Constitutional Hill

HIV/AIDS

On Julius Malema, HIV and democracy

Nov 17th, 2009
by Pierre De Vos.
41 comments

I must admit it made a welcome change: Instead of cringing with embarrassment, I sat at the traffic light and gave a little cheer when I heard on the radio what ANC Youth League President Julius Malema had said about HIV/AIDS.  Speaking at the Pan African Youth Union, Malema said it is up to Africa’s youth to stop the spread of HIV/Aids. He called on the continent’s youth to promote safe sex, the use of condoms and the proper use of anti-retroviral medication and continued:

Ours should be about ensuring that condoms become fashionable. Every time you greet each other you must ask, how are you? Do you have a condom with you? It should not be an apologetic issue.

Maybe if someone as outspoken and popular as Julius Malema puts his full weight (so to speak) behind a campaign to make condoms fashionable and urges young people to insist on condom use we have a chance to turn this thing around. Maybe if Malema and others drop the ridiculous and counter-productive notion that we will stop the spread of HIV if we promote the ABC (“abstain”, or “be faithful” and if you cannot do the above ”use a condom” – in other words, insist on a condom if you want everyone to think you are promiscuous), we have a chance.

Of course, our leaders should have said this kind of things many years ago, before hundreds of thousands of people had died needlessly of HIV related illnesses. But I suppose its better late than never, so I will be the first to applaud Mr Malema and to encourage him to continue the good work.

But then, another publication reported that at the same event, commenting on the call by Young Communist League leader Buti Manamela that Manto Tshabalala-Msimang and Thabo Mbeki should be charged with genocide for not providing dying South Africans with anti-retroviral drugs, Mr Malema said the following:  

We must never surrender our leaders.  Thabo Mbeki might have made mistakes but we can never charge him. We must not charge one of our own. If we allow that, the same thing would happen to [Zimbabwean President Robert] Mugabe, and the same would happen to [President Jacob] Zuma, and the next thing you know they will come for you.

Now, I do not want to get involved in a debate here on whether Mbeki and Tshabalala-Msimang should be charged with genocide and whether such a charge against them would stick. I do wish to take issue with young Julius’s view on the Rule of Law though. Saying that one should never charge one of your own is dangerous and undermines the Constitution and the Rule of Law.

Our leaders, no matter how well respected and loved, are not above the law. If they break the law they have to be charged. Just like every other South African – whether she lives in Houghton or Lusikisiki, Bischops Court or Pofadder, Witsieshoek or Nkandla – a leader in a constitutional democracy is not above the law.

Suggesting that leaders – because they are our leaders – should never be charged with any crime, no matter how heinous that leader’s actions have been, how detrimental to the poor and downtrodden, how murderous or anti-democratic, demonstrates a profoundly undemocratic and anti- constitutional view of politics.

This is the kind of view that allows young politicians like Julius Malema to jump out of his car in a dazed state and express his existential confusion by urgently asking those who stopped him to please tell him who he was. It is the kind of view which holds that leaders are beyond criticism and that even if they do the most shocking things, they should be above the law. Down that road lies tyranny, despotism and the most egregious abuses of the rights of ordinary citizens by powerful leaders: it is the way of Pol Pot, Adolt Hitler and Idi Amin.

In a constitutional state, leaders should actually be beyond reproach. If we are going to charge anyone it should be our leaders who have broken the law.  In a constitutional democracy we entrust them with our money, our well-being and our futures and if they abuse that trust by stealing our money, killing political opponents or ordering the police to torture the leaders of social movements who are critical of them, such leaders seize being worthy of our respect and, in effect, seize being our leaders at all.

What worries me is that Julius sees himself as a leader as well and hence believes that he is also above the law. No wonder he has failed to pay so many speeding fines and called his friends in government to reprimand traffic cops who had the audacity to stop him for speeding. Today it is traffic fines, tomorrow it is hit squads and torture.

Ag nee man Julius, just when I thought the media had been treating you harshly you say something like this which reminds me that you have a lot to learn about constitutional democracy and the Rule of Law. Stick to the condoms and  HIV: at least you are doing good work on that front.

Thabo Mbeki’s strange relationship with the truth continues

May 28th, 2009
by Pierre De Vos.
112 comments

Politicians call it “plausible deniability”. One makes a statement that everyone who hears it believes to mean X. The generally accepted meaning of X is, however, untrue. But one has parsed the words in such a way that one could always later claim never to have said what everyone thought one had said – even if one had not contested the generally accepted interpretation shortly after it was made. Or evades responsibility for one’s words by denying ever having said something that others have not really claimed one has said.

President Thabo Mbeki is a master at this. He really is not someone with a great fondness for honesty and truth.

Earlier this week Mbeki denied ever having said that HIV does not cause AIDS. A “(im)plausible denial” of the generally accepted interpretation of his words, if ever there was one. At the time Mbeki had said:

“Does HIV cause AIDS? Can a virus cause a syndrome? How? It can’t, because a syndrome is a group of diseases resulting from acquired immune deficiency.”

And in an interview with Time Magazine on September 4 2000, Mbeki stated that, “the notion that immune deficiency [AIDS] is only acquired from a single virus [HIV] cannot be sustained.” When asked whether he was prepared to “acknowledge that there is a link between HIV and AIDS?” he replied:

This is precisely where the problem starts. No, I am saying that you cannot attribute immune deficiency solely and exclusively to a virus.

