Bhagirath Lal Das, Third World Network

All concerned with international trade should work for salvaging the WTO from the debris of the Cancun collapse. Even those considering the WTO framework as anti-development would certainly see the powerful signals emitted from Cancun indicating a new identity of the developing countries. It will be some time before the WTO recovers from the shock of Cancun collapse. And that too only if the main actors make sincere efforts for its recovery.

Cancun was qualitatively different from Seattle. In Cancun, the deep difference between the developed countries and the developing countries was at the core of the failure of the conference, whereas the chaos at Seattle was due to various other reasons. Though the developing countries, particularly those of Latin America and Africa-Caribbean-Pacific, publicly expressed frustration and disgust at the Seattle process, the final failure was because of other factors, like handling of the conference by the chairperson, public insistence of the host country on some new issues like social clause, deep difference between the two majors, viz., the US and the EU and the chaotic atmosphere outside the conference venue due to several demonstrations. There was really no intense engagement among the countries at the negotiating table. In Cancun, on the other hand, there was engagement of the countries, but there were grave differences among the developed countries and the developing countries.

The problem started because the Chairman of the General Council, and later the Chairman of the Ministerial Conference too, presented texts for the Ministerial Declaration that had almost fully included the proposals of the major developed countries and totally ignored the specific and firm proposals of the developing countries. The US-EU were not ready to eliminate/substantially reduce their subsidies in agriculture, while demanding from the developing countries to cut their tariffs in agricultural products and industrial products significantly. The EC was insistent until the near end that negotiations should start on the Singapore issues. The developing countries finally got fed up with the unreasonable and unfair demands of the major developed countries when they themselves were not prepared to make material concessions.

The collapse did appear to be sudden; but there was grave simmering discontent among the developing countries right from the final phases of the preparatory process in Geneva. It all boiled over in Cancun. One may be tempted to diagnose the reason for collapse in some sudden move here and there; but the reason appears to be more deep rooted. Over the years, the major developed countries have followed the strategy of squeezing maximum concessions from the developing countries, but it cannot continue indefinitely. The developing countries, if pushed to the wall, are bound to resist. The governments of the developing countries cannot go on explaining to their people indefinitely that they have been pressurized into accepting one-sided and harmful results. Their people will soon ask them firmly to resist pressures. Cancun gave us a glimpse of this trend.

Pressures on the developing countries by the developed countries in Cancun and in preparation to Cancun were no less than at the time of Doha. But the imperatives on the developing countries gave them strength to resist these pressures. This situation also worked as a cementing factor in the cohesion of some groups of the developing countries. Moreover the developing countries are fast improving their understanding of the WTO and its processes. They have been effectively aided in it by some dedicated NGOs.
The Cancun collapse is a symptom of the instability of the GATT/WTO system as it has been emerging lately. A multilateral system has to be based on the perception among its members of the shared benefits. Once the large membership feel that the system demands only “give” from their side without any possibility of “take”, the system is bound to be unstable. And instability in the system will hurt all the countries, big and small.

The much publicised parting statement of the U.S. Trade Representative in Cancun that they would follow different alternative tracks like bilateral and regional arrangements in the wake of the Cancun collapse has a certain emptiness in it. The U.S. may have a multitude of bilateral and regional arrangements, but when it comes to enforcement of commitments in the areas of goods, services and Intellectual Property Rights, it has to take shelter in the WTO framework. After all it has had tremendous gains in the Uruguay Round in all these areas and it continues to enjoy those gains. In that background, its threat to give up or underplay the WTO route does not appear serious. What is needed is to understand the deep-seated malady in the system and to take corrective measures quickly before it is too late. All parts of the system, viz., the developed countries, the developing countries and the institutional machinery, have to play active role in it. The developed countries should consider the following approach.

1. They should lower their sights and ambitions in the WTO. They have already got a lot in their favour in the Uruguay Round. They should consolidate these gains and stop demanding new concessions from the developing countries.
2. They should allow the system to settle down and not destabilize it by insisting on introducing new subjects in the negotiations.
3. They should be constructive in the area of agriculture and try to understand the sensitivity and importance of this sector in the economics and politics of the developing countries. Positive action in this area is likely to result in spread of gain among the weak sections in the developing countries. Hence agriculture is generally perceived as a test case for assessing the intentions of the developed countries.
4. They should give up their old mind set of monopolizing the management of the GATT/WTO and realize that this organization has to keep in the forefront the interests of a large number of its membership, i.e., the developing countries.
5. More basically, they should realize that their own growth will be helped by the development of the developing countries, because it is there that the prospect of future fast growth of demand lies. They should come out of the thick shell that they have built around themselves over the last two decades or so, thinking that they can sustain their growth on their own without counting on the role of the developing countries. In this mind set, their linkage with the developing countries is limited to their targeting them for extracting more and more concessions.
The institutional machinery of the WTO, including the Chairpersons and the Secretariat, have also to change their approach and style of functioning. Some points are important for them to note.
1.They should realize that the strategy of “clean text” is not always the best. It is not the “clumsy” and “overburdened” text that hinders agreement, as is often alleged about the text for Seattle which accommodated the diverse view points and put them in square brackets. Even the cleanest text, as for example the two texts for Cancun, can result in disaster, if the process of preparation has not been fair and objective. A “clean text” can facilitate negotiations only if the process of preparation has been open and transparent and it is a fair and objective balance between the differing positions. The General Council Chairman’s text for Doha which was confidently taken as a model for the Cancun text also suffered from similar defects as the latter. But there was a big difference in the two situations. While the GC Chairman’s text for Doha was mainly in the nature of a framework in most of its part (except Singapore issues), the texts for Cancun contained specificities of obligations which had been widely opposed by a large number of the developing countries and the alternative suggestions given by them had been totally ignored by the Chairmen of the General Council and the Conference.
There was also the difference in the environment. A large number of the developing countries got confused in Doha by the tactics of the US-EU, whereas, after having learnt their lesson in Doha and later, the developing countries could not be deviated from their determined track in Cancun. Also, during the two years passage between Doha and Cancun, the developing countries had gone through a process of introspection and consolidation. The NGOs of the world had a big role in it.
2.The institutional machinery of the WTO has to show without a trace of doubt that it is not influenced by the major developed countries. It has to be neutral and objective and clearly appear to be so. Much damage has been done by the perception that the machinery is being used by the major developed countries for advancing their own narrow interests. The machinery should work for the system and not for individual countries, howsoever powerful.

The developing countries have found a new identity in Cancun. They showed they could not be pushed around any more. The following steps may help them in future.
1.The various groups of the developing countries that became effective in Cancun should interact with one another to forge a broader and deeper alliance. They should try to identify their common interests and also differences, if any. It may be possible for them to build upon their commonness and smoothen their differences through the process of mutual understanding. After all, one common factor with all of them is that they have all been serious losers in the Uruguay Round and have been the target of the major developed countries for squeezing concessions out of them even later. Though it may be possible for these individual groups to stop some thing here and there and thereby reduce damage, their combination is essential for getting positive benefits.
2.They should counter the divisive tendencies among them. For example, often the division among them is promoted by urging that they should cut their tariffs on industrial and agricultural products in the interest of expanding south-south trade. Though expansion of south-south trade is a laudable objective, undertaking obligation of tariff reduction in the WTO is not an appropriate way to go about it.

A preferred path should be to use the framework of Global System of Trade Preferences (GSTP) for reduction of tariffs among the developing countries. It has two special benefits for the developing countries over reducing the tariffs in the WTO framework. Firstly, a developing country while reducing its tariffs under the GSTP does not have to extend this benefit to the developed countries; thus there is less revenue loss for the committing importing developing country.

Secondly, the beneficiary exporting developing country will face less competition from the developed countries as the latter will not get the advantage of this lower tariff in the developing countries. Over a course of time, this process is likely to enhance investment in the developing countries in manufactures and agriculture, because of larger market access opportunities among the developing countries. The developing countries should give fresh impetus to the GSTP framework which is administered in the UNCTAD and is dormant at present.

This is not to suggest that the developing countries should not engage in the tariff reduction exercise in the WTO framework at all. Of course, they may engage in this exercise there, but only with the objective of getting tariff concessions from the developed countries. An attempt should be made by all to usher in a reformed WTO process. International trade is important for all including the developing countries. And a multilateral framework is useful for that purpose. It is not practicable to create a totally new framework in the current international environment that is characterised by mutual suspicion, lack of goodwill and erosion of confidence. It should be a much-preferred choice for all concerned to work for a reformed and improved WTO. Foundation should be laid for it even before reverting to the Doha work programme in the post-Cancun phase.

“Yea, we are sick and tired of being dinner, we should make dinner for a change,” declared Crystal Overson, a media activist with the Alternative Information and Development Centre-South Africa. Overson was participating in a discussion with five other African activists about the recently collapsed WTO Ministerial meeting in Cancun. The interview delves into the nuts and bolts of the African position at Cancun, the thrills and spills and the way forward to the next Inter-ministerial. Read the full transcript of the interview at www.pambazuka.org

African People’s Declaration On Africa and the World Trade Organisation
Statement Issued At The End Of Joint Africa Trade Network (ATN) Southern African Peoples Solidarity Network (SAPSN) Pre-Cancun Strategy Conference, In Johannesburg 14-17 August 2003

1. From 14-17 August 2003, we activists from across Africa, representing African civil society organisations, labour unions and other social movements, gathered in Johannesburg, South Africa to evaluate the current state of negotiations in the World Trade Organisation (WTO), and to strategise and make known our positions on the 5th WTO Ministerial Conference due to be held in Cancun, Mexico from 10-14 September 2003.

