The Health Justice Initiative (HJI) will today ask the Gauteng High Court, Pretoria to order the Minister of Health and Department of Health to disclose records about the procurement of Covid-19 vaccines by the National Department of Health.
The HJI said in a statement yesterday that it wants access to vaccine procurement contracts concluded with vaccine manufacturers and suppliers, and the records of the negotiations with those parties. It had initiated legal proceedings on February 22 this year.
More than 38 million Covid-19 vaccine doses had been administered in South Africa by end June, having received several million vaccine doses by directly buying from pharmaceutical companies such as Johnson & Johnson and Pfizer, and through the Covax facility, and by donations.
“However, the content of these agreements, including the details of the contracting parties, is unknown and remains a secret. The HJI believes that at the very least, contracts must have been entered into with the SA government and Johnson & Johnson and Pfizer, as these are the vaccines South Africa was administering in the national vaccine roll-out,” the HJI said.
The vaccines were procured at great cost, but the actual cost has not been disclosed. The 2021 National Budget allocated R10 billion to buy Covid-19 vaccines.
“It is for this reason that in 2021 the HJI used South Africa’s access to information law, the Promotion of Access to Information Act, to request access to the vaccine procurement contracts. The government refused,” HJI said in a statement.
The Department of Health said in its legal papers: “We ... maintain that South Africa is a party to global commercial practice and confidentiality clauses are part of those practices and the government, as a contracting party, is bound by those practices and agreements. The government cannot be treated differently from any other juristic person who negotiates commercial transactions.
“The procurement agreements … are not contrary to public policy as alleged by the applicant. There is no evidence to support this proposition. The respondents have a public duty to protect the citizens of the Republic of South Africa and in the performance of its public duty, it concludes trade agreements both locally and internationally,” the department said.
“It is a customary practice that in commercial transactions, the parties may agree to a non-disclosure of the terms and conditions of the transaction,” the department said.
HJI Head Fatima Hassan said: “There is a heightened need for transparency and accountability, especially during a national disaster, where several of the usual checks and balances are limited.
“Disclosure is even more important in the health sector following serious allegations that globally, powerful pharmaceutical companies bullied countries into signing secret contracts at the time and locally, that corruption has diverted millions of rand away from Covid-19 relief measures and other health services.
“The public has a right to know what our government agreed to, when and with whom, at what price, and why. These companies should not try to distort our democracy by insisting on this type of secrecy,” Hassan said.
The Department of Health has argued in its legal papers that it is bound by confidentiality clauses that preclude disclosure and that disclosure “would prejudice it and the vaccine manufacturers in future engagements”.
“We have argued that because the contracts concern significant public funds, the lack of transparency violates the Constitutional principle that public administrations must be accountable and foster transparency by providing the public with timely, accessible and accurate information,” said Hassan.
The HJI said such disclosure was in the public interest. Additionally, previous media reports indicate that the government may have been forced to overpay for vaccines or to accept onerous procurement terms, including broad indemnification clauses, export restrictions, and non-refundability clauses.
“Essentially, our government traded secrecy for scarce supplies at the behest of very powerful vaccine manufacturers and intermediaries, who made huge profits on sales. Our government should stand up to these companies. By agreeing to these onerous non-disclosure agreements our government is enabling secrecy that only pharma companies benefit from,” said Hassan.
“By releasing this information, it will blow the lid on Covid contract secrecy, which is undoubtedly a global issue, and create an important precedent that other countries can leverage to demand open contracting in their jurisdictions with the same companies.”
The case may contribute towards pandemic preparedness measures and bolster provisions on transparency and accountability in Pandemic Treaty negotiations,” said Hassan.
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