The Case for Procurement Transparency
By Tara Davis and Nicola Soekoe
In January 2021, the Director General of the World Health Organization (WHO) observed that the world was on the brink of a “catastrophic moral failure” if wealthier nations did not ensure the equitable distribution of COVID-19 vaccines. Global health activists and civil society organizations who worked transnationally to curtail what came to be referred to as “vaccine apartheid” faced a pharmaceutical industry that globally relied on secrecy, capital-friendly trade laws, and brute economic force to shirk considerations of human rights. In many ways, pharmaceutical companies and the states that protected them, including by failing to achieve consensus at the World Trade Organization (WTO) for a waiver of intellectual property rights with respect to vaccines, seemed impenetrable.
Unsurprisingly, given the extreme position of power from which pharmaceutical companies were negotiating contracts, there were widespread reports and allegations of inequitable contractual terms and a culture of bullying in the development of contracts. This was an issue of global concern for a long period during the pandemic. In South Africa, the Health Justice Initiative (HJI), a local advocacy organization, joined the global calls for greater procurement transparency.
However, when the South African Department of Health refused to disclose even the names of the entities with which it had entered into vaccine-related agreements, the HJI was forced to turn to the courts for relief.
HJI’s case in the High Court
In Health Justice Initiative v Minister of Health, a matter brought before the High Court of South Africa, the HJI relied on South Africa’s access to information law – the Promotion of Access to Information Act 2 of 2000 (PAIA) – to seek access to two categories of information: 1) the vaccine procurement contracts entered into between the South African Government and vaccine manufactures or licensees; and 2) the minutes, correspondence, and negotiation meeting outcomes with any vaccine manufacturer or licensee.
The relevant provisions of PAIA are cast in peremptory terms: the requester must be given access to the information held by the state, regardless of the reasons for which access is sought, so long as the request complies with the procedures outlined in the Act and the information requested is not protected from disclosure by the “limited and specific” exemptions provided.
Despite what appeared to be a clear duty to provide the information in terms of PAIA, the Department of Health refused access to the records, contending that it was bound by confidentiality agreements that precluded disclosure and that disclosing the records would prejudice the Department of Health and the vaccine manufacturers in future engagements. It argued, in addition, that there was no public interest in the disclosure of the contracts and other requested documents. The state therefore sought to justify the opaque procurement process primarily by hiding behind confidentiality clauses – the content of which themselves were not even disclosed. This, again, was in keeping with the position of many States at the time with respect to COVID-19 vaccine procurement.
Rejecting the government’s position, the High Court held that “[i]t is not open to the respondents to conclude agreements which include a confidentiality clause and then seek to rely on the confidentiality clause to circumvent their obligations of accountability and transparency” (para 33). It noted that it was “self-evident, that there is a public interest in the disclosure of the records.” Crucially, the Court held that the state’s obligation of disclosure in the public interest persists even in emergency situations (para 48). Ultimately, the Court found no merit in the Department of Health’s arguments and ordered the disclosure of all the records requested.
Impact of the judgment: what have records disclosed shown?
The disclosure of the records, and subsequent analysis thereof led by the HJI have revealed that not only was South Africa charged more for COVID-19 vaccines than countries in the Global North, but also that the terms and conditions that the state had to agree to were overwhelmingly one-sided, favouring multinational pharmaceutical companies (including Janssen Pharmaceuticals, which produces the J&J vaccine, as well as with Pfizer, and the Serum Institute of India) and preserving their intellectual property empires. Commenting on these revelations, the Deputy Director-General of South Africa’s Department of Health has conceded that South Africa was “screwed” by the global Covid-19 vaccine procurement process and that the government is “very unhappy with the way in which this all happened”.
While the HJI’s victory comes too late for the changes that might have prevented the so-called “excess deaths” resulting from the inequitable distribution of vaccines – estimated at 670,000 deaths worldwide – or the large-scale suffering that the pandemic brought about, it nevertheless offers a sobering reminder of the role that transparency must play in a human rights-centered response to the next pandemic.
The importance of transparency in responses to pandemics
Transparency is also a founding value of the South African Constitution, and central to the rule of law. Transparency and access to information is also recognized as one of the overarching “principles and obligations” contained in the Principles and Guidelines on Human Rights and Public Heath Emergencies (the Principles). Specifically, the Principles indicate that international law places an obligation on states to “ensure widespread, meaningful, and timely access to accurate and quality information” (Principle s 6.2(a)). Notably, during a public health emergency this clearly is intended to apply to public procurement contracts (s 6.2(a)(iii)).
The Health Justice Initiative’s litigation was launched before the publication of the Principles, but their existence would, in our view, have bolstered the case for the importance of transparency during a global emergency. First, the Principles might have bolstered global solidarity efforts by civil society actors across the world by giving them a central source from which to draw their demands. Second, in some countries where, unlike South Africa, comprehensive constitutional rights to access public information and legislation giving effect to them do not exist, the Principles could have been relied on for human rights-based arguments in Court. Finally, if the Principles had been followed by States at the time of the COVID-19 Pandemic, which, in our view, they should have been, proactive disclosure by the South African government would have vitiated the need for protracted court processes in South Africa and elsewhere. This, critically, could have helped save lives.
The COVID-19 pandemic placed extraordinary demands on governments across the world – requiring them to maximize the use of scarce human, financial, technological, and other resources in the face of great global demand and unequal bargaining power with major multinational companies, not least in the pharmaceutical industries. This is no easy feat, as the UN Committee on Economic, Social and Cultural Rights noted from the outset of the pandemic, States are obliged to ensure the “extraordinary mobilization of resources” in response to public health emergencies. Principle 10 recognizes this obligation in international law and, moreover, interestingly indicates that the resources available to states should be understood to include resources that are privately held, whether obtained or controlled through “effective measures to direct or otherwise regulate the use of privately held, owned or operated resources” or through “coordinat[ion] with private actors” (Principle 10.3).
Further, the context of public health emergencies more generally makes the need for transparency and accountability greater, particularly when the usual checks and balances have been relaxed as occurred in many situations during the COVID-19 pandemic. One of the lessons from the HJI judgment is that in times of public health emergencies, States and the public cannot rely on the goodwill of pharmaceutical companies to ensure equitable and comprehensive vaccine rollout, which is critical to the protection of a wide range of human rights. Lives literally depend on transparent procurement contracts and lives can actually be saved by ensuring that their contents are publicly known during future public health emergencies. States can no longer pretend not to know this.
Tara Davis is an Attorney of the High Court of South Africa and a Senior Associate at Power & Associates.
Nicola Soekoe is an advocate of the High Court of South Africa and a member of the Pan African Bar Association of South Africa.
