Stellenbosch academic and Rhodes scholar Mandisa Mbali cut an imposing figure at the The Book Lounge last week at the launch of her book, South African AIDS Activism and Global Health Politics. Joined in a fascinating conversation by Steven Robins, she held the audience captive as she spoke to a number of topics covered in the text, including the issue of “medical apartheid” and the historic role that the Treatment Action Campaign (TAC) had in securing moral legitimacy for AIDS activists internationally, thus enabling them to push for new and improved models of global health diplomacy and governance.
She recalled the political funerals held in the 1980s where young Americans, mainly gay men who were dying of AIDS, elected to have their coffins placed or their ashes scattered outside public buildings in a bid to raise greater awareness about the need for the federal government to develop anti-retroviral drugs. Mbali focused on the historic links and symbolic standpoints between the anti-apartheid movement in South Africa and AIDS activism in America. In South Africa, the moral and political credibility of key founder members carried significant weight.
She highlighted how Zackie Achmat, Mark Heywood and other activists came from anti-apartheid political backgrounds, which informed the successful human rights-based litigation and its effective popularisation of AIDS-related science. So too, the gay and lesbian activism and consciousness-raising from women’s organisations informed the movement.
Mbali Mandisa read two extracts from her book that give a fuller flavour of the work:
On 19 April 2001, cheers, song and dance erupted in a packed room in the Pretoria High Court. The world had just witnessed a dramatic turn in the latest legal challenge faced by Nelson Mandela and his government. Just moments before, lawyers acting for South Africa’s Pharmaceutical Manufacturers’ Association (PMA), which represented 40 multinational pharmaceutical companies, had informed Judge Ngoepe that it was unconditionally withdrawing its case against the country’s government and that it would bear all costs in the matter. The Mandela administration was now free to pass the Medicines and Related Substances Amendment Act (hereafter, the Medicines Act) to enable wider access to cheaper generic and imported patented drugs. Civil society activism had forced one of the most powerful industries in the world to retreat in a high-profile legal dispute with the government of a middle-income developing country. Moreover, this successful campaign against the court case had meaningful impacts for poor patients in developing countries. This favourable outcome permanently altered the politics of HIV drug pricing and, in a broader sense, global health in developing countries. The pharmaceutical industry – which was also sometimes informally referred to as ‘pharma’ – introduced substantial reductions to the prices of certain branded ARV drugs, which facilitated a significant widening of global access to this treatment, especially in sub-Saharan Africa. Similarly, as discussed in Chapter 7, it also altered global health governance in terms of the World Trade Organization’s (WTO’s) Doha declaration of 2001: a development which was inconceivable without the activism surrounding the court case, especially as it clarified states’ public health-promoting rights to take the very same measures contained in South Africa’s Medicines Act that had been challenged by the industry Association’s litigation.
This chapter describes how the transnational activists in the TAC contributed a specifically South African type of moral capital to the international HIV treatment access movement’s challenge to the industry association’s case. This chapter uses the term ‘moral capital’ in the sense suggested by Christopher Brown to describe how a civil society campaign can frame a policy as unethical in a politically impactful manner (2007, p. 29). It argues that the South African activists’ moral capital had three main components: the effective use of anti-apartheid or ‘struggle’ symbolism to equate the actions of the pharmaceutical industry with those of the country’s former racist regime; the presentation of legally convincing arguments based on the socio-economic right to access to health care; and the demonstration that there was a large, visible constituency of affected and aggrieved people.
The ‘struggle’ background of many of the TAC’s leaders, such as Zackie Achmat, enabled the South African and international movements to convincingly deploy anti-apartheid-derived narratives to claim moral legitimacy for their cause. Achmat’s leadership of the TAC provided powerful moral justifications for the American AIDS activists’ solidarity actions which targeted Vice-President Al Gore during the early months of his election campaign because of his support for threats of US trade sanctions against South Africa for passing the Act. In South Africa, anti-apartheid narratives deployed by the TAC during its first civil disobedience campaign used the ‘struggle symbolism’ of the ANC’s 1950s Defiance Campaign to generate domestic support for its advocacy on drug pricing. As we shall see, the South African and international movements had to challenge the dominant development consensus which was opposed to wider provision of combination ARV therapy in developing countries because of utilitarian arguments that it was not ‘cost-effective’ to do so and arguments that Africans lacked the ‘cultural competency’ to adhere to them. Locally, there were also suspicions and misunderstandings about the safety and efficacy of ARV therapy which the TAC overcame through careful treatment literacy programmes which explained how the drugs worked.
