Justice After AIDS Denialism: Should There Be Prosecutions and Compensation?

Abstract

Edward Mabunda died on April 9, 2003. At least another 600 people died of AIDS in South Africa that day. Edward was just 36 years old. He left behind a wife and 3 children. He was also a leader in the Treatment Action Campaign (TAC). He became an icon of the movement because of the fiery poetry that he recited to thousands of people. His poems urged former President Thabo Mbeki to make antiretrovirals (ARVs) available in South Africa’s public health system. He died because he could not obtain these life-saving medicines in time. From 1999 to 2007, Mbeki and his Minister of Health Manto Tshabalala-Msimang obstructed and then undermined the implementation of highly active ARV treatment (HAART) and prevention of mother-to-child transmission of HIV in the public health system. Two studies, conducted independently of each other, conservatively calculated that over 300,000 people died because of Mbeki’s AIDS denialist policies. Edward Mabunda was one of them. These studies could not account for additional deaths due to the promotion of quackery, often with the health minister’s support. They also did not consider the number of infections that occurred because of the confusion generated by the insipid state-funded prevention campaign and the messages by some outspokenMbeki supporters dismissing the link between sex and HIV infection. The Mbeki era also fostered a profound mistrust of scientific medicine, the consequences of which also cannot be quantified. What, if any, repercussions should be there for those responsible for this tragedy? The Rome Statute of the International Criminal Court, to which South Africa is a signatory, defines the ‘‘intentional infliction of conditions of life, inter alia the deprivation of access to food and medicine, calculated to bring about the destruction of part of a population’’ as a crime against humanity. President Mbeki did not execute people with guns or bombs, but he did have the power and responsibility to prevent several hundred thousand deaths. Yet, he and his health minister chose to ignore the scientific consensus and the vociferous demands of South African civil society groups like the TAC. Questioning scientific consensus is the prerogative of a political leader, but in this case, the consensus was overwhelming. Furthermore, dissent from the consensus, that is, the arguments of AIDS denialists, had been shown to be ludicrous long before Mbeki became president, and the consequences of that dissent were always likely to be disastrous. Therefore, Mbeki must surely be held responsible for the disastrous aftermath of his policy choices. This raises the possibility that he and Tshabalala-Msimang should be prosecuted. In 2003, the TAC laid a complaint of culpable homicide with the police against TshabalalaMsimang. The organization provided a detailed ‘‘docket’’ describing the evidence against her. The complaint was largely symbolic and part of a civil disobedience campaign that would ultimately change government policy. But perhaps, it is time to go beyond symbolism. I am unaware of any other case in the history of the modern democratic state in which so many have died because political leaders willfully contradicted scientific advice. However, there have been instances in which political leaders have been successfully prosecuted for negligent behavior with far greater extenuating circumstances. For example, Edmond Herve, the former French health minister, was convicted for his role in the