[Ip-health] - Mail & Guardian Response to Attaran

[Zackie Achmat]

Dear All

I thought you might be interested in this response (below) to Professor
Attaran published in the Mail and Guardian. I'm sure the author would give
you the citations should you need them. bergerj@law.wits.ac.za

Thanx

Zackie

Dear Sir,

It is indeed ironic that Amir Attaran highlights the "common thread"
connecting HIV denialism in South Africa to racist practices in the American
South ("Arkansas racists can teach SA about AIDS", Mail & Guardian, 3 May
2002).  Attaran, it must be remembered, persists in denying the connection
between patent abuse and restricted access to life-saving medication.
Despite seeking to cloak his agenda in the guise of international
solidarity, Attaran's campaign in support of personal and corporate
interests does not go unnoticed.

But I digress.  The point of this letter is not to discredit the honourable
doctor-he does a decent job on this score himself-but rather to place the
constitutional jurisprudence to which he refers in such glowing terms in its
proper context.  While there may be great value in looking across the
Atlantic when it comes to determining what our Constitution understands as
appropriate-or just and equitable-relief, the United States provides no
answers in dealing with a state's failure to comply with positive
constitutional obligations.  The reason is simple-the US Supreme Court has
held that no such obligations exist.

Take Webster v Reproductive Health Services, for example, in which the
Supreme Court scandalously held that although a pregnant woman has the right
to choose whether or not to carry her unborn child to term, she does not
have the right to make use of public health facilities if she indeed decides
to terminate her pregnancy.  Such a limitation, the court held, "places no
governmental obstacle in the path of a woman who chooses to terminate her
pregnancy, but leaves her with the same choices as if the State had decided
not to operate any hospitals at all."

And in DeShaney, the mother of a young child who was abused by his father
was unsuccessful in proving that the boy's civil rights had been deprived by
the failure of welfare authorities to take action, despite it being common
cause that the authorities were well aware that the child was at risk and
had the requisite authority to act to prevent any harm.  Nevertheless, the
Supreme Court held that the authorities had no duty to protect the child
from private violence, as there is no obligation on the state to take
positive action to prevent harm.

In his powerful dissent in DeShaney, Justice Brennan noted that "[t]he Court
's baseline is the absence of positive rights in the Constitution and a
concomitant suspicion of any claim that seems to depend on such rights."
Understood in this light, one has to question just how much Arkansas racists
can teach South Africa about AIDS.

Yours sincerely,


Jonathan Berger
Law and Treatment Access Researcher
AIDS Law Project
Centre for Applied Legal Studies
University of Witwatersrand

----- Original Message -----
From: <amir_attaran@ksg.harvard.edu>
To: <undisclosed-recipients:>
Sent: Sunday, May 12, 2002 6:20 PM
Subject: [Ip-health] Op-ed on the SA nevirapine appeal (Attaran - Mail &
Guardian - 3 May 2002)


