Safura Abdool Karim, Public Health Lawyer and Senior Researcher at the Wits School of Public Health
We should be taking more of a stance globally about the purpose of these NDAs because they don’t serve a public purpose. They serve a profit purpose.
Moderator: Tian Johnson
Complied by Vivienne Naidoo
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Safura Abdool Karim is a public health lawyer and senior researcher at the Wits School of Public Health and a 2020 Aspen New Voices Fellow. She is also a member of the Africa CDC’s African Vaccine Delivery Alliance which aims to support the rollout of COVID-19 vaccines across the continent. Safura completed an LLB at the University of Cape Town and thereafter an LLM in Global Health Law at Georgetown University. She is currently pursuing her PhD in Law at the University of KwaZulu-Natal on constitutional rights and non-communicable diseases. Before joining PRICELESS SA, Safura completed her articles at a major corporate firm, acted as a public defender and clerked for Justice Leona Theron at the Constitutional Court of South Africa. Safura has also worked at notable health law organisations such as the Campaign for Tobacco-Free Kids and the O’Neill Institute and a legal journalist at GroundUp. Her work at PRICELESS SA focuses on the prevention and control of non-communicable diseases and using the law to improve health outcomes more broadly. Safura has written on several issues concerning COVID-19 and law, including equitable access to a COVID-19 vaccine, the effects of criminalising SARS-CoV-2 transmission on testing efforts, and the role of human rights during the COVID-19 pandemic.
QUESTION AND ANSWERS
*This section contains a transcribed account of the Question-and-Answer Session*
I was thinking about the announcement yesterday of Dr Ngozi Okonjo-Iweala, as director-general of the World Trade Organisation (WTO). Do you think that represents a potential shift as we advance in how global trade impacts access to health services?
So I think it’s very important to understand that the World Trade Organization doesn’t operate per se in a kind of representative democracy. So even though many countries are members of the WTO, certain countries hold greater weight and greater power in terms of what the WTO does. And it’s not just the case of the WTO. We see that for certain bodies of the United Nations as well. And so I think it is very important that the WTO is being led by somebody from a low and middle-income country who understands the issues, but whether that will translate to actual change remains to be seen. In recent years, the WTO has started to prioritise public health over profits time and time again when it comes to tobacco control laws when it comes to labelling laws and improving food quality. And so I think we see just broadly a shift in how the WTO engages in the tensions between profit and public health, and we’re definitely seeing a shift where people are producing unhealthy commodities, the WTO is allowing countries to protect their citizens with it that will extend to biomedical interventions is unclear at this stage. But we can hope.
Nombasa says looking at huge challenges for COVID-19 vaccines. Is it possible to advocate that the vaccines not be patented for public use, so we have affordable pricing?
So I think that’s the critical question. I will say that most of the vaccine candidates that are currently in the pipeline have extensive patents. I was reading from Médecins Sans Frontières- doctors without borders (MSF) that the expansiveness of the patents that have been filed in respect of certain vaccines have discouraged the development of other vaccines because they patented certain platforms or certain proprietary know-how. And so companies that were using similar things, there was a chilling effect on their development. So this is a severe issue with a huge wall of patents blocking the development of vaccines that block equitable pricing. The Doha declaration, which is part of TRIPS, allows countries, for example to, issue compulsory licenses where a company doesn’t want to waive its intellectual property IP rights in case of a public health emergency. It is contingent upon somebody being able to produce that vaccine and the compulsory license then. So that’s why before we get it, we can leverage on IP, that affordable medicines IP weakening and IP flexibility need to ensure that low and middle-income countries can produce vaccines at an affordable price. Once they can produce it, we can begin to use parallel imports and compulsory licensing to ensure that a COVID-19 vaccine is affordable.
Why don’t we realise all of these Doha declarations gains that you highlighted? Why are we here in 2021 still having this discussion?
It’s something I’ve pondered quite a lot. And, you know, when I looked at the Doha declaration, I looked at a meeting that happened about five years after it was passed. And it was a meeting of the ministries in Southeast Asia. And in that meeting, which happened now 15 years ago, these ministers raised the issue that many of the Doha Declaration’s gains would not apply to vaccines. And a, at that stage, they realised that vaccines were just a different ballpark. And since then, many countries, particularly in Southeast Asia, have struggled to access the human papillomavirus (HPV) vaccine have struggled to access the pneumococcal vaccine. People have been experiencing these difficulties in accessing vaccines for quite a long time, but nobody did anything about it.
