The South African High Court has ordered the country’s health department to hand copies of all its COVID-19 vaccine procurement contracts, negotiations and agreements to a non-governmental organisation, Health Justice Initiative (HJI).

The Pretoria High Court ruling on Thursday comes in response to a court application by HJI for access to the contracts, arguing that the government had a constitutional requirement to be transparent and adding that it wanted to assess the legality and cost-effectiveness of the contracts.

The health department has 10 days to provide HJI with copies of all its COVID-19  vaccine procurement contracts, memoranda of understanding and agreements relating to a wide range of pharmaceutical companies and vaccine procurement groups.

These include Pfizer, Janssen/ Johnson & Johnson, Serum Institute of India, local generic company Aspen, China’s Sinovac, as well as the African Union Vaccine Access Task Team (AU AVATT) and COVAX.

Judge Anthony Millar said that the contracts were in the public interest as more than 30 million vaccines had been administered in South Africa with a budget of R10 billion (around $530 million) being allocated to cover this in 2021 alone, according to GroundUp.

Inflated prices, onerous terms

“This is a massive victory for transparency and accountability,” said HJI in a media release on Thursday.

“The contracts concern substantial public funds, and the contracting process has been marred by allegations that the government procured vaccines at differential, comparatively inflated prices and that the agreements may contain onerous and inequitable terms including broad indemnification clauses, export restrictions, and non-refundability clauses.”

In 2021, the South African health department itself complained about the onerous indemnity requirements that Pfizer had tried to extract in exchange for vaccines.

Then health minister Zweli Mkhize had told parliament that Pfizer had demanded that it be indemnified against civil claims from citizens with adverse vaccine effects and that the government put up sovereign assets as collateral to settle such cases, as reported by the Bureau of Investigative Journalism.

After a public outcry, Pfizer backed down on its demand for government assets as collateral but was still believed to have been indemnified against claims in many countries.

In fact, the global vaccine access platform, COVAX, established a No-Fault Compensation Program for Advance Market Commitment (AMC) Eligible Economies to ensure that people who experienced serious adverse effects from COVID-19 vaccines in poorer countries could receive compensation.

South Africa and other low- and middle-income countries were unable to procure vaccines for some months after they were available in Western countries as they had relied on COVAX. COVAX had ordered vaccines from the Serum Institute of India (SII). However, the Indian government banned SII from exporting its COVID-19 vaccines in April 2021 during the height of that country’s pandemic.

The collapse of the COVAX-SII deal forced South Africa to scramble to procure vaccines directly from pharmaceutical companies, paying a suspected premium for these.

Noting increasing reports of corruption within the healthcare sector, HJI added that “we cannot have a healthcare system shrouded in secrecy.  Procurement must be held in check, as it will involve powerful multinational companies, particularly from the pharmaceutical industry.”

During the pandemic, Health Minister Mkhize himself was forced to resign after it emerged that his family had benefitted from a COVID-19 communication contract the health department had awarded to a company run by a close friend.

Precedent for pandemic accord negotiations?

The HJI added that the judgement would assist in bolstering “provisions on transparency and accountability” in the current pandemic accord negotiations “where worrying attempts are being made to water down transparency”.

HJI had previously tried to get access to the contracts via the Promotion of Access to Information Act (PAIA), but the health department had refused to release the information, describing it as “confidential”.

Meanwhile, the judgement has been hailed by the People’s Vaccine Alliance.

“Pharmaceutical companies should never be allowed to operate without public scrutiny, particularly in a pandemic. But in South Africa and many other countries, governments were forced to sign up to strict secrecy clauses for their populations to access lifesaving vaccines and medicines,” said Mohga Kamal-Yanni, policy co-lead for the People’s Vaccine Alliance.

“This landmark decision shows that the public can take on powerful pharmaceutical companies and win. We hope to see more cases like this around the world.”

Noting that “transparency and equity must be at the heart of the world’s response to health crises”, Kamal-Yanni added that “people have a right to know how much pharmaceutical companies are charging them for lifesaving vaccines and medicines, and that right must be enshrined in the pandemic accord and the International Health Regulations.”

The South African Department of Health said that it “will study the judgement and respond in due course”.

Image Credits: Medecins sans Frontieres.