A nonprofit organisation, the Health Justice Initiative (HJI), has won its legal challenge to compel government to disclose all Covid-19 vaccine contracts with pharmaceutical manufacturers and suppliers.
The North Gauteng High Court in Pretoria handed down judgment in the matter on Thursday, ordering Health Minister Dr Joe Phaahla and the national department of health’s information officer to hand over the documents to the HJI within 10 days of the judgment.
The HJI – which advocates a more inclusive and equitable public and global health system – launched legal proceedings against government to disclose Covid-19 vaccine procurement contracts with pharmaceutical corporations, including Pfizer and J&J, after the health department rejected its application in July 2021 to get access to the documents under the Promotion of Access to Information Act (Paia).
The organisation believes that the public’s constitutional right to access information about public procurement has been flouted by the secrecy related to the commercial details around the Covid-19 vaccine supply in South Africa and globally.
The HJI wants to see not only all contracts and agreements with the pharmaceutical industry, but also copies “of all Covid-19 vaccine negotiation meeting outcomes and/or minutes and correspondence” involved.
The health department refused to hand over the documents, saying the records were not in the public interest. The department, among other arguments it deposited, cited confidentiality and non-disclosure agreements it signed with big pharma.
In handing down judgment in the application, Judge Anthony Millar, who heard the court case last month, ruled that the refusal by government to grant access to HJI was set aside.
He found that it was “self-evident” that there is a public interest in the disclosure of the documents.
In summary, I find that there is no merit in the arguments on the part of the respondents that the information and records sought should not be disclosed in consequence of material non-joinder of affected parties. Confidentiality clauses, which are alleged to be contained in the contracts in question, the present or future commercial interest of the republic preclude disclosure of the records, and lastly, there is no basis upon which there should be mandatory disclosure in the public interest.
Department ordered to pay costs
He ordered the health department to pay the costs of the HJI’s application.
Millar also directed the health department to supply the HJI with copies of all Covid-19 vaccine procurement contracts and memoranda of understanding, and agreements.
This includes copies of all Covid-19 vaccine negotiation meeting outcomes, minutes and correspondence, including but not limited to the following parties, their subsidiaries and/or duly authorised licensed representatives of:
- Johnson & Johnson
- Aspen Pharmacare
- Serum Institute of India
- Any other vaccine manufacturer/licensee
- The African Union Vaccine Access Task Team
- COVAX, and
- The Solidarity Fund
The HJI only cited government in its application because it could not tell what other legal entities were involved in vaccine contracts. The nonprofit organisation said both the health department and Pfizer refused to give it details of the companies involved, while the likes of J&J did not respond to its requests.
In arguing for the disclosure of the documents, the HJI’s director, Fatima Hassan, said there was a heightened need for transparency and accountability, especially during a national disaster, where several of the usual checks and balances were limited.
Hassan added the disclosure was even more important in the health sector following serious allegations that globally, powerful pharmaceutical companies bullied countries into signing secret contracts during the height of the Covid-19 pandemic, and locally, that corruption had diverted millions of rands away from Covid-19 relief measures and other health services.
Transparency and accountability
Hassan described Thursday’s court ruling as a massive victory for transparency and accountability.
“The contracts concern substantial public funds, and the contracting process has been marred by allegations that 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.
“This significant moment comes as we begin to emerge from the devastation of the Covid-19 pandemic.”
The Department of Health said it noted the court judgment and will study it and “respond in due course”.