I want to suggest a framework through which to view the social and political imperative to now implement strategies to expand access to essential medicines, and also look at issues in context.

To begin with the context. Two days ago Justice Albie Sachs described the right to human dignity as "foundational and animating our constitution". The same can surely be said for equality. Yet AIDS reveals the inequalities under which we still labour.

In 1996, Anglo American Director Clem Sunter wrote in The High Road: Where are we Now?

His comment was made at a time when effective treatments for HIV and AIDS were little more than a dawning possibility. Four years later, however, it is a prediction that has been borne out. Rich people, people on certain medical aids, now have access to effective drugs. Poor people die.

Some figures suggest up to 150 000 deaths in South Africa per annum. In 1998, there was a 50% decline in AIDS related deaths in the USA, but in the same year – according to UNAIDS -- two million people died in Africa.

President Mbeki recently described this as a "catastrophe". As we face this reality, it is necessary to look the challenge squarely in the face.

The issue of ‘access to treatment’ needs to be better defined – it has been over-simplified in the public debate. I will focus on the issue of drugs, but this is not to say that other parts of the continuum are not also needed for sustainable treatment and care. This continuum includes:

• Expanded access to HIV testing;
• Expanded access to HIV counselling;
• Improved health care infrastructure;
• Access to prophylactic treatment;
• Access to anti-retroviral treatment;

Clearly, treatment will be ineffective and confined to small numbers of people, even if this small number includes poor people, unless the systems which are needed are set up. But the arguments that we have an inadequate infrastructure should not be allowed to be used as a smokescreen to deny people access. There are many tertiary hospitals and health care centres in South Africa where we could immediately begin to pioneer access programmes – if it was not for the problem of cost. But, these pioneer programmes must be part of a strategic plan to continually expand access: if this is not the case it will lead to further distortions in the health system, as people migrate from rural areas and other countries to the sites where effective drugs are available.

We must recognise that drugs are the cog at the centre of the prevention wheel. To illustrate this consider that:

1. Key strategies – particularly the creation of openness about HIV – will be less effective unless we can offer treatment. In the words of Justice Cameron, access to treatment changes people’s perceptions of the disease:

"Access to treatment changes people’s perceptions of the person living with HIV. They no longer see a person who will be dead in a few years time."

In itself, access to treatment therefore goes a long way to breaking the stigma associated with HIV.

2. We need to do away with the artificial dichotomy between "prevention" and "treatment". Better access to treatment will improve prevention and better prevention will in turn cut the costs of treatment.

We know that more women would volunteer for counselling and testing at ante-natal clinics if treatment were available. And counselling and testing are, in fact, prevention activities. In the long run, the provision of treatment would therefore diminish the need for treatment.

3. The focus on the "cost" of treatment is fully justifiable. In 1997 the Public Protector investigation against the Minister of Health (instigated by the PMA) found that medicines were too highly priced in South Africa. Prices must be brought down.

But we must not confuse the issues. Even if it costs a cent a pill, the sheer numbers of people with HIV in South Africa (4 million) means that expanding treatments will involve substantial cost. But despite this high cost, it will nevertheless be cost effective.

We must reject the argument, often made by the government, that providing treatment for people with HIV will erode the health care of "other" people and diminish the constitutional right of these "other" people to have access to health care services. The government has a responsibility to use health resources rationally. But, it can find no comfort in the case of Soobramoney, where the Constitutional Court upheld the decision of the KwaZulu Natal Health Department not to provide renal dialysis because of its cost, and the implications the fulfillment of one man’s need for health care would have had have on the rights of others.

This argument does not hold water in the case of expanding access to treatments for HIV. In this case, instead of being fixated solely on the cost of drugs (which we agree must be brought down), we should look at the cost for South Africa of not providing treatment:

• Not providing AZT to reduce the risk of mother to child transmission doubles the numbers of infected infants. Each year there are roughly 20 000 infant infections that could have avoided;

• Not providing effective prophylactics and ARVs to parents leads to an increasingly rapid increase in the number of orphans. Surely there is a social imperative to keep parents alive for longer.

These are social costs that have not been calculated. In addition, there is:

• The cost of the inefficient use of drugs for opportunistic infections. A senior member of the Health Department told me that he estimated that Gauteng is already spending R500 million per annum on AIDS.

• The impact on health care delivery generally, as hospitals fill up with people with HIV. Not treating people with HIV creates avoidable costs. Mother to child transmission is the most stark example of this.

It is precisely to protect the rights of all people to heath care services that we need to protect the rights of people with HIV to treatment.

There are two obstacles to the delivery of treatment:

• The cost of essential drugs
• Stigma and discrimination

1. In response to the recent drug donation and price reduction offers made by Pfizer and five other pharmaceutical companies we recommend that the government urgently establish an expert team to negotiate price reductions directly with the pharmaceutical companies. These negotiations need to be persued aggressively and within clear time-frames. However, it must be stated up-front that bona fide negotiations around cost cannot take place as long as these producers of essential medicines will not provide information on a drug-by-drug basis of : the actual costs of research and development, active ingredients, legitimate marketing costs, measures that could be implemented to prevent drug leakage back to first world markets.etc.
2. If these negotiations fail and the pharmaceutical companies are shown to have been acting in bad faith, then the legal basis will have been created for the use of compulsory liscences and/or parallel imports. The high cost of essential drugs is unjustified and there is a legal obligation on government to use its powers under the 1975 Patents Act to make public health available. We recommend to the government that it act on its constitutional duty to facilitate compulsory liscencing.
3. The South African government needs to use South Africa’s moral legitimacy to challenge the pricing practices of pharmaceutical companies – and the economic policies of industrialised countries that have contributed to the collapse of almost all public health facilities in the vast majority of African countries.
4. Government also needs to reassess its use of available resources. Huge sums of money are spent on submarines despite the massive need for HIV testing and treatment. 50% of people in the worst affected parts of South Africa can’t even access HIV testing. These are the issues which our government should be pioneering on the world stage rather than the issues being paraded in the media at present.

I would like to finish with a quote from former Minister of Justice with Dular Omar. In 1997 he told the first annual conference of the Human Rights Commission that he had

Omar’s fears would seem to be borne out and illustrated by this issue of access to treatments. Since 1998 the PMA has used its unlimited resources and ability to command some of the best lawyers in the country, to prevent the implementation of an Act that aims to improve access and affordability of medicines – and strengthen the power of government to fulfill it’s constitutional obligation to expand access to health care services. It has done this on the basis of its members’ rights – all incidentally multi-national companies – to intellectual property. The human right to health is being held hostage to the private right to property. This is clearly wrong.