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.
ACCUSED NO. 1
NAME: MANTOMBAZANA EDMIE
SURNAME: TSHABALALA-MSIMANG
OCCUPATION: THE MINISTER OF HEALTH, SOUTH AFRICA
ACCUSED NO. 2
NAME: ALEXANDER
SURNAME: ERWIN
OCCUPATION: THE MINISTER OF TRADE AND INDUSTRY, SOUTH AFRICA
THE CHARGE
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)
SUMMARY OF SUBSTANTIAL FACTS
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.
1. Editorial
2. Equity in Health
At the closing of the first International Treatment Preparedness Summit (ITPS) in Cape Town, South Africa, last month, participants detailed a number of priority actions to address the inequalities that prevent millions of people living with HIV/AIDS from securing access to treatment. At the end of the four-day meeting attended by over 120 representatives of treatment advocacy groups from 67 countries across the world, delegates agreed that current treatment efforts were insufficient. One of the things they called for was for national governments to develop treatment plans detailing how they intend to implement the World Health Organisation's goal of ensuring ARV treatment for at least 3 million people in the developing world by 2005.
An expert group has reaffirmed that unsafe sexual practices are responsible for the vast majority of HIV infections in sub-Saharan Africa, and that safer sex promotion must remain the primary feature of prevention programmes in the region. Following a review of evidence, which included recent articles suggesting that a majority of HIV infections in sub-Saharan Africa are due to unsafe medical practices, particularly injections, the experts concluded that such suggestions are not supported by the vast majority of evidence and that unsafe sexual practices continue to be responsible for the overwhelming majority of infections. While a combination of prevention measures are required to tackle all modes of HIV transmission, safer sex promotion must remain the primary feature of prevention programmes in the region.
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3. Human Resources
The Health Systems Trust has released the eighth edition of the South African Health Review. The review focuses on progress made in restructuring the South African health system and provides an annual and longer-term review of the implementation of South African health policies. Twenty one chapters are grouped into the following four themes: framework for transformation, human resources, priority programmes and support systems. The Review acts as a barometer for assessing the transformation processes and their impact on provision of equitable health care to all South Africans, and provides the most recent data on health status and health services, key opinions, and current thinking in Health in SA. Chapters 7 to 10, discuss issues pertinent to human resources development, including implementation of Community Service for Health Professionals, the deployment of community based health workers in dealing with essential health and social issues, and the experiences of primary health care facility workers.
Not only is the HIV/AIDS pandemic a "humanitarian disaster," but the disease could also cause an "economic crisis" in "emerging markets" such as South Africa, China and the former Soviet Union, where the virus is "spreading fast," the Toronto Globe and Mail reports. Labor-intensive industries, such as mining, have been particularly hard hit by HIV/AIDS, and service industries such as banking and food products may have to project slower growth in coming years due to a declining consumer base.
4. Public-Private Mix
Some experts argue that private healthcare providers are preferred by service-users, or are more efficient or accessible than the public sector, and hence that government should contract out services to them. However, factors such as institutional capacity to write and manage contracts and market competition affect how contracts with private providers function. This has major implications for contracting in low and middle-income countries (LMICs). Research by the London School of Hygiene and Tropical Medicine explored the operation of a long-standing contract with private GPs in South Africa.
There is a lack of effective, safe, and affordable pharmaceuticals to control infectious diseases that cause high mortality and morbidity among poor people in the developing world. This article from The Lancet analyses the outcomes of pharmaceutical research and development over the past 25 years, and reviews current public and private initiatives aimed at correcting the imbalance in research and development that leaves diseases that occur predominantly in the developing world largely unaddressed. It found that of 1393 new chemical entities marketed between 1975 and 1999, only 16 were for tropical diseases and tuberculosis. The article concludes that private-sector research obligations should be explored, and a public-sector not-for-profit research and development capacity promoted.
In response to shortages in public budgets for government health services many developing countries around the world have adopted formal or informal systems of user fees for health care. In most countries user fee proceeds seldom represent more than 15 percent of total costs in hospitals and health centres, but they tend to account for a significant share of the resources required to pay for non-personnel costs. The problem with user fees is that the lack of provisions to confer partial or full waivers to the poor often results in inequity in access to medical care. The dilemma, then, is how to make a much needed system of user fees compatible with the goal of preserving equitable access to services, says this paper from the World Bank.