So, in a dry technical sense Mbeki is not peddling a “deliberate falsehood” when he says he never said the words: “HIV does not cause Aids”. Plausible deniability. Problem is, he questioned the link between HIV and AIDS and said a virus cannot cause a syndrome and this was widely understood by those spineless cabinet Ministers (who refused at the time to state that HIV causes AIDS), state officials and ordinary people to mean that Mbeki did not believe that HIV caused AIDS. And Mbeki, who at any time during the controversy could have corrected this impression, failed to do so.

This is like asking whether apartheid was really bad for South Africa and had really caused the suffering of millions of South Africans, then when asked directly whether I thought apartheid was bad for South Africa and had caused misery to say: “no, there are many reasons for people’s misery”.  Then years later denying that I had ever suggested that apartheid caused suffering.

Now, hundreds of thousands of deaths later, Mbeki wants to rewrite history. Why take responsibility for your words when they come back to bite you? That would require courage and honesty – two things our former President seems to lack.

Another example of this lack of basic honesty was revealed in his affidavit in support of his suspension of Vusi Pikoli. In the affidavit Mbeki stated:

I had to confer with the NSC to establish the risk posed by this decision [not to provide more time to arrest Selebi] and considered ways of minimising any potential threat to national security…. All I can say is that following such discussion [with the NSC] the advice I received was to suspend the applicant from office with immediate effect.

At the time it was widely reported that Mbeki had said that he had suspended Pikoli on the advice of the NSC. Mbeki never corrected this. Now the Presidency has issued a statement saying:

Former President Thabo Mbeki did not say he was advised by the National Security Council to suspend the NDPP. All he said was that he conferred with the National Security Council.

So, at best Mbeki was misleading the court and the public by his innitial statement and then – more importantly, by his silence afterward. At worst he was committing perjury.

Would you buy a second hand car from this man? I won’t.

Death comes to the Free State

Mar 11th, 2009
by Pierre De Vos.
40 comments

We are living in the silly season in the run-up to the election, so reports in today’s Cape Times about the collapse of the ARV roll-out in the Free State should be big news. Here we have an ANC government who in November last year decided to kill off some of the poorest of the poor members of our society by placing a moratorium on the roll-out of ARV’s in the Free State until the next financial year.

The ANC government has in effect told the poorest of the poor HIV positive people of the Free State who need to get access to ARVs: “Oops, we have run out of money so you are going to die”.

Surely other political parties should make a big stink about such a thing? After all, its rather damaging to the image of the governing party that it has decided to let some mostly poor black South Africans die because of poor planning or turf wars between various ANC factions in government or perhaps because of Aids denialism? What can be more important for a government than to protect its citizens from illness that will cause death?

As Mark Heywood reports: “Somewhere around November 1 last year, the death penalty was reintroduced in the Free State.” This is because those who depend on the states ARV programme are the poorest members of our society who do not have medical aid and cannot afford the R600 a month to buy the life saving medicine. Many of them need to go on ARVs immediately to save their lives. But now the Free State government has decided that there is no money and that these people must wait until 1 April 2009 – by which time many of them will be dead.

Several questions arise. First, why is the Free State government so criminally callous? Is it because those people who are HIV positive are poor and black? Or is it because they are HIV positive and therefore in the eyes of the Aids denialists in the ANC government in the Free State do not deserve the same concern and respect as, oh, say a convicted crook and fraudster like Schabir Shaik?

Or maybe the Free State government officials just do not care because these people are going to be dead and won’t be voting for the ANC in any case? Or are these people going to die “merely” because of corruption and nepotism in the ANC government in the Free State? Or are they going to die because the ANC government officials and politicians do not care because they know they will win the election in any case – no matter whether they allow HIV positive people to live or die?

Second, what is the national Minister and the national government doing to try and change this situation? Are they at least trying to save the lifes of the people who rely on the government for life saving treatment? Have the relevant ANC officials and politicians who are killing people in the Free State been fired? Have they been disciplined by the ANC? If not, why is nothing being done?

Is it because the ANC does not respect poor people? Or is the ANC racist and more worried about freeing a convicted fraudster like Shaik from prison because he happens to be a friend of Jacob Zuma than saving the lives of mostly poor and black South Africans? Would these unfortunate HIV positive people in the Free State now dying have been saved if they were friends with Jacob Zuma or knew someone else who style themselves as an important politician in the ANC?

And why is the opposition parties not all over this? Are they scared to speak up for HIV positive people because of the deeply entrenched prejudices amongst all classes and races of South Africans about HIV? Are they keeping quiet because they do not want to be seen to champion the rights and needs of a vulnerable and marginalised group in our society? Or do they also not mind that these people are going to die because they would not have voted for the opposition in any case?

Pardon me if I sound bitter, but this callous and deeply criminal actions of the Free State government shocks me. Section 27 of our Constitution states that everyone has a right of access to health care and that the state has a duty progressively to realise this right. The Constitutional Court has said this means the state cannot be rigid in implementing health policies and that they have a duty to act reasonably to ensure that the policy is also implemented in an effective manner to deal with the needs of especially the most vulnerable members of society.

This clearly has not happened in the Free State.

Why would one trust a government who cannot even do the basics right, who cannot even manage their resources in such a way to ensure that they will save the lives of as many people as possible? No wonder many people are cynical about politicians. Why would one trust people who seem to care more about their right to speed about in 20 car blue light motorcades and who would rather sip champagne and eat caviar than actually do the work that would save the lives of ordinary citizens?

On “deliberate falsehoods” and conspiracies

Jan 14th, 2009
by Pierre De Vos.
40 comments

Why is it that South Africans so love conspiracies and are so quick to believe in them? Your paper not delivered this morning? Must be a conspiracy involving various journalists, the tooth fairy and maybe Father Christmas (or Santa Clause as they call the ugly fat guy with the cotton wool beard here in the USA). Arrested after robbing a bank and being caught on the security camera waving at your mother? Must be a conspiracy by Glen Agliotti, Jackie Selebi, your mother’s new lover and maybe also the Loch Ness Monster.