The TAC successfully argued to be admitted as an amicus curiae in the case. It deftly used legal arguments based upon the constitutionally enshrined socio-economic right to access to health care. This litigation strategy was an important legal factor in the industry association’s decision to drop the case. International allies such as James Love of the Consumer Project on Technology (CPT) and Eric Goemare of Médicines Sans Frontières (MSF) provided critical expert testimony on international trends in drug pricing. Litigation based upon the socio-economic right to access to health care was new in the history of South African AIDS activism. The movement invoked these rights to press for the state and pharmaceutical industry to play a more substantive role in fulfilling their positive obligations in law in terms of the right to access to health care. By contrast, earlier AIDS activism in the country had emphasized the right to privacy, a ‘negative’ right, which generally provided that the state should refrain from taking various actions in relation to individuals.
She read from a chapter later in the book too:
Activist opposition to the PMA’s court case reveals key patterns in the development of the international HIV treatment access movement. The TAC’s transnational nature – as manifest in the international activist alliances that the South African movement forged – proved vital in forcing the 40 major multinational pharmaceutical corporations to drop their case. This was also a critical moment in the founding and consolidation of the international HIV treatment access movement. As this chapter shows, the TAC contributed to a specifically South African form of moral capital to the international movement. When the international and domestic movements were first formed, the overwhelming ‘development consensus’ among donor governments, UNAIDS and the World Bank was that widespread provision of HIV treatment in resource-constrained settings failed the utilitarian test of ‘cost-effectiveness’ and that it was anyway unfeasible due to health systems-related issues and Africans’ ‘cultural differences’.
It was easy for South African and American activists to equate the industry’s actions with those of the apartheid regime: the case was brought only a few years into South Africa’s post-apartheid period; the country had one of the highest numbers of people living with HIV globally; the case was brought against the Mandela administration, and it was aimed at advancing the interests of a small, but powerful, constituency at the expense of the well-being of millions of poor patients. But the fact that South Africa also had the TAC – a new social movement of affected and aggrieved people led by an openly HIV-positive former anti-apartheid activist – lent additional credibility to international solidarity actions, including those of American activists. American activists effectively used the political opportunities presented by Gore’s presidential bid to advocate for a change in US trade policy. This was a critical early victory in the campaign against the pharmaceutical industry association’s case, as it robbed them of critical political and diplomatic support from the US government.
Within South Africa itself, the movement was heavily shaped by its origins in anti-apartheid activism in ways which were also beneficial to the international movement. The TAC’s growing credibility as a movement, which was evident in its expanding membership, depended heavily on the anti-apartheid backgrounds of key leaders such as Achmat. The movement’s growth can also be attributed to organizers’ treatment literacy activities, which popularized the science around the epidemic and their work to sew the TAC’s advocacy onto the social and political quilt of township life which was tailored around the country’s (apartheid and anti-apartheid) history.
In addition, the TAC had a deft legal strategy which involved invoking the socio-economic right to access to health care to be admitted as an amicus. This strategy was enabled by the new Constitution and it provided the TAC with an additional political forum to present its arguments against the PMA’s case. International allies played a critical role in the case in that they provided vital expertise on drug pricing and innovation in America and the generic drug industries in India and Brazil.
The TAC’s use of socio-economic rights-based legal arguments in this manner marked a critical shift in the history of South African AIDS activism. Whereas earlier activism in the country had prized the principle of the people living with HIV having a right to privacy (a concept grounded in negative freedom), the new AIDS activism encouraged voluntary openness about living with the disease. It did so to underline its campaigns which used the right to health, a concept grounded in a substantive understanding of freedom, to demand more state services and regulation of the pharmaceutical industry via health-advancing trade and patent policies.
The global HIV treatment access movement and the TAC had won its first important victory.
‘Pharma’ is the acronym for Pharmaceutical Research and Manufacturers of America but is also used colloquially to refer to the industry in general both in the United States and South Africa.
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Liesl Jobson tweeted live from the event using the hashtag #livebooks
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