TO BE READ OUT AT HST MEETING

Message for the South African Minister of Health, Mantombazana Edmie Tshabalala-Msimang or Her Representative

We are angry. According to Government's sources over 600 people will die of AIDS everyday on average this year. We stand here today to say to you that you have wilfully and negligently failed to implement the necessary interventions, including antiretroviral treatment, that would prevent many of these deaths. Nevertheless, we also stand here today to say that we will always be available to work with government, health-care workers and all of South African society for a better public health-care system.

For many years doctors, nurses, researchers, people with HIV/AIDS, churches, unions, businesses, provincial ANC congresses, the South African Communist Party, the SANAC Youth Sector and organisations such as the Treatment Action Campaign have been trying to convince you to adopt and implement an HIV/AIDS treatment and prevention plan. We have been model citizens in this regard, using negotiations, demonstrations, the media, the courts, the Human Rights Commission, NEDLAC and numerous other democratic means to convince you to do the right thing.

Instead of embracing the dozens of opportunities we have given you to work together with civil society to treat our people and reduce new infections, your response has been to resort to pseudo-science, thereby showing disrespect for people with HIV, women, the poor and black people. You have consorted (and continue to consort) with HIV denialists and have never once on record stated without condition that you believe that HIV causes AIDS, though you have claimed it is a premiss, not a fact, of government policy. You have caused public confusion over the efficacy of antiretrovirals and it took a court case to get your department to implement mother-to-child transmission prevention. Instead of seizing the opportunity to implement this programme without condition, you offered succour to a corrupt MEC for Health, Ms. Sibongile Manana, who has failed to implement the programme. To this date, you have not issued a single national circular to all health-care workers and Provincial Departments informing them properly of their Constitutional obligations. You have also failed to inform every pregnant woman who uses the public health care sector of your plans to reduce the risk of HIV infection to their children.

Instead of leading government to adopt the NEDLAC framework agreement on a treatment and prevention plan, you undermined and misrepresented it. You did not have time in the last few months to ensure that whatever concerns you have about the agreement were addressed, but you had time to seek publicity in Iraq and to consort with the charlatan, Roberto Girraldo. Nor have you ever taken the time to visit antiretroviral treatment projects in Khayelitsha or Gugulethu.

We have heard a number of excuses from you as to why antiretroviral therapy should not be implemented. You have cited toxicity. You have said prevention rather than treatment. You have cited the cost. Now that all these excuses have been shown to be false, you misuse the need and hunger of our people by chanting nutrition rather than treatment as if the two are mutually exclusive.

In the Sunday newspapers government talks about its desire to work with partners. Government also acknowleges the efficacy of antiretroviral therapy and says it will consider proposals from a joint health and finance committee that has costed a number of interventions, including antiretroviral treatment. But we have heard promises on antiretroviral
therapy from government for nearly a year since the 17 April Cabinet Statement. In effect, you have wasted money by advertising a wish list described as a plan.We are aware that the costing study is complete. We can only hope, that unlike the MRC report and the HST/DOH Scientists report on antiretroviral therapy, you will not attempt to censor this report.

Almost no progress has been made on the implementation of treatment programmes since we jointly won the court case against the drug companies on 18 April 2001 or since the 17 April Cabinet Statement of 2002. All efforts to reduce medicine prices have come from civil society, not government. You have ignored the desperation of the doctors, nurses and patients in the public health care system. We are tired of promises. We must see a plan and its reasonable implementation. Millions of lives depend on it. However, we also no longer believe that you have the will or competence to manage the HIV epidemic or the public health care sector appropriately. Inequity and quality of service in the public health care sector have worsened since you took over from your predecessor who made a valiant effort to transform the health care service. You have deceived, misrepresented, delayed and denied for too long. We hope you will prove us wrong by making an unequivocal and irreversible committment to antiretroviral therapy and by signing the NEDLAC agreement. If you fail to do this, we will take legal action and continue our civil disobedience to ensure that the public health care sector succeeds in spite of you.

