Access to Medicines and the Transformation of the South African State: Exploring the Interactions of Legal and Policy Changes in Health, Intellectual Property, Trade, and Competition Law in the Context of South Africa's HIV/AIDS Pandemic

Abstract

Access to essential medicines remains highly contested around the globe and a vital issue in South Africa. At the same time, the HIV/AIDS pandemic and the demand for medical services are having important political and social consequences in a society heavily impacted by the pandemic. Legal and institutional changes within the postapartheid state in South Africa are in part a reflection of the interaction of opportunities and constraints both within and across the country's geographical boundaries. The transformation of state institutions in this context has been set in motion and shaped by different policy imperatives: from demands for medical care to the promotion of economic competition and the need to implement international trade commitments, including specific levels of intellectual property protection. Despite a strong commitment to social change, to address the legacies of apartheid, as well as the relative strength and political will of the dominant political party, the African National Congress, the transformation of a number of state institutions was significantly framed by the global environment in which the country found itself. In the context of South Africa's democratic transition and the devastating HIV/AIDS pandemic, the state responded to a range of shifting opportunities and constraints, whether real or perceived. As a result, impetus was given to different policies and competing political and economic factions, enabling particular institutions and rules to be embraced, created, reshaped, or simply foregone.