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afrol.com, 15 March - South African President Thabo Mbeki yesterday was expected to proclaim HIV/AIDS a national emergency, thus opening for cheap drug imports. Mbeki however refused, pointing to the constitutional complications such a move would provoke. The leader of official opposition, the Democratic Alliance (DA), yesterday in parliament asked Mbeki whether he would "consider proclaiming HIV/AIDS a national emergency in terms of Section 1 of the State of Emergency Act, 1997, to allow South Africa to act in terms of article 31 of the World Trade Organisation's TRIPS Accord to gain access to generic drugs used in the treatment of HIV/AIDS." Earlier, the COSATU trade union had urged the president to make this move. President Mbeki answered "declaring a State of Emergency" was "not necessary". He explained "the issue of countries declaring national emergencies in the event of an epidemic derives largely from the debate on how to effectively use the provisions of the World Health Organisation's TRIPS Accord to facilitate the issuing of compulsory licences for drugs that still enjoy patent protection," or, the cheap import of so-called generic drugs instead of much more expensive branded name drugs. - As far as we know, no country has declared a national emergency on these grounds, the President said. "There were reports last week of a discussion in Kenya on this. Last year during the 50th Session of the WHO Regional Committee for Africa, the Health Ministers discussed this matter and concluded that it was not necessary. The government's policy on AIDS is set out in the Strategic Plan on HIV/AIDS and sexually transmitted diseases released by the Minister of Health in May 2000." Elaborating why his government was against declaring a State of Emergency, Mbeki told the opposition "the incidence of diseases including AIDS, which present such public health challenges, are persuasive in themselves. Accordingly, we do not need to declare a national emergency to underscore the point. Declaring a national emergency for the simple reason of accessing any drugs, sends a signal that tends to narrow the response to AIDS to the issue of one particular drug." Mbeki also emphasized on his hesitations to declare a State of Emergency in terms of the constitutional implications this would have. Quoting the South African Constitution, he informed the parliament that "a State of Emergency can be called 'only when the life of a nation is threatened by war, invasion, general insurrection, disorder, natural disaster or other public emergency'; and, only when 'the declaration is necessary to restore peace and order'. The way that the law reads, both conditions must be fulfilled before a state of emergency can be called," Mbeki explained. - The declaration of a State of Emergency in terms of the Constitution is a drastic a measure which entails the curtailment of the provisions of the Bill of Rights, he went on. "It has other complex consequences for the country which are undesirable, especially when there are other ways to achieve the same objective, that is, obtaining affordable access to all medicines." The Medicines and Related Substances Control Act, currently being contested in a Pretoria court "has a wider application than the TRIPS provision and includes the outcome intended by this provision," Mbeki said. "The legislation refers to access to all medicines as well as looks at a variety of strategies to ensure affordable access such as; Promoting generic substitution; Parallel importation; Outlawing some of the perverse practices promoted by pharmaceutical companies to influence the prescribing patterns of doctors such as Bonusing and Sampling." Mbeki therefore saw "no reason why we should not rely on the more comprehensive legislation already approved by this parliament." Mbeki's refusal to declare a State of Emergency was generally welcomed by civil society. The Treatment Action Campaign (TAC), a lobby on treatment issues said that declaring an emergency now was like putting the cart before the horse. What the country first needed was a treatment plan, like it has a national AIDS prevention plan, reported IPS. The DA opposition however claims "the President conceded that he did not consider AIDS to be an emergency situation, and that it was still not government policy to make anti-retroviral drugs available to HIV-positive South Africans," according to a statement by the party.
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