When the Doha Declaration was negotiated, I should add that there were very few vaccines under IP protection, which is why it wasn’t considered in the same way. But the fact that five years later, it was raised, and nobody did anything, is of concern. And the fact that 15 years ago, people were saying we need to develop manufacturing capacity in low and middle-income countries to address this problem, and nobody did anything about it is of concern. The cause of it, I think, is something that we saw at the beginning of the pandemic, which is, companies are put under pressure to ensure vaccine equity. And so they engage in a lot of rhetoric. They say we are pledging to do those things and voluntary actions. But as soon as it comes down, as soon as the rubber meets the road and the vaccine is found to be effective, all of those pledges and voluntary activities fall away. And I think that is the trouble. We’ve put too much faith in the people who are developing the vaccines to uphold this idea that it’s a public good. Whereas we know from our past experience with antiretrovirals (ARVs), companies don’t act that way; when the rubber meets the road, they don’t pursue the public good. They pursue their own interests. It is a shame that we weren’t able to advocate more strongly. People were arguing from the outset last year that we need to make sure that this is a reality.
For example, The People’s Vaccine movement has been advocating for a free vaccine to be made available. Wealthy countries should fund the development of manufacturing capacity in low and middle-income countries. And there are some initiatives, but it’s all just a little bit too little too late. So I think the key now is to make sure that we don’t make the problem worse. And that we use all this attention on COVID. People focused on HIV to change the system for the better, make vaccine equity, fix it at a systemic level and make it a reality for future pandemics. It might be a little bit too late for COVID. But it’s not too late for everything that will happen in the future.
So I guess my question is in two parts. In your view, the first is, where is communities and civil society’s actual power in the context of this global trade discussion, the discussions of IP and exits and the politicking? The second question would be, what are your perspectives on the need to balance the respect, I guess, of the existing non-disclosure agreements that our public representatives have signed versus the accountability to the people?
I think with the first one; I don’t think anybody should underestimate their power even now. Because if you think about a few weeks ago, there was a huge outcry for a vaccine. And I’ve highlighted some of the problems with some of the advocacy calls that emanated from that. But overall, that call, that pressure resulted in South Africa getting vaccines very quickly. And even if those negotiations had been in the pipeline for months and months, which they probably were, to some extent, the reality is, at a minimum, that public pressure, forced disclosure and enforced transparency. And it enabled us to understand what the situation was. Even just at a local level, you can see how community grassroots engagement and grassroots activism can quickly change the landscape. It’s important to understand that we’ve spent so much time being in direct opposition to the government that sometimes, when you’re working with a global system, your advocacy objective should consider maybe supporting some of what the government is doing. For example, the IP waiver is something that public support at a grassroots level could change the outcome of that waiver because it changed things previously. Even though you think we are just in South Africa, we’re only at a local level. The ARV activism changed it – the WTO’s understanding of what IP protection should mean in public health emergencies. So there is precedent in that instance when working in concert with the government. Remember, the Treatment Action Campaign and other civil society organisations in tandem with government actions to introduce laws that will make ARVs more affordable and translate to global change. We set an example in South Africa. And if we do it, right, the rest of the continent can follow that example and benefit. So, you know, I won’t purport to say what the most important issues are. Even what has been done so far from a community perspective has impacted how our COVID response looks and how vaccine access looks. If you think about it, even with the lockdown restrictions, it was communities arguing for greater respect of the religious rights that lead to certain flexibilities. The backlash against Collin Khosa’s death changed how the South African Defence Force (SADF) and the South African Police Service (SAPS) engaged with people who are violating lockdown. It hasn’t been perfect. But even incremental changes can have a considerable impact, so whether we’re talking about this kind of hopeless system of global equity or talking about issues at a micro level, any type of advocacy impacts how we deal with COVID. And I don’t think we should under mind that. The second question around non-disclosure agreements? It’s such a tricky question because you’re right. There’s this need to be transparent. The sense that these Non-Disclosure Agreements (NDA) are almost becoming like a curtain that people can hide behind. You know, they can choose not to provide any updates because there’s a blanket NDA. And we don’t know what’s happening, which fuels mistrust, which fuels many other problems, including vaccine hesitancy. However, the risks that we run with compelling disclosure and saying to the government, you can’t have NDAs is that pharmaceutical companies will choose to leave the negotiating table. So this is another instance where global solidarity would have made a huge difference. The African Union (AU) was able to compel the disclosure of certain contracts that AstraZeneca had with other countries because they acted in solidarity. I think maybe it’s also important for us to leverage on the regional instruments and say, as a group, the AU is going to mandate that agreements be disclosed. And that way, you can’t have the companies backing off from every negotiating table because they don’t want to disclose things. Because really, these entities are not designed to protect anybody’s interest, but the companies that are negotiating. It’s really about protecting price-sensitive information. So it’s about their profits and their bottom line and margins. Although our government is upholding the NDAs because they want to act in our interest and want to have companies come to the negotiating table and negotiate. We should be taking more of a stance globally about the purpose of these NDAs because they don’t serve a public purpose. They serve a profit purpose. If we could, like the European Union (EU), put pressure as a bloc as a regional bloc, maybe that could translate into the disclosure of information without compromising our ability to negotiate for COVID vaccine doses, for example.