2. Our stand on WTO's role: We re-affirm our recognition of the WTO as a key instrument of transnational capital in its push for corporate globalisation. We noted the many destructive effects of WTO agreements on the lives of working people and the poor, especially women, in Africa and throughout the world. We renewed our determination to continue resisting corporate globalisation, and the WTO itself until it is replaced by a fully democratic institution.

3. The context of Cancun Meeting: We noted that the forthcoming WTO Ministerial meeting is taking place against a background of a crisis of credibility of neo-liberal policies and global capitalism, that have been deepened by the Enron and other corporate scandals exposing the duplicity and venality of the bosses of transnational capital. At the same time, the world is faced with the aggressive militarism of the United States under a political leadership whose illegal attack on Iraq under false pretences has shown that law and morality are no bar to what it will do to advance the interests of American capital. Across Africa and in other developing countries neo-liberal economic policies are putting basic services, such as health and education, beyond the reach of ordinary people and deepening unemployment, poverty and social inequality. We, however, take heart from the growing strength in the organised expression of all those around the world opposed to militarism and corporate globalisation.

4. Conclusions on the current state of affairs in WTO: After our deliberations on the WTO Doha agenda and related issues, we concluded as follows:
a. The WTO has ignored the continued and growing opposition by popular movements throughout the world to its policies and methods, such as the illegitimate ways by which the Doha Agenda was imposed on developing countries in the 4th Ministerial of the WTO.
b. The failure of the WTO to meet agreed deadlines in various negotiations - notably Agriculture, TRIPS and Public Health, Special and Differential Treatment and the many Implementation Issues is primarily due to the refusal of the Quad (USA, EU, Japan and Canada) to accept the legitimate demands of developing countries.
c. These failures are merely an aspect of the double standards the Quad countries apply in international trade issues; marked by one set of rules for themselves and another that they impose on developing countries, exposing the WTO as a thoroughly undemocratic institution.
d. We particularly condemn both the EU and the US for their role in resisting the fulfilment of the deadlines and undertakings on Agriculture, and their refusal to honour the compromise consensus on TRIPS and Public Health.
e. On the Singapore or New Issues (i.e. Investment, Competition, Government Procurement and Trade Facilitation) we reiterate our total opposition to their inclusion in the WTO, or the initiation of discussions on modalities with a view to the launch of negotiations on these in Cancun. We stand by our demand that these issues should be removed from the WTO's agenda altogether.
f. It is clear that, as Cancun approaches, the Quad are accelerating the deployment of old and new undemocratic practices and pressures both in and outside the WTO so as to force their will on developing countries. In order to limit such illegitimate and underhand practices by the powerful, we endorse the campaign for internal transparency and participation in the WTO recently launched by many NGOs.
g. We note the opposition to the launch of negotiations on these issues expressed by African countries, especially the declaration by African Trade Ministers at the end of their meeting in Mauritius in June 2003. We also note a new initiative taken at the WTO on 13 August by a group of African countries to demand that the official WTO text that goes to Cancun includes proposals for improving the decision-making process in the WTO; as well as repeating their opposition to the new issues. We call on these countries to stand by these positions, as a matter of democratic principle, and also urge other African and developing countries to join them.

5. Call to Action: In the light of the above we have agreed and call on other African civil society organisations, labour unions and other social movements who share our views to join us to:
a. Mobilise the broadest possible sectors of African civil society to express their opposition to the continuing destructive role of the WTO in the lives of working people and the poor, and upon our countries' development aspirations and prospects;
b. Mobilise and sustain strong political pressure on our governmental representatives, in ways best suited to the specific conditions in our countries, before and during the Cancun ministerial meeting; actively holding our governments accountable for the positions they take in the Cancun Ministerial meeting, and expose any attempt to betray the best interests of the African peoples;
c. Pressure institutions of government, and our legislatures, and relevant public officials in our various countries so as to ensure the defence of our peoples' interests in the forthcoming Cancun ministerial meeting. Especially important are i) blocking the launch of negotiations on the Singapore issues and ii) rejecting any attempt by the Quad to manipulate developing countries into accepting negotiations on the Singapore Issues by linking these to issues of concern to developing countries;
d. Pressure our respective governments to endorse the two proposals tabled at the WTO by 11 African countries on 13 August 2003;
e. Be alert to, and therefore resist, the inevitable attempts by representatives of Quad countries and other governments who, between now and Cancun, will be visiting our national capitals under various guises, and contacting groups within our own countries to bully African governments to take positions detrimental to the African people on the issues on the Cancun agenda;
f. Launch an information dissemination campaign in our various countries to publicise what is happening in and around the WTO in the run up to and during the Cancun Ministerial meeting;
g. Mobilise a strong team of African activists to give voice to African perspectives in the activities of civil society organisations who will gather from around the world in Cancun;
h. Affirm our links with our partners in organisations of civil society outside Africa, including in the global North, to pressure their governments (especially of the Quad) in the interest of working people and the poor throughout the world, and in the interest of our planet;
i. Work together across Africa on the WTO, before and during Cancun, under the umbrella of the Africa Trade Network (ATN) to ensure common focus and strength in unity.

We issue this statement, and our call, as part of our commitment to the global movement against neo-liberalism and corporate globalisation, and the struggle for the establishment of alternative systems and institutions for all of humanity and the world. Another Africa is possible! Another world is possible!

Issued in Johannesburg, 17 August 2003

AIDS, Empire, and Public Health Behaviourism
Sanjay Basu

In the wake of U.S. President George Bush's trip to several African nations, and after his State of the Union speech declaring $15 billion of spending for global AIDS prevention and care, American newspapers have rallied in support of the "compassionate conservatism" represented by Bush's "commitment" to anti-AIDS efforts. Certainly, the $15 billion number has turned out to be an inflated figure, as most of the money is recycled from existing spending and only $1.4 billion has been appropriated this year (with little indication of renewal in subsequent years) [1]. But where the money is actually going has been left mostly unexamined. Not only is the funding circumventing the Global Fund for AIDS, TB and Malaria, being spent almost entirely through bilateral USAID initiatives known for their inefficacy (and diversion towards abstinence-only, anti-abortion initiatives), but more importantly the majority of funds are being spent in line with a common and fallacious public health dogma: that "information is everything", and preventing the spread of HIV means "promoting education" [1-5].

This "health belief model" seems intuitive and obvious: if people just know how HIV is transmitted (and stop being in "denial" about it) -- the rhetoric goes -- the transmission of HIV will diminish [6]. Sounds credible enough; but this argument has been consistently promoted by a group of public health workers and international financial institutions who ignore most of the available data we now have on AIDS prevention initiatives [2]. While the development banks and others have promoted the Ugandan case as a "model" (at one point claiming that effective "bereavement counselling" in the country was a reason for praise, rather than preventing the deaths to begin with [7]), the Ugandan "model" appears to be promoted without much examination of the data. Certainly, prevention initiatives in Uganda have reduced HIV prevalence in certain populations. But the prevalence rates have increased in some sections of Uganda while decreasing in others; in particular, the wealthier urban areas have seen a decrease in infection rates, while infection has rocketed upwards in the rural and poorer zones.

What is also often ignored is that even in sectors where prevalence has reduced, the reduction mathematically represents a decline in incidence well before the government's prevention initiatives began, and corresponds more to social demographic changes and economic reforms than "education" initiatives [8]. What is perhaps most problematic about the Ugandan case is that the so-called "model" it offers makes several wrong assumptions. Given that the top epidemiological predictor for HIV infection around the world is not "risk behaviour" but rather a low income level, those most vulnerable to infection will not benefit from a model focused on "education" -- a model that assumes people in poverty have the agency to control the circumstances of their lives, even in the context of gender inequality or in environments without income opportunities other than trading sex for money [9-15]. As Dr. Paul Farmer and colleagues recently noted, "Their risk stems less from ignorance and more from the precarious situations in which hundreds of millions live" [7]. And dozens of surveys support this fact, confirming that -- despite our presumptions -- those most at risk for HIV often do know how the virus is transmitted, and even in the highest prevalence areas have sex rates lower than in many regions of the U.S. and Japan [13, 16-20].

Sex is not as much the issue as the context under which sex occurs, yet several social scientists studying AIDS are guilty of trying to define an African "system of sexuality" and render sexual behaviour the problem rather than examining why sex among the poor seems to lead to HIV transmission so much more often than sex among the wealthy [21-24]. In interviews, those most vulnerable regularly discuss other concerns about life (access to clean water and food, gaining financial independence, and so forth) that take precedence over preventing HIV transmission [19, 25-30]. Yet the "targeted" public health rhetoric ignores these and even equates the concerns of the poor with the rhetoric of politicians by labelling both "in denial" [30, 31].

