The Dangers of the Indian Government’s Flirtation with U.S. Pharma and the Risks for India’s Coherent, Pro-Public Health IP Policy
The Dangers of the Indian Government’s Flirtation with U.S. Pharma and the Risks for India’s Coherent, Pro-Public Health IP Policy
by Professor Brook K. Baker*
Senior Policy Analyst Health GAP (Global Access Project)
October 5, 2014
India’s new Prime Minister, Narendra Modi and his delegation, who have been visiting the U.S. for the first time, have spent considerable time and energy in courting U.S. business interests. On Monday, September 29, the Indian PM met with 17 chief executives of major U.S. companies in joint and individual meetings1 and on September 30 he met with the U.S.-India Business Council comprising over 300 top U.S. companies.2 Prime Minister Modi is promising to open India to more direct foreign investment and to further liberalize the Indian economy to make it easier for multinational corporations to operate there. To the dismay of health activists worldwide, the US administration appears to have successfully used the Indian PM’s visit to maneuver the Indian government into committing to a joint mechanism on intellectual property. The benign sounding “High Level Intellectual Property (IP) Working Group” is designed to pressure India into changing its interpretation and application of health safeguards in India’s intellectual property policy, ultimately undermining India’s role as the pharmacy for the poor.
Even before the PM’s visit, alarm bells have been ringing within the global health community over statements made by India’s Minister of Commerce and Industry, Nirmala Sitharaman. The relentless public and private pressure from both the U.S. government and Big Pharma,3 appear to have prompted the Commerce Minister to announce a review of India’s IP policy with the aim of boosting innovation, improving administrative procedures, and potentially strengthening the country’s patent regime. In announcing the creation of a think tank to make the patent system “more robust,” Minister Sitharaman specifically mentioned that “developed nations are picking holes in India’s IPR laws.”4
The pressure from the US government on India has been relentless for the better part of the past year. The United States Trade Representative, which designated India as a priority watch list country on its 2014 Special 301 Watch List,5 Members of Congress, who have now demanded a second investigation of India’s alleged IP protectionism at the U.S. International Trade Commission,6 and various pharmaceutical industry representatives have continued a broadside attack on India’s IP rules, especially as they relate to bio-pharmaceuticals.7 When India amended its patent law to conform to international requirements in 2005, it adopted measures to restrict patents on unworthy, minor modifications or new uses of existing medicines and allowed competitors and advocates to challenge patents before and shortly after they are granted. India also has adopted procedures, fully compliant with the WTO TRIPS Agreement, to allow compulsory licenses when patents are abused or when public health needs so require.
As a consequence of these pro-health measures, India has turned down some weak secondary patents on previously known medicines, but it has also issued thousands of patents for Big Pharma companies. Indeed, India should improve its administrative procedures not to become speedier and more lax in granting patents but rather to follow its recently promulgated standards reviewing pharmaceutical products,8 which should reduce its record of granting unworthy patents.9 The U.S. and the E.U. have complained about India’s strictness in not granting patents that they have granted to their own domestic pharmaceutical giants, but other voices on both continents are crying for tighter patent standards to reverse the flood of secondary patents that extend drug company monopolies and price medicines beyond all reasonable bounds.
Although at least two pro-Pharma news stories in the past few week have complained about India having issued compulsory licenses and building its industry on stolen patents,10 the truth of the matter is that India has issued only one compulsory license on a grossly overpriced Bayer cancer medicine, Nexavar®. As always, PhRMA’s pundits claim that the right to issue compulsory licenses is severely limited and only applies to emergencies, when in fact compulsory licenses can be granted on any declared public interest grounds at the full discretion of each government.
Unfortunately, the joint communiqué issued at the end of PM Modi’s US visit shows deference by the US and Indian governments to Big Pharma’s pressure.11 Buried in that statement is an ominous collaboration:
The leaders committed to work through the Trade Policy Forum to promote a business environment attractive for companies to invest and manufacture in India and in the United States. Agreeing on the need to foster innovation in a manner that promotes economic growth and job creation, the leaders committed to establish an annual high-level Intellectual Property (IP) Working Group with appropriate decision-making and technical-level meetings as part of the Trade Policy Forum.
