There is considerable evidence of corporate bullying, profiteering and draconian contracts in South Africa’s negotiations to procure Covid vaccines during the global public health emergency.

The report is the second in a series of analyses after the Health Justice Institute (HJI) won access in the Pretoria High Court to the procurement documentation for the Covid vaccines.

Read more in Daily Maverick: Activists celebrate landmark win for transparency after court orders Covid vaccine contracts to be made public

A summary of the first part of the analysts’ findings can be found here.

Some of the aggressive demands in the documents relate to the Moderna vaccine, which South Africa never procured.

The Moderna vaccine’s commercial name was Spikevax. It was developed by the US company in conjunction with the National Institute of Allergy and Infectious Diseases and the Biomedical Advanced Research and Development Authority.

Moderna took the most aggressive approach to shielding any vaccine supply from public accountability, a statement by the HJI reads.

Analysts explained that according to the documentation received, the company charged an excessive price compared to other countries and had very stringent non-refundability provisions.

It insisted on very broad indemnification clauses; South Africa had to carry the cost of delivering supplies obtained in Europe, and the confidentiality provisions were so extreme that they even barred the discussion of a supply relationship.

Moderna also wanted the right to override contractual arbitration proceedings.

“This, in part, probably explains why South Africa did not, in the end, obtain supplies from Moderna,” a statement by the HJI reads.

“The analysis of the negotiation documents, similar to the previous report into the contracts, reveals a pattern of bullying and attempts to extract one-sided terms, especially by pharmaceutical giants Moderna and Pfizer, all while they profiteered from a global health emergency.

“It is inconceivable that companies, their lawyers and CEOs exercised so much power, forcing countries into concessions when we most needed supplies.”

Health emergency exploitation

The vaccine prices were high, and the contracts needed to be made public as this “must have a bearing on current efforts underway in Geneva to negotiate a global Pandemic Accord”, the HJI’s Fatima Hassan said.

Read more in Daily Maverick: No pandemic treaty without equity — Global South should resist the pressure to adopt paper promises

“The absurd power CEOs have in health emergencies must be addressed urgently and resolutely,” Hassan added.

Jishian Ravinthiran, a researcher with Public Citizen, said it was evident from the documents obtained by the HJI that Big Pharma will exploit health emergencies to “coerce governments, particularly those in low- and middle-income countries, into accepting unreasonable agreements on the supply of life-saving medicines.

“International efforts to address future global health emergencies, like the Pandemic Accord, must include robust provisions and safeguards to rein in these corporate interests and ensure the rapid, equitable supply of vital countermeasures for everyone,’’ Ravinthiran said.

Bully-boy tactics

Hassan said they found notes on the Pfizer documents from South African officials stating, “We need to be able to disclose and be accountable”.

“On Pfizer, the negotiating documents also show South African officials did try to highlight the one-sided nature of the negotiations and include provisions to mitigate the unfettered power and control Pfizer sought to exercise over the supply agreement, but that was largely unsuccessful in the end,” she said.

“Pfizer’s universal rejection of proposed amendments is a prime example of concentrated corporate power overriding public interests. It should be frightening to everybody that a private company can bully a country this way.

“Private companies being able to operate in the shadows is not good for anyone other than the companies themselves, especially under the soon-to-be-implemented NHI in South Africa,’’ Hassan added.

She said their analysis of the documents shows that South African officials tried to revise the confidentiality restrictions in the contract by referencing the World Health Assembly’s resolution about the transparency of markets for medicines, vaccines and other health products.

“Additionally, government officials warned that these provisions may hamper oversight from lawmakers and the South African office of the Auditor-General,” she said.

“The totality of the agreements signed and the negotiation records show that these companies shamelessly wanted secrecy and no transparency and that they profiteered at the public’s expense during the pandemic,” Hassan added.

All the documents relating to South Africa’s procurement of the vaccine can be found here.

Daily Maverick has yet to receive comment from Pfizer or Moderna. DM