Until very recently, the healthcare sector in developed industrialised countries consisted largely of public services for curative and preventive care provided by governments and the regulated private sector. These services were organised into different levels from primary care facilities up to tertiary hospitals providing specialist care, with a referral mechanism from one level to the next. But in many low and middle income countries healthcare has moved away from this model. People, including many of the poor, use a wide range of different service providers, all of which they have to pay. The healthcare sector increasingly resembles an unregulated marketplace rather than an organised public service. How has this come about, what does this marketplace look like and what does it mean for health policy and planning?
As evidence about the importance of the private sector in healthcare delivery accumulates, emphasis is being placed on better understanding the opportunities and risks it creates. Private providers are often key sources of treatment for diseases of public health importance, such as malaria, sexually transmitted infections (STIs) and tuberculosis (TB). They are also an important source of care for poor people, who may use private providers nearly as much as better-off groups. But there are concerns about their quality and affordability.
5. Resource allocation and health financing
In January 2003 President Bush proposed the Emergency Plan for AIDS Relief, calling on Congress to spend an additional $10 billion over the next five years to help countries in Africa and the Caribbean fight AIDS. The US announced that 14 countries with the highest rates of HIV infection in Africa and the Caribbean would be the targeted beneficiaries of the additional $10 billion. However, according to the United Nations Development Program statistics, in the same period these 14 countries would pay approximately $36 billion in total debt-servicing to their creditors in the rich countries.
Results-oriented or performance budgeting is the planning of public expenditures for the purpose of achieving explicit and defined results. These policies have often been first implemented through sector-wide approaches (SWAps), particularly in health and education. Concerns have been raised that results-focused management of public expenditure gives rise to unnecessary bureaucracy, causes distortions in the implementation of policies, and ignores the subtleties and complexities of public service provision. These papers look at 7 low income countries with PRSPs to establish how far performance budgeting and management are used in practice, and to relate these findings to features of macroeconomic and budget management, accountability structures, and administrative structures and practices. The countries focused on are Bolivia, Burkina Faso, Cambodia, Ghana, Mali, Tanzania and Uganda. The overall conclusion of the research programme is that low income countries are practicing performance budgeting and management, in some cases to useful, if unspectacular, effect. They have, with modest external support, been finding their own solutions to the problem of how to translate public expenditure into pro-poor development results.
6. Governance and participation in health
This paper produced by the Centre for Social Science Research (CSSR) at the University of Cape Town compares public opinion survey data from the Afrobarometer with epidemiological data about the HIV/AIDS pandemic in seven Southern African countries. The authors use this data to examine the degree to which people are aware of the pandemic, and are willing to speak about it. They also use it to examine whether it yields any palpable consequences of the disease in terms of public health. In turn, they also ask whether data on public awareness of AIDS deaths and individual health status corroborate, broadly, existing epidemiological data on HIV/AIDS. Finally, they examine the degree to which HIV/AIDS affects southern Africans' political priorities, political participation and expectations for government action.
Established in Sept 2001, this is a global movement that seeks to reduce the incidence of diseases like AIDS, tuberculosis, and malaria among poor people. The campaign's goal is to advocate for and communicate best practices to stimulate social and political change. The campaign supports networks of existing organisations by providing strategic information, best practices, prototype messages, opportunities for collaboration and co-ordination. A website facilitates this exchange of information.
7. Monitoring equity and research policy
Increasing global attention is focusing on ways to improve health systems and the contribution that research-informed policies can make to this. It has long been recognised that a range of factors is involved in the interactions between health research and policy-makers. The emerging focus on Health Research Systems (HRS) has identified additional mechanisms through which greater utilisation of research could be achieved. Assessment of the role of health research in policy-making is best undertaken as part of a wider study that also includes utilisation of health research by industry, medical practitioners, and the public. The utilisation of health research in policy-making should eventually lead to desired outcomes, including health gains, says an article in Health Research Policy and Systems.
8. Useful Resources
A collaboration between Eldis and the Health Systems Resource Centre providing access to the latest and most relevant knowledge on health systems selected from practitioner and research networks on and off the web. Current topic areas include health, poverty and vulnerability, priority diseases, aid policy and financing mechanisms, global initiatives and PPPs, access to medicines, and health service delivery.