In the South African mining sector, for example, a recent group of surveys established that the "norm" of masculinity (expressed through soliciting prostitutes) in "South African culture" increases the risk of HIV transmission [32]. To locate "culture" as the problem is to ignore the perspectives of the miners themselves (who, in fact, are from a variety of different locations as distinct as rural sectors of Malawi and Mozambique and urban areas like Johannesburg). As one miner put it: "Every time you go underground you have to wear a lamp on your head. Once you take on that lamp you know that you are wearing death. Where you are going you are not sure whether you will come back to the surface alive or dead. It is only with luck if you come to the surface still alive because everyday somebody gets injured or dies"[32].

In the context of a 42% injury rate, it would be natural to think that catching a disease that could kill you ten years down the road might be less pressing than trying to gain some control over life -- or perhaps even enjoying life in some minor way (through alcohol or sex) before getting crushed by falling rock. But the psychologists who quoted this miner (and published their analysis in a top-ranked medical journal) labelled him "in denial," and claimed that his "low self-esteem" was the cause of his increased risk for HIV infection [32]. A similar survey among prostitutes labelled them "liars" (in "denial" of their agency) when they attributed their prostitution to lack of opportunity and coercion [25].

"Culture" (whether a distant African one or a "culture of poverty" among the poor in wealthy countries) is often described as a barrier to effective intervention, assumed to be a fixed, unalterable thing defined by the dominant groups in power, while the marginalized have no culture themselves or are guilty of having a sub-culture that renders them vulnerable to HIV or promotes crime and delinquency [20, 21, 33-38]. Culture, denial, stigma and conspiracy theories are taken to be the causes rather than the effects of social and economic problems. At other points, culture is focused upon to devise "culturally-competent" solutions to change the low efficacy of HIV prevention initiatives [39, 40]. In both of these cases, "culture" is conflated with the structural violence of inequality and lack of access to resources -- and when these issues are un-addressed, even the most "culturally-competent" prevention initiatives still focus on merely co-opting local culture to suit the needs of "targeted" interventions [41]. In this context, even after messages are adapted to "local norms" (ignoring the universal context of HIV-transmission, that of inequality and lack of access to resources), "providing information about health risks changes the behaviour of, at most, one in four people -- generally those who are more affluent and better educated" [42].

In response to accumulating data that the majority of education initiatives are failing, the public health community is now committing another behaviouristic mistake; instead of examining the political and economic contexts of prevention, it has now returned (unawares, I suspect) to a colonial rhetoric: claiming that the inefficacy of such initiatives is due to the individualistic nature of the interventions, ignoring the "collectivist African traditions" (thereby conflating all of the many social scenes in Africa into one "African system") [39, 42]. In colonial times, "venereal" syphilis among miners (which later turned out to be non-venereal syphilis and yaws) would be explained by the loss of "African traditions", which reportedly promoted female chastity by exerting group control over young women (paralleling the modern "revival" -- and partial invention -- of "traditions" like virginity testing in the context of AIDS [43]) [44, 45]. Mine workers were simultaneously taught to be individualistic and capitalistic in the mines, then returned to be collectivistic at their rural homes when they became ill (a very "cost-effective" strategy for mine owners to avoid paying for medical care) [18, 46]. The context of illness, and its relationship to their position in the economic field of relations, went unquestioned. Now, public health behaviourism aims to solve HIV transmission by holding "group rituals" for education -- so, perhaps, the "self-esteem" problems can be pushed aside as "traditions" solve all of the barriers to effective HIV prevention [39, 42].

What this rhetoric ignores and often disguises is that the background for increasing HIV transmission is a background of neoliberalism -- a context where the movement of capital is privileged above the ability of persons to secure their own livelihoods. Increasing migration is correlated precisely to the break-up of marriages as rural farms are destroyed after the liberalization of markets results in sharp drops in primary commodity prices; (mostly male) labourers travel to urban areas to work [13, 47, 48]. In vast sectors of southern Africa, miners are housed in all-male barracks for months at a time, worked six days a week, and given alcohol to "keep them happy" (or keep them from rebelling) on the seventh day -- when intoxication and depression lead to the solicitation of prostitutes. They are returned home to die, and find either their wives have left them to find a better source of income and support, or are waiting themselves to be infected with HIV [13]. The "rural women's epidemic" of HIV -- that is the sub-epidemics of women in rural zones who have been infected by their migrant male husbands (most of whom have already died at the time of surveys) -- is not so "surprising" or "unusual" in this context [47].

AIDS, then, is a symptom as much as it is a disease. In the context of the new South African Customs Union (SACU) trade agreement with the United States, it will be a most severe symptom. The SACU deal promotes rapid liberalization and the movement of capital over the securing of stable employment and better livelihoods, privileging companies who wish to set-up base temporarily and shift the means of production at will. If similar deals in East Asia and the Caribbean are any indication, both TB and HIV will increase markedly in this context as migration and poverty render "monogamous marriage" a nonsensical idea and force both women and men in poverty to move constantly and find new sources of income wherever they can [13, 47].

The SACU deal also links this neoliberal context to the distribution of resources, particularly medicines, which are often discussed through a rhetoric divorced from the context of HIV prevention. The trade deal will render generic medicines extremely difficult to procure, providing a more than two-decade-long monopoly for patented medicines [49]. Public health officials have not strongly voiced their opposition to this (leaving NGOs to take on the task), and have focused on the "cost-effective" prevention initiatives instead. The "prevention versus treatment" dichotomy should have been defeated by the numerous models indicating that access to vital health resources like antiretroviral drugs is part of the process of improving livelihoods, rather than being dichotomously opposed to effective disease prevention. Indeed, effective treatment provision often helps to reduce stigma, denial and blame, in addition to reducing HIV transmission [50, 51]. Brazil has certainly demonstrated this definitively, having reduced HIV prevalence (and incidence) after providing universal access to antiretrovirals. Despite being threatened by the US Trade Representative for producing generic medicines, Brazil has allowed the use of generic medicines, saving the country hundreds of millions of dollars and reducing HIV prevalence by over 50% [51].

The claim has been that such measures are not "cost-effective" in the manner of education initiatives (which themselves are declared cost-effective by predicting "high return on investments" in spite of the emerging data to the contrary). But "cost-effectiveness" is not based on a law of nature -- in its current form, the means for calculating such effectiveness assume that distinct health interventions are competing with one another, as if all health outcomes were pulling from the same pot of money, and the overall effect on society will be discrete, whether or not a plague is taking place [41, 52, 53]. The logic, like the "health belief model", seems intuitive, but it is notable that not all societies think this way; indeed, many assume instead that health is multiplicative -- that healthiness among some members of society contributes to healthiness among others as work-capacity and social esteem are promoted by the lack of disease [54]. As WHO senior advisor Jim Yong Kim recently declared, "For years, we have assumed that health spending must be pulled from a fixed pot of money, without examining who determines how big the pot is or how ill health plays upon the maintenance of the economy and general society." Brazil decided to counter the World Bank claims about the "cost-ineffectiveness" of its programs by calculating the "cost-effectiveness" differently; when it took into account the cost of hospitalizations saved by properly treating AIDS patients and thereby preventing them from having recurring opportunistic infections (reducing hospital visits by 80%), and included the costs of mass death to the Brazilian economy, the cost of antiretrovirals suddenly seemed quite affordable [51].

Yet in this context, a new rhetoric against generic medicines was deployed to counter the idea that other countries could follow Brazil's path. The US Trade Representative threatened Argentina, Thailand, South Africa and other countries when all of them attempted to regulate the prices of pharmaceuticals or introduce competition into the monopolistic patent regimes [55]. The USTR's claim was that generic drug use would reduce innovation, but like many claims about AIDS, this one ignored all available data. According to the industry's own tax records (obtained from the Securities and Exchange Commission), Merck this year spent 13% of its revenue on marketing and only 5% on R&D, Pfizer spent 35% n marketing and only 15% on R&D, and the industry overall spent 27% on marketing and 11% on R&D [56].

Most AIDS drugs were produced under significant public funding, and 85% of the research (including clinical trials) for the top five selling drugs on the market were produced through taxpayer funding [57]. Meanwhile, all of sub-Saharan Africa constitutes only 1.3% of the pharmaceutical market, so as one former pharmaceutical executive put it, providing generics to this market would result in a profit loss equivalent to "about three days fluctuation in exchange rates" [58, 59]. But the drug industry's fight for this market and middle-income country markets is serious, as the growing inequality in poor countries under the context of neoliberalism manufactures a new market among the wealthy and a sector for industry expansion [60].

Realizing the problems with claims about patents and pharmaceuticals, developing country trade ministers pushed through a deal at the November 2001 trade conference in Doha, Qatar. The resulting "Doha Declaration on TRIPS and Public Health" (referring to the Trade Related Aspects of Intellectual Property Rights, or TRIPS, Agreement) would allow poor countries to import generic medicines, especially if they lacked the capacity to produce such medicines themselves [61]. Although it passed unanimously, the US Trade Representative managed to become the only trade minister out of the WTO's 145 member country ministers to block the implementation of the Doha accord [62]. A deadlock still exists as the US insists upon limiting the scope of countries eligible to import generics. The US has once again co-opted the public health rhetoric, claiming that only a few iconic, extremely poor countries should be the focus for the deal [60]. Such an exclusionary policy would not only violate the Declaration itself (which claims that the WTO will promote "access to medicines for all" [61]) and deny medicine access to the majority of people who need it, but would destroy economies of scale and other necessary means to build efficient and effective generic drug production facilities, and prevent competition to lower prices and increase quality [63, 64]. Such is the nature of "free trade".

