28 April 2008
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This desperate situation was unfolding while the country from 1994 was engaged in remarkable legal and institutional transformations which began to affect every sphere of life. These changes included the finalisation and adoption in 1996 of a constitution with a legally enforceable bill of rights protecting, among others, the right to equality, to bodily and psychological integrity, to freedom from violence from either public or private sources, and to the realization of the right to health without discrimination on any grounds. Within this framework institutional reforms were initiated, for instance, to improve access to education and to employment for "historically disadvantaged groups", to integrate and reform the health services,12 as well as the policing and criminal justice systems with the intention to improve service delivery for all South Africans without discrimination.
Despite the relentless upward trend in HIV infection rates, the government"s initial responses to the epidemic were slow and erratic during the Mandela presidency.13 From late 1999 the government of President Thabo Mbeki took a direction which turned a public health emergency into a matter of political conflict. For whatever complex reasons, President Mbeki"s decision publicly to question the link between the virus and the onset of AIDS, as well as the efficacy and safety of the then known drug treatments, precipitated a period of confusion and demoralisation within government departments and the public health services and disputes between national and some provincial governments over responses to the epidemic. Adding to these consequences was a growing bitter conflict with sectors of civil society, including medical practitioners, who were pressing for access to antiretroviral treatment for HIV-infected pregnant women and others with AIDS.
There was a loss of strong unified leadership at a critical juncture in the life of the epidemic and a further delay in access to life-saving medicines for those with AIDS who were dependent on the public sector for health services.14
In late 2001 the Treatment Action Campaign (TAC)15 obtained an order in the Pretoria High Court requiring the government to supply antiretroviral medication to pregnant women to prevent transmission of the virus to their babies. The High Court ruling was confirmed by the Constitutional Court in July 2002 after the Department of Health appealed the High Court decision.16 The Constitutional Court held that "Sections 27(1) and (2) of the Constitution require the government to devise and implement within its available resources a comprehensive and co-ordinated programme to realize progressively the rights of pregnant women and their newborn children to have access to health services to combat mother-tochild transmission of HIV".
In November 2003 the Minister of Health, Dr Manto Tshabalala-Msimang, announced the government"s decision to provide antiretroviral treatment in the public health sector within the framework of the National Operational Plan for Comprehensive HIV and AIDS Management, Treatment, Care and Support (NOP).
Antiretroviral therapy (ART) finally and slowly began to be provided in public sector hospitals from 2004.17 The "roll-out" of treatment occurred at a pace below the targets indicated in the NOP and was dogged by an atmosphere of distrust of government intentions. Advocacy groups observed that the Cabinet-approved NOP had "committed the state in 2003 to placing approximately 645,740 people on ARV treatment in the public sector by the end of 2006/7 financial year,"18 but according to Department of Health information, "approximately 250,000 people had been initiated on ARV treatment in the public health sector by this time."19 By mid-2006, 200,000 adults were on treatment while an estimated 511,000 still needed to begin ART.20 The numbers had risen to 303,788 patients on treatment by May 2007, according to the government"s MDGs Mid-Term report, and to 408, 218 by the following November.21
The tensions between government and civil society over responses to the HIV epidemic appeared to reach a nadir at the XVI International AIDS Conference in Toronto in August 2006. The promotion by the Minister of Health at the conference of a diet-based treatment for AIDS led to further national and international pressure and criticism of the government. 22 The Deputy President, Phumzile Mlambo-Ngcuka, as Chairperson of the reconstituted South African National AIDS Council (SANAC), began to have an increasingly prominent role in the oversight of the response to the epidemic and the development of the new national strategic plan.23 As described in the NSP which was adopted by SANAC in April 2007 and the Cabinet in the following month, the final version of the plan had been developed through an intensive and consultative process over a six month period.24 SANAC symbolised the changes with its membership and co-chairing role for civil society. 25 The process of developing the new NSP was described to AI as genuinely participatory by civil society organizations.26 As summarised by the Joint Civil Society Monitoring Forum, the new plan proposed to expand the access to appropriate treatment, care and support to 80 per cent of all HIV positive individuals by 2011; create a social environment which encouraged HIV testing, and promote, protect and monitor human rights involved in these interventions.
Some uncertainties still remained, however, when in August 2007 the goodwill developed during this process was put at risk by the dismissal by President Mbeki of the Deputy Minister of Health, Nozizwe Madlala-Routledge, after she participated in an AIDS conference in Spain without his formal approval.27 The Deputy Minister had been an active participant in the development of the NSP. In a further sign of unresolved issues, public controversy intensified in late 2007 over the delays in producing new guidelines and budget for the provision of dual therapy treatment to pregnant women prior to labour and to their new born babies to prevent HIV transmission, consistent with revised WHO guidelines and in compliance with the ruling of the Constitutional Court in 2002. Approval of the new guidelines appeared imminent in September, but they had still not been produced by the following February. While the Western Cape Province had implemented since 2004 the dual therapy regime and had reduced infant infection rates reportedly to less than 10 per cent, other provinces continued to use single therapy treatment while awaiting national authorisation. The Southern African HIV Clinicians Society expressed concern that children were continuing to be infected unnecessarily. In KwaZulu Natal Province, a hospital doctor, who in 2007 had raised concerns with the Department of Health about the delays, was charged in February with misconduct for accepting outside funds to implement dual therapy at his hospital. Although the departmental charge was later dropped, the incident and associated public outcry indicated that the new spirit of collaboration which had helped create the NSP was still fragile.28
The female face of the HIV epidemic: the impact of discrimination, violence and poverty
"The HIV epidemic and AIDS [in South Africa] is clearly feminized, pointing to gender vulnerability that demands urgent attention as part of the broader women empowerment and protection. In view of the high prevalence and incidence of HIV amongst women, it is critical that their strong involvement in and benefiting from the HIV and AIDS response becomes a priority." (NSP)36
Women are particularly affected by HIV and AIDS. As noted by the Executive Director of UNAIDS in his opening address at the July 2007 International Women"s Summit, "the most significant development of the AIDS epidemic is its growing feminization. What entered history 25 years ago as a disease of white gay men is now increasingly affecting women all over the world."37 Of the 40 million people living with HIV globally in 2007, almost half are women - reaching 60 per cent in sub-Saharan Africa.38 In South Africa, women under 25 are three to four times more likely to be HIV-infected than men in the same age group.39 Significantly, the level of new HIV infections amongst women in South Africa continues to increase, while overall incidence of the disease has levelled off.40 Data presented to the Third South African AIDS Conference in June 2007 indicated that of the more than 500,000 new infections in 2005, the highest incidence occurred in young women aged 15 to 24 years.41 Provincial antenatal clinic prevalence rates vary considerably, ranging from 15.7 per cent in the Western Cape to 39.1 per cent in KwaZulu Natal.42
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