Expanding access to essential medicines through the right to health: a case study of South Africa

Abstract

Lack of access to essential medicines has proven to be a persisting problem which is in conflict with the goal of realising the right to health envisaged by the South African constitution and international human rights instruments. With more than twenty years of democracy, South Africa is still plaguing with a multiplicity of pandemics such as HIV and AIDS, cancer, malaria, tuberculosis, among others, leading to premature death and untold suffering of the people. According to a 2015 United Nations AIDS (UNAIDS) Gap report, South Africa is still regarded as the epicentre of HIV and other infectious diseases. The 2015 UNAIDS Gap report states that South Africa has more women than men living with HIV and AIDS. The report further indicates that the impact of this pandemic is worsened by the inaccessibility of essential medicines that are vital for life saving. This dissertation posits that the epidemiological health crisis described above can be largely eradicated through the utilisation of the right to health. The right to health, according to this dissertation, contains a legal and transformative power which can be utilised to limit the negative impact of patent laws on access to essential medicines in South Africa. This dissertation validates the long held view that World Trade Organisation (WTO) intellectual property laws have contributed to the inaccessibility of essential medicines through causing patent ever greening, patent linkages and pharmaceutical company’s monopolies. Consequently, many marginalised groups in South Africa lack access to essential medicines owing to the higher prices charged for such medicines thus violating the right to health, life and other fundamental human rights. The right to health which is the immediate right infringed when there is lack of access to essential medicines form the core theme of this dissertation. This dissertation argues that access to essential medicine is a fundamental part of the right to health protected under international and national human rights instruments. This dissertation further argue that the right to health imposes obligations which requires South African government to take reasonable legislative and other measures, within its available resources, to provide access to essential medicines. The dissertation‘s key contribution is its proposed solutions on how to ensure that patents rules in South Africa are tamed with obligations consistent with the right to health. If properly implemented, these solutions have the potential to give greater specification to the normative commitments imposed by the right to health in the patent claims scenarios.