[ENDS]

AFRICA ACTION
Africa Policy E-Journal
March 24, 2003 (030324)

South Africa: AIDS Treatment Action
(Reposted from sources cited below)

This posting contains an announcement of a civil disobedience
campaign by the Treatment Action Campaign in South Africa,
demanding that the South African government provide antiretroviral
treatment for people living with AIDS who need this treatment to
survive. It also contains excerpts from an indictment by the TAC
against two government ministers for culpable homicide, for their
repeated refusal to act to provide such treatment. (The full text
of the indictment, too long to include here, will be available
later today in the on-line archive of this posting at
http://www.africaaction.org/docs03/tac0303.htm) The campaign was
timed to coincide with the anniversary of the Sharpeville Massacre
on March 21, 1960, The March 21 anniversary is recognized
internationally as the International Day for the Elimination of
Racism.

According to news reports, TAC protesters were arrested in Cape
Town and dispersed by police with water cannons in Durban,
Demonstrations were also held in Sharpeville, The protests continue
this week.

For additional background on this latest action see the website of
the Treatment Action Campaign (http://www.tac.org.za) and the
international solidarity page of the Healthgap website
(http://www.healthgap.org/camp/tac.html). For more background on
treatment access, see http://www.africaaction.org/action/access.htm

Editor's note: Africa Action continues engaged with other U.S.
groups and individuals in speaking out against the unilateral and
illegal U.S. invasion of Iraq. For an earlier statement of Africa
Action's position, see
http://www.africaaction.org/docs03/war0303a.htm
For current coverage of Africa and the war, we recommend
http://allafrica.com and BBC (http://www.bbc.co.uk).

Among the invisible "collateral damage" from the war is lessened
public attention to other continuing threats to human security. The
Africa Policy E-Journal will continue to highlight a range of
critical issues, such as the action campaign covered in this
posting.

+++++++++++++++++end summary/introduction+++++++++++++++++++++++

Treatment Action Campaign

TAC Civil Disobedience Campaign - 20 March 2003

Statement on civil disobedience campaign, which begins today

Docket of charges of culpable homicide against Mantombazana Edmie
Tshabalala-Msimang and Alexander Erwin handed over to police

CIVIL DISOBEDIENCE CAMPAIGN BEGINS TODAY

Tomorrow is Human Rights Day. On 21 March 1960, thousands of black
African people in South Africa left their passes at home. They
marched peacefully to police stations where they handed themselves
over for arrest. Our parents and ancestors chose to go to jail
rather than to obey unjust laws or to allow an immoral and
illegitimate regime to continue take away their dignity and
equality. Mandela, Sisulu, Mbeki, Sobukwe, Ngoyi, First, Slovo,
Kathrada and many thousands more sacrificed for democracy, equality
and justice.

Today, we have a democratic and legitimate government of the
people. Yet, today we are once again breaking the law. We accept
our Constitution. We voted for this government, we accept its
legitimacy and its laws.

But we cannot accept its unjust policy on HIV/AIDS that is causing
the deaths of more than 600 people every day. Today we break the
law to end an unjust policy not an unjust government. For four
years, we have done everything in our power to persuade government
to change this policy: we have provided information and given
evidence, campaigned successfully to lower the price of drugs such
as Fluconazole as well as anti-retrovirals. Eleven months ago, the
Cabinet tantalized people with AIDS by recognizing that
anti-retroviral drugs do "improve the condition of people with
AIDS". But the policy of non-provision of these medicines has not
changed.

So today, in Durban, Cape Town and Sharpeville 600 TAC volunteers,
many of them people living with HIV, are marching to police
stations to lay charges of culpable homicide against the Ministers
of Health and Trade and Industry. They are acting on behalf of
people who have died or who are dying because government policy
denied them the medicine needed to treat their HIV infection.

We demand a real partnership that prevents new infections and saves
lives.

We demand that the government immediately announce an
antiretroviral treatment programme in the public sector and that it
signs the NEDLAC treatment and prevention plan.

[ENDS]

PEOPLE'S DOCKET

[excerpts only: for full text see
">http://www.africaaction.org/docs03/tac0303.htm">

...

THE CHARGE

THE PEOPLE versus MANTOMBAZANA EDMIE TSHABALALA-MSIMANG alias
"MANTO", MINISTER OF HEALTH (RSA) and ALEXANDER ERWIN alias "ALEC",
MINISTER OF TRADE AND INDUSTRY (RSA). Hereinafter respectively
referred to as Accused No. 1 and Accused No. 2.

