The challenge of HIV/AIDS

One of the issues discussed at the SADC Heads of State and Governments meeting in Lesotho was that of HIV/AIDS.  Relevant sections of the final Communiqué of the summit provides as follows: The Summit noted that the region continues to have high rates of mortality especially for women and children, which is worsened by the HIV epidemic that has reversed gains made by countries through immunisation and other health programmes. The Summit further noted with satisfaction that government expenditure on health, continued to improve. The Summit observed that programmes for combating the spread of HIV and mitigating the impact of AIDS remain very high on the region’s agenda, and resolved that these interventions be up-scaled within the context of the Maseru Declaration on Combating HIV and AIDS of 2004.

For millions of people living with HIV/AIDS (PLWHA) worldwide, the issue of access to treatment is a big challenge. Data from UNAIDS/WHO reveals that of the 42 million PLWHA in the world 29.4 million are in sub-Saharan Africa, this represents 70% of the total. To make matters worse, just four SADC countries (Botswana, Lesotho, Swaziland and Zimbabwe) have national adult HIV prevalence rates that exceed 30%. It is encouraging to note that Heads of States continue in the realisation that the scourge of HIV in the region calls for attention at the highest level of governance. A number of issues need to be considered in this regard including issues such as pharmaceutical policy, trade and intellectual property in the HIV context.

The SADC sub-region is at the epicentre of the global HIV and AIDS epidemic. It becomes imperative therefore that governments do not become too focussed on establishing a Free Trade Area (FTA) by 2008 and completely forget public health issues. The realisation by the Heads of States that territorial borders are fictitious should apply in the fight against diseases that are common to and affecting all the countries in the SADC sub-region. Co-operation between states is thus not only desirable, but also necessary.

The human rights community has been concerned about the detrimental impacts of drug patents and other intellectual property restrictions on access to affordable medicines and treatment. The provisions of essential drugs, equitable distribution of all health facilities, goods and services, and measures to prevent, treat and control epidemic and endemic diseases are considered to be core human rights obligations for all countries, rich or poor.

The UN Commission on Human Rights (2001/33) agrees that: “access to medication in the context of HIV/AIDS is one fundamental element for achieving progressively the full realisation of the right of everyone to the enjoyment of the highest physical and mental health.”

Use of Trips flexibilities in SADC

It is instructive to note at this point that access to essential medication in respect of HIV/AIDS and other diseases is affected by World Trade Organisation (WTO) agreements particularly the Trade-Related Aspects of Intellectual Property Rights (TRIPS). All the SADC countries are members of WTO and hence are bound by the TRIPS provisions. It is therefore important to explore and understand the relationship between intellectual property rights and access to essential medicine. The TRIPS agreement should be implemented in a manner that respects the state’s right to take measures to protect public health. The protection of pharmaceutical patents can therefore not be seen as taking precedence over people’s right to health.  Indeed in 2001, WTO members adopted a declaration on TRIPS Agreement and Public Health in DOHA which states that: “the TRIPS Agreement does not and should not prevent members from taking measures to protect public health. Accordingly while reiterating our commitment to the TRIPS agreement, we affirm that the Agreement can and should be interpreted and implemented in a manner supportive of WTO member’s right to protect public health and in particular to promote access to medicines for all.”

 Access to treatment in the context of HIV/AIDS relates to the emotional support that comes from the presence of care, provision of painkillers, treatment of opportunistic infections and availability of anti-retroviral drugs (ARVs), which help in suppressing the effect of the virus on the immune system. Although these drugs are not a cure for HIV/AIDS, they have dramatically improved the rates of mortality and morbidity, prolonged lives, improved quality of life, revitalised communities and transformed perceptions of HIV/AIDS from a plague to a manageable chronic disease.

A number of SADC member countries (Angola, Lesotho, Malawi, Mozambique and Zambia) fall into the Least Developed Countries category. The rest are categorised as developing nations. These categories have important implications for the use of TRIPS flexibilities by the different nations. The flexibilities include, transition periods, compulsory licenses, parallel importation, public, non-commercial use of patents, exceptions from patentability and limits on data protection.
For instance the least developing countries have until 2016 to suspend the use of pharmaceutical patents and test data. The LDCs should adopt necessary measures to use the 2016 transition period. The absence of pharmaceutical patents will ensure that patent rights will not be an obstacle to the supply of affordable generic drugs.

From a public health perspective, SADC nations not only have the leeway to utilize the TRIPS flexibilities in fact, they have an obligation to do so. Notwithstanding the efforts by some SADC countries like Zimbabwe, Zambia, Mozambique and South Africa to use the TRIPS flexibilities further guidance and clarity is still required and cooperation between states is of paramount importance. It is in meetings like the just ended summit that issues like these need to be raised for discussion and concrete steps taken to fulfil set objectives.

Failure by states to effectively use TRIPS flexibilities to prevent third parties like pharmaceutical companies from pricing essential drugs above the reach of many constitutes a violation of the state’s obligation to protect the right to health and consequently the right to life.

Free Trade Agreements and implications on availability of medicines

Another issue that needs to be considered   is the effect of free trade on the realisation of the right to health particularly on access to essential medicines in relation to HIV/AIDS. There have been reports of negotiations of a Free Trade Area (FTA) between the Southern African Customs Union (SACU) and the United States. Members of SACU ( South Africa, Botswana, Lesotho, Namibia and Swaziland) are also SADC members hence if this FTA is concluded it will have serious implications for the entire region.

This is evident from remarks from a former United States Trade Representative reporting to Congress:

“We plan to use our negotiations with the SACU countries to … address barriers in these countries to US exports – including high tariffs on certain goods, overly restrictive licensing measures, inadequate protection of intellectual property rights, and restrictions the SACU governments impose that make it difficult for our services firms to do business in these markets. We also see the negotiations as an opportunity to advance U.S objectives for the multilateral negotiations currently underway in the World Trade Organization (WTO).”  (Emphasis is mine)

The TRIPS plus provisions called for by the United States are particularly worrisome in as far as access to HIV/AIDS life saving drugs. It is positions like the one portrayed by the US in the above quote that SADC leaders should be particularly wary of. It is at summits like the recently ended one that a common position on important issues should be taken. There is after all strength in numbers and the voice of SADC stands to carry much weight than the voice of a single country.

It is therefore recommended that SADC member countries amend their current legislation to take advantage of the regulatory flexibility permitted by TRIPS before making any Intellectual Property-related commitments in the forthcoming SADC FTA or any other FTA for that matter. SADC should reject any TRIPS-plus proposals and ensure that the standards of Intellectual Property protection in TRIPS remain the minimum standards. SADC should also consider the impact of non-IP issues that have the potential to limit access to health care services, such as provisions on investment measures, procurement, trade in services (particularly health, but also financial), and protect against their wholesale imposition.

 There are countries like Brazil that have taken long strides in dealing with HIV/AIDS. Brazil has invested a lot in preventive efforts and combined these with an antiretroviral treatment programme that is funded by the state. The generic production of HIV/AIDS drugs has pushed prices to much lower than what is charged by multinational pharmaceutical companies. This is instructive and SADC can draw lessons from this.

*Aulline H. Mabika is a Research Intern with SEATINI.