I am by nature a rather sceptical person (maybe it is the legal training or maybe it is because I do not believe in the tooth fairy anymore, who knows?), so pardon me for not jumping so easily on the conspiracy bandwagon. It might well be that there is a political conspiracy against Mr. Jacob Zuma. Maybe the National Prosecuting Authority has been infiltrated by colonialist, racist CIA agents in cahoots with Thabo Mbeki, Tony Leon, and all those leaders of Cope who had the bloody cheek to start their own party. And, who knows, maybe judge Chris Nicholson concocted his own conspiracy theories when he sat down to write his judgment in the Zuma case - as was rather unkindly suggested by the Acting Deputy President of the SCA.

But as the SCA judgment on Monday made clear, no conclusive evidence have been presented for any of these conspiracy theories. This does not mean that there might not be some questions worth asking, of course. Questions like why Jacob Zuma was investigated and prosecuted for rather minor issues of corruption (the poor guy only received R500 000 from the arms company!) while Chippie Shaik, the ANC and various other players reported to have benefited far more from the arms deal have so far not been charged.

It is worth asking such questions, but maybe we should be a little bit careful before making wild allegations of conspiracies because we might just come accross as mentally unstable and a bit coocoo. If we are not careful we might even be confused with Julius Malema or those wonderful people from the Young Communist League who entertain us with their almost daily badly written, and sometimes downright weird, press releases.

I therefore have some sympathy for Mr. Thabo Mbeki who was fired shortly after Nicholson in effect found that Mbeki and his Ministers had meddled in the prosecution of Zuma – thus seeming to confirm one of the most widely held conspiracy theories around. In the absence of hard evidence, it was rather surprising that a judge in motion proceedings would come to such a conclusion, despite the lingering questions about the whole Zuma affair.

Who knows what Mbeki had whispered into the ears of advisors about the Zuma prosecution and what they, in turn, might have whispered to the NPA?  Who knows why Mbeki had not intervened to stop the prosecution of Zuma? Why he had fired Zuma as Deputy President – even before he was charged - but went into an apoplectic fit when Vusi Pikoli wanted to arrest the Police Commissioner for corruption and then got his advisors to help quash the warrants for Jackie Selebi’s arrest. (This latter fact was proven beyond doubt during the Ginwala Commission of Enquiry, so those Mbeki fans out there, calm down.)

But I was nevertheless, shall we say, suprised and amused by some aspects of Thabo Mbeki’s response to the SCA judgment. First, Mbeki gives his own interpretation of the judgment that might – at best – be described as a rather innovative interpretation of its outcome and - at worst – as a twisting of the facts. Said Mbeki:

We intervened in the NPA appeal to the SCA because we wanted to correct the unfair and unwarranted inferences made by Judge Nicholson against us, and as the SCA said, we “had ample reason to be upset by the reasons in the judgement which cast aspersions on (us) without regard to (our) basic rights to be treated fairly.” The SCA ruling has vindicated us.

Problem is, only in the most broadest sense of the word has the SCA “vindicated” Mbeki and his cabinet. The judgment decidedly did not find that there was no political meddling in the Zuma prosecution. It merely said that there was not sufficient evidence before the court to have made such a finding – especially given the rules of evidence that apply in motion proceedings. The jury is still out about whether Mbeki and his cabinet did interfere or not, so to talk of a vindication is perhaps a little bit premature.

But this is perhaps a small point. One must not be too churlish. Given the fact that Mbeki was fired in the wake of the Nicholson judgment – even though he was not given an opportunity to give his side of the story – one can be generous and allow the ex-President to stretch the truth a little to score a political point against those upstarts who think they can run the country into the ground as well as he did.

So, let’s grant Mbeki the satisfaction of the claim that he was vindicated and move on to the last paragraph of his statement, which brings us right back into – you guessed it! – conspiracy theory country. In vintage Mbeki style and with all the dry, bitter, certainty of a person who once questioned the link between HIV and AIDS because of what he read on the Internet – to the detriment of 300 000 people who then died – Mbeki continues:

It seems to me that the unacceptable practice of propagation of deliberate falsehoods to attain various objectives is becoming entrenched in our country. I am pleased that the SCA has provided firm leadership in this regard by insisting that nobody’s integrity should be impugned on the basis of untested allegations.

Mbeki loves that phrase – “deliberate falsehoods”. It suggests that Mbeki thinks that there is only one possible’s interpretation of any set of facts, that what he claims to be true must be accepted by the rest of us as absolute and final proof of that Truth, and that any questioning of his version of events or his interpretation of the facts constitutes a conspiracy to ”deliberately” spread false information.

He seems to think: “I told you what the Truth is – yet you do not believe me. How can that be? How dare you? The impertinence! Surely you know that I am so wise, so imbued with integirty, wisdom and an ability to interpret facts definitively (a bit like God, really) that what I say will ALWAYS be true, just because I said it. If you then question the Truth of what I said, it must be because you deliberately want to spread falsehoods about me, my government, black people in general, the arms deal, the existence of crime, the nobility of the masses of our people, the ANC and its traditions and, for that matter, HIV and AIDS.”

This seems to me like a very, very scary world view for a leader of a country to hold. It eschews doubt for a kind of messianic certainty. It fails to understand that in a democracy politicians must earn our trust through their words, yes, but also through their deeds, that we – “the masses of our people” - have a duty to be sceptical about the self-exculpating claims made by politicians and that we are not part of some conspiracy, deliberately spreading falsehoods about the politician or his government, just because we do not believe every word the politician – even our President – says.

