Soraya Mentoor and Tebogo Gareitsanye

COVID-19 has highlighted and exacerbated pre-existing inequalities including poverty, unemployment and struggling public health care systems between rich and poor countries.

With many countries in Africa struggling with high levels of HIV, TB and other chronic conditions (regarded as comorbidities), the UNAIDS Global AIDS Update shows that people living with HIV are at a higher risk of COVID-19 morbidity and mortality, yet many cannot access life-saving vaccines.

Lack of access to affordable essential medicine has been, and continues to afflict many people in developing countries due to monopoly and high pharmaceutical prices driven by patents which are not aligned with health and human rights needs of many people around the world.

Although pharmaceutical companies have tried to make drugs affordable, most patented drugs are expensive and not available in the public sector. This leads to affordability barriers and preventable deaths.

Botswana is one of many countries with a burgeoning Non-Communicable Diseases (NCDs) burden that is weighing down the country’s health system, with high levels of HIV, TB, Cancer and now COVID-19, compounding the situation.

The vision of the Botswana Government is to enable all people to have the opportunity to achieve and maintain the highest level of health and well-being. On health financing, Botswana also aims to raise sufficient resources to ensure that all citizens have access to a range of cost-effective interventions at an affordable price.

As a member of the World Trade Organisation (WTO) Botswana has implemented elements of the Trade Related Aspects of Intellectual Property Rights (TRIPS). TRIPS is an international agreement between all the member nations of the WTO to increase access to medicines.

According to Cindy Kelemi, Executive Director of Botswana Network on Ethics Law & HIV/AIDS (BONELA), there are still legal barriers such as the presence of a TRIPS-plus measure which criminalizes patent infringement and the preclusion of intellectual property rights from anti-competition legislation, among others.
In this regard, Kelemi contends: “Botswana pharmaceutical companies and others cannot be legally challenged on the grounds of anti-competitive practices. In order to further strengthen the TRIPS flexibilities in Botswana law, BONELA aims to develop a preliminary or draft national IP policy to not only plug the identified gaps, but to bring together different elements of IP law into one cohesive and comprehensive policy.”

There are certain flexibilities that allow countries facing a public health crisis to force patent holders to give up a compulsory license. This is currently being implemented to access COVID 19 vaccines. We argue that If COVID 19 is considered a public health crisis then HIV, TB, Cancer and Malaria should also be considered as such and be given the same priorities and intervention.

This is not the case and many patients are still dying of curable diseases because they are unable to access essential medicines in Botswana. Against this background, BONELA implemented a two-year programme to advocate for a shift in policy towards supporting access to essential HIV, TB and Hepatitis C medicines in Botswana.

This programme is part of a joint initiative by the AIDS and Rights Alliance of Southern Africa (ARASA) and the Southern African Regional Programme on Access to Medicine and Diagnostics (SARPAM) which are implementing a three-year programme, focusing on minimizing intellectual property barriers towards access to HIV, TB and Hepatitis C medicines in Zimbabwe, Mauritius and Botswana.

*Soraya Mentoor is Grants Manager at the AIDS and Rights Alliance for Southern Africa while Tebogo Gareitsanye is a Policy and Legal Coordinator at the Botswana Network on Ethics, Law and HIV/AIDS (BONELA)