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 that the government immediately announce an antiretroviral treatment programme in the public sector and that it signs the NEDLAC treatment and prevention plan.
We hereby demand that a police docket be opened to investigate the deaths of the many thousands of people who died from AIDS or AIDS related illnesses and whose deaths could have been prevented had they been given access to treatment.
We further demand that the Accused be arrested and charged with the offence of Culpable Homicide for negligently causing the deaths of these people. The details of the charge and a summary of some of the facts which form the basis of the Charge are attached.
We believe that many thousands of people can bear witness to this horrible crime.
ACCUSED NO. 1
NAME: MANTOMBAZANA EDMIE
SURNAME: TSHABALALA-MSIMANG
OCCUPATION: THE MINISTER OF HEALTH, SOUTH AFRICA
ACCUSED NO. 2
NAME: ALEXANDER
SURNAME: ERWIN
OCCUPATION: THE MINISTER OF TRADE AND INDUSTRY, SOUTH AFRICA
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 fulfil 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. Their conduct in failing to make these medicines available to people who need them does not meet the standards of a reasonable person, and in particular a reasonable person holding the position of Minister of Health or Minister of Trade and Industry.
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.
THE PEOPLE versus MANTOMBAZANA TSHABALALA-MSIMANG (Minister of Health) (hereinafter referred to as The Minister of Health) and ALEXANDER ERWIN (Minister of Trade and Industry) (hereinafter referred to as The Minister of Trade and Industry)
CHARGE: Culpable Homicide (unlawfully and negligently causing the death of another human being)
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. The latest survey estimates that 15,4 percent of women under 20 years, 28,4 percent of women between 20 and 24 years and 31,4 per cent of women between 25 and 29 years are living with HIV/AIDS. The survey further notes that "high HIV prevalence rates have significant implications on the future burden of HIV-associated disease and the ability of the health system to cope with provision of adequate care and support facilities."
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 Report continued that projections indicate that, without treatment to prevent AIDS, the number of AIDS deaths with grow within the next 10 years to double the number of deaths due to all other causes. The Report estimates that approximately 200 000 people died of an AIDS-related illness in 2001 alone. The Minister of Health was directly involved in attempts to suppress this report.
f.A report issued by Statistics South Africa on 21 November 2002 entitled Causes of death in South Africa 1997-2001: Advance release of recorded causes of death, indicates that unnatural causes still remain the leading cause of death. However, the report states that HIV-related deaths are significantly under-reported. One reason advanced for the under-reporting is that such deaths are often recorded as TB or pneumonia-related. Of particular significance is the finding that patterns of mortality shifted dramatically over this period, primarily as a result of HIV, TB and pneumonia-related deaths. In 2001, for example, 8.2% of all recorded deaths were attributable to unspecified unnatural causes, down from 15.3% in 1997. In contrast, 34.6% of all recorded deaths in 2001 were attributed to HIV, TB, influenza/pneumonia and "ill-defined causes of death", up from 29.5% in 1997.
g.The largest single impact of HIV/AIDS on the public health sector lies in the hospital sector. Research commissioned by the Department of Health (Abt Associates, 2000) indicates that, in the year 2000, an estimated 628 000 admissions to public hospitals were for AIDS related illnesses, which amounts to 24% of all public hospital admissions. As more people who are already HIV positive become sick each year, this demand for hospitalisation will increase steadily every year in the absence of significant alternative interventions. In financial terms, the cost of hospitalising AIDS patients in public facilities was estimated at the time to amount to at least 12.5% of the total public health budget.
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".
g.The Medicines Control Council, has the statutory duty to investigate and determine whether medicines are suitable for the purpose for which they are intended, and whether their safety, quality and therapeutic efficacy is such that they should be made available in South Africa. They have registered various anti-retroviral drugs for treatment of people who have HIV/AIDS.
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. (The Plan states that "The number of people becoming ill as a result of HIV infection is already high and will continue to increase dramatically over the next few years ? the health care systems will have to cope with this increase and strengthen their ability to provide HIV/AIDS care in order to reduce the impact of HIV/AIDS on individuals, their families and communities"). In terms of this Plan, it is also clear that The Minister of Health was fully aware of the need to broaden access to treatment for people living with HIV/AIDS ("In dealing with HIV/AIDS, an essential drug list should be developed, based on the efficacy of the drugs in the clinical management of the disease, as well as on costs and availability? As research develops and knowledge about treatment expands, it may be necessary to add drugs to those which are routinely supplied. All drugs and medicines should be available as widely as possible").