The "culture" rhetoric also re-appears in this framework. U.S. presidential candidate Howard Dean, claiming to be the "Democratic wing of the Democratic party", has argued that antiretrovirals are of humanitarian importance but should not be emphasized because they are not as "culturally appropriate" as prevention initiatives. Culture once again becomes the basis for justifying inequality. And it is simultaneously blamed as reports are produced about the increasing prevalence of drug resistance in the U.S. and Europe. Drug resistant strains of viruses emerge when patients intake medicines irregularly, and while the reports of resistance are all from Northern countries, they have been projected onto the South under the assumption that "if drug resistance emerges here, it'll emerge there", particularly in the "cultures of denial" (as The Boston Globe put it) [65-67]. Some public health workers have even suggested that antiretrovirals should only be accessible to those patients "most likely to comply", yet what this denies is that those most likely to comply are those least likely to have HIV -- they are the wealthy and the people with resources needed to control the circumstances of their own lives.

Drug resistance can be more effectively countered by scaling-up antiretroviral treatment and providing sustained and equitable distribution; resistance propagates most often because people who are denied medicine are desperate to get it, so a black market flourishes, allowing people to trade medicines and take improper regimens [50]. The drug resistance excuse is, like most excuses about AIDS, a vestige of past public health excuses, first deployed to suggest that persons with drug-resistant TB should not receive treatment (resulting in multi drug resistant TB as those people -- fated to die -- struggled to survive and receive pills wherever they could). Only when multi-drug resistant TB hit New York City populations did treatment for it suddenly become "cost-effective" [68].

Yet the public health community uses examples like these to suggest that they have no options besides meagre education-based interventions. As one group of health workers put it, "as ordinary citizens, we are not in a position to change the political and economic system" [69]. While such an analysis effectively loses the marathon before the race has even started, it also ignores the numerous health models (often constructed by activists rather than public health programs) that have effectively changed political and economic contexts for HIV transmission rather than subscribing to fatalism. In the context of the poorest location in the poorest country in the Western hemisphere (the central plateau of Haiti), public health workers have managed to provide free antiretroviral treatment without producing primary resistance and have effectively begun to stem HIV transmission by providing new models for food provision, income generation and continuity of health care distribution [7, 50].

In the context of southern Africa, campaigners have forced the Coca-Cola company to change its labour policies and provide family housing, reduce migration-based networks of product distribution, and provide complete health packages including antiretroviral drugs (www.treat-your-workers.org). So the fatalism must be tempered by an awareness of such models, which are now abounding as those infected and affected by AIDS refuse to sick back and watch the inefficacy and behaviouristic prevention initiatives produced by the public health community.

What the health community ignores is that that public health must be less about coercion and more about facilitation. In addition, there are many campaigns focused exclusively on inequality between countries -- but these often present the idea that "Third World" starvation will be solved when "First World" people eat less ice cream. Indeed, between country inequality is tremendously important. But increasingly the First vs. Third World rhetoric produces claims that public health work has competing interests -- for example, between lowering prescription drug costs in wealthy countries and lowering them in poor countries (although the data indicate that the pharmaceutical industry can easily afford both) -- instead of questioning the rhetoric of "cost-effectiveness" and the zero-sum approach to health provision. We must increasingly focus on the inequalities that take place within countries, as these point us toward routes to facilitate better health rather than attempt to coerce people whose life circumstances render the rhetoric of hygiene ineffective and often ridiculous [70-75].

When we examine within-country inequalities, we begin to see the major trends -- that the poor (even the relatively poor in wealthy nations) are consistently those marginalized in the context of AIDS, whether they are located in the poor neighbourhoods of Washington D.C. or the mining fields just outside of Johannesburg; that the wealthy in both rich and poor countries use migrant labour and threaten the health of the poor to increase their share of capital; and that AIDS is a symptom of the breakdown of social relations that occurs in the context of growing inequalities [12-14, 20, 25, 26, 28, 38, 41, 47, 48, 50, 53, 76-81]. AIDS is effectively a symptom of Empire, which operates by producing inequalities everywhere, keeping resources inequitably distributed so that they may be accumulated by a few, and rendering problems like disease a side-effect of capital accumulation [82].

Empire is threatened not simply by local resistance but by resistances that occur when people in similar circumstances between different nation-states -- people in both poor and rich countries -- realize that inequality is central to this issue. Anti-AIDS efforts are funded currently to increase labour potential and prevent economic collapse by keeping workers economically productive, or by focusing so much on "behaviour" and "culture" that the context in which "behaviour" occurs is rendered unproblematic [82-84]. Therefore, the current anti-AIDS efforts bolster and disguise the mechanisms of Empire. AIDS becomes the product of individual irresponsibility and anonymous Third World destitution -- the plague captured in pictures of dying babies and public health saviours desperate to convince the natives to adopt better hygiene practices. To expose this rhetoric's basic fallacy will require serious questioning of public health's behaviouristic trends, as well as the dominant economic and political themes that render HIV a plague of the poor.

* For a list of the references used in this article please click on the link provided.

Further details: /newsletter/id/29914
Solution on TRIPS and Public Health remains elusive
Rangarirai Machemedze

When US Trade Representative Robert Zoellick met representatives of the US pharmaceutical industry in April this year hopes were raised in the international community, particularly in developing countries, who viewed the meeting as a way forward in breaking the impasse in the WTO over how to provide developing countries with access to affordable generic drugs.

It is now six months after the Doha-mandated deadline passed on the 31st December 2002 for WTO members to come up with a solution to public health crises exacerbated by unaffordable patented drugs. With only three months left before the 5th WTO Ministerial Conference in Cancun, Mexico, nothing is expected to materialise before the conference.

Hopes were pinned on the US compromising on its earlier decision to limit the scope of diseases but nothing came out of that meeting, which Zoellick attended. In fact industry representatives last year had pressurised Zoellick to reject a proposal that would be open-ended in terms of allowing developing countries (without or with limited manufacturing capacity) to grant compulsory licences for the manufacture and importation of generic drugs to combat a variety of health problems. This made the US government issue a moratorium that carried the concerns of their pharmaceutical industries, basically on strict limits on the number of diseases covered by these new flexibilities.

The TRIPS (Trade-Related Aspects of Intellectual Property Rights) Council, which last met sometime in February, met again in Geneva to try and see how best to break the impasse. The TRIPS Council meeting on June 4-6, in its last formal session before the Cancun Ministerial Conference in September, did not make progress towards agreement on a solution for the Paragraph 6 problem.

Reports coming from Geneva said although the WTO members had not expected a breakthrough at this meeting, many developing country negotiators expressed their frustration at the seemingly unbreakable impasse in the negotiations. It is reported that the US had reinforced this perception by stating that a consensus was not yet possible, in response to the Kenyan negotiator's comment that there appeared to be no objection to the 16 December 2002 text.

The US objection to the December 16 text was based on the issue of scope of diseases and the reference to Paragraph 1 of the Doha Declaration which refers to “the public health problems afflicting many developing and least-developed countries, especially those resulting from HIV/AIDS, tuberculosis, malaria and other epidemics.” The reference to "public health problems as recognised in Paragraph 1 of the Declaration" was too broad for the US. The US then proposed that the scope of diseases in the December 16 text should be limited to "HIV/AIDS, malaria, tuberculosis or other infectious epidemics of comparable gravity and scale, including those that may arise in the future". This had been opposed by the majority of the WTO Members as an attempt to limit the scope of diseases already agreed to at Doha.

The TRIPS Council considered two submissions, one from the group of African, Caribbean and Pacific (ACP) countries, and the other, from the European Communities (EC).

The ACP countries basically reiterated their previous position that they would want to see a solution that covers all public health concerns, without limiting agreement to specific diseases. The Group also rejected attempts to confine the application of the Paragraph 6 solution to national emergencies and other circumstances of extreme urgency.

The European Communities last year made a proposal on an initial list of diseases that would be covered under Paragraph 6 of the Declaration. The EU Trade Commissioner Pascal Lamy argued that other diseases applicable under the Declaration could be checked or approved by the World Health Organisation (WHO) as the situation arises. Such proposals were nothing but measures to protect the corporate world. In addition to limiting the scope of diseases, the EC effectively wanted to add bureaucratic and political hurdles for poor countries, who would have to go through the rigours of the WHO system to prove that a health problem actually exists in the country for a disease that is not on the initial WTO list.

Again in their submission to the TRIPS Council the EC did not move away from their previous position. The EC suggested that WTO Members could agree on an initial list of diseases that would be covered by the December16 text, and any Member wishing to import medicines to meet a public health concern that was not explicitly covered in the list would be encouraged to seek WHO advice on the matter. The ACP group rejected this, saying it was designed to place limits on the scope of diseases.

With the differences that exist between and amongst the WTO members, particularly the rift between the EU and the US and between both the developed and developing countries, it is highly unlikely that a solution will be found before Cancun. It is reported that the TRIPS Council chairman, Ambassador Vanu Gopala Menon of Singapore, told the meeting that he would continue to hold consultations in small groups and bilaterally until a permanent solution is found.

