990s and the early 2000s. How did your own struggle for access to medicines begin?

Zackie Achmat: If you look at the first National AIDS plan of the government in 1994, they had already recommended making medicines more affordable. So we knew then, all of us knew, that government could not supply medicines for HIV/AIDS at USD $10,000 a year -- that would have bankrupted the country, nevermind the healthcare system. So it was clear to us that we all relied on government policy, and especially on the policies of the first health minister, Nkosazana Dlamini-Zuma, to make medicines more affordable. One of the first steps she took was to create an essential drugs list for the public sector. And that put the drug companies on the back foot, because doctors couldn't be pushed around by the pharmaceutical industry anymore.

From that point on, it became clear to us that the major battle around access to medicines was going to be around price.

Now, you will remember that in 1996, combination therapy [HAART, or Highly Active Antiretroviral Treatment] for HIV/AIDS became available globally. That changed peoples' lives, it turned AIDS from a death sentence into a chronic illness. It became clear to us that people could live full lives with the right medication – that they could essentially buy a long, healthy life. At that point onwards, not providing treatment for HIV/AIDS became more than simply an ethical and moral challenge, but something that -- in my opinion -- was unlawful in terms of our constitution and even in terms of many international agreements -- from the The Universal Declaration of Human Rights to trade rules at the World Trade Organisation (WTO).

Let me put it more simply. The right to life and the right to exist trumps everything. The duty of the state is to ensure that the rights of its people are supreme.

AP: When did you first figure out that intellectual property was affecting access to medicines?

ZA: TAC was founded on International Human Rights Day -- December 10 -- in 1998. The death toll from HIV/AIDS was rising -- it started taking the lives of activists all around us -- and it became very clear, very early on, that access to medicines was the primary question.

A turning point for us, in terms of understanding the law, came from Médecins Sans Frontières (MSF). We knew that we could use the law and we knew that the Medicines Act was going to make medicines more affordable. But if you remember, Nkosazana Dlamini Zuma's amendments were only to the Medicines Act – not to the Patents Act. In that time, none of the activists, and none of the human rights lawyers even, had any idea about patent law – because it is such an arcane part of law.

A critical thing that happened then was that Eric Goemaere from MSF said there's a chap in Washington DC called Jamie Love who runs CP Tech (The Consumer Project on Technology, now known as Knowledge Ecology International). Jamie was enormously helpful in getting us to understand the role patent law played, in getting us to understand what compulsory licenses were. Then, of course, the international pharmaceutical industry challenged the Health Minster. And we supported the Minister in that case, all the way through, even as the ministers changed.

AP: That case, launched by the Pharmaceutical Manufacturers' Association vs the President of South Africa, was historic. The scale was unprecedented and the nature of the action, so brutal: the global pharmaceutical industry going up against the government of a newly democratic South Africa, corporations challenging citizens on their right to stay alive. How did it play out? What turned in the course of that long, sad, battle?

ZA: So there are a few steps to that case that are critical in understanding what really happened.

We came to fully understand what patent law meant, and what compulsory licenses meant. At that time, one of the medicines that was very important to us was flucanazole, which is used to treat systemic thrush. A lot of people, including my cousin Farieda Abrahams and my fellow activist Christopher Moraka, died of thrush. Eric Goemaere pointed out that the daily flucanazole dose that cost R350 in South Africa, cost a mere R3 in India and Thailand. Pfizer had a patent on flucanazole in South Africa, and the grossness of that profit ratio, the patent abuse and the outright monopoly abuse, drove us to flout the law and import the drug from Thailand. We made our point.

Juda Ngwenya / Reuters
Zackie Achmat, then a chairman of Treatment Action Campaign (TAC) who is HIV positive, addresses a news conference at the head offices of the Congress of South African Trade Union (COSATU) in Johannesburg April 17,2001. The world's biggest drug firms resume a court action against the South African government on Wednesday in an attempt to strike down legislation it argues infringes their patent rights on medicines.

As soon as Pfizer saw that we were prepared to go to jail for illegally importing generic flucanazole in order to live, they immediately offered a donation to government. It became clear to me that pharmaceutical corporations only want to delay, to offer donations to anyone they can if it will help protect themselves. It doesn't affect their profits, in fact it doesn't cost them anything at all. They can write off the donations as tax deductions. Really, no government anywhere in the world has the power of the global pharmaceutical industry – their collective economic clout, their ability to lobby, holds governments hostage.