Besides, sometimes the known facts are open to different interpretations and even reasonable people may differ about how the known facts can or should be viewed. We all interpret facts from the vantage point of our own world view. Mbeki has often made the excellent point that many sceptics of his government interpreted the facts about South Africa’s progress away from apartheid injustice towards a more egalitarian and sane country, based on their rather Afro-pessimistic, colonialist, world view.

But that does not mean Mbeki himself does not have a world view and that his interpretation of an event or of a set of facts will be devoid of self-interest, delusional paranoia or prejudice. Just think about his flirtation with AIDS denialism. Duhhh!

The fact that he never could apply his excellent insights about the inevitable situatedness of our version of events to himself says a lot about the tragedy of Mbeki’s reign as President of the ANC and the country. When one forgets that one’s world view might not be shared by others and that one’s interpretation of the facts might be clouded by the fact that one travels in a eleven car motorcade and are obsequisly bowed down to by others, one becomes arrogant and out of touch. And that is one of the real, very human, tragedies of Thabo Mbeki’s Presidency.

Kgalema Motlanthe, HIV/AIDS and the ANC

Nov 27th, 2008
by Pierre De Vos.
86 comments

The Presidency of Thabo Mbeki was in many ways an utter disaster. Insecure, angry, vindictive and far too sure of his own ability to know everything and be the cleverest person in the room, Mbeki acted in ways that had devastating effects on especially poor and black South Africans. This was never more evident than on the issue of HIV/AIDS.

As I pointed out last week, a new study by Harvard researchers estimates that the South African government would have prevented the premature deaths of 365,000 people earlier this decade if it had provided antiretroviral drugs to AIDS patients and widely administered drugs to help prevent pregnant women from infecting their babies.

Yesterday the New York Times published an article about this study, reminding us again how disastrous Mbeki and his Minister of Health have been to the health of our people. That is one of the reasons why I do not share Archbishop Desmond Tutu’s view that the recalling of Mbeki was a dreadful and constitutionally problematic step.

Our Constitution requires that the President retains the confidence of the majority of the members of the National Assembly and if he or she loses that confidence, the NA can institute a vote of no confidence in the President. That is how our quasi-Westminster system was designed to operate and there was nothing wrong with the ANC recalling Mbeki after it lost confidence in him. In fact, Mbeki should have been recalled long ago and it is an indictment of the ANC that it took so long for them to get rid of this man.

That is also why, so far, I am a rather big fan of President Kgalema Motlanthe, who acted on the first day of his presidency two months ago to remove the health minister, Manto Tshabalala-Msimang, a polarizing figure who had proposed garlic, lemon juice and beetroot as AIDS remedies. The subsequent appointment of Barbara Hogan was also an inspired choice. According to the New York Times Hogan said:

“I feel ashamed that we have to own up to what Harvard is saying,” Ms. Hogan, an A.N.C. stalwart who was imprisoned for a decade during the anti-apartheid struggle, said in a recent interview. “The era of denialism is over completely in South Africa.”

What a breath of fresh air! Just imagine how Ms Tshabalala-Msimang would have responded to this study and weep for South Africa and its long suffering people. A President who can fire an incompetent and criminally negligent Health Minister and appoint a person of the caliber of Hogan would get my vote. Pity he will not be the ANC’s election candidate next year.

But the New York Times article also contains other very interesting tidbits. It refers to an article written by Ngoako Ramathlodi in which he recounts the way in which Nelson Mandela was humiliated during a 2002 ANC meeting after he made a rare appearance to question the party’s stance on AIDS.

Mr. Ramatlhodi described speakers competing to show greater loyalty to Mr. Mbeki by verbally attacking Mr. Mandela as Mr. Mbeki looked on silently. “After his vicious mauling, Madiba looked twice his age, old and ashen,” Mr. Ramatlhodi wrote.

Mr. Ramatlhodi himself acknowledged in a recent interview that in 2001 he sent a 22-page letter, drafted by Mr. Mbeki’s office, to another of Mr. Mbeki’s most credible critics, Prof. Malegapuru Makgoba, an immunologist who was one of South Africa’s leading scientists. The letter accused Professor Makgoba of defending Western science and its racist ideas about Africans at the expense of Mr. Mbeki.

In 2000 Mr. Mbeki had provided Professor Makgoba with two bound volumes containing 1,500 pages of documents written by AIDS denialists. After reading them, Professor Makgoba said in an interview that he wrote back to warn Mr. Mbeki that if he adopted the denialists’ ideas, South Africa would “become the laughingstock, if not the pariah, of the world again.”

But Mr. Mbeki indicated last year to one of his biographers, Mark Gevisser, that his views on AIDS were essentially unchanged, pointing the writer to a document that, he said, was drafted by A.N.C. leaders and accurately reflected his position.

The document’s authors conceded that H.I.V. might be one cause of AIDS but contended that there were many others, like other diseases and malnutrition.

The document maintained that antiretrovirals were toxic. And it suggested that powerful vested interests — drug companies, governments, scientists — pushed the consensus view of AIDS in a quest for money and power, while peddling centuries-old white racist beliefs that depicted Africans as sexually rapacious.

“Yes, we are sex crazy!” the document’s authors bitterly exclaimed. “Yes, we are diseased! Yes, we spread the deadly H.I. virus through our uncontrolled heterosexual sex!”

