July 5 2002 marks an important date in our life as a country. This is the date on which the late Chief Justice Arthur Chaskalson delivered a judgment of the Constitutional Court on the nevirapine matter.
The government was taken to court following a protracted debate regarding whether to administer nevirapine to pregnant mothers to prevent the infection of their unborn children. This was but an element of the broader issue of how to tackle the HIV/Aids pandemic that was ravaging our country. Not wholly unexpected and not uncharacteristic of South African society, we could not find each other on how to address the pandemic.
Former president Thabo Mbeki earned the title of an Aids denialist and was viciously attacked by certain sectors of society. One of the key issues he raised at the time, which was obviously lost in translation, was his argument that HIV/Aids was an opportunistic disease that affected mostly the poor and vulnerable because of socioeconomic conditions. He also argued that the entire approach required that the root causes of poverty and the effects thereof be addressed.
He may have not been right on the scientific part of the issue. What also featured prominently was the affordability of antiretroviral (ARV) medication at the time. This part of his argument was never challenged. His fight to have ARVs affordable is still not recognised, despite the fact that it contributed significantly to the affordability.
Eighteen years later, our minister of finance and the government face a similar dilemma.
They are confronted with the difficulties of securing a vaccine for the country under harsh economic conditions and at prohibitive costs. As was the case with ARVs, only certain countries and companies have the capacity to develop the vaccine and regulate who gains access to it. They also determine the costs, with some countries already involved in hoarding practices. As in the case of HIV/Aids, the message from government on how to reduce infections is drowned out by conspiracies and economic interests sponsored by various forces. Legal action is also looming, with one NGO already threatening it.
During the Mbeki presidency, government tried its best to implore society to play its part and contribute towards slowing down the rate of infections by taking certain precautionary measures. Certain religious groups discouraged people from using condoms on the basis that such was ungodly and unchristian. Millions lost their lives to the virus as government battled to formulate a reasonable policy on how to respond. Reasonable in this context meant acceptable to detractors.
During the discourse, another debate regarding traditional remedies arose. A simple nutrition debate became so distorted that an impression was created that the late former health minister Manto Tshabalala-Msimang suggested that only beetroot and garlic could cure HIV/Aids, which was not what she had meant.
The same issue has arisen with the novel Covid-19 coronavirus. Various theories are being peddled depending on which side one is on. Those who agitated for the use of certain herbs have not been spared the same sort of ridicule that the late minister experienced.
Covid-19 has taken us back to the era of the HIV/Aids pandemic and all the signs are there that we are heading for a similar national showdown. The fact that we are facing a calamity is now being used to advance certain self-interests as opposed to the national interest. Already the lockdown has been met with various legal challenges in the courts.
In 2002, the Constitutional Court described the HIV/Aids pandemic as follows:
These are not the words of alarmists, but are taken from a department of health publication in 2000 and a ministerial foreword to an earlier departmental publication. The health department and government have described Covid-19 in similar terms, and the implications and impact are the same. “Rest in peace” has become part of our daily vocabulary.
It may once more require the intervention of the court to find a reasonable solution to the current impasse.
There are glaring similarities between the HIV/Aids and the Covid-19 pandemics. The first is the clear lack of maturity of certain political forces that have reduced a serious national calamity into a political football. In this process, they have mobilised a national societal resistance to government efforts to implement measures that do not require money, but change in societal behaviour. The demands by certain political parties that restrictions not be imposed is but agitating for public irresponsibility in the face of certain death.
The other glaring similarity is the ongoing misinformation and the peddling of conspiracy theories, including those of the “devil in the vaccine” and the 5G propaganda. Surveys already show that a large percentage of health workers and members of the public are reluctant to take the vaccine when it is made available.
One of the key issues during the HIV/Aids pandemic was affordability. Our fiscus is already depleted and government has to find the funds to finance the procurement of the vaccine. The current threat of litigation is intended to force government to commit to a clear programme for the procurement. The question of whether it is affordable and funding is available appears an irrelevant consideration to those threatening legal action.
The question of the efficacy and side-effects of ARVs during the HIV/Aids pandemic was one of the major issues. There is already a raging debate about the efficacy of the vaccines developed. Certain scientists have expressed serious reservations in this regard. Among other things, they raise questions regarding the fact that the samples used in clinical trials used no more than 10 nonwhite people. In essence, this suggests that the vaccines may have mainly been intended for the other race.
They have also raised issues about the vaccine’s not being designed for certain age groups, such as young people, and pregnant and breast-feeding women. In the South African context, these are serious considerations. It does not appear that government will have an opportunity to conduct a proper feasibility study. It may well be that the health department’s announcement is in fact premature.
While government must take all steps necessary to address the incidence of Covid-19, it is equally important that it is not pressurised to make decisions this nation may live to regret. The procurement of the vaccine must be properly considered, and the views of scientists must form the core of the decision. Our health workers who are at the frontline of this war have implored government to impose harsher measures to mitigate the increase in infections, but their cries are being ignored at the altar of convenience.
The detractors have kept government busy with demands that do not speak to the reality. Some are encouraging the public to demand the choice to be drunk and misbehave more.
We may see history repeating itself and self-interest undermining public interest under the guise of holding government accountable. We may have to ask whether those threatening government are in fact genuinely acting in the public interest.
The Constitutional Court has put the test as follows:
Is it in the public interest that government spend billions of rands on a vaccine whose efficacy cannot be guaranteed and which the intended beneficiaries may not even agree to take, when it can impose more cohesive measures to stem the spread of the virus?
Mannya is an advocate, a writer and head of legal services at Unisa