Suddenly you had all kinds of people, ordinary citizens, learning about the arcane technicalities of patent law. And we really opened up the eyes of the legislators. I remember the time we went to the Portfolio Committee on Health in Parliament, when Dr Abe Nkomo was the chair. We had already entered the period of HIV/AIDS denialism, but Dr Nkomo and the committee, they weren't denialists. They called us to speak to them. We were four people, three of us HIV+, and one who wasn't. The first to speak was my late colleague Christopher Moraka, who was dying from thrush. He explained that he was dying because he couldn't afford the medicines he needed to live. Several others gave evidence at the meeting, including the pharmaceutical manufacturers. But it was clear even then that our argument had won. It was morally compelling, ethically sound, and legally feasible.

By that point, we knew that whatever was to happen in the case, we had won the public argument. We also knew that we were likely to win the legal argument in court. We supported the case, we supported the government, and brought in several other people; MSF mobilised internationally, activists in India and Brazil helped us; ACT-UP Paris occupied a pharmaceutical company office in Paris for three full days and shut them down. We had ordinary people across all these countries, we had chruches, we had unions, we had everybody supporting us.

We had this amazing global solidarity; the pharmaceutical industry is global, after all, and we took the fight to them wherever they were.

Erik McGregor/Pacific Press/LightRocket/Getty Images
ACT UP New York took to the streets on 29 November 2017 in outrage to draw attention to World AIDS Day, an international recognition of the HIV/AIDS epidemic.

Since the big WTO protests in Seattle, it was perhaps the first time that international mass mobilization had pushed so hard against global corporate power.

And we won. The case fell. The role of the US government in this entire affair was particularly egregious; they placed South Africa on a trade watchlist. It was only because ACT-UP branches in the US challenged them that they recanted their position. That, in turn, opened up the further possibility of getting the WTO to issue a clear statement on what countries could do to protect public health, and that's where the role of people like Jamie Love became essential.

One of the things that's never noticed is the role of lesbian and gay activists in this process. They played a crucial role right through.

One of the first groups of people who stood with us in solidarity was the International Gay and Lesbian Human Rights Commission.

AP: How did you use that constitutional victory to push forward on dismantling intellectual property barriers surrounding access to medicines?

ZA: Moving on from 2000, when the case against the South African government fell, what became clear was that we had won the moral argument. At that point, one of the things that struck me when reading the WTO's Doha Declaration [clarifying that the WTO's trade rules offered flexibility on intellectual property and public health] was that monopolies cannot be anti-competitive. Now, South Africa has one of the strongest competition laws in the world. So we identified a few essential medicines, got a range of people together including Jonathan Berger and Fatima Hassan, we put together a whole team with the ALP [AIDS Law Project] and others, and we went to the Competition Commission. What happened is that we startled the pharmaceutical industry.

We were very clear about what we wanted: we wanted to act strategically, to put the pharmaceutical industry on the back foot, and make medicine prices competitive.

The Competition Commission came out with recommendations in support of us, and we reached a historic settlement. If you ask me why this is important, I would say it is the legal, political and social principles in question that are so important.

Intellectual Property literally affects us all, from pre-school books to university texts. Intellectual property in the broader sense, when we think of copyright in addition to patents, affects our lives at every step. And when you think of property in general, some of the most under-studied jurisprudence in South Africa relates to the revolutionary judgements that have come out of our courts on physical property, even rental property.

In South Africa, the courts have made it clear that social justice is a part of property; that property is not only to maximize profit, but also to enable people to live with social dignity; and that positive duties can be placed on private actors.

What does this mean to me? It means that a textbook company is obliged to provide access to knowledge.

Howard Burditt / Reuters
Members of South Africa's HIV/AIDS Treatment Action Campaign (TAC) group protest outside government offices during a countrywide protest day in Cape Town August 24, 2006. The protestors called for the dismissal and arrest of then-health minister Manto Tshabalala-Msimang.

AP: What do you think of the new Intellectual Property Policy released by the Department of Trade and Industry? What does it mean for access to medicines?