The letter written by Mbeki’s office contains astonishing new proof of Mbeki’s denialism. In the usual Mbeki way, it refers to the very real and despicable racism prevalent in the West, and then uses this to question the science around HIV/AIDS. It is astonishingly lacking in logic and suggests to me that Mbeki may not be as clever as we thought he was. It argues that because public health policy in the West has often been informed by racism, the scientific research on HIV  and ARVs – done in laboratories in the West to save the lives of people in the West – must also therefore be suspect.

So for Mbeki, HIV tests, the science around the causes and progression of HIV and the miracle ARV medicines developed in Western laboratories now saving the lives of millions of people around the world, cannot be trusted because to trust this would be to accept a view of Africans as rapacious, sexual beings. Mbeki’s letter also questions whether South Africa has an HIV problem at all – despite the fact that between 12 and 20% of pregnant women tested at clinics are found to be HIV positive. Who cares about scientific tests and the lives of ordinary poor and black South Africans if wounds have to be licked, scores settled and arguments won? This letter should be exhibit A in the indictment of Mbeki’s Presidency.

But what also struck me of the article is the fact that all those ANC NEC members were “competing to show greater loyalty to Mr. Mbeki by verbally attacking Mr. Mandela”. Mr Zuma did not speak up then. Neither did Mr Ramatholdi. They sat there quietly while their leader was promoting quackery masquerading as a politically correct pro-African intervention. Why did so few speak up then? Were they scared of Mbeki? And if so, what does it say about their honour and their commitment to the betterment of the lives of the masses of our people? Why did they choose to rather keep the leader happy than to do something that would save the lives of hundreds of thousands of South Africans? How do they sleep at night?

Now Ramatlhodi – and many others who sat quietly while Mbeki’s quackery was allowed to kill thousands of South Africans – are of course Jacob Zuma supporters. Will they (are they already?) showing the same kind of disastrous loyalty to a new leader with feet of clay? Is that the inevitable result of a mindset that holds the Party and the Leader to be more important than principle, than the truth, than the lives of our people?

Is that why there is not a snowballs hope in hell that the ANC will ditch Zuma and nominate Motlante to be our President after the next election? Is the ANC doomed to repeat the mistakes it made in the past by blindly following Zuma over the cliff? We will see. If Hogan is retained as health minister after the election, if the NPA is allowed to try and prove its case against Zuma in court, if ANC leaders do not sit silently by while Zuma and his cohorts undermine the judiciary, I would be the first to admit that maybe the ANC has learnt something from the Mbeki disaster.

For the sake of South Africa and all its people, I sure as hell hope it has.

No wonder she had been drinking…..

Oct 22nd, 2008
by Pierre De Vos.
34 comments

The Science Daily reports on new research about the estimated amount of lives lost because of the delay in implementing a comprehensive antiretroviral programme in South Africa. It compares the situation in South Africa to that in neighbouring countries and come to the following conclusion:

More than 330,000 lives were lost to HIV/AIDS in South Africa from 2000 and 2005 because a feasible and timely antiretroviral (ARV) treatment program was not implemented, assert researchers from the Harvard School of Public Health (HSPH) in a study published online by the Journal of Acquired Immune Deficiency Syndromes.

In addition, an estimated 35,000 babies were born with HIV during that same period in the country because a feasible mother-to-child transmission prophylaxis program using nevirapine (an anti-AIDS drug) was not implemented, the authors write.

Wonder what Manto Tshabalala-Msimang and Thabo Mbeki would say about this study….

Who will replace Judge Madala?

Oct 14th, 2008
by Pierre De Vos.
97 comments

The Judicial Services Commission (JSC) is currently interviewing candidates to fill the post of Justice Tholie Madala on the Constitutional Court. Business Day reports this morning that two of the six judges who are candidates for appointment to the Constitutional Court — Supreme Court of Appeal Judge Chris Jafta and Grahamstown High Court Judge Frank Kroon — withdrew their applications at the last minute yesterday.

The judges are entangled in the controversy surrounding Western Cape Judge President John Hlophe and the Constitutional Court as theyw ere both acting judges on the Constitutional Court when Judge President Hlophe allegedly approached judges of the Constitutional Court about the Zuma matter.

It is difficult to know why these judges withdrew but I would guess the JSC decided that it would be inaprpriate for them to consider the application by these two judges before the complaints against and by Judge President Hlophe have been dealt with.

Had the JSC considered the applications of these two judges and had they recommended any of these judges for appointment, Judge President Hlophe’s legal advisers could easily have argued that the JSC had pre-judged the case. It would then have been possible to say that the JSC had  created the impression that  it believed the allegations made by Jaftha against the Judge President. Justice would then not have been seen to be done. The Constitutional Court judges could have argued the same thing if the judges were not recommended for appointment.

Although unfortunate, it was therefore probably a wise move for the judges to withdraw their applications at this stage in order to ensure that the JSC deal with the Hlophe matter without exposing themselves to charges of bias.

The withdrawals leave just four candidates for the post — the exact number required by the constitution to be submitted to the president to choose from. These are Supreme Court of Appeal (SCA) Judge Edwin Cameron, high court judges Shehnaz Meer and Nigel Willis, and Northern Cape Judge President Frans Kgomo.

Obviously the name of Justice Edwin Cameron stands out among these candidates. As I had argued before, a candidate should qualify for a position on the Constitutional Court if he or she has the requisite legal skills and knowledge as well as the commitment to social justice required by the Bill of Rights. Cameron clearly has both. Although he was recommended for appointment before, then President Thabo Mbeki did not appoint him, probably because of Cameron’s harsh (but courageous and true) criticism of Mbeki’s stance on HIV/AIDS.

