OPINION | Christina Teichmann: How the Constitution changed trajectory of HIV/AIDS epidemic in SA

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December 1 is World Aids Day.
December 1 is World Aids Day.
Getty Images/AlxeyPnferov

What HIV/AIDS and Covid-19 have in common, despite all the many differences that exist between them, is that they each pose a challenge for political leadership, put governments to the test, and expose the weaknesses and vulnerabilities of societies, writes Christina Teichmann.


In 1988, the UN officially recognised that 1 December would be internationally commemorated as World Aids Day. Annually, the day aims to garner support for people living with HIV and to commemorate those who have died from AIDS-related illnesses. 

The day also presents an opportunity for governments and civil society to take stock and evaluate their respective responses to the epidemic. While the first waves of the Covid-19 pandemic have swept across the globe and demanded much attention and resources, the ongoing HIV/AIDS epidemic seems to have been side-lined - pushed to the background, if not dropped entirely as a matter of urgency. 

What HIV/AIDS and Covid-19 have in common, despite all the many differences that exist between them, is that they each pose a challenge for political leadership, put governments to the test, and expose the weaknesses and vulnerabilities of societies. The following statistics are a reminder that South Africa is still at war in terms of combating HIV/AIDS and may – in fact -be further away from winning the battle than it was before Covid-19. 

South Africa- the epicentre of the HIV/Aids epidemic

Africa, a continent with a predominantly young population, is hardest hit by the epidemic-with an estimated average of 3.9% of the population infected by the virus. South Africa finds itself in the epicentre of the epidemic. The following statistics provide insights into the scope and seriousness of the HIV/Aids crisis in the country but fall short of revealing the emotional burden associated with the disease. 

According to StatsSA, in 2021 the estimated overall HIV prevalence rate among the South African population was approximately 13,7%. In the same year, the total number of South Africans living with HIV was estimated at approximately 8,2 million.

That said, according to UNAIDS, the number of new infections per year has dropped by more than half in the last two decades - from 510,000 in 2001 to 210,000 in 2021. This is, however, no reason to celebrate or become complacent.

READ | Prioritise HIV prevention injection, activists say

In 2022, the estimated number of deaths from AIDS-related illnesses reached about 85,800. Adding up all AIDS-related deaths since the 1990s, South Africa has lost an estimate of ca. 4.5- 5 million people to the disease- a figure comparable to the population size of Cape Town. Had the millions of South Africans been casualties of a war or a natural disaster, a monument would likely have been erected for them already. 

HIV/AIDS has the devastating attribute that it affects young adults in particular - those of reproductive and economically productive age who are considered the backbone of society. In addition to age, the virus seems to have an unfair bias towards gender, with women significantly more at risk of contracting it than men.

Thanks to the free availability of antiretroviral treatment (ART), being HIV-positive is no longer a death sentence. However, the risk of contracting and succumbing to TB and other opportunistic diseases is significantly higher due to a compromised immune system. 

When leaders fail, the human costs are high

While many individuals and organisations in South Africa have done (and still do) remarkable work in combating and treating HIV/AIDS, there is one organisation that stands out and has managed to force the South African government to take action. 

In 2002, the Treatment Action Campaign took the South African government to the Constitutional Court for its refusal to widely roll-out lifesaving ART to HIV-positive pregnant women and prevent mother-to-child transmission. The bitter court battle was widely seen as a kind of last resort to change the government's stance towards HIV/AIDS in general and the roll-out of ART in particular. 

When Thabo Mbeki assumed the presidency in May 1999, the death toll as a result of the AIDS epidemic was frightening. It is estimated that in that year alone, around one-quarter of a million people died of AIDS-related causes in South Africa. 

Often, the cause of death of a loved one was kept a secret due to the relatives' fear of stigmatisation by the community. The stigma attached to the disease caused a severe underreporting of HIV/AIDS-related deaths in the vital statistic in South Africa, making it difficult for health experts and policymakers to grasp the full extent of the epidemic. To be infected came close to a death sentence since no cure had been found and no treatment was available. Widespread testing for HIV was not conducted, leaving individuals in the dark about their status and thereby increasing the risk of unknowingly spreading the virus and promoting new infections. 

READ | HIV incidence in South Africa has halved since 2010

Not many public figures admitted that they themselves or their family members were affected by the virus. A noteworthy exception in this regard was Prince Mangosuthu Buthelezi, leader of the IFP, who - at his son's funeral in northern KwaZulu-Natal in 2004 - openly stated that the cause of his son's death was HIV/AIDS. President Mbeki was criticised for how he handled the health crisis within his own party. Against unwritten ANC protocol, former President Nelson Mandela lambasted the Mbeki government's "lacklustre" response to HIV/AIDS. 

To the horror of scientists, health practitioners, and activists, President Mbeki publicly contradicted scientifically accepted research by expressing the view that HIV did not cause AIDS. His minister of health supported this view and went as far as officially promoting herbal remedies- such as garlic and beetroot- as an alternative to antiretrovirals (ARVs). 

According to an article by Pride Chigwedere published by the Harvard School of Public Health, more than 330,000 people died prematurely from HIV/AIDS between 2000 and 2005 due to the Mbeki government's obstruction of lifesaving treatment, and at least 35,000 babies were born with HIV infections that could have been prevented. 

A Constitutional Court judgement that saved lives

On 5 July 2002, the Constitutional Court delivered its judgment in Minister of Health and Others v Treatment Action Campaign and Others. The judgment upheld the constitutional right of all HIV-positive pregnant women to access health care services to prevent mother-to-child transmission of HIV.

"The court found that government had not reasonably addressed the need to reduce the risk of HIV-positive mothers transmitting the disease to their babies at birth. More specifically, the finding was that government had acted unreasonably in (a) refusing to make an antiretroviral drug called Nevirapine available in the public health sector where the attending doctor considered it medically indicated, and (b) not setting out a timeframe for a national programme to prevent mother-to-child transmission of HIV."

The judgment supported the applicants' view that government's restrictions in terms of rolling out ARVs were unreasonable when measured against the Constitution- which demands that the state and all its organs give effect to the rights guaranteed by the Bill of Rights, including the right of everyone to access to public health care services and the right of children to be afforded special protection. 

The Constitutional Court judgment paved the way for access to ARVs in the public health system, which has saved millions of lives since its implementation in 2004. Today, more than five million people are on antiretroviral treatment in South Africa and are able to live a normal life.

- Christina Teichmann is a FW de Klerk Foundation Board Member 


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