ZA: The policy change that will come now, with all intellectual property, but especially with regards to patents, will make it impossible for medicines to be evergreened, say with the simple addition of something like time release. The patent policy that the government has proposed is a realisation of all the things that people died for in South Africa. These provisions against evergreening, as well as the other protections, will apply across all medicines, across all illnesses – and that's a huge systemic change at a level that's much better than even what our competition law currently allows.

Look, the global pharmaceutical industry is not doing us any favours. If our government had to supply ARV [antiretroviral] medicines at global prices, if our government could even do that, we would have inflated pharmaceutical industry profits beyond anything imaginable, because ours is the single largest HIV/AIDS treatment program in the world – and in history.

What I would really like to see is a change like the one happening in South Africa, take root globally, even in the US and Europe, because then, that would really change the world.

AP: Zackie, you started working on access to medicines twenty five years ago. TAC is now almost twenty years old. The Intellectual Property Policy was released in 2017, and will, hopefully, soon result in real legal change. Why has it taken so long?

ZA: I can't speak for TAC because I'm no longer there. But look, rolling out ARV treatment in the public sector was the first step, and I'm enormously proud of that, and everything else we achieved.

Why did it take so long? I think it is because of the weakness of our social movements. Their failure; the failure of organisations that represent people with other illnesses, like cancer or heart disease. Our failure as TAC is that that we did not reach out enough to these people. And this failure has cost lives – to cancer, to heart disease, and more.

We need to build a broader alliance.

Finbarr O'Reilly / Reuters
Nelwiswa Nkwali, 34, poses for a portrait outside a supermarket while wearing a T-shirt indicating that she is HIV-positive, in Khayelitsha, February 15, 2010. After being diagnosed with HIV in 2001, Nkwali became a peer counsellor with Treatment Action Campaign (TAC), helping to educate others about HIV/AIDS.

AP: And finally, what advice would you have for activists who want to expand access to medicines in South Africa?

ZA: Let me give you my own example.

In my opinion, the problem is no longer with the state. It is with private hospitals and the private sector.

Some time ago, I developed spinal osteoarthritis. I went to the state hospital. It took me four months to get an appointment to get an MRI scan. The waiting list for physiotherapy was three weeks. At the state hospital here in Cape Town, people were coming in from vast distances because there are so few MRI centres.

Imagine driving in from other towns, hours away, and driving back, all the while passing dozens of private hospitals. It gets worse. I had a letter of referral to do an MRI on the vertebrae near the top of my neck. By the time I got off the waiting list, my lower spine was giving me problems too. But they couldn't scan my lower spine, since my letter of referral was only for the earlier problem.

My friends eventually forced me to go to a private hospital. At the hospital, the attendant said, would you like to do your MRI today or tomorrow? What that experience brought home to me was the vast difference between public and private healthcare. The financial burden that the private health sector places on working class and middle class people is so high that they just can't afford it.

Aaron Motsoaledi is absolutely right. More pressure needs to be brought on the private sector.

That said, I do think that the new Intellectual Property Policy will ease the burden of cost across all sectors, not just the public. It will make access to healthcare services much more affordable even in the private sector.

It brings me back to the point I was making earlier. The biggest problem in South Africa is the weakness of activism. When social movements are weak, especially in the face of giant global corporations, governments are put in a weaker position to stand up for the rights of their people.

A combination of people power and government action is essential for holding global corporate power accountable.

Zackie Achmat is ­­a South African activist whose work has significantly shaped the contours of social justice in the country, especially in the areas of LGBTI equality, HIV/AIDS, public health, and government accountability. In 1998, he founded the Treatment Action Campaign (TAC), and fought for access to medicines and for government to pay attention to HIV/AIDS, with far reaching results, including the public provision of medicines to prevent HIV transmission for mothers to children, universal treatment of HIV/AIDS in the public health sector, and a range of actions which slashed the prices of life-saving medicines. Since leaving TAC, he has helmed two other important social justice organisations, Equal Education, and Ndifuna Ukwazi. Currently, he is at the forefront of campaigns to reform policing, expand public housing, and hold politicians accountable for corruption in South Africa.

Achal Prabhala is a fellow at the Shuttleworth Foundation. He challenges the legal and policy frameworks that underpin the global development and manufacture of medicines in order to improve access and innovation. The focus of his fellowship is to defend existing pro-access initiatives against onslaughts from private interests, and extend their global reach, especially within India, South Africa and Brazil.