In his interview yesterday Cameron acknowledged that he might have “overstepped the line” with his outspoken public criticism of Mbeki and then-Health Minister Manto Tshabalala-Msimang’s poor leadership on HIV/AIDS but said that his own 22-year battle with the syndrome had left him feeling ‘that I could not keep quiet’. According to a Cape Times report, he told the JSC:

“I thought I was going to die at the end of 1997 … I was desperately sick, but my life was given back to me (through anti-retroviral treatment) …and I felt that I had to speak up.’ Cameron was then asked by Marumo Moerane SC, if his own HIV-positive status would stop him from hearing HIV-related cases brought before the Constitutional Court. The judge responded that he would not hear cases related to HIV treatment. Justice Minister Enver Surty, who attended the commission’s sitting, told Cameron that he ‘empathised’ with his struggle.

One may argue that judge Shehnaz Meer – who also displayed a strong commitment to social justice in her interview yesterday – might also get the nod from the Presaident despite the fact that she does not have the same technical knowledge of the law that Cameron has, seeing that there are currently only three women on the Constitutional Court.

But I would argue that given his vast knowledge of the law, his technical brilliance, and the fact that 5 million South Africans are living with HIV, the selection of Cameron would be the wise and correct choice. It would also be a bold affirmation of the rights of people living with HIV and would send a strong signal countering the prejudice and hate still experienced by people living with HIV.

Although the JSC can indicate their preferences when they forward the names to President Motlanthe, the President has the final say in this matter. If he chooses Cameron it will signal a move away from the vindictive attitude of Thabo Mbeki and will say much about Motlanthe’s integirty and wisdom. If it is not Cameron, it will be a sign that Motlanthe might not always be in a position to do the right thing and might be taking instructions from Luthuli house.

I am waiting with bated breath for the outcome because not only will it tell us something about our new President, it will also decisively influence the quality of the members serving on the Constitutional Court.

Arrested and convicted for being HIV positive and gay in Egypt

Apr 14th, 2008
by Pierre De Vos.
9 comments

Out of Egypt – our fellow African country up north – comes the disturbing news report that four HIV positive men and one of their friends had been convicted and sentenced to three years in jail for being HIV positive and thus assumed to be homosexual. The defense lawyer for the five, Adel Ramadan, said the judge convicted the men of the “habitual practice of debauchery,” a term imported from the British colonial times but now used in the Egyptian legal system to denote consensual homosexual acts. The Egyptian Daily News reports as follows:

According to Human Rights Watch (HRW), 12 men have been arrested since October 2007 in a spreading hunt for people suspected of being HIV-positive. “The arrests began when one man, stopped on the street during an altercation, told officers he was HIV positive. Police arrested him and the man with him, beat and abused them, and began picking up others whose names or contact information they found through interrogating the first detainees,” HRW reported.

All the men were charged with the “habitual practice of debauchery,” a term which in Egyptian law includes consensual sexual acts between men. According to HRW, Doctors from the Ministry of Health subjected all the detainees to forcible HIV tests without their consent. The organization said the Forensic Medical Authority performed forcible and abusive anal examinations on the men to “prove” they had had sex with other men.

A prosecutor informed one of them that he had tested positive for HIV by saying: “People like you should be burnt alive. You do not deserve to live.”

In addition to reports of abuse while in detention, the prisoners who tested HIV-positive were held in hospitals, chained to their beds, for months. After a domestic and international outcry, the Ministry of Health ordered the men unchained on Feb. 25.

Why do we not get to read about this flagrant abuse of human rights in our local papers? While the newspapers report every move from Zimbabwe, every farm invasion and every utterance from Mugabe’s thugs and while opposition parties and now even the ANC seems to be clamouring for President Mbeki to “do something” about Zimbabwe, there is not a peep from anyone about this scandalous abuse of the rights of innocent and defenseless individuals in another African country.

Is it perhaps because the victims of this abuse are not white, heterosexual farmers, but gay HIV positive men? Or is this silence caused by an unnecessary and callous sensitivity for the religious convictions of those in charge of the USA supported dictatorship in Egypt?

If this had happened to white gay men living in Zimbabwe and if the perpetrators were some of Mugabe’s thugs, we surely would have been told about it. Even the notoriously homophobic South African press would have discovered newfound sympathy for the plight of the men and would have written editorials about the need to respect and protect the rights of HIV positive individuals regardless of their sexual orientation. The Democratic Alliance would have issued statement after statement in defense of these poor young men and Gordon Brown would have waded in about the inhumanity of it all.

Yet, this has not happened. Some would rightly point out that we get more news from Zimbabwe and we demand more immediate action from our government on Zimbabwe because it is our neighbour and what happens there affects us directly. They might also argue that more people are affected by the attempts by Mugabe and his security chiefs to steal the election there than by the homophobic persecution of HIV positive men in Egypt.

But the fact remains that in our world there is only space in our tiny little callous hearts for that much moral outrage and at the moment most of that space is taken up by our indignation at the Mugabe regime. Yes, some of this concentration of our energies has to do with the proximity of Zimbabwe to South Africa, but I guess some of the focus on Zimbabwe must also have to do with the fact that white people have been thrown off their farms in Zimbabwe – the rule being that when things happen to heterosexual, HIV negative, white people it is always more newsworthy and more worthy of our moral outrage than when things happen to poor and marginalised individuals like the HIV positive homosexuals in Egypt.

I am not saying that we should not be outraged at the attempts by Mugabe to steal the election up north or that we should not vilify President Mbeki for saying that there is no crisis in Zimbabwe. There clearly is a huge crisis in that country and it will affect us one way or another and the way our President has dealt with this question is nothing short of scandalous.