Both accused are charged with the crime of culpable homicide in
that during the period 21 March 2000 to 21 March 2003 in all health
care districts of the Republic of South Africa, both accused
unlawfully and negligently caused the death of men, women and
children. They also breached their constitutional duty to respect,
protect, promote and fulfill the right to life and dignity of these
people.

1. Both accused Ministers knew that failure to provide adequate
treatment including anti-retroviral therapy for people living with
HIV/AIDS would lead to their premature, predictable and avoidable
deaths.

2. In their capacities as Ministers in the government of South
Africa, both accused had the legal duty and power to prevent 70% of
AIDS-related deaths during this period through developing a
treatment and prevention plan, providing medicines and using their
legal powers to reduce the prices of essential medicines for
HIV/AIDS including anti-retroviral therapy.

3. Both accused Ministers had in their possession scientific,
medical, epidemiological, legal, social and economic evidence of
the devastation of potential and actual AIDS deaths on individuals
and communities. They not only ignored this evidence but suppressed
it.

4. Both accused Ministers consciously ignored the efforts of
scientists, doctors, nurses, trade unionists, people living with
HIV/AIDS, international agencies, civil society organisations,
communities and faith leaders to develop a treatment and prevention
plan, to make anti-retroviral therapy available and to ensure that
medicine prices in the public and private sector were reduced to
save lives.

5. Both accused Ministers were under a legal duty, by virtue of
their public office and the provisions of the Constitution of the
Republic of South Africa, to provide access to health care services
by reducing the price of essential medicines for HIV/AIDS including
anti-retroviral therapy, and by providing them through the public
health sector. They remain under this legal duty.

6. Both accused Ministers negligently failed to carry out their
legal duties. ...

7. During the period 21 March 2000 and 21 March 2003, this failure
caused the death of between 250 and 600 people every day as a
direct result of premature, avoidable and predictable AIDS-related
illnesses.

...

SUMMARY OF SUBSTANTIAL FACTS

1. During the period 21 March 2000 to 21 March 2003, many people
throughout the Republic of South Africa died from AIDS or diseases
caused by AIDS.

a. Information on the prevalence of HIV/AIDS and HIV/AIDS related
deaths each year has been available to both Accused Ministers
throughout their terms in office.

b. It is estimated that at least 600 people in South Africa die
from AIDS-related illnesses each day.

c. In the past 12 years, the HIV sero-prevalence among first time
antenatal clinic attenders, as indicated by the Minister of
Health's own Department's Annual Antenatal Clinic surveys has risen
from 0.76% in 1990 to 10.44% in 1995 to 28.4% in 2001. Based on
these surveys, it is estimated that there are currently 5 million
South Africans infected with HIV. ...

d. In the Department of Health's Second Interim Report on
Confidential Enquiries into Maternal Deaths in South Africa (1999),
non-pregnancy related sepsis mainly caused by AIDS was recorded as
the leading cause of maternal deaths. In the Report, 35.5 percent
of women whose deaths were reported were tested for HIV and 68
percent of these were HIV positive. The Report noted that HIV is
significantly under-diagnosed.

e. A study by the Medical Research Council, estimated that about 40
percent of adult deaths aged 15-49 that occurred in 2000 were due
to HIV/AIDS and that, if combined with the deaths in childhood, it
was estimated that AIDS accounted for about 25 percent of all
deaths in 2000 and was the single biggest cause of death. ...The
Minister of Health was directly involved in attempts to suppress
this report.

...

2. Many of these people would not have died if they had access to
anti-retrovirals

a. HIV/AIDS is a progressive disease of the immune system that is
caused by the Human Immunodeficiency Virus (HIV).

b. When left untreated HIV profoundly depletes the immune system
and may prove fatal because of the inability of the body to fight
opportunistic infections such as tuberculosis, pneumonia and
meningitis.

c. The scientific evidence indicates that without effective
treatment, the majority of people with HIV/AIDS die prematurely of
illnesses that further destroy their immune systems, quality of
life and dignity.

d. Early diagnosis, clinical management, medical treatment of
opportunistic infections and the appropriate use of anti-retroviral
therapy prolongs and improves the quality of life of people living
with HIV/AIDS.

e. Anti-retroviral drugs are a class of drugs that suppress viral
load activity and replication. When used effectively they reduce
the volumes of HIV to undetectable levels in the blood. This leads
to immune reconstitution. It also prevents and delays the
destruction of a person's normal immune system.

