By guest contributors Rashi Jhunjhunwala, MD MA; Arturo Cervantes Trejo MD MPH DrPH; Pablo Tarcisio Uribe-Leitz MD MPH; John Lindsay-Poland, Keith Martin…
By guest contributor Fatima Hassan
This pandemic has been marked by the hoarding of scientific knowledge & life-saving vaccines. In fact, there are rules (called TRIPS flexibilities) that permit any government to take emergency measures in a public health pandemic – like COVID- but they are not being used. The legal tools exist, to remedy unequal access, but its use is being blocked by very, very powerful and vested interests.
This is why the Peoples Vaccine Alliance and Free the Vaccine Campaign have throughout this pandemic called for three things: sharing the knowledge, sharing publicly funded technology and passing the TRIPS Waiver. Many of us have worked for some time to warn about the consequences of intellectual property (IP) strangleholds that create needless market monopolies – and that fuel inequitable access to life-saving technologies.
We do this work with limited resources and funding, to show why hoarding is not an appropriate or just response — especially at a time when publicly funded tools exist to prevent human suffering. And where those tools are only available to a select few by choice, by design, in richer parts of the world, and not for the black and brown people in my region – then let us be frank and admit – this is ‘racism’ – and what we have seen is ‘vaccine apartheid’.
Alarmist? No. You see I grew up under apartheid. I know first-hand what it is like to be a second or third class ‘citizen’. Like millions in my country, I know all too well what two-tier unequal systems create: inequality.
We know what it means to be subjected to colonial extraction and exploitation or racism, and we also know what it means to be ‘gaslighted’. Yet here we are again – and to the contrary – we can detect variants ahead of others, we can set up manufacturing capacity, we can run clinical trials. Ultimately, we also want access to the best science has to offer, the fruits of knowledge, at the same time as people in the global north.
Just days ago, the UN Committee on the Elimination of Racial Discrimination issued a scathing statement on global vaccine inequity saying that ‘a pattern of unequal distribution within and between countries replicates slavery and colonial-era racial hierarchies; and deepens structural inequalities affecting vulnerable groups’.
My country, South Africa, in the late 90s initially tried to defend itself from gross Big Pharma interests – succeeding only partially – and those interests combined with state sponsored AIDS denialism, created a perfect storm for preventable death and suffering. But, you see, when people were getting sick and dying here in Africa from AIDS, we were told by the rich nations, by trade ambassadors, by the US government under President Clinton, by the pharma companies and their inter industry representatives, that we can’t use the measures necessary to get anti-retrovirals (ARVs) to people, while millions in Africa died.
Then and now, pharma had unfettered, unelected power – the power to prioritize profits over patients in often uncompetitive ways. That is not a slogan, it is true.
This time, the EU is very firmly on the side of pharma too – and our former colonial masters in the EU and UK, are trying to bully us into submission.
Quite early on in this pandemic, we cautioned that drug company benevolence is often a ruse and will not get us far – to never to rely on charity or donations or goodwill – rather to seek enforceable guarantees. And then, richer nations cleared the shelves and bypassed COVAX which was set up to ensure equity in allocation, but did not. MSF has called COVAX ‘a broken promise to the world’ and the Lancet even referred to it as ‘a beautiful idea that fell short’.
So instead, we now have non-enforceable whimsical pledges from pharma CEOs. And here is the irony – the TRIPS flexibilities included in the ‘Doha Declaration’ were meant to remedy this – but spectacularly – the World Trade Organization (WTO) has failed at even doing that. The WTO is not fit for purpose.
We warned too that to avoid repeating the pitfalls of the HIV/AIDS crisis, governments and the WTO must make vaccines in this pandemic a public good by temporarily waiving intellectual property rights and compelling emergency production. But for 18 months, the WTO, in a pandemic, could not agree to the TRIPS Waiver, blocking it, despite 100 countries supporting the South African and Indian governments Waiver proposal, with at least 65 co-sponsors.
Even Canada, New Zealand are still sitting on the intellectual property and patents especially, fence. Canada –a long time champion of patients over profit and affordable medicine prices had an about turn and its ‘neutrality’ on the TRIPS Waiver in this pandemic, is bewildering.
There is truly no global solidarity in COVID – a tragic repetition of the early years of the AIDS pandemic. Early in 2021 I wrote in Foreign Policy that given the lessons of AIDS, our COVID response should not have to rely on voluntary cooperation but urgent wartime measures– yet here we are, at the mercy and beck and call of unelected private corporations and a bullish EU.
And yet, compulsory licensing (CL), we are told, by the EU, suddenly – is the solution. Pfizer in the Dominican Republic told our colleagues that a compulsory license on a treatment for COVID (Paxlovid) will ‘infringe their human rights’! Canada is still refusing to issue a license against Johnson & Johnson, requested early on in this pandemic by Biolyse.
And now, wait for it – Moderna wants a license from the US government for certain patents for a vaccine researched and developed by public funding while it is also embroiled in a patent dispute with the US government.
