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Ramaphosa, African Union should lead to get COVID-19 waiver

A group of more than 40 South African academics who have thrown their weight behind the proposal that global intellectual property rights should not apply to COVID-19 medicines has called on South African President Cyril Ramaphosa to provide an urgent ‘substantive’ response to a letter they wrote to the presidency.

The group is not satisfied with the ‘motor-generated’ formal response from the presidency and have vowed to keep up the pressure on the SA government, the president and the country’s Ministry of Trade and Industry to accelerate the process.

They are also concerned that the country’s legislative calendar features nothing on intellectual property or patent amendment legislation in the near future, which would be critical to facilitate the changes envisaged.

In their letter to Ramaphosa on 12 October, the academics and researchers from a range of institutions expressed their strong support for the ‘ground-breaking’ position taken recently by South Africa and India at the World Trade Organization (WTO), with the tabling of a proposal for a “waiver from certain provisions of the Trade-Related Aspects of Intellectual Property Rights (TRIPS) Agreement for the prevention, containment and treatment of COVID-19”.

Rich countries buy up vaccines

Professor Yousuf Vawda, senior research associate in the school of law at the University of KwaZulu-Natal, who is a spokesperson for the group of academics, said the issue is of utmost importance “because we are in a crisis”.

He added: “Apart from the pandemic, there’s a crisis of shortages relating to PPE, diagnostics, test kits and some medications. If we think ahead, it is possible that, sometime next year, there will be vaccines on stream, and, given the way in which the present situation has been handled in terms of access to these and the shortages, given some countries have been hoarding, we can expect trouble.

“It is important that we anticipate shortages in developing countries as we don’t have the same financial muscle as richer countries as even now the [richer countries] are buying up the vaccine supplies in advance … leaving people in the [poorer] countries at the end of the queue. We don’t have much power to negotiate. It is crucial that we bring about a series of changes at both global and domestic level to put us in better position to bargain for supplies.

“Even though the World Health Organization launched the COVAX initiative, an equitable formula for distributing the vaccine, it has not been decided and it is not clear how it will work as rich countries are buying up the supplies even before they have been produced. It is a precarious situation for poorer countries and the odds are that they will be very much at the end of the line.

“We need to shout out early enough so the change can happen,” Vawda said.

South Africa and India take on WTO

In August, South Africa’s ambassador to the WTO, Xolelwa Mlumbi-Peter, along with Indian counterparts at the organisation, made an impassioned proposal for COVID-19 medicines to fall under the TRIPS Agreement, which also enabled easier access to Aids drugs for poorer countries, so that nations would not struggle to make or import COVID-19 medicines.

The WTO introduced the TRIPS agreement in the mid-1990s to ensure ease of trade of intellectual property. The TRIPS agreement also provides for the suspension of these rights, under certain conditions, so as to enhance economic and social welfare. This includes enabling generic suppliers to get licences to manufacture and export medicines to countries that cannot do it themselves, without the permission of the patent holders.

In a nutshell, SA and India are calling for a waiver for the duration of the pandemic that allows all countries to suspend the protections to intellectual property holders provided in the TRIPS Agreement. The existing flexibilities in the agreement are insufficient – particularly those for countries with limited manufacturing capacity where the requirements of Article 31bis impose a difficult process for the import and export of pharmaceutical products.

“The proposal is that the Council for TRIPS should recommend to the General Council of the WTO a waiver from the implementation, application and enforcement of Sections 1, 4, 5, and 7 of Part II of the TRIPS agreement in relation to prevention, containment or treatment of COVID-19,” said UCT’s Professor Leslie London, another spokesperson for the group.

Decision on the waiver postponed

In her address to the WTO, Mlumbi-Peter said COVID-19 had taken a heavy toll on poor and vulnerable people in low-income countries with some countries having endured dire shortages of medical products. She said there are already news reports of “intellectual property disputes that could hinder the development and production of Covid-19 vaccines”.

She stressed that vaccines should be a “global public good” that are “fairly and equitably available globally, leaving no one behind”.

“We observe with great apprehension the rush by developed countries to sign deals to gain preferential access to vaccines, leaving many countries behind. Vaccine nationalism may address short-term political demands of a country, but drastically falls short of what is required to contain this pandemic,” the ambassador said.