The U.S. consistently advances higher intellectual property protections through its trade working groups and trade partnership groups. It is significant that this sentence is embedded in the section on economic growth, as US IP industries and the USTR promote heightened intellectual property rights and strengthened enforcement mechanisms as being key to investor confidence and ultimately to innovation itself. Direct foreign investment and innovation are also always rhetorically tied to strong IPRs despite inclusive evidence that typically shows that most low- and middle-income countries do not benefit economically from IP maximization since they are net importers of IP goods and since the path to technological development is ordinarily through copying and incremental innovation-development tools that are severely undermined by IP monopoly rights and their related restrictive licensing agreements.12
More specifically, this working group will give the US a dedicated forum to continue to pressure India to adopt TRIPS-plus IP measures, including repeal of section 3(d) of the India Patents Act, adoption of data exclusivity/monopolies, patent term extensions, and restrictions on the use of compulsory licenses. There will also be efforts to strengthen enforcement measures and investor rights including investor/state dispute resolution. The US, in particular, will work to eliminate local working requirements that India is seeking to use to promote its own technological development. This is antithetical to PM Modi’s recently launched “Make in India” initiative. The fact that this working group will have "decision-making" powers is particularly problematic as it places the US fox in the Indian chicken coop.
Nothing stops the Indian government and Prime Minister Modi from rejecting the US proposal for the working group on IP. The Indian government must recognize that the US trade agenda is deadly to poor people throughout the developing world who depend on India’s generic companies for affordable access to medicines of assured quality. Nearly 90% of the 13 million people currently receiving HIV medicines in low- and middle-income countries get their antiretrovirals from India. While Big Pharma wants to charge a $1000 a pill for new hepatitis C medicines in the U.S.,13 Indian companies can make those same medicines for a little more than $1 a pill.14 One positive signal of IP resistance from PM Modi during the trip was his statement to pharmaceutical CEOs Kenneth Frazier and Michael Ball:
I understand that you want to be compensated for your investments in R&D. At the same time, India needs medicines that are affordable for its population. … Mankind needs continuous research and development of new drugs for a higher quality of life. … You need to be able to devote the right energy to that, not just by changing the formulation of a drug to sustain a patent, but by inventing things that make a difference to mankind.15
U.S. business interests and government officials are trying to sell the idea that heightened intellectual property protections in India are essential to foreign investment, innovation, and achievement of public health goals.16 Instead, heightened IPRs will make India consumers captive to Big Pharma’s extortionate pricing. India’s vibrant generics industry will be relegated to the backwaters as it waits impatiently for the expiration of ever-greened patents and new regulatory data monopolies. India is still in the stage of industrial development where imitation and incremental innovation are stronger engines of progress than being shackled by foreign IP monopolies. When Indian firms do innovate, they can patent their true inventions in India and their incremental innovations in rich country markets. Just as dozens of distinguished scientists, academics, and health organizations protested the proposed IP policy review in India,17 health activists and others must reject any efforts to fill India’s alleged gaps in IP policy with pro-Pharma fixes that serve only to line the pockets of some of the world’s richest transnational corporations.
1 Vikas Dhoot, PM’s US Visit: Narendra Modi’s CEO diplomacy to soon set the cash register ringing, The Economic Times (Oct. 1, 2014), http://articles.economictimes.indiatimes.com/2014-10-01/news/54516935_1_ajay-banga-ceos-global-investment-radar.
2 Arun Kumar, After wowing Indian-Americans and the ‘Big Apple’, PM Modi off to win over Barack Obama administration, The Economic Times (September 29, 2014) http://articles.economictimes.indiatimes.com/2014-09-29/news/54437114_1_prime-minister-narendra-modi-pm-modi-us-india-business-council.
3 USIBC concludes successful pharmaceutical mission to India, The Pharma Letter (Sept. 28, 2014), http://www.thepharmaletter.com/article/usibc-concludes-successful-pharmaceutical-mission-to-india.
4 Govt to come out with IPR policy: Sitharaman, Business Standard (Sept. 8, 2014) http://www.business-standard.com/article/pti-stories/govt-to-come-out-with-ipr-policy-sitharaman-114090800852_1.html; Govt signals IPR recast ahead of Modi’s US visit, The Indian Express (Sept. 9, 2014) http://indianexpress.com/article/business/economy/govt-signals-ipr-recast-ahead-of-modis-us-visit/2/.
