Priyanka Naidoo is a candidate attorney in the Legal Resource Centre’s Cape Town office.

The Covid-19 pandemic has reshaped the world and brought about much uncertainty, but what has been made clear is that healthcare is undeniably a social justice issue. This has become evident as attempts to contain the pandemic are being hindered by a system of “vaccine apartheid” driven by wealthier countries in the Global  North. 

Vaccine apartheid refers to the inequitable access and distribution of vaccines across the world and now poses the risk of prolonging the pandemic. This system is being perpetuated by the “me first” approach of vaccine nationalism, by which wealthier countries have hoarded vaccines supplies which inadvertently threatens global immunity.

Canada, for example, has procured five times the number of vaccines necessary to inoculate its population. It was also the only G7 country to draw vaccine supplies from Covax — an international vaccine-sharing initiative that was set up to help distribute vaccines to low- and middle-income countries. While a few of the countries that have had early access to the vaccines, such as New Zealand, have committed to sharing their surplus vaccinations with neighbouring countries, betting on the benevolence of wealthier countries will not bring an end to the pandemic.

In addition, vaccine apartheid is worsened by the artificial scarcity that has been drummed up by pharmaceutical companies who have opted to choose profit over public health. 

This, however, is not simply a moral conundrum — the right to health is recognised internationally in the International Covenant on Economic, Social and Cultural Rights, and domestically, in Section 27 of our Constitution. International law instruments such as the United Nations Guiding Principles on Business and Human Rights (UNGP) have emphasised that while states are the primary duty bearers, companies have a responsibility to respect human rights. While the UNGP is soft law, it has been widely supported by states, civil society, and even various corporations.

More specifically, in the Human Rights Guidelines for Pharmaceutical Companies in Relation to Access to Medicines, the former UN Special Rapporteur Paul Hunt has stated that pharmaceutical companies that are patent holders of life-saving medicines bear additional duties, especially when the patented medicines have been developed with great aid from publicly funded research and laboratories.

Social distancing is impossible for those who live in overcrowded spaces or multi-generational households. Sanitation and access to regular handwashing is a privilege for many — even those in urban settings.

The current system of vaccine apartheid playing out in front of us is the “catastrophic moral failure” that the Director-General of the World Health Organization (WHO) had previously warned us about. And, against the backdrop of the largest public health crisis in modern history, the price of this moral failure is disproportionately paid by poorer countries in the Global South. This is illustrated through the way that the effects of the pandemic have not been shouldered equally between wealthier and lower-income countries. There is a stark difference in the distribution of social, health, and economic risks between countries, as well as differences in the ability of countries to implement public health measures. 

South Africa is of course no exception to this. SA has often been dubbed the “world’s most unequal society” — and that inequity has only been exacerbated by the pandemic. The persistent failure of the SA government to adequately address our pre-existing inequalities and its inability to provide adequate social support has both immediate and long-term consequences. 

While section 27 of the Constitution guarantees the right to healthcare for everyone, access to hospitals and health services is complicated by apartheid spatial planning which makes travelling to a hospital time consuming and expensive for the majority of people who rely on public transport. Additional measures to control the pandemic such as lockdowns and the closure of businesses deemed “non-essential” have also resulted in widespread job loss and income reduction for millions of people. Consequently, poverty and food insecurity have increased significantly.

The closure of schools subsequently led to a pause in the National Schools Nutrition Programme (NSNP), which provides a meal for more than nine million students in low-income and no-fee paying schools. Thankfully, the NSNP was eventually reinstated after litigation brought by Equal Education and others.  

Within the South African healthcare system, there is widespread inequality. The current system operates on two tiers, namely an overburdened and under-resourced public sector which caters to 84% of the population and a smaller but well-funded private sector which services 16% of the population. Despite this, both the public and private sector struggled during surges in the pandemic as hospitals in both sectors were at capacity. It is noteworthy that healthcare systems around the world, of all types, were under similar strain at various points in the pandemic.

While many of SA’s challenges are due to the legacy of colonialism and apartheid, it is also part of a broader neoliberal economic order that allows for vaccine inequality. This neoliberal economic order that underpins the global public health response fails to consider the need for equitable access and societal variations. Even global public health recommendations failed to understand the reality of many countries on the African continent and in the Global South more broadly.

Social distancing is impossible for those who live in overcrowded spaces or multi-generational households. Sanitation and access to regular handwashing is a privilege for many — even those in urban settings. Working from home is impossible if you now have extra childcare responsibilities due to schools closing or if you are expected to have access to computers and an internet connection that would have otherwise been provided by your workplace. 

