JOHANNESBURG: The South African government has run out of legal options in its efforts to prevent the immediate and widespread distribution of anti-retrovirals - drugs that reduces the impact of AIDS and prevents the transmission of HIV, the virus that causes the disease - through the public health system.
Government has been fighting a rearguard action through the country’s legal system, launching appeal after appeal against a High Court ruling that it must allow doctors to prescribe the drugs to pregnant mothers with HIV, to prevent the transmission of the virus to their children.
In terms of the ruling, government must make the drugs available to those hospitals and clinics that have the infrastructure to test for HIV and AIDS, and to counsel, support and monitor those who are prescribed anti-retrovirals.
South African President, Thabo Mbeki, is opposed to the use of anti-retrovirals to prevent the spread of HIV and AIDS. He believes the drugs are toxic and that its side effects may be more dangerous than the disease.
Mbeki has also questioned the link between HIV and AIDS, saying the virus may not cause the disease. He has the support of a small clique of scientists - mainly based in the US - who also question the existence of HIV.
As a result, the South African health department has restricted the use of anti-retrovirals to 18 pilot sites, where it says it is studying the effectiveness of the drug and how it can best be made available to people living with HIV.
However, the vast majority of South African and international AIDS experts have no doubt that HIV causes AIDS and that while anti-retrovirals are toxic, they are essential to combating the spread of the disease. The Treatment Action Campaign (TAC) - a South African anti-AIDS lobby group - took the government to the Pretoria High Court - who ruled that it must make anti-retrovirals, more widely available in the health system.
TAC estimates that the use of anti-retrovirals can prevent the infection with HIV of up to 100 babies a day. With over four million people estimated to be HIV positive, South Africa has the highest number of people living with HIV and AIDS in the world.
On Thursday (Apr 4), the South African Constitutional Court refused government leave to appeal an execution order from the High Court that it make anti-retrovirals available to those clinics that can administer them effectively, immediately.
The government has appealed against the original high court order, but that hearing will only come before the Constitutional Court next month.
Government was hoping that it would not have to implement the High Court order until its appeal to the Constitutional Court had been heard.
Thursday’s ruling is also an indication that the Constitutional Court, the highest in South Africa, may well turn down the government’s appeal against the original order that it make anti-retrovirals available through the public health system.
TAC activist, Mark Heywood, called on government to end the legal fight over the drug. “Let’s get out of this conflict now. You’ve gone to the highest court, you’ve been to the court three times and on each occasion the judges have found you wanting. So be modest and accept that you were perhaps wrong,” he says in an interview.
The Minister of Health, Manto Tshabala-Msimang, says the government will abide by the Constitutional Court’s decision. Besides its reluctance to make anti-retrovirals available to the public, government is also concerned that the order allows the courts to determine public health - and government - policy.
However, some experts point out that because the South African constitution guarantees the country’s citizens certain social rights - like the right to health - it is inevitable that there will occasionally be conflicts between the courts and the government.
In the meantime, former South African President Nelson Mandela says he will continue his campaign to make anti-AIDS drugs freely available in the public health system.
Last month, Mandela tried to persuade the ruling African National Congress (ANC) to change its position against the provision of anti-AIDS drugs in the public health system. The ANC rejected his plea. However, he indicated his continued belief that South Africa has an effective programme in place to combat the spread of the disease. —Dawn/InterPress Service.