5 USTR, 2014 Special 301 Report, pp. 37-43, http://www.ustr.gov/sites/default/files/USTR%202014%20Special%20301%20Report%20to%20Congress%20FINAL.pdf.
6 Press Release, Ways & Means, Senate Finance Leaders Request ITC Investigation into India’s Unfair Trade Practices (Sept. 25, 2014) http://waysandmeans.house.gov/news/documentsingle.aspx?DocumentID=394536.
7 C.H. Unnikrishnan, India’s draft rules on patenting drugs draw mixed response, Live Mint (Sept. 29, 2014) http://www.livemint.com/Industry/J9t072PXGxIEzMmOBusSKJ/Indias-draft-rules-on-patenting-drugs-draw-mixed-response.html.
8 Office of Controller General of Patents, Designs and Trademarks, Revised Draft Guidelines for Examination of Patent Applications in the Field of Pharmaceuticals (Aug. 12, 2014) http://www.ipindia.nic.in/iponew/draft_Pharma_Guidelines_12August2014.pdf.
9 Sudip Chaudhuri, Chan Park & K. M. Gopakumar, Five Years into the Product Patent Regime: India’s Response (2010) http://apps.who.int/medicinedocs/documents/s17761en/s17761en.pdf; Bhaven N. Sampat & Tahir Amin, How Do Public Health Safeguards in Indian Patent Law Affect Pharmaceutical Patenting in Practice, 38:4 J. Health Politics, Policy & Law 735-55 (2013) http://jhppl.dukejournals.org/content/38/4/735.long.
10 Tom Giovanetti, India’s Modi can boost foreign investment by protecting IP, The Hill (Sept. 25, 2014) http://thehill.com/blogs/congress-blog/foreign-policy/218810-indias-modi-can-boost-foreign-investment-by-protecting-ip; Rod Hunter, The PM must walk the talk on FDI, Hindustan Times (Sept. 19, 2014) http://www.hindustantimes.com/StoryPage/Print/1265781.aspx.
11 White House, U.S.-India Joint Statement (Sept. 30, 2014) http://www.whitehouse.gov/the-press-office/2014/09/30/us-india-joint-statement.
12 Brook K. Baker, Debunking IP-for-Development: Africa Needs IP Space Not IP Shackles in International Economic Law and African Development (Laurence Boulle, Emmanuel Laryea & Franziska Sucker eds. 2014).
13 John Tozzi, Gilead Sales Double on $1,000 Hepatis C Pills, Bloomberg Business Week (April 22, 2014), http://www.businessweek.com/articles/2014-04-22/gilead-sales-double-on-1-000-hepatitis-c-pills.
14 Andrew Hill et al., Minimum costs for producing Hepatitis C Direct Acting Antivirals for use in large-scale treatment access programs in developing countries, 58:7 Clin. Infect. Dis. 928-36 (2014) http://cid.oxfordjournals.org/content/58/7/928.full.pdf+html.
15 Vikas Dhoot, PM’s US Visit: Narendra Modi’s CEO diplomacy to soon set the cash register ringing, The Economic Times (Oct. 1, 2014), http://articles.economictimes.indiatimes.com/2014-10-01/news/54516935_1_ajay-banga-ceos-global-investment-radar.
16 Joe Matthew, ‘India Needs To Show It Values Innovation’: PhRMA, a US drug companies’ lobby, looks to Modi’s US visit to iron out access issues, Business World (Oct. 1, 2014) http://www.businessworld.in/news/opinion/interviews/‘india-needs-to-show-it-values-innovation’/1555371/page-1.html#.
17 Rupali Samuel, Academics, diplomats, scientists, lawyers, public health orgs issue open letter to PM on proposed IP Policy review, Spicy IP (Sept. 23, 2014), http://spicyip.com/2014/09/academics-diplomats-scientists-lawyers-public-health-orgs-issue-open-letter-to-pm-on-proposed-ip-law-review.html; CSOs concerned over timing of IP policy review in India, SUNS #7881 (Sept. 25, 2014) http://www.twnside.org.sg/title2/wto.info/2014/ti140911.htm.