At the Southern and Eastern African Trade, Information and Negotiations Institute (SEATINI) 6th Workshop held in Arusha (April 2003), participants from fifteen African countries urged African governments and delegations “to stand firm before Cancun, by insisting on a solution that is true to the spirit and letter of the Doha Declaration”. They went on to say that whatever the final outcome of the negotiations, it must cover “all diseases and public health issues”. Governments must have the right, they argued, “to determine what constitutes a public health problem”. The solution, in other words, should not be confined only to some diseases, or to emergencies, or to circumstances of extreme urgency.

Again this recommendation was apparently in reference to the 2002 year-end moratorium issued by the US, which effectively was not consistent with the spirit of Doha. The US had rejected the text that primarily carried the concerns of developing countries due to concerns over the scope of diseases covered.

Western industrial and pharmaceutical corporations, aided by bilateral donors, in the meantime, are putting pressure on certain African countries to amend their patent laws so that they protect the property rights of these corporations. This is the case, for example, with Uganda, where, alarmingly, under pressure from certain quarters, the Government is pressing for legislation in the Parliament - the Uganda Industrial Property Law (IPL) – that seeks to modify the laws of Uganda to conform to the TRIPS provisions of the WTO, when, in fact, Uganda, as an LDC, need not have such a law until 2016.

Meanwhile, the Third World Network reports that WHO Member states meeting at the World Health Assembly (May 19-28, 2003) in Geneva adopted a resolution on Intellectual Property Rights, Innovation and Public Health, directing the WHO Director-General to establish a "time-limited" body that would study and make concrete proposals on the question of appropriate funding and incentive mechanisms to promote the creation of new medicines for diseases affecting developing countries.

The resolution also asks the WHO to cooperate with Member states to develop "pharmaceutical and health policies and regulatory measures" to "mitigate the negative impacts" of international trade agreements.

Other operative parts of the resolution include references to the WTO TRIPS Agreement, in which Member states were urged to "use to the full the flexibilities contained in the TRIPS Agreement" in their national laws. The resolution also called on governments to agree on a "consensus solution" for Paragraph 6 of the Doha Declaration on TRIPS and Public Health before the Fifth WTO Ministerial Conference in September this year.

The Paragraph 6 problem refers to the inability of many developing countries to effectively use compulsory licences to obtain affordable medicines from domestic generic drug producers, since the majority of the developing countries do not have domestic manufacturing capacity in pharmaceutical products. WTO Members have not been able to agree on the solution for this contentious issue, even though the end of 2002 deadline set in the Doha Declaration has passed.

The compromise text of the resolution was adopted only after prolonged consultations and negotiations, primarily between the US, Brazil and a number of African countries. Developed countries, in particular the US, had not been in favour of a strong mandate for the WHO to address IPR issues. Developing countries, on the other hand, had been pressing for a clearer mandate to permit the WHO to properly assess the public health implications of tightened IPR protection, as a result of obligations under the TRIPS Agreement, as well as regional and bilateral trade agreements.

* Rangarirai Machemedze is the SEATINI Programmes Coordinator.

From the SEATINI BULLETIN: Southern and Eastern African Trade, Information and Negotiations Institute
Produced by SEATINI Director and Editor: Y. Tandon; Advisor on SEATINI: B. L. Das Editorial Assistance: Helene Bank, Rosalina Muroyi, Percy F. Makombe and Raj Patel.
For more information and subscriptions, contact SEATINI, Takura House, 67-69 Union Avenue, Harare, Zimbabwe, Tel: +263 4 792681, Ext. 255 & 341, Tel/Fax: +263 4 251648, Fax: +263 4 788078, email: seatini.zw@undp.org,Website: www.seatini.org

Patents and Pharmaceutical Access

The 56th World Health Assembly - the annual health meeting at which the World Health Organisation's (WHO) directives are set for the year - ended last week in Geneva after a long round of discussions on the continuing SARS saga. Press coverage of the Assembly also focused on the completion of a tobacco control resolution, which the U.S. delegation agreed to sign in exchange for deals that will secure a future pact on sugar imports. But the resolution receiving the longest debate among the delegates of the 192 member governments attending the WHO's Assembly received little attention outside of the business press.

The controversy was over a resolution mandating the WHO to advise governments about patent rules and access to medicines. Patent laws in many developing countries are now set through a combination of World Trade Organisation (WTO) directives, World Intellectual Property Organization (WIPO) advice, and U.S. bilateral trade pressure. But because the WTO's Trade-Related Aspects of Intellectual Property Rights (TRIPS) Agreement requires developing countries to pass national legislation guaranteeing patent terms of two decades for pharmaceuticals, the prices of new drugs for both common and rare conditions is expected to double soon after January 2005. The TRIPS Agreement, passed more than a decade ago under the aegis of the WTO, was described as a "free trade" measure by its key architect, Pfizer CEO (and Ronald Reagan trade advisor) Edmund Pratt. By definition, it is the complete opposite of competition-based trade: it grants pharmaceutical companies a monopoly on any new product they produce, and therefore allows drug prices to be set to the purchasing standards of the elite, to the obvious detriment of the poor.

The long walk to civil disobedience
Zackie Achmat

When my comrades and I disrupted Minister of Health Manto Tshabalala-Msimang’s speech at the Health Systems Trust conference, a public health official taunted one of the Treatment Action Campaign (TAC) members by saying: “How did you get HIV anyway?” We also received an angry letter from a man who feels our demand for treatment is unfair. This article is written for them. It is also written for people like Western Cape African National Congress health spokesperson, Cameron Dugmore, who called us bullies for disrupting the minister.

First, I apologise unconditionally to the minister for referring to her personal appearance during our disruption. Any reference to the personal appearance of an opponent to discredit them is wrong. It’s also wrong because it undermines the dignity of the protest of thousands of TAC volunteers and allows people who need to curry favour with officials a cover for their lack of courage and morality. It is also no excuse to say that I was angry, because a few minutes before my own anger against indifference became uncontrollable I had told a comrade whose mother had been hospitalised with a CD4 count of 54 and raging tuberculosis that she should use her anger to demonstrate peacefully. But there are many things I do not apologise for. I do not apologise for holding Tshabalala-Msimang and Minister of Trade and Industry Alec Erwin responsible for thousands of HIV/Aids deaths. Second, neither the TAC nor I will make any apology for making the minister of health, any politician or bureaucrat feel uncomfortable through a disruption of any meeting, office or event where they may find themselves. Hundreds of premature, painful, awkward, silent and screaming deaths of children, men and women daily are caused by the failure of the government to implement a comprehensive treatment and prevention plan for HIV/Aids.

To Dugmore and the other detractors of our campaign who call us bullies, let me ask: were you at the many lawful marches to Parliament to give memoranda to the minister and the president begging for HIV treatment? Perhaps you did not see our march of about 15 000 people on the South African Parliament asking the government to sign a treatment and prevention plan on February 14? What about our early pickets of Parliament, drug companies and the United States government? Civil disobedience is action of last resort for us, because exhaustive efforts at engagement have not worked. Let me ask further: did you attend any of more than 10 submissions to various parliamentary portfolio committees begging, cajoling, charming and arguing for HIV treatment? Did you attend any of more than 30 interfaith services held by the TAC and our allies across the country appealing to the conscience of the health minister and the government? Do you know that we tried quietly to persuade Dr Ayanda Ntsaluba, Dr Nono Simelela, Dr Essop Jassat, Dr Ismail Cachalia, Dr Saadiq Kariem, Dr Kammy Chetty, Dr Abe Nkomo and other doctors who are members of the ANC to ensure that the government change its policies or to let their scientific training, their Hippocratic oaths and their consciences allow them to speak the truth? Maybe you also tried to persuade them that real loyalty to the ANC and the ideals of the Freedom Charter required open criticism after numerous private pleas? Have you reminded the ministers of health and trade and industry that they are undermining the ANC’s traditions of freedom, equality, solidarity and dignity?

Do you remember that the health minister and her supporters in Cabinet really represent the anti-democratic traditions of the former Stalinist states that supported them? Perhaps one should expect people who denied the existence of the Gulag or applauded the invasion of Czechoslovakia, Hungary, Poland and East Germany by Soviet troops and called the latest Zimbabwean election legitimate to deny the existence of HIV/Aids and the efficacy of antiretrovirals? Did you attend hundreds of community meetings addressed by TAC volunteers across the country to educate ourselves and our people about HIV, prevention and treatment? Did you help late into the night, in support of the government, to develop a court case against the drug companies to reduce the prices of all medicines including HIV/Aids medicines? Do you remember how the health minister spurned the TAC after the case? Do you know the anguish of the person who made the poster that said: “Thabo your ideas are toxic”? Were you at the funeral of Queenie Qiza (one of the first TAC volunteers) or did you hear Christopher Moraka choke to death after appealing to Parliament to reduce the prices of medicines? Maybe, like me, you avoided the funeral of my cousin Farieda because I cannot face the pain of death? Did you feel as encouraged as we were by the Cabinet statement of April 17 2002? Are you as disappointed a year later that so little has been done? Were you there when we illegally imported a good quality generic anti-fungal drug (Fluconazole) and shamed drug company Pfizer for profiteering?