'HIV & AIDS Treatment in Practice' is an email newsletter for doctors, nurses, other health care workers and community treatment advocates working in limited-resource settings. The newsletter is published by NAM, the UK-based HIV information charity behind www.aidsmap.com.
In their ongoing effort to support and strengthen community initiatives to combat the HIV/AIDS crisis in KwaZulu-Natal, the Centre for HIV/AIDS Networking (HIVAN) and the KwaZulu Natal Churches AIDS Network (KZNCAN), have collaborated to produce the HIVAN/KZNCAN 2003 HIV/AIDS Directory. With over 600 organisations listed, the Directory provides a comprehensive reference resource for HIV/AIDS-related research, intervention and service organisations working in the province.
It may be hard to believe, but the next International AIDS Conference (IAC) is only a little over a year away. The 15th IAC will be held in Bangkok in July 2004. Over the coming weeks, the Intaids eForum is hosting a series of structured discussions on the design, value and impact of the IACs. The discussion will coincide with upcoming planning meetings that will determine the priorities and organisation of the Bangkok conference in 2004. It will hopefully feed into decisions about the IAC2004 format, structure and content, and decisions about prioritisation and resource allocations among the various parts of the conference.
This CD-ROM is a free resource of material on subjects related to health and development. The CD-ROMs allow users to select, adapt and tailor materials to meet local needs and develop their own library of materials at very low or zero cost. Information on the CD-ROM can be downloaded, e-mailed or printed and freely reproduced and shared. The project is supported by the UK's Department for International Development (DFID).
The HIV/AIDS Impact on Education Clearinghouse collects recent research and documentation and is working to build interactive information sharing. In addition to finding the latest studies and research for HIV/AIDS and education, you can access related websites, participate in discussion forums and even contact members.
Looking for a copy of the People's Health Charter? What language do you want? It's now available on the People's Health Movement website http://www.phmovement.org in 27 language versions - everything from Arabic to Urdu.
9. Jobs and Announcements
The incumbent will be expected to advise the Development Attache on technical aspects of the Health and HIV/AIDS programme. The advice will involve analysis of current sector policy debates and developments, both within South Africa and beyond.
FAHAMU, in association with the Department of Continuing Education at the University of Oxford, England, is offering courses specifically designed to meet the needs of non-profit human rights and advocacy organisations in the SADC region. Developed together with international and regional experts the last two of the six available courses will begin during April 2003. Applications are now open for Action for change: advocacy and citizen participation. The course's approach to advocacy is geared to improving the lives and participation of marginalized people and forging broad alliances for reform across society.
FAHAMU, in association with the Department of Continuing Education at the University of Oxford, England, is offering courses specifically designed to meet the needs of non-profit human rights and advocacy organisations in the SADC region. Developed together with international and regional experts, the last two of the six available courses will begin during April 2003. Applications are now open for ‘Using the Internet for Research and Advocacy’. This course is designed for people and organisations grappling with how to harness the power of the internet for research and advocacy.
You wouldn’t have thought that Equinet’s last newsletter, containing the final statement of the World Social Forum held recently in Porto Allegre, Brazil, could be considered pornographic or indecent. But that’s exactly what one Internet Service Provider decided when their email blocking software prevented the newsletter from being delivered to one of our subscribers because it contained the word “sex”. Find out more about this issue and how it could impact on your access to information by clicking on the link provided.
IDRC is recruiting a Senior Program Specialist for our Social and Economic Equity Program Area, to work with IDRC's new Governance, Equity and Health program initiative (GEH - 70%) and with the Micro Impacts of Macro and Adjustment Policies program initiative (MIMAP - 30%). We are looking for a public health specialist with experience in health administration and/or health economics and/or health policy and systems research.
The Global Fund to Fight AIDS, Tuberculosis and Malaria is recruiting experts to serve on the Technical Review Panel (TRP) to review the Third Round Proposals. The TRP plays a crucial role in reviewing proposals for funding submitted to the Global Fund. Individuals with expert technical knowledge and extensive experience in one of the following areas are sought: HIV/AIDS; Tuberculosis; Malaria; Cross cutting issues (such as institutional and governance issues, macro-economics in a health sector context, absorptive capacity).