*Brook K. Baker is a law professor at Northeastern University School of Law (US) and an affiliate of its Program on Human Rights and the Global Economy. He is also an honorary research fellow at the University of KwaZulu Natal, Faculty of Law, South Africa. He is a policy analyst for Health GAP (Global Access Project) and writes frequently on IP, trade, and access to medicines issues.
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AIDS & Health Activists Blast American Pharma Companies and Politicians for Attempts to Undermine India
For Immediate Release: September 30, 2014
Contact: Matthew Kavanagh, +1 202-486-2488, firstname.lastname@example.org
AIDS & Health Activists Blast American Pharma Companies and Politicians for Attempts to Undermine India, the “Pharmacy of the Developing World,” Call on Indian Prime Minister Narendra Modi to Stand Strong Against US Pressure to Change its Pro-Public Health Patent Laws
While India supplies the world with affordable medicines, pharmaceutical industry manipulation of weak U.S. patent law keeps American drug prices high. India must not make the same mistake.
(Washington, D.C.) AIDS and health activists today harshly criticized attempts by major U.S. pharmaceutical companies and American politicians to pressure and manipulate Indian Prime Minister Narendra Modi, who today meets with members of the US-India Business Council in Washington, D.C. Activists warned that following American-led policy proscriptions could severely damage the Indian economy and health system, as well as restricting access to affordable medicines for patients around the world. They called on Prime Minister Modi to stand strong against persistent and unwarranted US pressure to change the country’s pro-public health patent laws.
Indian generic drug manufacturers currently provide India, and much of the world, with high-quality affordable medicines: 90% of HIV patients in low- and middle-income countries rely on Indian generics for their treatment, and 40% of American generic drugs are made by Indian producers. “Indian generics have been essential to expanding access to medicine around the world,” said Asia Russell, Health GAP’s Director of International Policy. “I am based in Uganda, where expanded access to Indian generics has had a transformative impact on the HIV epidemic. Around the world, we’ll rely on Indian generics again for treatment of diseases such as hepatitis C, given that Indian firms can make generic versions of new treatments 1,000 times cheaper than what multinational pharmaceutical companies charge in first world markets.”
Threatened by free trade of high-quality and affordable medicines, US-based pharmaceutical companies and politicians friendly with the industry are using prominently placed op-eds, large advertisements on Washington, D.C. buses, and letters to President Obama to spread false information—claiming India’s rules are not legal or discourage innovation. The companies have been threatening to withhold investment if India does not adopt weaker patent laws that would extend pharmaceutical monopolies and stymie the country’s generic industry. The bullying has been far-reaching. In anticipation of the prime minister's visit, Senator Robert Menendez (R-NJ) said, "we need to see real reforms on [intellectual property], which significantly impacts the ability of US companies to do business in an important market." The US Trade Representative listed India on its “priority watch list” in this year’s Special 301 Watch List, which is annually published to shame countries with intellectual property legislation that is not to American businesses and politicians’ liking. As a result, India may face US trade sanctions. Members of Congress have also demanded an investigation into what they call India's "IP protectionism." This is despite India’s intellectual property laws being fully in line with international standards, as outlined in World Trade Organization agreements.
“India fully complies with international law while also making it possible for billions of people in India and around the world to access life-saving affordable drugs,” said Matthew Kavanagh, Health GAP’s Senior Policy Analyst. “Giving U.S. pharmaceutical companies longer monopolies would help their bottom line—but at the cost of the Indian economy and the lives of millions of people.”
India’s pharmaceutical industry has been able to flourish because of the country’s pro-public health patent laws, in which patents are only granted on new medicines or for significant changes on old medicines. The U.S., in contrast, regularly gives out patents on slightly tweaked versions of old medicines that do not provide enhanced therapeutic benefit, extending monopoly protection and keeping prices high.
“Whereas the U.S. regularly gives patents on frivolous and small changes to old medicines, keeping prices high, India has decided to prioritize public health over pharmaceutical profits,” said Brook Baker, law professor at Northeastern University and Health GAP analyst. “U.S. companies are threatening not to invest in India, saying only stronger intellectual property will drive foreign direct investment and more innovation. But studies show this simply is not true—middle income countries with extremely high IP rules see no benefit in investment or research, but they do see far higher medical costs that undermine their public health systems.
