Yousuf Vawda, Fatima Hassan and Tian Johnson argue that a new deal struck by the World Trade Organisation - which did not include an intellectual-property waiver for vaccines - is a massive setback for the cause of global health equity.
For the past two years, President Cyril Ramaphosa has championed the call for a full TRIPS Waiver on all Covid-19 related health products. This agreement would enable Africa and countries in the global South to take meaningful control of the response to this pandemic and the next.
READ | New WTO deal waters down vaccine IP rights - but it came too late
On 17 June 2022, in Geneva, countries rich and poor, including South Africa, betrayed his call and muddied his legacy, a slap in the face of hundreds of world leaders and millions of activists who stood by the President's call since 2020.
They signed a bad deal in our name, not a waiver. A bad deal.
Thanks to a spectacular failure in leadership, South Africa has succumbed to the bullying of rich countries, aided and abetted by World Trade Organisation (WTO) director-general Ngozi Okonjo-Iweala.
We now face a future where life-saving technologies and recipes to produce them will remain out of our reach, where equitable access to testing and treatments for disease will remain a distant prospect, under the control of the same countries that hoarded vaccines at the height of Covid-19 death waves and which collude with big pharma to generate billions of dollars in profits while mainly black and brown communities get sick, remain impoverished and die.
Here is how the promise of justice and global health equity has been betrayed.
The WTO is an institution of 164 members operating on the basis of consensus decision-making. What we witnessed at the WTO’s Ministerial meeting since Sunday, 12 June, is the worst kind of anti-consensus behaviour, driven by a handful of rich countries intent on preserving pharmaceutical monopolies. It is a slap in the face for developing countries battling for survival in a rampant pandemic and poor people everywhere.
We are not nearly at the end of the pandemic, which has already claimed over 15 million lives worldwide, caused 537 million confirmed infections (and many more unconfirmed), damaged the economies of scores of countries, and decimated communities everywhere. Yet this response to the pandemic is not merely underwhelming. It is immoral and criminal. Rich countries are prepared to trade the lives of billions of people worldwide who cannot afford proper health care to protect the profiteering pharmaceutical industry that has raked in tens of billions of dollars of pandemic profit.
Despite over 60 countries co-sponsoring the India-South Africa waiver proposal and around 100 countries supporting it, a handful of powerful, rich countries were allowed to scupper it with the complicity of the WTO secretariat. What does this say about the WTO and its processes? That it is not fit for purpose? That it is undemocratic?
In sum, this is what the decision means:
- there is no waiver, only a narrow and temporary exception to a restriction on the quantities that may be exported under a compulsory licence;
- such compulsory licences may be granted only for vaccines, not diagnostics or treatments;
- additional conditions on notifications, anti-diversification measures, and restrictions on which countries may export that are not currently required by the TRIPS Agreement;
- it can be used only to respond to the Covid-19 virus and not for other pandemics or health crises;
- no waiver of trade secrets and manufacturing know-how, without which the ability of the mRNA Tech Hub in SA to commercially produce such vaccines will be hobbled. It will also apply for only five years, leaving little time after the vaccine has been developed for it to be commercially viable for a new manufacturer to enter the market.
This is a massive setback for the cause of global health equity, which will take decades to recover from.
Developing countries must think long and hard about their participation in the WTO. It has proven again to be a vehicle for the protection of powerful vested interests. It is time to take back our agency and power and demand fundamental reforms in the way the WTO functions and the priorities it sets. Clearly, it is not serving the interests of the majority of its membership.
For South Africa, the path ahead is clear, and it must take the following actions:
1. An Intellectual Property Laws Amendment bill must urgently be tabled in Parliament. Cabinet has already approved several reforms in the IP Policy Phase I in 2018, namely: the introduction of a system of substantive examination of patents with both pre-and post-grant opposition procedures; stricter patentability criteria; the inclusion of public interest and public health grounds for compulsory licences, and a streamlined administrative process for hearing compulsory licence applications; the application of competition law to intellectual property issues; and various other exceptions and exclusions. In addition, the following specific flexibilities must also be incorporated:
- Exceptions mandating the disclosure of undisclosed information such as trade secrets and manufacturing know-how and the ability to issue compulsory licences overriding such protections;
- Expanding the grounds of anti-competitive practices which can trigger the issuance of a compulsory licence;
- Mandate government and judicial and administrative tribunals to limit the remedy in alleged patent infringement actions to royalties in all matters affecting the public interest or public health; and
- A national security exception is necessary to protect the country’s vital security interests, including the suspension of intellectual property protections during pandemics, epidemics and other health crises.
2. To immediately call on Moderna to abandon its mRNA vaccine patents already granted and, failing that, proceed to seek revocation of such patents. Alternatively, to issue public non-commercial use government use orders and/or open compulsory licences on such patents.
3. To immediately impose a moratorium on all pending patents, including Covid-19 pharmaceutical products, until the system of substantive examination has been set up.
Minister of Trade Industry and Competition Ebrahim Patel recently told Parliament that a Bill on the reform of our patent legislation is forthcoming. We have waited four years for this Bill. Not a day longer!
The system has failed us. The WTO and our own leadership have thrown us to the wolves. Now is the time to take our destiny into our own hands and demand accountability from those who make decisions in our name and ultimately decide who lives and who dies.
Professor Yousuf Vawda is a senior research associate in the School of Law, University of KwaZulu-Natal; Fatima Hassan is a director of the Health Justice Initiative; and Tian Johnson is founder of African Alliance. Views expressed are their own.