Access to Medicines and the Transformation of the South African State: Exploring the Interactions of Legal and Policy Changes in Health, Intellectual Property, Trade, and Competition Law in the Context of South Africa's HIV/AIDS Pandemic

Abstract

Access to essential medicines remains highly contested around the globe and a vital issue in South Africa. At the same time, the HIV/AIDS pandemic and the demand for medical services are having important political and social consequences in a society heavily impacted by the pandemic. Legal and institutional changes within the postapartheid state in South Africa are in part a reflection of the interaction of opportunities and constraints both within and across the country's geographical boundaries. The transformation of state institutions in this context has been set in motion and shaped by different policy imperatives: from demands for medical care to the promotion of economic competition and the need to implement international trade commitments, including specific levels of intellectual property protection. Despite a strong commitment to social change, to address the legacies of apartheid, as well as the relative strength and political will of the dominant political party, the African National Congress, the transformation of a number of state institutions was significantly framed by the global environment in which the country found itself. In the context of South Africa's democratic transition and the devastating HIV/AIDS pandemic, the state responded to a range of shifting opportunities and constraints, whether real or perceived. As a result, impetus was given to different policies and competing political and economic factions, enabling particular institutions and rules to be embraced, created, reshaped, or simply foregone.

Transnational Legal Process and State Change

“…Heinz Klug's study, Access to Medicines and the Transformation of the South Africa State (2011), addresses the constraints and opportunities provided by international and transnational intellectual property and competition law in postapartheid South Africa. He notes how the transformation of South Africa was made in the context of opportunities and constraints created by international and transnational law and institutions, affecting competing political and economic factions within the postapartheid state, with some policy options gaining salience while others were foregone.…”

“…Indonesia made significant changes to its bankruptcy law in response to IMF conditions during the Asian financial crisis, but implementation was often foiled in practice, as Halliday shows. Kim and Boyle similarly show the limits of structural adjustment conditionalities on education policy in developing countries, and Klug explains the eventual withdrawal of US legal challenges against South Africa regarding its patent law (Klug 2008, 2011).…”

“…

While the new competition law in South Africa is modeled on European Union, United Kingdom and Canadian statutes, and draws on legal concepts developed in the United States, it also represents a hybridization of global norms and rules designed both to accommodate international restraints as well as take advantage of the opportunities these norms and rules provide to pursue particular national goals that are peculiar to the history and social context of South Africa. (Klug 2011, DOI: 10.1111/j.1747‐4469.2011.01268.x)

…”

“…While the new competition law in South Africa is modeled on European Union, United Kingdom and Canadian statutes, and draws on legal concepts developed in the United States, it also represents a hybridization of global norms and rules designed both to accommodate international restraints as well as take advantage of the opportunities these norms and rules provide to pursue particular national goals that are peculiar to the history and social context of South Africa. (Klug 2011, DOI: 10.1111/j.1747-4469.2011 In Klug's case, local authorities use competition law norms developed in the United States to rein in pharmaceutical prices charged by US-owned pharmaceutical companies as well as to empower new black ownership of capital. Transnational legal processes do not simply convey legal requirements that are internalized without reflection of domestic interests and domestic stakes.…”

Provision of Antiretroviral Therapy in South Africa: The Nuts and Bolts

“…South African ART programmes have relied on both originator and generic drug manufacturers [70]. The South African national drug policy of 1996 articulated a commitment to use of generic essential medicines, incentivized local manufacture of medicines, and strengthening of drug procurement, storage and safeguarding, distribution and dispensing systems [71].…”