“Rather than shaming India, the US should learn from the country’s use of intellectual property policy to promote true innovation and equitable access to medicine,” Baker said.
Already Modi’s administration has shown signs that it may bend to pressure from US businesses and politicians, who threaten to restrict foreign investment in India’s booming economy if intellectual property laws don’t change. The country's Minister of Commerce and Industry, Nirmala Sitharaman, has initiated a review of India’s IP policy, saying that she wanted the patent system to become "more robust.”
“Health activists around the world are in solidarity with Prime Minister Modi,” Kavanagh said. “We’re calling on the Indian government not to bend to U.S. pressure. Patients around the world are relying on it.”
For Immediate Release
September 25, 2014
New York, NY—Health GAP (Global Access Project) today welcomed the roll out of new strategic HIV goals for treatment of HIV, announced on the sidelines of the UN General Assembly session by Presidents of South Africa, Mali, Ghana, and Switzerland, U.S. Secretary of State John Kerry, and UN officials. The new goals set a target of getting as many countries as possible to achieve “90/90/90 by 2020”—90% of people living with HIV know their status, 90% of those are accessing HIV treatment, and 90% of those on treatment have achieved an undetectable viral load.
“These new targets focus for the first time on coverage plus quality—ensuring people have access to quality programs and can achieve an ‘undetectable’ viral load, which is critical to save lives, halt disease progression, and prevent new infections,” said Asia Rusell, Director of International Policy. “Governments must make this a priority—which requires a radical redesign of programs, getting the opportunity for treatment to all people in need with low-cost generic medicines and through human rights based programs that get medicines much loser to communities.”
“We applaud Secretary Kerry for supporing these targets—we must end AIDS; we must achieve 90/90/90. But funding is falling far far short and we have to ask: where’s the funding to meet these targets? U.S. Bilateral HIV programs has been cut by over $600 million in the last few years,” said Amanda Lugg, Chairperson of Health GAP. "We have the science, implementation capacity, and the vision to achieve universal access to testing, treatment, and quality care, but we need commitment and money as well. Small investments in expanding PEPFAR and Global Fund spending now - less than a billion new dollars a year will save millions of lives and tens of billions of dollars in the future. The House of Representatives this year included an extra $300 million for the PEPFAR program—we call on Sec. Kerry to do everything we can to increase funding this year.”
“The practice of turning people away from HIV treatment because they’re not yet sick enough—their CD4 count hasn’t fallen enough—is NOT an evidence-based practice,” continued Russell. “Its time that every person, regardless of CD4 count, had a chance to understand the benefits and risks and to start HIV treatment if that is what they choose. With funded human rights structures in place to ensure this choice is meaningful and freely made, achieving 90/90/90 should make its way into every country’s national plan, Global Fund concept note, and PEPFAR plan."
“Meanwhile, we must also address the critical question of the price of new medicines--deadly attempts to roll back intellectual property flexibilities that allow generic drug production in India and other middle-income countries could make a joke out of 90/90/90. We call on the Obama administration and all governments to commit to supporting public health over drug company profits,” said Lugg.
Dr. Jim Yong Kim
The World Bank
1818 H St. NW
Washington DC 20433
Dear Dr. Kim:
We write to follow up on our letters of April 1 and May 6, 2014, regarding concerns about discrimination in Uganda’s health sector and the World Bank’s delay of its US$90 million loan.
We, once again, welcome your commitment to ensure that there is no discrimination in World Bank financed projects in Uganda and public recognition that discrimination is not only wrong, but undermines economic growth.
Six months after your decision to delay the health sector loan, we remain concerned that there are still not sufficient safeguards in place to prevent discrimination in health service provision for lesbian, gay, bisexual, transgender, and intersex (LGBTI) patients, or for women, among other groups in Uganda. In this letter, we share recommendations for the World Bank’s next steps in Uganda and request a meeting with your office as you chart a strategic way forward to ensure that World Bank funding does not entrench discrimination via its loans and other financial instruments. On August 26 during a meeting with the Robert F. Kennedy Center for Justice and Human Rights and Sexual Minorities Uganda (SMUG), Uganda’s former minister of health and new prime minister, Dr. Ruhakana Rugunda, made comments that reinforce this concern: he agreed that there is discrimination in the health sector, and that the government is not equipped to monitor the health sector for discrimination or to respond to discrimination when it occurs.