The proposal went before the WTO for consideration in mid-October but some of the ‘big countries’ pushed back and there was no agreement on a way forward. The decision on a waiver was kicked forward to a meeting next year.

However, more than 300 civil society organisations as well as the World Health Organization, the Joint United Nations Programme on HIV/AIDS (UNAIDS), the global health initiative UNITAID and Amnesty International are supporting the proposal. In South Africa, more than 40 civil society organisations have joined forces under the Fix the Patent Laws Coalition to support the proposal.

Médecins Sans Frontières (MSF), or Doctors Without Borders, has applauded Mlumbi-Peter’s leadership in highlighting the barriers to access to COVID-19 drugs, tests and vaccines.

‘Demonstrate global leadership’

The academics – from the universities of KwaZulu-Natal, Cape Town, Witwatersrand, Western Cape, Rhodes and North-West, as well as the Academy of Sciences of SA and some medical facilities and NGOs – called on the government and the South African Parliament to “expedite the process of implementing the long-awaited amendments to the Patents Act and other legislation to replace the outdated regulatory regime with one that is consonant with our Constitutional order,” saying that the waiver is, on its own, “not self-actualising at the national level”.

“Most immediately, we call on government to urgently introduce emergency legislation to effect the waiver on the enforcement of all forms of intellectual property rights for the entire duration of the COVID-19 pandemic. Such a waiver is also possible under the security exception provided for under Article 73 of the TRIPS agreement to take “any action which it considers necessary for the protection of its essential security interest … taken in the time of … emergency in international relations”. The COVID-19 pandemic is one such emergency necessitating a security exception,” the academics wrote.

“Mr President, this proposal presents South Africa, and Africa, with a unique opportunity to demonstrate global leadership. Future generations will look back on this time and reflect on your decisiveness in taking the necessary action to place the lives of all people before the profits of narrow business interests, and avert further devastation by this pandemic. Such action will also signal that the African Union is taking a leading role in finding solutions to the pandemic, thereby rewriting the narrative of North-South relations,” they wrote.

Enact intellectual property policy

Professor Vawda said the changes are needed in two areas – at a global level and at a national level.

“We are calling for a waiver of the intellectual property rules. It’s an emergency, requiring an emergency response. We cannot have a ‘business as usual’ approach. Countries and manufacturers need to get in the game and accelerate the production of the products so there are no shortages.

“The reality is with the patents and other monopolies … there is basically no competition, they have the right to exclude others from making the products …

“A waiver will enable countries and aid agencies to contract generic companies to enter the manufacturing process, and this will increase the supplies of critical health products. Even as it stands, the pharmaceutical companies are not able to provide the billions of doses of vaccines needed.

“At a national level, we need to come to the party. Our government has a two-year-old progressive policy on intellectual property … yet after 10 or so years of lobbying and advocacy, it still has not turned this into law. This is why we are putting pressure on the government.

“We are urging the president to accelerate this, sign it into law. We need to, at a national level, put these laws in place to enable the government to issue compulsory licences that override patents and provide opportunities for the production of generics.”

Academics will not stop the pressure

The signatories, including Professor Quarraisha Abdool Karim from CAPRISA SA and the University of KwaZulu-Natal, Dr Mamphela Ramphele (Member of the Academy of Science of South Africa) and Professor Lynette Denny (Groote Schuur Hospital Cape Town and SA Medical Research Council), sent the letter to the presidency on October 12, 2020. They received a response saying their letter was “acknowledged with thanks”, but not much more.

Professor Vawda then wrote back asking for “a substantive response to the contents urgently”.

“This is up in the air. We want answers. We have to continue to keep the pressure up on the government, the president and the ministry of trade and industry as that is where the bill will come from. As academics, we will not stop the pressure,” he said.

Acting presidential spokesman Tyrone Seale said: “The call for the suspension of patents is in line with government’s position – articulated on platforms of the World Health Organization and the African Union – that all countries should have equitable, affordable and sustainable access to Covid-19 therapeutics.”

Meanwhile, Ambassador Mlumbi-Peter has thanked the South African academics for their support.

“Please pass our heartfelt gratitude to the group of academics for rallying behind this important initiative that aims to promote equitable and affordable access to the vaccine, technologies and treatment of COVID-19. This is the time for global cooperation and we hope that your support will contribute to raise awareness of this important initiative,” she wrote to Vawda.


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