South Africa: Why Fixing South Africa's Patent Laws Is Necessary in the Fight Against HIV

HIV/Aids awareness ribbon (file photo).
27 November 2020
opinion

COVID-19 is a global health crisis and one that affects working-class and poor people disproportionately. People's lives are at stake. The world needs governments, multi-lateral institutions, and industry to take bold steps that prioritise the needs of vulnerable populations above profits and above nationalism. Sound familiar? We discussed this around the early 2000s, in relation to the HIV epidemic.

We have won many battles in the fight against HIV in South Africa over the past two decades, from the 2002 Constitutional Court victory in the mother-to-child-transmission case that enabled the state to expand this important intervention; to victories driven by activists, people living with HIV, unions and others that stopped the excessive pricing of HIV treatment by pharmaceutical companies using competition law; to now managing the largest HIV programme in the world with the lowest cost drugs.

But even so, we still have not taken advantage of the opportunities in international trade law to deal effectively with harmful monopolies across all disease areas.

South Africa's patent law has not been changed since the 1970s. This is inexcusable given that in the interim, we established a constitutional democracy that places obligations on the state to take necessary legislative and other measures to progressively realise the right to health. We know how patent laws and the lack of competition drives up prices of life-saving medicines. We learnt that lesson decades ago.

For more than a decade, activists in South Africa have been pressing the government to reform the country's patent regime. A long and meandering policy process, which sought the input of a vast array of stakeholders from industry, civil society and with the support of think tanks around the world, has resulted in a policy adopted by cabinet in 2018 that properly balances intellectual property and public health. This was a victory for the movement for equitable access to affordable medicines. But more is needed - changes in policy mean little if not manifested in law.

The Fix the Patent Laws Coalition (FTPL), a group of over 40 organisations working to reform South Africa's patent laws has called for the urgent finalisation of draft amendments to the Patents Act to ensure that the government has the tools to address all public health issues. The urgency and importance of this has been brought into stark relief during the COVID-19 pandemic.

And let's not forget the ongoing struggle faced by many people with cancer to access medicines that may save or extend their lives - as much of an issue now as it was prior to the COVID-19 pandemic.

But fixing South Africa's patent laws is also critically important for addressing the HIV epidemic. There are 7.6 million people living with HIV in South Africa. That is roughly 13% of the population - 4.8 million women and 2.5 million men. Young women continue to bear the brunt of this epidemic and continue to face discrimination and stigma and also face poverty and the burden of unpaid care work. It is critical that second line treatment and new treatments are available in the public health sector.

Exciting new research means we may soon have an HIV prevention injection, which, if accessible, will be a major breakthrough for women in South Africa. Affordability is key, however, and that means that we must ensure that the legal environment can respond to public health needs. The same issues will arise with other new HIV treatments that are found to be safe and effective, whether it is other forms of long-acting antiretroviral treatment, potential antibody treatments, or if things go really well, a vaccine or a cure.

As new drugs for HIV and TB are developed and health technologies for COVID-19 become available, we must ensure that we meet the challenge in line with the constitutional right to access health care services. When it comes down to it, we cannot allow people to die while treatments that may save their lives remain out of reach because of legal obstacles.

The South African government has shown exemplary leadership on the world stage on matters of public health. For example, the government has proposed a coronavirus waiver of intellectual property at the World Trade Organisation to ensure that developing and middle-income countries are not left behind while wealthy nations secure deals with pharmaceutical companies, and that monopolies do not stand in the way of widespread African access to COVID-19 vaccines. This is the kind of solidarity that helped turn the HIV epidemic around.

But it is time for our exemplary leadership on the world stage to be mirrored at home. Addressing intellectual property barriers in our domestic laws is critical to fight the COVID-19 pandemic and to address the pressing HIV, TB, and cancer burden.

This is why the Fix the Patent Laws Campaign has called on Minister Ebrahim Patel and President Cyril Ramaphosa to act with urgency to ensure that South Africa has an intellectual property regime that ensures equitable access to life-saving vaccines and medicines. We have waited long enough.

*Rugege is the Executive Director of SECTION27 - a founding member of the Fix the Patent Laws Campaign.

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