The Anti-Homosexuality Act
As you know, on August 1 Uganda’s Constitutional Court ruled that the Anti-Homosexuality Act was void due to a lack of quorum in parliament during the vote. While we welcome this important ruling, it did not address the substantive rights at jeopardy in the law.
Moreover the Ugandan government has unambiguously indicated that it remains committed to the discriminatory approach and practices that were reflected in the law. For example, the attorney general immediately filed an appeal to the Supreme Court; and while President Museveni has asked for the appeal to be put on hold temporarily, it is only so a ruling party parliamentary committee can determine if and how the law should be returned to parliament anew. Also, since the ruling, several government officials, including President Museveni, have spoken out in favor of the criminalization of the “promotion of homosexuality” which jeopardizes public health work.
The situation in Uganda remains volatile, especially as campaigning for the 2016 elections gets underway. There is a very real possibility all or significant portions of the discriminatory Anti-Homosexuality Act could be passed in parliament again in the next 12 to 18 months. Effectively, the Ugandan government’s pursuit of discriminatory policies against LGBTI people, including in the healthcare sector, is unchanged by the Constitutional Court ruling.
In what appears to be an effort to encourage donors, including the World Bank, to maintain funding to Uganda’s healthcare sector despite the discriminatory environment, the Ministry of Health produced a ministerial directive this year establishing guidelines for health workers who treat LGBTI people. While a written commitment to non-discrimination in the healthcare sector should not be dismissed, this directive is very problematic. It describes the provision of health services to LGBTI people as an “ethical dilemma” for healthcare workers – rather than a professional obligation or equal access to health care as a fundamental human right. The directive creates a de-facto “separate but unequal” system for LGBTI people seeking healthcare. It also remains wholly unenforceable in law. It provides no substantive protection to LGBTI people, or to healthcare workers providing services to LGBTI people, nor does it require any substantive action by the government in terms of upholding non-discrimination in the health sector. It should not be seen as meaningful action on the part of the government to address the World Bank’s publicly stated concerns which led to the loan’s delay.
The HIV Prevention and Control Act
Just as worrying, on July 31, President Museveni signed into law the HIV Prevention and Control Act, which not only criminalizes transmission and attempted transmission of HIV but allows for mandatory testing of pregnant women, their partners, and victims of sexual violence; allows certain people including health workers to reveal the HIV status of their patients without their patients’ consent; and enables courts to order the release of individuals’ HIV status without their consent.
Women tested against their will, or whose HIV status may be revealed against their will, may be exposed to potential physical violence from partners who fear or blame them for infection. Not only are the law’s provisions contrary to well-established international best practices of confidentiality, consent and counseling – a bedrock in the fight against HIV – but the well-documented impact of such punitive measures is to drive people away from services and fuel fear and further discrimination.
Given Uganda’s ongoing discriminatory environment in the allocation of health services, we believe it remains very important for the World Bank to ensure strong safeguards are in place before the delayed loan is released. Such action could significantly contribute to mitigating against existing discrimination experienced by LGBTI patients, women, and other marginalized and excluded populations who are at disproportionately high risk of negative health outcomes and poverty.
We recommend that the World Bank:
1. Publicly share the outcome of the World Bank’s independent assessment of the impact of Uganda’s Anti-Homosexuality Act on the proposed $90 million loan.
2. Only fund the health sector through the proposed $90 million loan if it includes
(a) Components funding:
- Routine pre-service and in-service training of the Ugandan health workforce in non-discrimination in service delivery, building on existing training efforts led by civil society;
- Robust monitoring, and supervision measures to enforce expectations regarding non-discrimination, beyond current supervisory structures. This would include, in addition to other mechanisms, independent third party monitoring to identify instances of discrimination;
- Activities to promote all patients’ rights to non-discrimination, confidentiality, privacy, and consent to or to refuse treatment, and to be informed about risk of medical procedures during health service delivery – for example through public messages, health promotion activities, signs in clinics and public places, and other strategic communications efforts (in English and local languages); and
- Measures to determine consumer satisfaction with health service quality.