f. In its HIV/AIDS Policy Guideline, entitled Prevention and
Treatment of Opportunistic and HIV-related diseases in Adults
(August 2000), the Department of Health (which operates under the
direction of The Minister of Health) has recognised the efficacy of
anti-retroviral treatment, stating as follows: "Current research
also strongly indicates that suppressing HIV viral activity and
replication with anti-retroviral therapy or Highly Active
Antiretroviral Therapy (HAART) combinations prolongs life and
prevents opportunistic infections". ,,,

h. The World Health Organisation (WHO) has included
anti-retrovirals on the Core List of its Model List of Essential
Drugs (12th edition, April 2002). The Minister of Health is aware
of the inclusion of anti-retroviral medication in the World Health
Organisation's Essential Drugs List.

i. With access to anti-retrovirals people with HIV/AIDS are able to
lead longer and healthier lives and it directly results in an
improved quality of life and the restoration of dignity, allowing
people with HIV/AIDS who were previously ill to resume ordinary
everyday activities, such as work.

j. A comprehensive plan to treat people living with HIV/AIDS as
advocated by civil society organisations, faith based
organisations, scientists, health care workers, trade unionists,
activists and communities over the past four years, would have
reduced the number of people dying of AIDS related illnesses and
would have mitigated the horrendous impact of AIDS on people in
South Africa.

3. Both Accused were aware of need to make anti-retrovirals
available to prevent these deaths.

a. The Minister of Health has had direct knowledge of the serious
impact of HIV/AIDS and the need for care and treatment of people
living with HIV/AIDS, before she took up her position as Health
Minister. As early as 1994 The Minister of Health was a key drafter
or the NACOSA National AIDS Plan for South Africa 1994 - 1995. ,,,

b. The Minister of Health and the Minister of Trade and Industry
were aware of the Joint Statement issued by the then Minister of
Health, Dr Nkosazana Dlamini-Zuma and Treatment Action Campaign,
which confirmed that all treatment for HIV/AIDS and all related
medical conditions is a basic human right (30 April 1999). ...

c. The Minister of Health has herself confirmed that "access to
affordable drugs is a matter of life and death in our region"
(World AIDS Day speech, 1 December 2000). ...

d. In its Cabinet statement of 17 April 2002, Cabinet, and the
Accused as members of the Cabinet, recognised that anti-retrovirals
can improve the conditions of people with HIV "if administered at
certain stages ... in the progression of the condition, in
accordance with international standards."

e. After taking up office, The Minister of Health and the Minister
of Trade and Industry have consistently been reminded of the need
to improve access to treatment for people living with HIV/AIDS
since 1999 (e.g. Speech by Edwin Cameron at the 2nd National
Conference for People Living with HIV/AIDS on 8 March 2000, in the
presence of the Minister of Health; ...).

4. Both Accused had the legal duty to protect health and prevent
deaths.

a. Our Bill of Rights mandates the state to "respect, protect,
promote and fulfil" all rights including the rights to health, life
and dignity.

b. The state is obliged to create an enabling framework by putting
in place laws and regulations so that individuals will be able to
realise their rights free from interference.

c. The state may be obliged to provide "positive assistance, or a
benefit or a service, creating the conditions in which the rights
can be realised by the individual". This extends to the direct
provision of basic resources or devices where a failure to do so
would result in a denial of the realisation of rights.

d. At minimum, the state is required to take reasonable steps
towards creating the legal framework necessary for accessing
affordable treatments for HIV/AIDS. The right of access to health
care services, as entrenched in section 27 of the Constitution,
therefore places a positive obligation upon the state to take all
reasonable measures to ensure that anti-retrovirals are made
affordable.

e. This interpretation of section 27 is strengthened by the
recently issued document entitled "Revised Guideline 6: Access to
prevention, treatment, care and support", which updates the
International Guidelines on HIV/AIDS and Human Rights, jointly
issued by the Office of the United Nations High Commission for
Human Rights (OHCHR) and the Joint United Nations Programme on
HIV/AIDS (UNAIDS). ...

f. Adding to these specific international human rights instruments,
all Member States of the United Nations adopted a Declaration of
Commitment on HIV/AIDS in June 2001 which pledged to scale up the
response to HIV/AIDS within a human rights framework. ...