Maybe you followed the TAC/Congress of South African Trade Unions’s treatment congress where unemployed people, nurses, scientists, cleaners and trade unionists invited the government to develop a treatment plan? Do you remember our meeting with Deputy President Jacob Zuma that led to a promise that a treatment and prevention plan would be developed by the end of February 2003? Did you miss the word-games played by the government over negotiations at the National Economic and Development Labour Council (Nedlac)? Are you one of the people who phone Nedlac regularly to hear when the government will return to the negotiating table? Or, are you one of the people too busy taking care of someone dying but who have a little pride in your heart when an activist says to the president: “Comrade, you are not listening to our cries. You are denying the cause of our illness. You are not helping us get medicines.” After countless attempts at talking, public pressure and even a court case to prevent HIV infection from mother-to-child, the government allows the deaths to continue while it plays the caring, right-minded diplomat in Africa and the Middle East. Politeness disguises the moral and legal culpability of these politicians and officials. We believe that the personal crises faced by many of our families, friends, nurses, doctors, colleagues and their children should be turned into discomfort and a crisis for the politicians and bureaucrats who continue to deny our people medicine.

The fact that the health minister is obstructing the departments of health, finance, labour and the deputy president’s office from signing and implementing a treatment and prevention plan costs our society more than 600 lives and many new HIV infections every day. The government uses Parliament, Cabinet, provincial governments and all its resources including the Government Communication and Information Service, in the person of comrade Joel Netshitenze, or health communications officer, Joanne Collinge, to justify its denial of life-saving medicines to people who need them. It uses these resources to protect the reputation of the minister of health. And you add your voices to their chorus? When will you join reason, passion and anger to win treatment for people living with HIV/Aids and a decent public health system for all?

The TAC will win in this campaign because its members act in good faith. And when we win, we will sit down on any day with the government for as long as it takes to tackle all the difficult problems of HIV/Aids and the health system. These wounds between ourselves and the government will not be healed easily. But they will heal easier than the pain of the millions who are denied life-saving treatment and those who have succumbed to that pain.

* Zackie Achmat is the Treatment Action Campaign’s chairperson

* See the Equity and Health General section of Equinet News for more news on this issue.

Treatment Action Campaign indictment against South African government ministers

We hereby demand that a police docket be opened to investigate the deaths of the many thousands of people who died from AIDS or AIDS related illnesses and whose deaths could have been prevented had they been given access to treatment. We further demand that the Accused be arrested and charged with the offence of Culpable Homicide for negligently causing the deaths of these people. The details of the charge and a summary of some of the facts which form the basis of the Charge are attached. We believe that many thousands of people can bear witness to this horrible crime.



THE PEOPLE versus MANTOMBAZANA EDMIE TSHABALALA-MSIMANG alias "MANTO", MINISTER OF HEALTH (RSA) and ALEXANDER ERWIN alias "ALEC", MINISTER OF TRADE AND INDUSTRY (RSA). Hereinafter respectively referred to as Accused No. 1 and Accused No. 2.

Both accused are charged with the crime of culpable homicide in that during the period 21 March 2000 to 21 March 2003 in all health care districts of the Republic of South Africa, both accused unlawfully and negligently caused the death of men, women and children. They also breached their constitutional duty to respect, protect, promote and fulfill the right to life and dignity of these people.

1. Both accused Ministers knew that failure to provide adequate treatment including anti-retroviral therapy for people living with HIV/AIDS would lead to their premature, predictable and avoidable deaths.
2.In their capacities as Ministers in the government of South Africa, both accused had the legal duty and power to prevent 70% of AIDS-related deaths during this period through developing a treatment and prevention plan, providing medicines and using their legal powers to reduce the prices of essential medicines for HIV/AIDS including anti-retroviral therapy.
3. Both accused Ministers had in their possession scientific, medical, epidemiological, legal, social and economic evidence of the devastation of potential and actual AIDS deaths on individuals and communities. They not only ignored this evidence but suppressed it.
4. Both accused Ministers consciously ignored the efforts of scientists, doctors, nurses, trade unionists, people living with HIV/AIDS, international agencies, civil society organisations, communities and faith leaders to develop a treatment and prevention plan, to make anti-retroviral therapy available and to ensure that medicine prices in the public and private sector were reduced to save lives.
5. Both accused Ministers were under a legal duty, by virtue of their public office and the provisions of the Constitution of the Republic of South Africa, to provide access to health care services by reducing the price of essential medicines for HIV/AIDS including anti-retroviral therapy, and by providing them through the public health sector. They remain under this legal duty.
6. Both accused Ministers negligently failed to carry out their legal duties. Their conduct in failing to make these medicines available to people who need them does not meet the standards of a reasonable person, and in particular a reasonable person holding the position of Minister of Health or Minister of Trade and Industry.
7. During the period 21 March 2000 and 21 March 2003, this failure caused the death of between 250 and 600 people every day as a direct result of premature, avoidable and predictable AIDS-related illnesses.

THE PEOPLE versus MANTOMBAZANA TSHABALALA-MSIMANG (Minister of Health) (hereinafter referred to as The Minister of Health) and ALEXANDER ERWIN (Minister of Trade and Industry) (hereinafter referred to as The Minister of Trade and Industry)

CHARGE: Culpable Homicide (unlawfully and negligently causing the death of another human being)


1. During the period 21 March 2000 to 21 March 2003, many people throughout the Republic of South Africa died from AIDS or diseases caused by AIDS.
a.) Information on the prevalence of HIV/AIDS and HIV/AIDS related deaths each year has been available to both Accused Ministers throughout their terms in office.
b.) It is estimated that at least 600 people in South Africa die from AIDS-related illnesses each day.
c.) In the past 12 years, the HIV sero-prevalence among first time antenatal clinic attenders, as indicated by the Minister of Health's own Department's Annual Antenatal Clinic surveys has risen from 0.76% in 1990 to 10.44% in 1995 to 28.4% in 2001. Based on these surveys, it is estimated that there are currently 5 million South Africans infected with HIV. The latest survey estimates that 15,4 percent of women under 20 years, 28,4 percent of women between 20 and 24 years and 31,4 per cent of women between 25 and 29 years are living with HIV/AIDS. The survey further notes that "high HIV prevalence rates have significant implications on the future burden of HIV-associated disease and the ability of the health system to cope with provision of adequate care and support facilities."
d.) In the Department of Health's Second Interim Report on Confidential Enquiries into Maternal Deaths in South Africa (1999), non-pregnancy related sepsis mainly caused by AIDS was recorded as the leading cause of maternal deaths. In the Report, 35.5 percent of women whose deaths were reported were tested for HIV and 68 percent of these were HIV positive. The Report noted that HIV is significantly under-diagnosed.
e.) A study by the Medical Research Council, estimated that about 40 percent of adult deaths aged 15-49 that occurred in 2000 were due to HIV/AIDS and that, if combined with the deaths in childhood, it was estimated that AIDS accounted for about 25 percent of all deaths in 2000 and was the single biggest cause of death. The Report continued that projections indicate that, without treatment to prevent AIDS, the number of AIDS deaths with grow within the next 10 years to double the number of deaths due to all other causes. The Report estimates that approximately 200 000 people died of an AIDS-related illness in 2001 alone. The Minister of Health was directly involved in attempts to suppress this report.
f.) A report issued by Statistics South Africa on 21 November 2002 entitled Causes of death in South Africa 1997-2001: Advance release of recorded causes of death, indicates that unnatural causes still remain the leading cause of death. However, the report states that HIV-related deaths are significantly under-reported. One reason advanced for the under-reporting is that such deaths are often recorded as TB or pneumonia-related. Of particular significance is the finding that patterns of mortality shifted dramatically over this period, primarily as a result of HIV, TB and pneumonia-related deaths. In 2001, for example, 8.2% of all recorded deaths were attributable to unspecified unnatural causes, down from 15.3%.
g.) In contrast, 34.6% of all recorded deaths in 2001 were attributed to HIV, TB, influenza/pneumonia and "ill-defined causes of death", up from 29.5% in 1997.
h.) The largest single impact of HIV/AIDS on the public health sector lies in the hospital sector. Research commissioned by the Department of Health (Abt Associates, 2000) indicates that, in the year 2000, an estimated 628 000 admissions to public hospitals were for AIDS related illnesses, which amounts to 24% of all public hospital admissions. As more people who are already HIV positive become sick each year, this demand for hospitalisation will increase steadily every year in the absence of significant alternative interventions. In financial terms, the cost of hospitalising AIDS patients in public facilities was estimated at the time to amount to at least 12.5% of the total public health budget.