(b) Loan covenants:
- Prohibiting all forms of discrimination, including on the grounds of gender, sexual orientation, and gender identity, and all other grounds articulated under international law;
- Requiring the government to respect patient confidentiality, privacy, and informed consent to all treatment, which requires being fully informed of the risks involved with medical procedures and medication;
- Requiring that there not be any interference with any civil society or other third party monitoring of health institutions;
3. Through the Global Partnership for Social Accountability and other World Bank civil society funding mechanisms, provide financial support for patient advocates and legal counsel for individuals who face discrimination, breach of confidentiality, or other abuses in health settings;
4. Review Uganda’s new HIV law, in close collaboration with Ugandan civil society and independent experts, and describe mitigating measures the World Bank will take to ensure Uganda’s health systems is strengthened and HIV objectives are achieved given the discriminatory environment, and publish both the review and mitigating measures;
5. Publicly and privately at all levels urge the government to repeal all discriminatory laws and end discriminatory practices, emphasizing the importance of non-discrimination for health and development and emphasize that the government’s lack of progress in this area will increasingly call into question aspects of the government’s relationship with the World Bank.
We firmly believe that the World Bank’s decision regarding the $90 million loan will have a profound impact on the credibility of the World Bank in Uganda and beyond. Countries seeking to benefit from World Bank funding should clearly understand that the delay of the loan was not a superficial decision, but rather a serious statement about the deleterious economic impact of discrimination and a precedent-setting decision to stand up for human rights. But that is not possible if the delay is concluded without any substantive progress by government regarding nondiscrimination in the health sector.
We would appreciate the opportunity to discuss the way forward in Uganda with you given the critical World Bank engagement there and the impact of the situation in Uganda on other countries who may benefit from World Bank financial instruments in the future.
Thank you for your consideration of these important issues. We look forward to meeting with you or your staff to take this conversation forward.
Aaron Dorfman, Vice President for National Programs, American Jewish World Service (AJWS)
Kevin Robert Frost, Chief Executive Officer, AmFAR
Chad Dobson, Executive Director, Bank Information Center (BIC)
Moses Mulumba, Executive Director, Center for Health, Human Rights and Development (CEHURD)
Jeff Ogwaro, Coordinator, Civil Society Coalition on Human Rights and Constitutional Law (CSCHRCL)
Mark Bromley, Council Chair, The Council for Global Equality
Asia Russell, Director of International Policy, Health GAP
David Stacy,Director for Government Affairs, Human Rights Campaign
Jessica Evans, Senior Advocate/Researcher for International Financial Institutions, Human Rights Watch
Brant Luswata, Resource Center Manager, Icebreakers Uganda
Wade McMullen, Staff Attorney,Robert F. Kennedy Center for Justice and Human Rights
Frank Mugisha, Executive Director, Sexual Minorities Uganda (SMUG)
Moses Kimbugwe, Programs Director, Spectrum Uganda
Najib Kabuye, Director, Uganda Harmonized Rights Alliance
Kikonyogo Kivumbi, Executive Director, Uganda Health and Science Press Association (UHSPA)
Beyonce Karungi, Director, TransEquality Uganda
World Bank Board of Executive Directors
Hon. Ruhakana Rugunda, Prime Minister, Uganda
Mr. Makhtar Diop, Vice President for Africa, World Bank
Mr. Tim Evans, Health Sector Director, World Bank
Mr. Olusoji O. Adeyi, Sector Manager, Health, Nutrition and Population, Africa, World Bank
Mr. Philippe Dongier, Country Director, Uganda, World Bank
Mr. Moustapha Ndaiye, Country Manager, Uganda, World Bank
Mr. Peter Okwero, Health Specialist, World Bank, Uganda
Mr. Mark Dybul, Executive Director, The Global Fund to Fight AIDS, Tuberculosis and Malaria
Dr. Deborah Birx, U.S. Global AIDS Coordinator
For Immediate Release
World Bank: Safeguards Essential for Uganda Loan
Urgent Need to End Discrimination in Health Care
(Kampala, September 24, 2014) – The World Bank should not proceed with a US$90 million loan for strengthening the health care sector in Uganda without enforceable steps to end discrimination in care for marginalized groups, 16 Ugandan and international organizations said today in a letter to World Bank President Jim Kim. Health care for women and lesbian, gay, bisexual, transgender, and intersex (LGBTI) people should be included in non-discrimination measures, the groups said.
