E-DRUG: SA Government appeals MTCT/nevirapine judgement
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[The SA Minister of Health announced that the government will
appeal the judgement of last week friday, in which it was ordered
by the High Court to expand its MTCT programme to all
South Africans. This is unfortunate, as the likely delay of 1 year
might cause an additional 30,000 babies to be born with HIV.
Below the Government announcement, and the TAC response.
What are the experiences with Nevirapine/MTCT in other
African countries? NN]
[DOH press release]
MEDIA RELEASE
Response of Health Minister and MECs to Judgment on Nevirapine
19 December 2001
Yesterday I met with the MECs for Health from eight provinces for the
purpose of receiving a comprehensive briefing on the High Court
judgment
concerning the use of Nevirapine in the public sector in an effort to
reduce
mother-to-child transmission of HIV.
We jointly considered and debated the judgment in terms of its impact
on
the future of the MTCT Programme and the relationship between the
judiciary
and the executive in matters of public policy.
And, having done so, we decided to respond by pursuing a double course
of
action. On the one hand - for reasons explored below - we felt we
could not
allow the court judgment to remain unchallenged. On the other, we are
determined that an appeal against the judgment must not stand in the
way of
developing a dynamic and well-articulated MTCT prevention programme.
Government takes the view that policy, including policy on HIV/AIDS,
may be
guided by firm principles but that it is not cast in stone. We decided
at
yesterday's meeting to conduct a further appraisal of the current MTCT
programme at the Health Minmec in January next year, taking into
account the
latest data from the current MTCT sites.
On the basis of this, we will organize a broader stakeholder
consultation
on the MTCT Programme to share the lessons of the pilot sites and to
chart
plans for the future of this programme on the basis of broad
consensus.
The consultation will be conducted in an inclusive and open manner.
And we
hope that this will reassure the public that we are committed to a
successful, accessible MTCT programme.
When it came to the legal issues, we were quite clear that an appeal
against Justice Botha's judgment is unavoidable. Having examined the
reasoning of the judgment and the orders made, we came to the
conclusion
that this judgment could have far-reaching implications in defining
our
constitutional democracy and in shaping the State's responsibility for
the
delivery of social services.
We have therefore instructed our legal counsel to appeal the judgment
to
the Constitutional Court as soon as practicable. We consider it
critical, in
order to create certainty in the public policy domain, to seek the
wisdom of
the Constitutional Court on this matter.
We would like to emphasise that this appeal is not an attempt to
obstruct
the development of the MTCT Programme. Rather it is aimed at
clarifying a
constitutional and jurisdictional matter which - if left vague - could
throw
executive policy making into disarray and create confusion about the
principle of the separation of powers, which is a cornerstone of our
democracy.
Dr Manto Tshabalala-Msimang
Minister of Health
Inquiries to: Sibani Mngadi (082 772 0161) and Jo-Anne Collinge (082
787 0202)
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[TAC response]
19 December 2001
Dear All
Below is a statement from TAC, Dr. Haroon Saloojee and the Children's
Rights
Centre. The government response follows our statement.
Regards
Siphokazi Mthathi (TAC)
Dr. Haroon Saloojee (Save Our Babies)
Cati Vawda (Children's Rights Centre)
MINISTER TSHABALALA-MSIMANG
SAVE LIVES, ACT URGENTLY WITH REASON AND HUMILITY
Yesterday, the Minister of Health and her colleagues met to consider
the
judgment of the Pretoria High Court on mother-to-child HIV
transmission.
TAC had hoped that government would accept the judgment and move
forward to
develop a coherent HIV/AIDS programme. The government's reponse has
two-sides.
Following the court order and public support for TAC, the health
Ministry
announced that it will review its MTCT programme in January 2002
through a
"broader stakeholder consultation". TAC welcomes this action and we
will
participate at every level to ensure that a reasonable and
constitutional
programme for the whole country is developed. TAC hopes that this
"invitation" is not simply a temporary expedient to allay the anger of
civil
society. Even though our experience of negotiation with government for
over
five years on this issue is a negative one, we will act to make this
consultation a success.
Public pressure and TAC court action has finally made the South
African
government listen. Now we hope that it will act reasonably and with
humility
to develop a national mother-to-child HIV prevention programme.
However, in their response to the judgment of the Pretoria High Court,
the
Minister of Health and Health MECs for eight provinces have also
decided to
challenge the court. This is regrettable. Their legal grounds for the
appeal - "courts have no right to make policy"- demonstrate a profound
misunderstanding of constitutional democracy.
Government action or inaction is not above the law. Judge Botha did
not
make policy on MTCT prevention. He found that the government did not
have
reasonable and constitutional policy. He directed the government to
develop
such a policy and to present it to the court by 31 March 2002. In a
constitutional state, all courts have a legal power and duty to review
policies and laws when any person alleges a violation of fundamental
rights.
We urge the government not to take one step forward and two steps
back.
Because 200 children every day become infected with HIV and because
women
suffer tremendous anguish as a result, TAC urges Minister Manto
Tshabalala-Msimang and her colleagues not to delay their appeal in any
way.
The best way forward is still, to drop the appeal and to work with
civil
society on a programme to present to the court with the support of
TAC, the
Children's Rights Centre and Save Our Babies.
TAC is confident that its position will stand the test of the
Constitutional
Court. We will continue to fight for the rights of women, children
and
people with HIV/AIDS. Let us work together to give women a choice and
children a chance.
[TAC Statement ENDS]
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