2. Many of these people would not have died if they had access to anti-retrovirals

a.) HIV/AIDS is a progressive disease of the immune system that is caused by the Human Immunodeficiency Virus (HIV).
b.) When left untreated HIV profoundly depletes the immune system and may prove fatal because of the inability of the body to fight opportunistic infections such as tuberculosis, pneumonia and meningitis.
c.) The scientific evidence indicates that without effective treatment, the majority of people with HIV/AIDS die prematurely of illnesses that further destroy their immune systems, quality of life and dignity.
d.) Early diagnosis, clinical management, medical treatment of opportunistic infections and the appropriate use of anti-retroviral therapy prolongs and improves the quality of life of people living with HIV/AIDS.
e.) Anti-retroviral drugs are a class of drugs that suppress viral load activity and replication. When used effectively they reduce the volumes of HIV to undetectable levels in the blood. This leads to immune reconstitution. It also prevents and delays the destruction of a person's normal immune system.
f.) In its HIV/AIDS Policy Guideline, entitled Prevention and Treatment of Opportunistic and HIV-related diseases in Adults (August 2000), the Department of Health (which operates under the direction of The Minister of Health) has recognised the efficacy of anti-retroviral treatment, stating as follows: "Current research also strongly indicates that suppressing HIV viral activity and replication with anti-retroviral therapy or Highly Active Antiretroviral Therapy (HAART) combinations prolongs life and prevents opportunistic infections".
g.) The Medicines Control Council, has the statutory duty to investigate and determine whether medicines are suitable for the purpose for which they are intended, and whether their safety, quality and therapeutic efficacy is such that they should be made available in South Africa. They have registered various anti-retroviral drugs for treatment of people who have HIV/AIDS.
h.) The World Health Organisation (WHO) has included anti-retrovirals on the Core List of its Model List of Essential Drugs (12th edition, April 2002). The Minister of Health is aware of the inclusion of anti-retroviral medication in the World Health Organisation's Essential Drugs List.
i.) With access to anti-retrovirals people with HIV/AIDS are able to lead longer and healthier lives and it directly results in an improved quality of life and the restoration of dignity, allowing people with HIV/AIDS who were previously ill to resume ordinary everyday activities, such as work.
j.) A comprehensive plan to treat people living with HIV/AIDS as advocated by civil society organisations, faith based organisations, scientists, health care workers, trade unionists, activists and communities over the past four years, would have reduced the number of people dying of AIDS related illnesses and would have mitigated the horrendous impact of AIDS on people in South Africa.

3. Both Accused were aware of need to make anti-retrovirals available to prevent these deaths.

a.) The Minister of Health has had direct knowledge of the serious impact of HIV/AIDS and the need for care and treatment of people living with HIV/AIDS, before she took up her position as Health Minister. As early as 1994 The Minister of Health was a key drafter or the NACOSA National AIDS Plan for South Africa 1994 - 1995. (The Plan states that "The number of people becoming ill as a result of HIV infection is already high and will continue to increase dramatically over the next few years. The health care systems will have to cope with this increase and strengthen their ability to provide HIV/AIDS care in order to reduce the impact of HIV/AIDS on individuals, their families and communities"). In terms of this Plan, it is also clear that The Minister of Health was fully aware of the need to broaden access to treatment for people living with HIV/AIDS ("In dealing with HIV/AIDS, an essential drug list should be developed, based on the efficacy of the drugs in the clinical management of the disease, as well as on costs and availability? As research develops and knowledge about treatment expands, it may be necessary to add drugs to those which are routinely supplied. All drugs and medicines should be available as widely as possible").
b.) The Minister of Health and the Minister of Trade and Industry were aware of the Joint Statement issued by the then Minister of Health, Dr Nkosazana Dlamini-Zuma and Treatment Action Campaign, which confirmed that all treatment for HIV/AIDS and all related medical conditions is a basic human right (30 April 1999). At the time, the Minister of Health called on all sectors to pressurise companies to unconditionally lower the price of all HIV/AIDS medications to an affordable price for poor people and countries.
c.) The Minister of Health has herself confirmed that "access to affordable drugs is a matter of life and death in our region" (World AIDS Day speech, 1 December 2000). During this speech, The Minister of Health also emphasized that access to drugs should be improved and that "drugs at current prices remain unaffordable". The Minister of Health, in her capacity as Minister of health, and as a doctor, knew that action had to be taken to reduce the prices and that she could use her legal power to procure or produce generic anti-retrovirals and other essential HIV medications.
d.) In its Cabinet statement of 17 April 2002, Cabinet, and the Accused as members of the Cabinet, recognised that anti-retrovirals can improve the conditions of people with HIV "if administered at certain stages ... in the progression of the condition, in accordance with international standards."
e.) After taking up office, The Minister of Health and the Minister of Trade and Industry have consistently been reminded of the need to improve access to treatment for people living with HIV/AIDS since 1999 (e.g. Speech by Edwin Cameron at the 2nd National Conference for People Living with HIV/AIDS on 8 March 2000, in the presence of the Minister of Health; the Call for a Global March issued in March 2000; COSATU's Submission on HIV Treatment to Health Portfolio Committee on 10 May 2000; letter by TAC requesting meeting with President and Minister of Health on access to treatment dated 20 March 2000).

* To read the full indictment please click on the URL provided.

Further details: /newsletter/id/29704
Life and Death at the WTO
Sanjay Basu

If you cross paths with Robert Zoellick's mother over the next few weeks, please remind her that applications to George Washington University's School of Public Health are due soon. Her son needs to hurry up and submit his paperwork. Mrs. Zoellick might be surprised at the suggestion that her son Robert, US Trade Representative, should go back to school. She might tell you that her dear Robbie already graduated magna cum laude from Harvard's Law School and received an MPP from the Kennedy School of Government. Mrs. Zoellick might say that her son's overqualified for his job. The only problem is that Robert Zoellick has been making a lot of decisions about public health lately - and in that realm, he is terribly uninformed.

Take, for instance, his actions last month at the WTO council. Trade representatives from the other 143 member countries of the WTO decided that the poorest of nations - those without any pharmaceutical manufacturing facilities - should be able to import cheap generic drugs, since they can't pay for the more expensive patented versions. But Mr. Zoellick became the only minister at the WTO to refuse to agree to the measure.

This isn't the first time that's happened. Back in December, Mr. Zoellick did the same thing just before Christmas. The issue was how to implement the WTO's "Doha Declaration" on public health, which the WTO (with Mr. Zoellick's vote) passed in November 2001. That agreement declared that the patent rights of drug companies should be secondary to public health concerns to "promote access to medicines for all." In the agreement, the WTO promised to determine how countries without manufacturing facilities were going to import generic drugs.

But Mr. Zoellick decided that he would "reinterpret" the Doha Declaration. He claimed that the Declaration was not really about promoting "access to medicines for all" (in spite of the wording in the Declaration itself) but it was really only intended to cover a short list of diseases. He came to the table with a list of 15 diseases he thought were suitable. The only problem was that major killers like cervical cancer and pneumonia were not included. Mr. Zoellick said those diseases not on the list were "lifestyle" disorders. So the three million kids who will die from pneumonia in Africa this year better whip themselves back into shape and learn to change their ways. Some of the other trade ministers thought this was a bit perverse, and refused to agree to that deal.

February was supposed to be a finalization of the delayed negotiation process, but Mr. Zoellick came to the table with a new set of rules, once again using his "alternative" theories of public health practice. This time, medicine access would not be restricted to just a short list of diseases, but countries would also be restricted to importing generics only after a "national emergency." So health ministers in Burkina Faso, which is currently in the beginning stages of a major meningitis epidemic, should sit tight and wait for a couple hundred thousand people to die - then they can begin the legislative process to get medicines. Other rules proposed by Mr. Zoellick would be extraordinarily cumbersome. Under the system proposed, if Pakistan wanted to get cheaper drugs from an Indian generic manufacturer, the Indian government would have to pass legislation for Pakistani citizens. How politically pragmatic!

No one mentions, of course, that the very measures Mr. Zoellick is pushing on the poorest of countries are far more stringent than those followed by the United States. Remember the anthrax scare? After only four deaths, Congress was threatening to import generics immediately if Bayer Corporation didn't produce its anti-anthrax drug quickly enough. But other countries, of course, aren't allowed to do the same when they have real public health crises.

I pity Mr. Zoellick's public relations officer, who will no doubt be working long hours to generate an entirely new system of logic justifying the nature of these deals. But, of course, there's plenty of support for Mr. Zoellick and his worker bees at the Washington trade office. It comes from the pharmaceutical industry, as was made explicit at the WTO council. Instead of negotiating with each other, the trade ministers declared they would just circumvent the whole process and start negotiating directly with Pfizer. Companies like Pfizer don't want a break in their global monopoly on prices. But if the most profitable industry in the world can't handle the fact that poor countries represent a tiny percentage of their pharmaceutical market, then our trade ministers need to be able to stand up to them and defend the Doha Declaration.

The industry, and the USTR, claims that generics would undermine their capacity to pay for research and development - that is, the research and development that American taxpayers actually foot most of the bill for. The industry doesn't bother to release it's own tax information, however, which reveals that Merck this year used 13% of its profits on marketing and only 5% on R&D, Pfizer spent 35% on marketing and only 15% on R&D, and the industry overall spent 27% on marketing and 11% on R&D according the Securities and Exchange Commission. That's not accounting for the fact that 52% of new drugs on the market aren't even the result of R&D, but are "me too" drugs that are simple reformulations of old products slapped with new stickers.

The industry still claims that generics will undermine its business, even as it continues to be ranked by Fortune Magazine as the world's most profitable industry for 11 years in a row (having profits as a percentage of revenue nearly three times the rest of the Fortune 500 industry). When confronted with the fact that Africa comprises only 1.3% of the industry's revenues (making its loss equivalent to "about three days fluctuation in exchange rates," according to an industry analyst quoted in The Washington Post), the industry claims that generic drugs will get diverted to the North to undermine its key markets, and cites GlaxoSmithKline's recent loss of AIDS drugs sent to Africa as a case in point. But a look at the GSK case shows that Glaxo failed to even track the shipments and only discovered after a year that its packages to Africa had been shipped improperly, allowing them to be smuggled to Europe. Tracking mechanisms, however, seem to be no trouble for neighbourhood flower shops. Indian generic manufacturers, meanwhile, have shipped medicines for over two decades without a single case of "diversion".