In February 2014, shortly after President Yoweri Museveni signed the Anti-Homosexuality Act, Kim announced the delay of the Uganda loan out of concern that it would support discrimination in Uganda’s health sector. He said that discrimination is bad for economies. In August, Uganda’s Constitutional Court nullified the law on procedural grounds. But the government immediately filed an appeal to the Supreme Court and convened a committee to consider whether the law should be returned to parliament for reconsideration.
“Even with Uganda’s Anti-Homosexuality Act no longer enforceable, discrimination is alive and well in health services for many groups including LGBTI people,” said Moses Kimbugwe, program director at Spectrum Uganda, a Ugandan human rights organization. “It is vitally important for the World Bank to work with the government of Uganda to get serious about fighting discrimination – starting with clear conditions attached to this $90 million health loan.”
Beyond increasing prison sentences for same-sex conduct – already criminal under Uganda’s colonial-era, anti-sodomy provisions – the new law endangered public health work by criminalizing “promotion of homosexuality.” For example, police raided a well-respected health clinic and medical research facility in April, accusing the clinic of conducting “unethical research” and “recruiting homosexuals.” The law lacked any definition of what behavior or speech might constitute “promotion.”
The World Bank’s $90 million loan would assist Uganda’s health ministry with a funding shortfall for the renovation of certain health care facilities.
The Ugandan government has not provided any enforceable assurances that it will work to prevent discrimination in health services or even monitor discrimination by health care workers, the groups said. The Health Ministry issued a non-legally-binding directive to health workers, which defines the care of LGBTI people as an “ethical dilemma” for healthcare workers – rather than a professional obligation and a fundamental human right. It does not require health workers to provide medical care and treatment without bias. Nor does it properly guarantee confidentiality to patients who are at risk of prosecution if, for example, a health worker reports them to police for same-sex conduct, which remains a criminal offense in Uganda.
In July Museveni signed the HIV Prevention and Control Act, which could further fuel fear and discrimination. The law criminalizes intentional HIV transmission, attempted transmission, and behavior that might result in transmission by those who know their HIV status. The law also allows for mandatory HIV testing for all pregnant women. It allows medical providers to disclose a patient’s HIV status to others, contrary to international best practices and violating fundamental human rights.
Women tested against their will or whose HIV status may be revealed against their will may be exposed to potential physical violence from partners who fear or blame them for infection. The well-documented impact of such punitive measures is to drive people away from services.
In the loan, the groups said, the World Bank should require the government to prohibit discrimination in healthcare delivery, including on the grounds of gender, sexual orientation, and gender identity and all other grounds articulated under international law. It should require the government to respect patient confidentiality, privacy, and informed consent to all treatment, including fully informing patients of the risks involved with medical procedures and medication. The government should also guarantee that it will not interfere with any independent group or other third-party monitoring of health institutions.
The World Bank should fund activities to promote all patients’ rights, including funding patient advocates and legal counsel for people who face discrimination, breach of confidentiality, or other abuses in health settings and training for Ugandan health workers to respect these rights. It should also fund robust supervision and monitoring, including by independent organizations, to identify instances of discrimination.
The World Bank should review the new HIV law, in close collaboration with Ugandan groups and independent experts, and publicly outline measures it will take to ensure that Uganda’s health system is strengthened and HIV objectives are achieved, given the discriminatory environment. The bank should publicly and privately at all levels urge the government to repeal all discriminatory laws and end discriminatory practices, emphasizing the importance of non-discrimination for health and development and emphasize that the government’s lack of progress in this area will increasingly call into question aspects of the government’s relationship with the World Bank.
“This loan to the health sector should signal an end to ‘business as usual’ between the World Bank and Uganda,” said Asia Russell, director of international policy at Health GAP, an international health advocacy organization. “Discrimination in health services violates human rights and puts already vulnerable people at greater risk. The World Bank has a duty to ensure the Ugandan government invests in mitigating the effects of discrimination in the health services.”
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