I am, however, pleading for some perspective. There are many other countries where many evil things happen – often worse than what is happening in Zimbabwe. Egypt is one such country. There is no democracy in Egypt (not even the sham kind that Mugabe has instituted in Zimbabwe) and under the guise of religion, gay men (and now it seems hIV positive men) are persecuted there in a way that would be unthinkable even in Zimbabwe.

I am therefore waiting for a statement from the DA and from the ANC condemning this barbarous actions by the Egyptian government. What about having a special summit of the African Union where President Mbeki can be appointed mediator in this dreadful affair to try and get the Egyptian dictators to see reason? It will never happen, of course, because those gay HIV positive men in Egypt are not white or heterosexual and they are citizens of a country that are mollycoddled by both the West and by fellow African countries because of their strategic importance and because of their oil.

So the arrests and persecution will continue in Egypt long after Robert Mugabe has retired to his farm in Zimbabwe and Morgan Tsvangirai has taken over State House. And as we say in Afrikaans: nie ‘n haan sal daarna kraai nie. This is how our Western influenced morality works in South Africa.

A must read book about HIV and stigma

Apr 4th, 2008
by Pierre De Vos.
6 comments

Having just finished reading Jonny Steinberg’s latest book on HIV/AIDS, called The Three Letter Plague, many feelings and thoughts swirl through my head. It is a shocking, sad, depressing, yet uplifting and insightful book – all at the same time – and should be required reading for opinion formers in South Africa.

Steinberg spent much time in villages in Lusikisiki in the Eastern Cape and followed a young man he calls Sizwe around, while investigating the nurse-based ARV programme initiated by Doctors Without Borders in the area.

Many things in the book confirms what most informed readers would already know: that HIV carries a serious stigma in this country; that many people in South Africa are confused about the causes of HIV and how to treat it; that the HIV epidemic has strong political undertones in South Africa because of our history of colonialism and apartheid.

But what forcefully struck me about the book is the sensitive and nuanced way in which Steinberg exposes the complexities of this epidemic in a rural area utterly unfamiliar to a white middle class person like myself. He takes the reader into villages where cars and even television sets are never seen and where people negotiate the complex relationship between their own traditions and the Western influences in often surprising ways.

Reading the book made me realise again how little some of us city folk know about the lives of people living in many rural parts of South Africa and how complex the relationship is that some people have with the Western/colonial/white world that many of us in the chattering classes belong to or take for granted.

I like the fact that he highlights the fantastic work done by some of these folks in some of the villages and that he portrays the heroic dignity and strength of especially some of the rural woman in these parts, while at the same time discussing the often vicious and selfish attitudes and behaviour of others. He does not shy away from talking about the more difficult aspects of a culture that to some extent have been decimated by the colonial experience.

It seems to me the book goes a long way to explain – without justifying – the AIDS denialism/dissidence of President Mbeki by focusing on the relationship that especially rural black men have with the epidemic and the life-saving ARV’s. He points out that these ARV’s are seen by some as an invention of western white doctors and that many black men feel humiliated about having to rely on them. By relying on ARV’s, he argues, some people might feel that they would once again be enslave by the white man.

Paradoxically, despite this highly sensitive and even sympathetic look at the culture and beliefs of people living around Lusikisiki, it seems to me the book indirectly shines a harsh light on President Thabo Mbeki’s “leadership” on HIV/AIDS. As a self-proclaimed intellectual and as a compassionate leader, one would think that the President would have confronted these issues in a sensitive but firm manner in order to help people overcome the stigma of HIV and the stigma associated with taking ARV’s.

Yet, after reading this book I wonder whether the President himself is not perhaps the prisoner of shame and fear and whether he has not failed the very people whose lives depended on him transcending these colonially instilled feelings of fear and shame.

Steinberg makes clear that even if President Mbeki had confronted the fears and stigma head on, had publicly gone for an HIV test and had championed the use of ARV’s, there would still have been those who would not have tested and would not have arrived at clinics before it was too late.

But I cannot help but think that strong leadership on this could have saved countless lives and that the tragedy of Mbeki’s Presidency and of the history of HIV in South Africa over the past ten years has been that he has not been able to do that because he has not addressed his own demons.

In any event, this is a book that might open many eyes and might – unexpectedly – even garner some sympathy for our desperately flawed President and his unconscionable attitude towards HIV/AIDS.

Denialism = dissidence = Mbeki = death

Nov 22nd, 2007
by Pierre De Vos.
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On Thought Leader Ronald Suresh Roberts again tries to argue that President Thabo Mbeki is neither an Aids denialist, nor an Aids dissident, but merely a poor misunderstood and maligned man with a deep passion for the lives of the vulnerable and the poor living with HIV. This, after Mark Gevisser said Mbeki was the latter (dissident) but not the former (denialist).

This whole debate seems rather absurd and deeply offensive to me. It is like discussing whether George W Bush is intelligent or not, while every day hundreds of Iraqi’s die in Iraq after the illegal invasion by America. Who cares whether he is intelligent or not: all we know is that he is a dangerous man who has caused untold death and destruction and that he should be stopped. I feel the same way about Mbeki and Roberts – and Mark Gevisser for that matter. Don’t these people know anyone who has died of Aids or are living with HIV? Have they no compassion?

For me this whole sorry saga once again shows that Mbeki and Roberts will rather be right and win an argument, than admit to having been wrong – even if that would have saved the lives of poor and vulnerable South Africans. This is a harsh statement, but I am deeply angered by this whole pathetic intellectual masturbation by the likes of Suresh Roberts on the corpses of poor people.

Surely, whether Mbeki is a “denialist” or a “dissident” or merely a man who questioned the medical and scientific orthodoxy around HIV/AIDS, must be of little interest or comfort to the families of the hundreds of thousands of people who died needlessly because they could not afford anti-retroviral drugs which was not made accessible in the public health sector or because they decided not to take such medication because the President had created the impression that the medication was dangerous and that “a virus cannot cause a syndrome”.