5. Both Accused had knowledge of the legal and other powers
available to them to increase access to anti-retrovirals but did
not act positively where there was a legal duty to do so.

a. The Minister of Health and the Minister of Trade and Industry
have been aware of the different patents existing on HIV/AIDS
medicines since the end of 1999, if not earlier. Both Accused were
further aware of the remedies available to them in terms of the
Patents Act and other legislation to facilitate access.

b. There have been repeated requests that the Minister of Trade and
Industry issue compulsory licences for anti-retroviral treatment
(e.g. Memorandum from TAC to Department of Trade and Industry dated
14 February 2001 and Meeting between Department of Trade and
Industry and TAC on 23 February 2001). These requests came amidst
independent statements by generic pharmaceutical companies on the
availability of generic anti-retroviral and other HIV medications.

...

d. The Minister of Trade and Industry has been aware of the
capacity existing within South Africa for the manufacture of
generic anti-retroviral and other medication (e.g. letter by
Department of Trade and Industry dated 25 September 2002). ...

f. The Minister of Health and the Minister of Trade and Industry
have acknowledged the importance of the Medicines and Related
Substances Amendment Act, in particular section 15C on parallel
importation to ensure that the prices of medicines are reduced
(e.g. Meeting between Department of Trade and Industry and TAC on
23 February 2001).

g. In a meeting with Minister Tshabalala-Msimang, as the new
Minister of Health, on 29 September 1999, it was clear that the
Minister of Health was aware of the possibility to issue compulsory
licences or use parallel importation as mechanisms to increase
access to medication, including medication to treat people living
with HIV/AIDS. Instead she declined to use these provisions pending
the resolution of the court case by the Pharmaceutical
Manufacturers' Association against the South African government's
Medicines and related Substances Control Amendment Act. ...

6. Accused did not reasonably make use of these powers, causing
more harm than benefit in the process.

a. The Minister of Health and the Minister of Trade and Industry
have repeatedly delayed the implementation of the Medicines and
Related Substances and Control Amendment Act and its Regulations.

b. The Minister of Health and the Minister of Trade and Industry
are aware of the measures implemented in other countries like
Brazil to increase access to essential medicines, including
anti-retrovirals, but has denied offers by such countries to
transfer technology and provide other assistance.

7. Accused directed their will towards ensuring government policy
is the non provision of anti-retrovirals. Accused knew and foresaw
that this would cause the deaths of many people but remained
undeterred by this probability.

...

c. The Minister of Health has repeatedly omitted to implement
measures aimed at increasing access to anti-retroviral medication.

d. The Minister of Health ignored the recommendations of the
National Health Summit which was convened by the Department of
Health in 2001, and which recommended the implementation of pilot
sites where anti-retrovirals would be provided.

e. The Minister of Health has suppressed a report from a conference
of scientists convened by the Department of Health and the Health
Systems Trust on 13-14 August 2002. This report recommended the
establishment of anti-retroviral pilot treatment programmes in the
public sector. ,,,

g. In the latest obstruction, the Minister of Health ignored the
attempts to reach a negotiated NEDLAC Framework Agreement for a
National Prevention and Treatment Plan, firstly holding back all
sections of the original draft that refer to the use of
anti-retroviral medicines and then denying the existence of the
NEDLAC process.

h. The Minister of Health has further deliberately ignored
wide-scale civil society attempts to engage her amicably on the
issue of treatment provision for people living with HIV/AIDS.

...

************************************************************
The Africa Action E-Journal is a free information service
provided by Africa Action, including both original
commentary and reposted documents. Africa Action provides this
information and analysis in order to promote U.S. and
international policies toward Africa that advance economic,
political and social justice and the full spectrum of
human rights.

Documents previously distributed in the e-journal are
available on the Africa Action website:
http://www.africaaction.org
For additional background on this e-journal go to:
http://www.africaaction.org/e-journal.htm
To support Africa Action with your contribution go to:
http://www.africaaction.org/join.htm

To be added to or dropped from the e-journal subscription list,
write to [email][email protected] For more information about
reposted material, please contact directly the source mentioned
in the posting.

Africa Action
1634 Eye St. NW, #810, Washington, DC 20006.
Phone: 202-546-7961. Fax: 202-546-1545.
E-mail: [email][email protected]