At the same time, it refuses to cooperate and share technology with the first World Health Organization (WHO) mRNA Hub in Africa, likening the Hub to a ‘fake Louis Vuitton handbag’[i] – you honestly cannot make this up!
Where are we now:
New estimates from the World Health Organization (WHO) show that the full death toll associated with the pandemic between January 2020 and December 2021 is approximately 14.9 million people. The true death toll, based on modelling of excess deaths, according to Oxfam’s recent analysis, is likely to be four times higher in low-income countries than in rich countries.
What is causing these deaths? As we wrote in the British Medical Journal: ‘A free market, profit driven enterprise based on patent and intellectual property protection, combined with a lack of political will’.
Although we have recorded that at least 11 billion vaccine doses have been administered, nearly 70% of them benefited high and upper middle-income countries.
We have previously warned about inadequate coverage in low-income countries – and right now, in 2022, with multiple safe and effective vaccines available in the world, just 16% of people in low-income countries have received at least one dose of a COVID-19 vaccine. In early 2021, it was a meagre 0.1 % (with 86% for HICs). This means about at least 2.8 billion people, remain unvaccinated.
We have also argued it is a myth to believe that high income countries have been harder hit by the pandemic – and that Africa was not – even so they certainly do not ‘deserve’ to have “hoarded the lion’s share of the vaccine supply”.
Now let us share with you how perverse 2021 really was:
- Did you know the French President, Marcon, flew in limited supplies of Johnson & Johnson vaccines on his presidential plane when he visited South Africa around mid-2021 – but for use by French nationals only – while South Africans were waiting for supplies from Johnson & Johnson?
- Did you know that the European Union took Johnson & Johnson vaccines filled and finished here in South Africa, and diverted them for Europeans while we entered wave 3 without supplies in early 2021? Those exports were only paused when the New York Times exposed it (based on accounts of what was included in the secret contract with Johnson & Johnson and the South African government).
- Did you know that Canada purchased enough doses to vaccinate its citizens five times over and then also drew supplies from COVAX?
The net result, by end 2021, according to the WHO, not even 10% of Africa was vaccinated and 3 out of 4 Health Care Workers in Africa were still waiting for a first shot. This is why even the WHO Director-General called this “grotesque” and a “moral outrage”– really a “recipe for seeding viral variants capable of escaping vaccines”.
In my view – any policy decision to vaccinate everyone in the global north first, without prioritizing timely access for the global south is, frankly, rooted in racism – because for them, black and brown lives matter less.
We have written in the British Medical Journal that this “moral scandal, enabled by corporate and political permission of mass death, is tantamount to a crime against humanity”. Basically, patent monopolies are determining which populations will benefit first. And I have previously argued that ‘Governments that were in the driver seat negotiating with public institutions, using public funds with companies to accelerate important vaccine research turned a blind eye to the need for equitable access’ resulting in ‘self-created vaccine scarcity’.
Even within countries in the global north – we risk white-washing outcomes where those programmes exclude or do not prioritise Palestinians under occupation, asylum seekers, refugees, migrants, Hispanic communities, African American communities, people in rural areas, the elderly.
And as many of us have said for the last two years now, despite socializing the riskof vaccine development through initiatives such as Operation Warp Speed (US government), access was privatized.
Colleagues in the US that we work with estimate the US Government contributions for vaccine research to be substantial: at least a1.7 billion US $ for Moderna and 1 billion US $ for Johnson & Johnson – with US Government advanced purchases too, for Pfizer- for both vaccines and therapeutics. In turn, as predicted, gouging in a pandemic took place.
So instead of true and genuine technology transfer alongside the ‘TRIPS Waiver’, despite the injection of massive public funding, we have non-cooperation, a handful of fill and finish licenses and colonial container models being shoved in our faces as just and timely solutions. It is anything but.
Media reports indicate that even the staff at the WHO mRNA Hub have found the ‘mRNA intellectual property landscape a nightmare’. Make no mistake, this is deliberate. The mRNA technology can be replicated faster, and the US Government could use war measures to step in and share the technology as it holds it’s second COVID-19 Summit this week (Note: at the Summit, per POLITICO, the Biden administration ‘announced that it has finalized a deal to license 11 COVID-19 technologies held by the National Institutes of Health with U.N. bodies including the stabilized spike protein used in COVID-19 vaccines, research tools for vaccines, treatments and tests, and early-stage vaccine candidates and diagnostics’) .
Instead, Moderna has conveniently filed several wide patents in South Africa that could threaten the work of the WHO mRNA Hub. Despite their evolving public pledge to not enforce patents, Moderna has refused to withdraw the patents here in South Africa. And that pledge only covers COVID-19 vaccines, threatening the Hub’s wider work on other health crises.
Amidst the worst pandemic in 100 years, with devastation globally, instead of a freely available public good, COVID technologies largely remain a commodity owned by companies, first sold to the rich – as if it is a luxury handbag!
And then there are donations: Donated surplus vaccines (at times, close to expiry date) do not share knowledge, they are unpredictable, highly political and discriminatory- a vestige of colonial injustice. They do not address the systemic IP barriers. Simply put, they are not a just solution to a crisis of need.