We’re going to roll out those half a million jabs. What are your concerns, if any, around the fact that this will happen in a country like ours that is world-renowned for its Afrophobia and its profound and intense hatred of people from the region in terms of how access to a vaccine will happen? Specifically for those who are undocumented in the country and how that manifests.
There’s no question in my mind because the Afrophobia in South Africa is not simply ideological in public. We’ve seen it translated into government-endorsed policies. You look at the National Health Insurance (NHI) document, which is the NHI bill, which is so sparse, outlined in great detail how people who are not South African, who are undocumented, will not be able to access certain services. That is clear communication from the government what their priority is in this NHI bill with almost no information. They wanted people to know that you’re not going to reap the NHI benefits if you’re undocumented. So I do not doubt that these issues will manifest in policies unless there are huge activism and political pressure. In general, a rejection of this Afrophobia in public is not just something that happens in public and the communities. It’s something that is being endorsed by the government and perpetuated by government policies. And there is a big issue around rollout and equity in general in South Africa. And that’s because health care capacity is concentrated in wealthier areas. Like in general, there’s more services provided to wealthier people. And there’s an intersection there, around race and gender and class and, to some extent, citizenship. We’ll see here unless there is active work to try and undo those existing inequalities. You’ll see them translate into the rollout. You’ll see that there are more appointments available in wealthier areas than poorer areas, which means that people in wealthier areas will be able to get more vaccine access because they’re going to be able to book their appointments sooner. For example, more than half the doses of the seasonal influenza vaccines are administered in the private sector. The public sector doesn’t administer very many flu vaccines in general. So if you think about that, just the public-private divide is going to cause a problem. And, of course, that has an intersection with undocumented people. I have many concerns from an equality and human rights perspective about how to ensure prioritisation post phase two, is respectful of human rights, does not discriminate against undocumented people, and is not discriminating based on income or race. All of these things are so tied to geography because the infrastructure has been through decades and decades of a party being entrenched along those geographic and racial lines, there needs to be a concerted effort to think through how we can ensure that the vaccine rollout doesn’t discriminate against certain groups of people who are marginalised, and in particular, is respectful of human rights. And like I said, that’s really about changing how we determine how people access healthcare, shifting it from being about geography and income to being about broader access. Even for the NHI, it’s true using people’s addresses to determine where their healthcare provider is situated. As soon as it’s tied to geography, there’s immediately a problem in South Africa. We need a concerted effort to think about allocation outside the bounds of geography to make it equitable. I don’t know if that answers your question.
What are your thoughts in that context of potential mandatory testing that has so far been packaged as for the public good and one of the only ways to achieve population immunity?
So I think people often ask me about mandatory vaccination. And I think it’s because they think lawyers, that’s their go-to. And I think that there is infrastructure in place to compel vaccination and make vaccinations mandatory for groups of people. But I also acknowledge that president Ramaphosa has expressly rejected the use of the law in that way. As somebody in public health, I support that because if healthcare workers are reluctant to take a vaccine, we need to think about the underlying cause of that vaccine hesitancy. It’s not enough to say to people; you have to do it because we’re telling you to do it. And if you don’t do it, you’re going to be imprisoned or given a fine. Criminal law is quite a blunt instrument. It just forces people to do things. It doesn’t generate buy-in, and it just creates fear. And it exacerbates mistrust. So for me, from a public health perspective, compelled vaccination is not the answer. The answer is to create an environment that supports vaccination, that incentivises vaccination and respects people’s rights. And not only tries to generate buy-in but tries to understand why people are reluctant and address those fears, rather than just ignoring them.
Things like immunity passports, encouraging or requiring vaccination before kids go to school, and then also saying to people if you work in an environment where you have to be vaccinated because you’re at higher risk, no accommodations can be made for you; then, you need to take a vaccine. But if you’re not working in that environment, we’ll try and make accommodations insofar as possible. Those are all the steps that I see getting us to a population immunity level, bringing us to a herd immunity level. Just using the blunt instrument of do it or else will disproportionately affect lower-income and marginalised groups. It’s going to exacerbate mistrust in the system. And it’s not going to achieve what you’re trying to achieve. Because forcing something like this is almost impossible. And we’ve seen that with the lockdown as well. A large reason why the lockdown worked and the high lockdown worked is because people bought into it. They believed that it was necessary. And so I think it’s really about ensuring that there are sufficient education levels, which are combating misinformation, and most importantly, that you understand people’s concerns and being responsive to them, rather than undermining them and disregarding their concerns. That’s the only way you’re going to get buy-in at a population level for vaccination and achieve those goals of population immunity, in my opinion.