Friday 16 May 2008

Darren Olivier

More on the AIDS/Access debate: Pharma Power

It seems as if it is patent/drugs month on Afro-IP which has just come across this article, linked on AllAfrica, by Patrick Bond, on a recent extract from William Gumede's book "Thabo Mbeki and the Battle for the Soul of the ANC" published by Zed Books ( Bond states that there is a need to go beyond the individual reasons ("the oft cited peculiarities of the President himself") and look at the structural forces that have informed Mbeki's embattled AIDS policy, such as international and domestic financial markets, pharmaceutical manufacturers and a large reserve army of labour:

"The second structural reason is the residual power of pharmaceutical manufacturers to defend their rights to 'intellectual property', i.e. monopoly patents on life-saving medicines. This pressure did not end in April 2001 when the Pharmaceutical Manufacturers Association withdrew their notorious lawsuit against the South African Medicines Act of 1997. That Act allows for parallel import or local production, via 'compulsory licences', of generic substitutes for brand-name antiretroviral medicines. Big Pharma's power was felt in the debate over essential drugs for public health emergencies at the November 2001 Doha World Trade Organisation summit, and ever since."

Bond seems to support Ayodele's view that compulsory licensing is ineffective but for different reasons. Readers may recall that Ayodele recently wrote (based mainly on his experiences in Nigeria and reported on Afro-IP here) that the focus on IPRs as the main contributing cause to lack of access to life saving drugs in Africa is mis-directed... "that even if medicine were available for free, as it often is in poor nations, dysfunctional institutions and personnel ensure that the needy can't access it. Despite unprecedented quantities of monetary aid to the ministries of health of many African countries, health systems on the continent have languished." Bond's focus, by contrast, seems to be on the residual power of big pharma to protect their IPRs, despite compulsory licensing provisions aimed at increasing access to drugs.

* Patrick Bond directs the Centre for Civil Society at the University of KwaZulu-Natal in Durban. The article is an extract from his book 'Elite Transition: From Apartheid to Neoliberalism in South Africa'.

Darren Olivier

Darren Olivier

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17 May 2008 at 04:32 delete

This is Patrick here; thanks for the link. I assume your readers are hostile to my point of view, and hence appreciate any rebuttals you have.

I certainly did not mean to undermine the case for compulsory licensing of AIDS medicines. A forthcoming article in Development & Change journal has these arguments, which I hope you'll correct me on, if I'm mistaken:


Big Pharma's reluctance to surrender property rights so as to meet needs in the large but far less lucrative African market coincided with the rise of philanthropic and aid initiatives to provide branded medicines. The Bill and Melinda Gates Foundation's parallel health services in sites like Botswana undermined state health services; it was no coincidence that Gates stands most to lose of anyone on the planet in the event intellectual property is threatened. The US government regularly penalises countries which attempt compulsory licensing, through WTO or bilateral trade pressure.

Given prevailing power relationships, the South African government did not invoke any compulsory licensing of medicines even after the Pharmaceutical Manufacturers' Association withdrew from its 2001 lawsuit. Local manufacturers Aspen and Adcock Ingram did, however, lower costs substantially through voluntary licensing of the major AIDS drugs.

The SA government's footdragging was costly. It was 2004 before the government issued its first tenders for AIDS medicines, and given the drop in prices due to generics since that time, “by the end of 2007 the government was paying almost twice as much as the private sector for first-line drugs like nevirapine”, according to a United Nations report. In 2008, the South African Joint Civil Society Monitoring Forum of health, human rights and law organisations complained of “serious shortcomings with the [AIDS medicines] tender process and the specifications", including further delays that would lead to far more paid from public resources than was necessary. Hence, even though more than 400,000 South Africans received medicines by that point, this was below the trajectory needed to reach the target of 1.3 million patients with access by 2011. (That target was based upon an estimate of the number of HIV+ South Africans that may be two million short of reality, subsequent studies have shown.)

The combination of a lethargic state and persistent pharmaceutical corporate power meant groups like the AIDS Law Project (based at the Wits Centre for Applied Legal Studies, and associated with TAC) continued their battle, gradually winning patent battles in the courts so as to promote local generic production of individual medicines. According to the Project's Jonathan Berger, “We need a health department that's prepared to do what the governments of Thailand and Brazil have done. We just can't keep doing it one by one." Those two governments led the way not only in treatment provision at public clinics, but also in contesting the US government in international trade battles. South Africa's activists could break through on a few fronts, but without a supportive state, it was impossible to defeat the profit motive and generate a health system based upon meeting human needs.

22 May 2008 at 12:17 delete

Patrick, thank you for this contribution. Afro-Ip holds no view but you are correct, our readers almost certainly will. The most recent posting today (22 May) suggests that One World Health is trying to do its bit too.