> Dear all,
>
> I thought you might be interested in this op-ed about the South African
> government's appeal to the Constitutional Court in the nevirapine case, as
> published in the Mail & Guardian (SA) recently.  A fuller version
including
> the relevant citations to American case law is available on request.
>
> Amir Attaran
>
>
>
> *****************
>
> What Arkansas racists can teach South Africa about AIDS
> Mail and Guardian (South Africa)
> 3 May 2002
>
> Amir Attaran
>
>
> Half a century ago, in a courtroom in Arkansas, a judge uttered some words
> that changed United States history: "It is hereby ordered and decreed that
> defendant Orval E Faubus, governor of the State of Arkansas; General
> Sherman T Clinger, Adjutant General of the State of Arkansas; and
> Lieutenant Colonel Marion E Johnson of the Arkansas National Guard ... are
> hereby enjoined and restrained ..."
>
> What these curious words did in 1957 was hasten the end of racial
> segregation in Arkansas. That year the courts ordered the schools in
Little
> Rock to admit both white and black children. But Arkansas governor Orval
> Faubus demurred: instead of respecting the court's order, he stationed the
> state's militia at the gates of white schools. Thwarted, the plaintiffs
> returned to court and were vindicated when the court ordered Faubus to
stop
> his interference -- or face contempt charges and jail. Faubus relented.
> Black students joined their white peers in class. The US's most dramatic
> moment in constitutional law passed into history.
>
> Today South Africa faces a similarly dramatic moment. This week the
> Constitutional Court heard the government's appeal that South African
women
> should not have a constitutional right to receive nevirapine therapy for
> perinatal HIV/Aids. Pretoria was fighting this appeal to the finish,
> despite having issued a policy change two weeks ago stating for the first
> time that it supports anti-retroviral therapy, including nevirapine. If
the
> government succeeds, it will reverse the lower court order against it and
> will be released from the obligation to provide women nevirapine.
>
> I find the government's position suspiciously incongruous. While Pretoria
> may legitimately wish to appeal some bookish issue of constitutional law,
> it is baffling why it continues to fight the nevirapine provision order
per
> se. It could choose to litigate the former, while giving its consent to
the
> latter, and this would be more consistent with its new policy of backing
> nevirapine therapy. Why the contradiction?
>
> One theory is that the new policy is a sham, and that Pretoria has little
> or no intention to provide nevirapine. Scepticism is understandable where
> President Thabo Mbeki and Minister of Health Manto Tshabalala-Msimang
have,
> for years, branded Aids a conspiracy, interfered with the intellectual
> freedom of South African scientists, promoted nonsense remedies such as
> Virodene and scandalised almost every eminent South African alive, to say
> nothing of the international community.
>
> In other words, a reasonable person might suspect that the Mbeki
> government's old, bad faith on anti-retrovirals is still there, if
> camouflaged in a new policy of as yet unproven sincerity. Certainly one
> must hope this is wrong. But if it is right, the Constitutional Court has
a
> huge problem on its hands: what if it upholds the nevirapine provision
> order, but the government by malfeasance or nonfeasance avoids
implementing
> it?
>
> This is where US civil rights law is instructive. The common thread (and,
> surely, the only one) that connects the Mbeki government with a bunch of
> deceased Arkansas racists is that both sought to deny basic truths -- the
> latter, that all races are equal; and the former, that anti-retroviral
> drugs save young lives -- while labouring extravagantly to defend deep,
> irrational idiosyncrasies, such as the view that HIV is not the biological
> cause of Aids. In their folly, both found it necessary to ignore popular
> protest and to act with a callousness that denied constitutional rights to
> thousands. Finally, both were slow to shake old habits, even once courts
> declared them human rights violators and ordered them to stop.
>
> It is therefore important to ask whether Pretoria will provide nevirapine
> therapy with all possible speed or will drag its feet in the recalcitrant
> footsteps of governor Faubus. In practice it may be hard to tell:
> implementing nevirapine is complex and will take years, which gives an
> insincere government ample cover for delay. To repeat, a two-week old,
> untested policy is hardly a trustworthy indication of the government's
> sincerity and some skepticism is warranted. Accordingly, I suggest that
> South Africans familiarise themselves with a few ideas from their American
> counterparts, just in case.
>
> First, US courts are intolerant when their constitutional orders are
> needlessly delayed. If an order is "nullified openly or directly" by the
> government, or "nullified indirectly ... through evasive schemes", the
> courts will defend their jurisdiction to the fullest. In the desegregation
> era, courts dealt with do-nothing governments by scrutinising their every
> plan for racial integration. "Delay in any guise to deny ...
constitutional
> rights ... could not be countenanced," the courts wrote, and "only a
prompt
> start, diligently and earnestly pursued, to eliminate racial segregation
> from the public schools could constitute good faith compliance". Thus an
> intensive form of judicial supervision became the norm to cure the
> government's foot-dragging.
>
> Second, US courts decided that where the government's plans were
long-term,
> so too could be their supervision. Courts therefore did not relinquish
> their cases when giving judgement, but held on to them for years. "During
> [the] period of transition" to achieving constitutional rights, wrote the
> Supreme Court, "the courts will retain jurisdiction." For recalcitrant
> governments, this period of judicial supervision would be indefinite,
until
> it became "unlikely that the [government] would return to its former
ways".
> Sometimes, this took decades, with judges holding hearings every few
months
> to check on progress. Only when their orders were absolutely fulfilled did
> judges close a case.
>
> Third, and in the most stubborn cases, US courts actually managed their
own
> orders. Officials who repeatedly thwarted a desegregation order were, in
> effect, sacked and their jobs handed over to court-appointed desegregation
> administrators. School districts that wouldn't desegregate because it cost
> too much were forced to raise taxes. And even powerful politicians, such
as
> governor Faubus, were enjoined from interference on pain of contempt and
> imprisonment.
>
> These are, to be sure, special and unusual judicial remedies. But
> legislated segregation was a special and unusual evil, as is any situation
> where governments perpetrate serious human rights violations, while
> justifying those in bad faith. Nothing could better describe the Mbeki
> government's years of obfuscation, tergiversation and manipulation on Aids
> and anti-retrovirals, the knowing result of which was to deny South
African
> women their constitutional right to nevirapine therapy.
>
> It would be wonderful if all this ended two weeks ago with the new
> anti-retrovirals policy, but right now, nobody can say. The wisest course
> for the Constitutional Court is to hope for the best, while preparing for
> the worst. I propose that the court place the health minister, her
> successors and her agents under indefinite judicial supervision, with
> monthly reporting until the goal is reached to provide every South African
> woman access to nevirapine. If the government acts in good faith, this
will
> cause little inconvenience. But if it acts in bad faith, this can make all
> the difference in the world.
>
> (Dr Amir Attaran is a lawyer, immunologist and adjunct lecturer at the
> Kennedy School of Government, Harvard University)
>
>
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