The persistence of social and health inequality in South Africa is in large part mirrored in the global healthcare system. While it is admirable that years of scientific research and large amounts of public funding enabled pharmaceutical companies to develop effective vaccines relatively quickly, one cannot help but see the vaccine gap between the Global North and Global South as an unconscionable policy choice. At the time of writing 85% of the 1.98 billion vaccine doses administered had been in higher and upper-middle-income countries and only 0.3% of those had been administered in lower-income countries.

This is in large part due to the availability of vaccines and the inability of the World Trade Organization (WTO) to muster the moral courage to push through the TRIPS waiver first tabled by South Africa and India in October 2020. 

Current battles are ongoing in respect of TB treatment to respond to the TB epidemic. And even now, activists around the globe have similar demands — that there be no pandemic profiteering and that we prioritise greater access and transparency, especially overpricing. 

The proposed TRIPS waiver seeks to temporarily waive intellectual property protections and allow for the sharing of technology that aids in the “… prevention, containment or treatment of Covid-19 … until widespread vaccination is in place globally, and the majority of the world’s population has developed immunity”.

In other words, the waiver is about more than vaccine access and would include the know-how of other medical products such as diagnostic kits, ventilators and manufacturing components. A waiver would allow medical commodities to be produced cheaply and at mass scale, therefore significantly reducing the burden on developing countries.

While the United States has very recently come out in favour of a TRIPS waiver, the details surrounding the proposed waiver are yet to be finalised. Additionally, the waiver is still being blocked by Germany, Italy, Japan and the United Kingdom — all countries that have had preferential access to vaccines. These countries have insisted that a TRIPS waiver is an “extreme measure”; however this is already accounted for under the WTO rules and reaffirmed by the Doha Declaration of 2001 which allows states to issue compulsory licences on patented pharmaceutical products to produce more affordable generic versions of them.

Importantly, the TRIPS waiver is only the first step; upscaling manufacturing capacity and technology transfer is a crucial element in finding a pathway out of the pandemic. And while vaccine manufacturing is a complicated process, upscaling capacity is possible as in the case of Moderna, which managed to transform an old Polaroid film factory in Massachusetts into a vaccine manufacturing plant in a matter of months.

Unfortunately, the refusal of pharmaceutical giants (and the wealthy countries that back them) to waive patents is sadly not exclusive to the current pandemic. At the height of the HIV-Aids epidemic almost two decades ago, the WTO was embroiled in a battle between pharmaceutical companies who had developed HIV treatments and countries, particularly in Africa, who could not afford those treatments, but desperately needed them. Activists in South Africa ignited a global campaign against pharmaceutical companies who aimed to profit at the height of the HIV/Aids crisis.

Current battles are ongoing in respect of TB treatment to respond to the TB epidemic. And even now, activists around the globe have similar demands — that there be no pandemic profiteering and that we prioritise greater access and transparency, especially overpricing. 

One of the biggest lessons learnt from the HIV/Aids crisis is that pressure from civil society can lead to better public policy decisions. And this pandemic has been no different. On 10 March 2021, “The People’s Vaccine Day of Action” was held as a virtual global rally in support of the recognition of a not-for-profit “people’s vaccine”. Statements were delivered by healthcare workers, activists and world leaders, including US Senator Bernie Sanders, calling on governments to support the TRIPS waiver. Fatima Hassan, a South African human rights lawyer and activist, addressed the rally and argued that these vaccines have largely been developed by public funding and are therefore public goods.

Instead, what we see happening is that pharmaceutical companies have retained the intellectual property rights to these vaccines and have struck bilateral deals with different states, offering them vaccines at different prices. Hassan’s case in point is AstraZeneca, which initially stated it would provide their vaccines at cost price, but have charged South Africa R77.25 per dose, in stark contrast to the European Union countries that have only paid a meagre R31.78 per dose.

And possibly the most shocking out of this all is that the only reason we know this is because a Belgian politician mistakenly tweeted the price list! Transparency and accountability are also significant as this comes in the wake of Pfizer’s public statement that it has “good evidence” to hike the price of its vaccine once the pandemic moves into an epidemic. Prices of essential health commodities are often escalated based on “research and development” costs without disclosure of the basis of this rationale.

While we have reached a turning point in the pandemic, the push for a people’s vaccine continues. It is unconscionable that healthy people who live in the Global North must be incentivised to get vaccinations while healthcare workers and other vulnerable groups in the Global South are left at the mercy of pharmaceutical companies. The global inequality that underpins our public healthcare system is a policy choice and one that threatens to prolong the pandemic.

The current system of vaccine apartheid is self-defeating. Instead, the sharing of technology and data must be prioritised over patents. We all need access to a vaccine as soon as possible and this will only happen if we fight for a people’s vaccine, not a profit vaccine. We need to rethink healthcare as a social justice issue and vaccines as public goods because, as put by the UN Secretary-General, António Guterres “… in an interconnected world, none of us is safe until all of us are safe”. DM