It's time for Mr. Zoellick to learn what it means when 24,000 people die a day from treatable diseases; otherwise, he should take a fraction of the $20 million in campaign contributions pharmaceutical companies donated last year and use it for his tuition at the School of Public Health.

* Read more about the WTO negotiations in the 'Equity and Health General' and 'WTO, Economic and Social Policy' sections of Equinet News.

Mass Murder By Complacency
Stephen Lewis, UN Secretary-General’s Special Envoy for HIV/AIDS in Africa

Last month, I spent two weeks touring four countries in Southern Africa: Lesotho, Zimbabwe, Malawi and Zambia. The primary purpose was to view the link between hunger and AIDS. I want to look back at that visit, because little will have changed between then and now (except, perhaps, that things will have deteriorated further), and then look forward to the prospects for addressing the pandemic in 2003.

At the outset, however, let me express, yet again, the fundamental conviction I have every time I visit Africa: there is no question that the pandemic can be defeated. No matter how terrible the scourge of AIDS, no matter how limited the capacity to respond, no matter how devastating the human toll, it is absolutely certain that the pandemic can be turned around with a joint and Herculean effort between the African countries themselves and the international community.

I am weary to the point of exasperated impatience at the endless expressions of doubt about Africa’s resolve and Africa’s intentions and Africa’s capacities. The truth is that all over the continent, even in the most extreme of circumstances, such as those which prevail today in the four nations I visited, Africans are engaged in endless numbers of initiatives and projects and programmes and models which, if taken to scale, if generalized throughout the country, would halt the pandemic, and prolong and save millions of lives.

What is required is a combination of political will and resources. The political will is increasingly there; the money is not. A major newspaper in the United States, reflecting on the paucity of resources, used the startling phrase “murder by complacency”. I differ in only one particular: it’s mass murder by complacency.

You will forgive me for the strong language. But as we enter the year 2003, the time for polite, even agitated entreaties is over. This pandemic cannot be allowed to continue, and those who watch it unfold with a kind of pathological equanimity must be held to account. There may yet come a day when we have peacetime tribunals to deal with this particular version of crimes against humanity.

As bad as things are in Southern Africa - and they are terrible - every country I visited exhibited particular strengths and hopes.

The little country of Lesotho has a most impressive political leadership, but is absolutely impoverished. If it had some significant additional resources, with which to build capacity, it could begin to rescue countless lives. I vividly remember the Prime Minister of Lesotho saying to me: “We’re told repeatedly by donors that we don’t have capacity. I know we have no capacity; give us some help and we’ll build the capacity.” It’s worth remembering that Lesotho has a population greater than that of Namibia and Botswana, but it has nowhere near the same pockets of wealth. It has, however, one of the highest prevalence rates for HIV on the continent, higher than Namibia; almost as high as Botswana, and is fatally compromised in its response by the lack of resources.

Zimbabwe, whatever the levels of political turbulence, has created a sturdy municipal infrastructure for the purpose of dealing with AIDS. You will know that for the last couple of years, Zimbabwe has had a 3% surtax on corporate and personal income, devoted to work on AIDS. A good part of that money has been channelled down to district and village level, through a complex array of committees and structures which actually get the money to the grassroots. It’s visible in the work of youth peer educators, outreach workers and home care through community-based and faith-based organisations. In other words, for all the convulsions to which Zimbabwe is subject, there remains an elaborate capacity to implement programmes, if only there were more programmes to implement.

In Malawi, we may be about to see the most interesting of experiments in the provision of anti-retroviral treatment in the public sector. The Government of Malawi had originally intended to treat 25,000 people based on receipt of monies from the Global Fund. They then realized that the calculation of 25,000 was based on the purchase of patent drugs, but now that it is possible to purchase generic drugs, the numbers eligible for treatment could rise to 50,000. There has been, predictably, a great deal of skepticism in the donor and other communities. However, while we were in Malawi, the country was visited by a WHO team which carefully examined the capacity and delivery issues, and came to the conclusion that treating 50,000 people, phased in of course, was entirely possible. This is an exciting prospect: the treatments are meant to be free of charge, and delivered through the public health sector.

Zambia, whatever the difficulties - and they are overwhelming - is emerging from the bleak and dark ages of denial into the light of recognition. The bitter truth is that in the regime of the previous President, nothing was done. He spent his time disavowing the reality of AIDS, and hurling obstacles in the way of those who were desperate to confront the pandemic. I can recall personally attending an annual OAU Summit on behalf of UNICEF, and sitting down with the then President Chiluba, and asking him what he intended to do about AIDS, and he simply wouldn’t talk to me about it. Well there’s a new President in Zambia. And although he’s been in place for only one year, everyone agrees that there’s a dramatic change in the voice of political leadership around the subject of AIDS.

The fact is that in every country, even under the most appalling of human circumstance, there are signs of determination and hope. Whether they can be harnessed in the name of social change will be known in the year 2003. God knows, there are incredible hurdles to leap.

Further details: /newsletter/id/29564
Will a new leadership unleash new potentials for health?
Rene Loewenson, EQUINET

In August 2002 Gro Harlen Bruntland, Director General (DG) of WHO, announced that she would not seek a second term as DG. This issue of the EQUINET newsletter compiles some of the debates and papers that have been presented around her record at WHO, the candidates for the new DG and the selection process itself. The political moment created by the election of a new DG stimulates debate about WHO’s priorities and role in international and global health, as the leadership qualities sought in a new DG should reflect those roles.

Bruntland’s achievements at WHO are notable. She raised the profile of health in the global agenda, including within economic and political forums and is reported to have restored WHO’s credibility with donors. She launched a number of global health campaigns. During her period as DG, WHO has reasserted itself as an international standard-setting body around areas such as tobacco control, pre-qualification for procurement of antiretrovirals, food safety standards, and essential drugs. Bruntland had some success at negotiating partnerships with foundations and the private sector.

Yet the debate on WHO priorities and the realities of health from the perspective of a southern African network indicate that there are many unresolved issues. Whatever the changes that were achieved at global level, they have not been felt at country level. Poverty and unavoidable and unfair inequalities in opportunities for and access to health are pronounced and persistent. Despite this WHO is not perceived to have been a strong public advocate for health equity or for protecting public health in economic and trade policies. Neither is there a perception of the powerful advocacy of primary health care or of forms of health financing that enhance access to health care in poor communities, in women and other vulnerable groups. In contrast, in an environment of rapid and powerfully driven market reforms and privatization, there is some criticism of WHO unwillingness to confront commercial interests over patient interests in access to medicines under TRIPs, or protect national authority rights to regulate private health providers under the WTO GATS agreement.

Hence even while the Macroeconomic Commission on Health raised the profile of the US$27bn shortfall in global resources for health, and the Global Health Fund (GHF) created one vehicle for responding to this shortfall, the impact of these global shifts has been weak. Beyond the insufficient and poorly sustained funding of the GHF, WHO has not yet made clear or put its international policy weight behind the public policy measures needed nationally and globally to ensure that health services and systems spend more on those with greatest need. This has left a number of issues poorly addressed, such as for example the attrition and loss in health personnel from public to private sectors and from low to high income countries; the collapse of primary care level services in some countries; the shift in the burden of caring for HIV/AIDS to poor households and inability to secure treatment access in many low income countries, or the still weak link between public health and the wider systems of rights and procedural justice needed to manage the contestation over scarce resources for health.

The nature of the issues to be addressed, and their significance in Africa make the policies of the next DG a matter of some concern for Africans. The public policy shortfalls identified above do not simply call for business as usual with a bit more focus on Africa. In the same way as poor people’s health needs demand a wider review of public policy generally, so too does meeting the needs of health in Africa demand critical review of wider global, international and national health policies for where they generate vulnerability and impede public health authorities in Africa making coherent responses to ill health.

This editorial does not scrutinize the candidates – there are links to articles about the candidates at the end of this editorial. While effort has been made to make the process of selection of the DG more open to public debate through journal papers and email lists, in fact the process is still tightly controlled within the 32 health ministers in the Executive Board. It would however be important to make two comments. The first is to note the presence as a candidate of Pascal Mocumbi, a southern African who has championed health equity for many years, both working on ways of providing incentives for health equity and articulating equity oriented policies, including as at the 1997 Kasane meeting that launched EQUINET. The second is to note that while individual attributes, perspectives and experience are clearly important, the challenges to be addressed by the new DG call for wider alliances for health. Here perhaps WHO has untapped potential: A number of partnerships for service delivery have been built by WHO.

Bruntland has mobilized resources and raised the political profile of health. The challenge for a new DG is to bring in new strategic alliances and constituencies that advance WHOs role as global advocate for public health and that bridge global opportunity with national practice. Beyond the technical and political support that has been raised, this implies tapping into the massive social support that exists for health rights and values.

(Please note that links to articles from The Lancet require a short and easy registration process)