This article takes a look at the African push for Intellectual Property (IP) reform and how this movement has been tempered to protect for-profit medicine.

“The strong do what they can, and the weak endure what they must.” – Thucydides

South Africa v Big Pharma

In 1982, South Africa reported its first HIV case. By 2000, one million had contracted the virus, causing up to a thousand daily deaths. This posed a public health crisis, aggravated by the $10,000 annual cost of the sole treatment known to slow HIV progression to AIDS.

In just post-apartheid South Africa, this was essentially a death sentence. International sentiment was best captured by Andrew Natsios, director of the United States Agency for International Development (USAID), who told the US House of Representatives’ Committee on International Relations, “Rural Africans do not know what watches and clocks are. They use the sun.” In other words, it was futile to attempt to help those poor, uneducated Africans.

The TRIPS agreement grants pharmaceutical firms a 20-year monopoly on international patents. However, there were contemplated situations in which these patents could be suspended in light of a public emergency.

That was exactly what the South African government did.

The Treatment Action Campaign (TAC), including Nelson Mandela as an advocate wearing an HIV-positive t-shirt, was remarkably successful. The South African government called for the right to import cheaper ARVs from generic drug manufacturers. Other countries soon followed suit with even stronger measures: Brazil, Thailand, the Philippines and Ecuador reformed their patent laws to decommercialize medical patents.

Nelson Mandela wearing HIV Positive T-Shirt - in article on life-saving medications for Africans and IP Reform
Nelson Mandela put on an HIV-Positive T-shirt during a visit to an HIV programme in Khayelitsha in December 2002. Photo Credit:Eric Miller/MSF

The Aftermath of the TAC Campaign

The response was vicious. Twenty pharmaceutical companies sued the South African government for breaching international law. A government responding to a public health crisis was characterised as an unruly agitator. A counter-campaign, involving figures such as Bill Gates, suggested that this would negatively impact the economic prospects of South Africa. Regardless, the court case dragged on for three years, further tarnishing the reputation of profit-focused companies.

Eventually, the whole situation became a public relations nightmare.

The optics of suing the recently freed Nelson Mandela and clamouring to price-gouge destitute black South Africans after their centuries of colonial repression, was egregious. They dropped the suit. Eventually, the TAC triumphed in a suit against two pharmaceutical giants for monopolistic practices in the Anti-retroviral medicine (ARV) market. In 2003, the government rolled out free generic ARVs. It was an unequivocal victory for the pro-access public health agenda and the rights of the poor over the rights of profit-seekers.

The Failure to Enact Legal Reform

It was a short-lived victory. In the jubilation and hysteria of an underdog victory, the real winners were the patent holders who managed to mitigate the push to relax medical patents. The TRIPS system survived its first significant test, making concessions that failed to address the root causes of exploitation and profiteering.

It may surprise you to find that South Africa, the birthplace of this movement, did not reform its national patent laws, and continues issuing patents to whoever requests them. But, fate intervened again, and nearly two decades after South Africa challenged pharmaceutical companies, a global pandemic ignited a larger medical patents debate.

The COVID-19 Vaccine

AstraZeneca-Oxford and Moderna vaccines, primarily funded by the public and universities, faced a familiar scenario.

Africa was left behind as Western states over-purchased vaccines, leaving African states struggling with last-minute, near-expired vaccine shipments, causing logistical chaos. Scraps from the table of wealthier states.

African states began to campaign for vaccine parity, however, formalised agreements such as COVAX continued to promote the notion that wealthier states had to ‘share’ with their poorer friends. The ARV situation taught us a clear lesson: pacify and move forward. Further complicating the issue, sources indicated that pharmaceutical companies charged African states far more than their Western counterparts. This situation fittingly earned a South African moniker: “vaccine apartheid”.

Key takeaways from COVID-19

One wonders whether African states could have done more – had more solidarity during the ARV crisis or campaigned harder during the COVID-19 pandemic for exceptions to the TRIPS agreement for medical patents.

Twice in this century, it has been shown that the combination of wealth and medical innovation can overrun the interests of the public.

Given their position on the wealth ladder, Africans may understandably feel marginalized. That, because they are poor, their lives count for less. The very notion that life-saving treatments can be sold and thus withheld from those who do have the funds to buy them, in essence, shows that in our world, we have accepted that poverty is a death sentence.

As climate change continues to worsen and its effects become more pronounced, the lesson to take from Big Pharma v Nelson Mandela is clear- for the African revolutionary seeking change, do not accept mere concessions or morsels from the table of the elite and the cabals of international organisations.

We must invest in our own research and development rather than relying on Western institutions. True change, that will last more than one generation, requires us to tackle structural inequalities and the drivers that incentivise the exploitation of the poor for profit. As stakes rise, we cannot afford half-hearted efforts.

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