Johannesburg — The South African government won a landmark legal battle, on Thursday, when 39 of the world's top pharmaceutical firms dropped their lawsuit, which sought to block the authorities in Pretoria from importing or producing cheaper versions of their patented brand-name drugs, including HIV/AIDS' medication. It took less than a minute for the drug companies' lawyer to withdraw the case and agree that they would pay all costs.
The capitulation was regarded as a humiliating climbdown and a public relations' catastrophe for the companies involved.
"It is the first time in the world, the largest multinational corporations faced consumers across the world, and institutional shareholders, saying this is not the right thing to do. We have gained a major victory against the multinationals, this is absolutely superb," said Zackie Achmat of Treatment Action Campaign, an AIDS' pressure and advocacy organisation in South Africa which, for the past three years, has mobilised public support and opinion at home and abroad.
Their argument is that patent rights should not override and must protect human rights and human lives.
The case was portrayed by AIDS' activists and other campaigners as "a David and Goliath" contest "pitting public health against the corporate wealth of billion-dollar drug companies," said Kevin Watkins of the British charity Oxfam. He, and many others, hailed the outcome of the court challenge as a "victory for the people of South Africa and for poor people around the world". The ideal conclusion? It is not that simple. The reality is more complicated.
Though the court challenge, and its withdrawal, may have changed the way global pharmaceutical firms do business in South Africa and the rest of the world, champagne celebrations anticipating the possibility of affordable drugs for South Africa and other poor nations, to treat HIV/AIDS and other diseases, may be premature. The implications are immense for millions of people suffering from HIV/AIDS in the developing world, but many obstacles remain.
One court battle may be over, but the political one has just begun for the South African government which is fraught with legal complexities. For the authorities in Pretoria, the fallout from the court case could be considered a mixed blessing and a poisoned chalice.
South Africa has agreed, in a joint statement of understanding between the authorities and the drug firms, to respect its commitment to international law and trade obligations. This includes the TRIPS (Trade Related Aspects of Intellectual Property Rights) agreement - ie minimal standards for patent protection. Pretoria also said that it would consult drug manufacturers and the public on implementing medicine-related laws.
Simply stated, this means that the South African government is still bound by legal obligations under World Trade Organisation (WTO) regulations on the importation or manufacture of generic drugs. That position was stressed by the Health Minister, Manto Tshabalala-Msimang, as she read out the statement agreed with her erstwhile foes, the chastened mighty pharmaceutical giants.
So the South Africans will be under pressure to stick to WTO rules and, case by case, justify their decisions to opt for cheaper drug copies. The loop hole for South Africa would be to declare a 'national emergency' for a given health crisis (such as HIV/AIDS), thereby circumventing the strict regulations and making way for the cheaper medicines. This has not happened in practice.
For Mirryena Deeb, the chief executive of the Pharmaceutical Manufacturers' Association of South Africa (PMA), which coordinated the lawsuit, the end of the case does not change certain aspects of their challenge. "I don't believe that medicines are going to be cheaper, because the state sector, the government, already has access to the world's cheapest prices (for drugs)".
Deeb also underlined the continued protection for drug patents under international law, adding "It's the result of a settlement. We have basically laid down a partnership to allow us to move forward".
So much for legal red tape, cooperation and partnership.
Let us now consider political will. The South African government has been criticised, by the multinational drug companies themselves, as well as opposing organisations and activists in and outside the country, for failing lamentably to tackle what the medical emergency charity, Medecins sans Frontieres (MSF), has called "total disarray in the face of this epidemic". The epidemic in question is HIV/AIDS.
It is estimated that almost five million people in South Africa are HIV positive, making this the most urgent healthcare challenge facing the government.
But Thursday's court decision was no guarantee that the South African government would change its stance on HIV/AIDS' treatment or promise its people that it will use its advantage to provide the cheaper drugs they crave and need to help suppress the AIDS' virus.
Jubilation in the Pretoria courthouse has raised hopes and fuelled public expectation in South Africa, especially among those living with HIV/AIDS and those leading the campaign, about the possibility of access to cut price antiretroviral treatment which could prolong and improve the quality of their lives. They want their government to act, now.
Such action, and the introduction of these cheaper drugs, does not look likely in the near future judging by the comments from the South African health minister, Dr Tshabalala-Msimang. After praising the drug companies for withdrawing with grace and dignity and talking about starting afresh with a clean state, she made this point "It does not mean, because you do not produce antiretrovirals and administer them, you are therefore not treating people who are HIV positive. I think this must be very clear".
The minister was swift to stress that there were other ways of treating HIV/AIDS. "The issue of the affordability of medicines is still with us. These medicines are not affordable. I think we must admit this and I think all of us sitting here, if we care to read newspapers like the Mail and Guardian that have demonstrated - beyond any doubt - that they are very much unaffordable .they are not affordable as far as we are concerned".
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Tshabalala-Msimang concluded that "This is why South Africa has actually opted the way of using medicines for managing opportunistic infections. Because we know that if you manage opportunistic infections, and if you attend to the nutritional status of people living with AIDS, you improve their lives".
That is sobering news for the millions of HIV/AIDS sufferers in South Africa who were hoping for more. Access to affordable antiretroviral drugs, so that they can live longer, is certainly the next battle for AIDS' campaigners, as well as ensuring that the necessary infrastructure and health system for prescribing and administering the life-enhancing medication are in place in South Africa.
For Mark Heywood, a legal strategist for the Treatment Action Campaign, there are no illusions about the struggle that lies ahead in South Africa. "We have to be clear that this withdrawal by the companies will not change anything overnight. It will also not change straightaway the rights of access of sick South Africans, particularly (those) with HIV and AIDS to the medicines that are most effective - what we know as antiretroviral medications".
"Frankly a legal solution goes some way, but it does not go all the way," said Heywood. "What we need is political commitment, what we need is social commitment, investment and funds if we are going to address this crisis properly".