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). At the time, the Minister of Health called on all sectors to pressurise companies to unconditionally lower the price of all HIV/AIDS medications to an affordable price for poor people and countries.
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). During this speech, The Minister of Health also emphasised that access to drugs should be improved and that "drugs at current prices remain unaffordable". The Minister of Health, in her capacity as Minister of health, and as a doctor, knew that action had to be taken to reduce the prices and that she could use her legal power to procure or produce generic anti-retrovirals and other essential HIV medications.
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; the Call for a Global March issued in March 2000; COSATU's Submission on HIV Treatment to Health Portfolio Committee on 10 May 2000; letter by TAC requesting meeting with President and Minister of Health on access to treatment dated 20 March 2000).
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). Guideline 6 has been revised to give effect to development on access to HIV/AIDS-related prevention, treatment, care and support, as well as in recognition of increased commitments regarding human rights related to HIV/AIDS, including improved access to health care services. The government's International Obligations in this regard is clear: The Commission on Human Rights has confirmed that access to AIDS medication is a key component of the right to the highest attainable standard of health, enshrined in the Universal Declaration of Human Rights, the International Covenant on Economic, Social and Cultural Rights and the Convention on the Rights of the Child. The Committee on the Economic, Social and Cultural Rights made it clear that the right to health included inter alia access to treatment.
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. In November 2001 in Doha, the Ministerial Conference of the World Trade Organisation declared that the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) should be interpreted to support public health and allow for patents to be overridden if required to respond to emergencies such as the AIDS epidemic.
g.In response to these developments, in July 2002, The OHCHR and UNAIDS convened a group of experts to update the International Guidelines of HIV/AIDS and Human Rights? The resulting revised Guideline 6 on "Access to prevention, treatment, care and support" will assist States to design policy and practice to ensure respect for human rights. ? Human rights are more than principles to guide the national and global response to AIDS: they are among the most powerful tools to ensure its success."
h.Both Accused has an ethical and common law duty to protect people and promote the public interest.
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.
c.The Minister of Trade and Industry has been aware of the existence of generic anti-retroviral medication and has repeatedly been requested to ask pharmaceutical companies to give voluntary licences for the manufacture of generics in terms of section 78 of the Patents Act (e.g. letter by TAC to Department of Trade and Industry dated 23 February 2001).
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).
e.The Minister of Trade and Industry has been aware of and understands the regulatory options at his disposal to ensure the reduction in the price of essential medicines (e.g. Meeting between Department of Trade and Industry and TAC in 2001; and document presented by AIDS Law Project on 22 November 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. At this meeting the Treatment Action Campaign also formally raised the concept of a comprehensive treatment and prevention plan as a viable option to provide affordable treatment and to train health care workers.
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.
a.After a consultative process towards the government's Strategic Plan on STDs and HIV/AIDS 2000 - 2005, where various organisations endorsed the position that treatment and management of HIV/AIDS be prioritised as part of a holistic strategy, treatment was however not included as part of the government's Strategic Plan. (The recommendations by the HIV and Human Rights Consultation which was issued in November 1999, further recommended the publication of national standard guidelines on the clinical management of HIV/AIDS; the auditing of health districts for drug availability; the use of compulsory licensing and parallel import mechanisms to reduce the costs of drugs; and the investigation of bulk-buying for the SADC region to create economies of scale for the generic manufacturing of all drugs including cost-effective antiretroviral therapies.)
b.The Minister of Health has continued to deliberately exclude anti-retroviral medication from the Department of Health's "Enhanced response to HIV/AIDS and TB in the Public Sector" budget policy document (compare the July 2001 and September 2001 versions of the document).
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.
f.The Minister of Health further ignored the suggestions raised by prominent scientists, medical professionals and organisations that promoted the implementation of pilot antiretroviral sites, including the recommendations in the Bredell Consensus Statement of 2001.
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.
These are some of the facts, many more can be added.
The Minister of Health, Manto Tshabalala-Msimang, and the Minister of Trade and Industry, Alec Erwin, have unlawfully and negligently caused the death of men, women and children. The majority of people who die without access to medicine are poor and black. Both accused Ministers and all members of parliament have access to private medical insurance and to anti-retroviral therapy should they need it. Not only have they been complicit and responsible for the deaths of people living with HIV/AIDS, they also breached their constitutional duty to respect, protect, promote and fulfil the right to life, dignity, equality and health care access of these people. Both accused Ministers have disregarded their legal duty of care to all people living with HIV/AIDS in South Africa. They must immediately be arrested and charged with culpable homicide.