Fact is that President Thabo Mbeki is not the victim of some conspiracy of people twisting his words. He is merely the victim of his own, arrogant, know-it-all questioning of the medical orthodoxy, which if it was followed, would have saved countless lives. No, he is not the victim, we are. This arrogance at the very least created confusion and emboldened quacks and charlatans who could then exploit the fears of ignorant people by selling them snake oil cures for HIV when the only way they could be helped would have been through taking anti-retroviral drugs. This is why the debate is irrelevant: the confusion was created long ago and has led to the deaths of thousands of South Africans. Suresh Roberts can write for a million years and can write two million pages, but like Lady Macbeth that spot of blood will never be rubbed out.

But let me mention just a few examples of how our beloved President created confusion and how he created the impression that HIV is not the (sole) cause of AIDS and that anti-retroviral drugs are poison.

Mbeki said more than once that HIV on its own cannot cause Aids. In an interview with Tim Sebastian on the BBC HARDtalk on 6 August 2001 President Mbeki responded as follows to questioning about the 7 million people living wth HIV in South Africa:

TM: From what I read which is what the scientists are saying, you have here an acquired immune deficiency syndrome. Now a syndrome is a collection of diseases whose causes are known. You can’t say one virus causes a syndrome.

If one virus – the HI virus – cannot cause a syndrome, as Mbeki said here, he must mean other things must contribute to that syndrome called Aids. That means HIV does not on its own cause AIDS. Mbeki has argued that those things are lack of nutrition, clean water, sanitation etc. He has not suggested that once one is HIV positive the virus more vigorously attacks the immune systems of those who do not have proper food to eat or clean water to drink (which would have been correct). No, he said that the virus is just one thing that we must look for when we look at the causes of Aids (which is deluded rubbish that gave sustenance to denialists and dissidents).

This view was underlined on October 4 2001 in Business Day, when the head of the ANC presidency, Smuts Ngonyama, took issue with an article in which the newspaper’s parliamentary correspondent, Wyndham Hartley, had called for the pressure to be kept on cabinet ministers to acknowledge the causal link between HIV and AIDS. Ngonyama (or Mbeki) stated that:

“Hartley should read President Mbeki’s speech at the Durban international AIDS conference and his comments in the recent issue of Time magazine. He will see that, among other things, what the president is challenging is the assertion that AID, AIDS without S, is the exclusive fault of a single virus. To substantiate his opinion, Hartley must produce evidence that HIV is the sole cause of AIDS.”

For an ordinary person, for the average journalist and for almost every concerned observer except Ronald Suresh Roberts, this can only mean that the President does not believe that HIV=AIDS. Merely being HIV positive would not lead to one having Aids (and dying). Something more was required: It must mean that AIDS also come from other things and therefore the scare stories about having to use condoms and the stories about this one virus killing millions is wrong and can be ignored. Why use a condom then if we are going to die of hunger or lack of clean water which will also give us AIDS or if we have good food and clean water and the one virus alone won’t kill us?

Even if that is not what Mbeki meant, that is how it was understood by the vast majority of South Africans and as any President with even a smidgen of humanity and compassion would have known, such a belief would cause people to act in ways that would be detrimental to them and would eventually kill many of them. It is criminal that Mbeki would rather win an intellectual argument than see this basic human truth, and it is criminal that Roberts still wants to defend him for doing this.

President Mbeki has also questioned the use of anti-retroviral drugs. As Andrew Feinstein has reported in his book, After the Party, the President addressed the Parliamentary caucus of the ANC and said the following (the correctness of this report has never been denied by the President or anyone else):

If we say HIV=AIDS then we must say = drugs. Pharmaceutical companies want to sell drugs which they can’t do unless HIV causes AIDS, so they don’t want this thesis to be attacked. That is one problem.

The other one is the international political environment where the CIA has got involved. So, the US says we will give loans to Africa to pay for US drugs.

It is therefore all a CIA plot to make us buy drugs that will not save lives but will kill us. Maybe this is not denialism. Maybe it is not dissidence. But is is paranoid and it is criminally irresponsibles for a head of state to question the efficacy of the only treatment shown to successfully combat HIV and to question the motives of those who manufacture or call for the use of these drugs.

If President Mbeki was a scientist or some Professor at an obscure University, this all would have mattered very little – he would have just been another maverick questioning orthodox doctrine and he would have scored good debating points against the pharmaceutical industry, an industry in need of severe criticism. But he is the head of state with enormous influence on the way people think and behave and therefore has a responsibility to lead and to act in a way that would fight the spread of HIV and help those living with HIV. This he failed to do.

Instead he rather chose to questioning the orthodoxy on HIV/AIDS, which might have been intellectually clever but heartless and disastrous from a human perspective because it confused ordinary people. Those ordinary people who have made a difference to the spread of the disease and to its effective treatment if they had not been so confused. We all know what the consequences of this confusion led to.

No matter what Ronald Suresh Roberts or anyone else say now, the end result was that one man’s intellectual arrogance had set back the anti-HIV campaign and the campaign for treatment with several years. It did so in a way that future generations would find perplexing, heartbreaking and criminal.

It is absurd and sickening to even argue, then, about whether Mbeki is a dissident on an HIV or a denialist or whatever. Who the hell cares except people with bigger egos than hearts? All that the families of those who died needlessly of Aids in South Africa know, is that Mbeki was wrong. Pity he or his praise singer Roberts would never have to look those people in the eye and admit it.

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