For 18 months, richer nations have blocked the TRIPS Waiver proposal, and in recent weeks civil society organizations have had to challenge a proposed negotiated settlement – a so called ‘compromise’ text that represents such a bad deal that not signing it is better for the global south. All of us are saying: the text presented by the Director General of the World Trade Organization is a terrible and dangerous alternative. It is worse than the status quo. We are relieved to hear that our President, Cyril Ramaphosa has said today at the US COVID-19 second Summit that South Africa will continue to advocate a full TRIPS Waiver at the WTO – not half baked solutions!
I have previously argued that the TRIPS Waiver proposal is at the heart of medicine access battles and that the WTO as it is currently operating is an obstacle to health justice. And implicit in the opposition by richer nations and drug companies to the TRIPS Waiver proposal—is an existential threat to the continuing practice of treating medicines as a commodity.
All of what I described up until now is pernicious and suggests a pattern of gross extraction.
And, in summing up, I want to argue that four strands on extraction need attention: The extraction of 1. knowledge, 2. excessive profit, 3. trial participation and 4. contractual concessions.
First, life-saving medicines should not be commodified – publicly funded knowledge has been extracted for use and gain by highly profitable private drug companies without due recognition of the role of public scientists and government funding – worse, knowledge sharing for the WHO mRNA Hub that seeks to benefit the management of diseases such as HIV and TB in the global south, is not being prioritized at all.
Second, excessive profiteering in a pandemic is pandemic gouging, enabled by intellectual property monopoly protection. Early in the pandemic, Pfizer announced an intention to profit from its COVID vaccine. My colleagues have shown that in the first three months of 2021, Pfizer’s vaccine brought in US$3.5 billion in revenue – and by end 2021 alone, it made US$37 billion and aims to bring in US$100 billion by end 2022 for its vaccine and a treatment for COVID called ‘Paxlovid’.
Other companies are also making exceptional profits:
- Moderna, which received public funding to develop its vaccine, earned US$13 billion in pre-tax profits in 2021 alone – that is US$36 million a day, with a 70% profit margin.
- J&J with its single dose vaccine brought in $2.4 billion in 2021 for its vaccine.
- Even Astra Zeneca, with its “not for-profit” model, received billions in revenue and raised the price when IT considered the pandemic to be over.
Third, participation in clinical trials is being ‘extracted’ as there is no genuine post trial affordable or equitable access. Africans are being used as trial subjects, with no guarantees of genuine benefit and data sharing. South Africa took part in 4 clinical trials for vaccine research– and now in 2022, running a very controversial 5th trial, for Moderna!
Yet – in the natural resource space, extraction without benefit sharing is no longer acceptable and is highly regulated. So why are diamonds and gold more important than people? – why are we permitting as ethics bodies, as regulators, as government agencies- clinical trials that do not guarantee post trial affordable access for people in Africa nor enable genuine trial data sharing either? Why are we helping companies perpetuate colonial extraction and not insisting on a minimum standard of benefit sharing?
Fourth, we are being bullied into signing contracts that do not follow key constitutional principles.
One principle of a democratic government is openness – in this pandemic, companies have bullied sovereign states into secrecy and Non-Disclosure Agreements (NDA’s) – thereby extracting concessions that countries would not ordinarily agree to: full indemnification, price secrecy and unlimited exports.
Akin to a hostage situation, vaccine supplies are dependent on coerced acquiescence – fundamentally altering the principles of pricing transparency, anti-competitive behaviour and open procurement.
There is so much secrecy that the companies will not even tell us who and which office (address, needed for service of legal papers) signed the contracts let alone what is in them, — so we now have to sue as the Health Justice Initiative for their disclosure in South Africa.
In conclusion, we are in an untenable situation that cannot continue. If we go along this extractivist trajectory that puts Intellectual Property before health equity and access, then in the next pandemic, we will be beholden to even greater forms of unregulated corporate greed and hoarding, enabled by powerful and richer nations.
This is an edited version of an acceptance speech at the 2022 Calgary Peace Prize virtual ceremony hosted by Mount Royal University. The 2022 Calgary Peace Prize was awarded to Fatima Hassan on 12 May 2022 by Mount Royal University’s John de Chastelain Peace Studies Initiative. The Calgary Peace Prize recognizes outstanding individuals from the global community who work towards making the world a more just, safer and less violent place.
For the video of the event please see: https://www.youtube.com/watch?v=aN7R5RERI7Q&feature=emb_logo
About the Author:
Fatima Hassan (Twitter: @_HassanF) is a human rights lawyer and social justice activist and the founder of the Health Justice Initiative (HJI) in South Africa. Fatima has dedicated her professional life to defending and promoting health and human rights in South Africa.
“We’ve never helped them develop it or make it. We have never certified their quality control. They are claiming it’s a copy of Moderna’s product. I don’t know,” he told the Financial Times in November. “It is like when somebody makes a copy of a Louis Vuitton bag. Does it look like a Louis Vuitton bag? Does it last like a Louis Vuitton bag? I don’t know.” https://www.ft.com/content/61e1d51e-b415-4161-b157-032e5207ab7f