THE AFRICAN COURT ON HUMAN AND PEOPLES’ RIGHTS


IN THE MATTER BETWEEN


THE NGO “KIBUNIANS FOR JUSTICE” (KIJU)
AND
THE STATE OF KIBUNIA



MEMORIAL FOR THE RESPONDENT











Summary of the Respondent’s submissions

1. The admissibility of the application
It will be argued that while the African Court on Human and Peoples’ Rights may be empowered to decide on the admissibility of the dispute, it should not elect to do so, but should rather refer the matter to the Commission, which should be regarded as bearing the primary responsibility for deciding upon the admissibility of matters submitted to the Court. It will be argued that if the Court does decide to decide upon the admissibility of the application, it should find the matter inadmissible.

2. Corruption within the public health service
It will be argued, firstly, that this aspect of the application should be found to be inadmissible, and, secondly, that while the existence of corruption within the public health service may constitute an infringement of the complainant’s right to development, the Respondent should not be found to be in breach of its obligations to the complainant.
3. The lack of a comprehensive HIV/AIDS treatment programme
It will be argued, firstly, that the Applicant is not entitled to institute an actio popularis before the African Court; secondly, that the provision of generic ARV medication cannot, at this point in time, be regarded as a “necessary” measure which the Respondent State is obliged to adopt; and, thirdly, that the current lack of provision for ARV medication on the part of the Respondent cannot be regarded as a breach by it of its obligations.

4. The customary rule of primogeniture
It will be argued by the Respondent that the existence of the rule of primogeniture and the recognition given to it by the Respondent (and the Respondent’s failure to take legislative or other appropriate steps to eliminate it) does not constitute a violation on the part of the Respondent of its obligations in terms of the legal instruments to be discussed below. Furthermore, it will be argued that it is not within the proper functions of the Court to consider issues of policy-making or to abolish important sections of the national law of States.
5. Admission to a state orphanage / child care institution
It will be argued on behalf of the Respondent that its refusal to grant Caroline to a state orphanage or other child care institution does not amount to a violation of her rights, nor to non-compliance on the part of the State with its concomitant obligations. In this regard it will be argued that it would be in Caroline’s best interests to be returned to live with her extended family.
1. THE ADMISSIBILITY OF THE APPLICATION

1.1 The Court’s power to rule on admissibility
1.1.1 The Court and the Commission exist in a complementary or supplementary relationship,[1] and both bodies are empowered to actually decide matters on their merits.[2] The Court is empowered to refer matters to the Commission for its finding on admissibility (and not also on merits).[3] In this regard the Court supplements the Commission, with the Commission being tasked with the primary responsibility to decide on the admissibility of cases to the Court. This would be in the interests of efficiency.[4]
1.1.2 Accordingly, it is submitted that the Court should not elect to decide on the admissibility of the dispute, but should rather refer the matter to the Commission for its determination in this regard.

1.2. The admissibility of the matter
1.2.1 Even if the application satisfies both the requirements of Article 6(2) of the Protocol and Article 56 of the Charter, the Court may nevertheless refuse an NGO or individual direct access to the Court[5] by exercising the discretion conferred upon it in terms of Article 5(3) of the Protocol. While one of the important purposes of international adjudicatory bodies is to provide justice to individuals,[6] this should not be regarded as the primary function of the African Court,[7] which should only hear those cases which would allow it to expound on the African Charter and thus guide the development of the domestic law and policy of African nations.[8]
1.2.2 It is submitted that due to the nature and substance of the Applicant’s allegations, this matter cannot be properly dealt with by the African Court. The Applicant alleges the existence of certain wide-spread and systemic problems, obviously bringing the matter before the Court as a “test case.” The matter ought to first be dealt with by the Commission, which is empowered, in terms of Article 58 of the Charter, to conduct an investigation into the actual state of affairs in Kibunia and make a factual report and recommendations thereon.


2. CORRUPTION WITHIN THE PUBLIC HEALTH SERVICE

2.1 The admissibility of the issue
Consideration of this aspect of the application will not allow the Court to fulfil its proper mandate as described above.[9] The Respondent has already taken all possible steps in meeting its obligations under the relevant legal instruments, to be discussed below. It has criminalised the practice of corruption, and the implementation and enforcement of the legislation is naturally limited by budgetary and other resource limitations and constraints.

2.2 The responsibility of the State to observe and protect the right to development, and the problem of corruption.
2.2.1 The right to development[10] is the inalienable human right, vested in the individual, to economic, social, cultural and political development.[11] The process of development to which individuals have a right is essentially one of the progressive realization of the associated social, economic, cultural and political rights, as such rights “cannot be realized immediately and in full because of the constraints on available resources.”[12] Thus states are only burdened with the responsibility to create conditions which are favourable to the realization of the right to development.[13] The measures adopted by the State must be “appropriate,”[14] and must be carried out “with a view to eradicating all social injustices.”[15] Even if the Declaration was legally binding,[16] States would surely not be burdened with the obligation to once and for all eradicate all social injustices. This would be totally unreasonable. The Respondent concedes that the existence of corruption, a form of social injustice, inhibits the realisation of the right to development, but asserts that it has done all that can reasonably be required of it in taking measures to prevent and combat corruption. In particular, with the criminalisation of the acts of corruption defined in the Convention on Corruption, the Respondent has fulfilled its undertaking to condemn and reject acts of corruption[17] and has fulfilled the further aim of the Convention to promote the development of measures to prevent, punish and eradicate corruption.[18] Obviously such development cannot be completed overnight. Thus the Respondent State cannot reasonably be expected to immediately investigate and prosecute every single complaint of corruption which it receives. In the present case it investigated the first complaint received by the Applicant and is currently prosecuting the alleged offender. There is nothing to suggest that the Respondent State will fail to do so in respect of the other complaints when the necessary resources become available.
2.2.3 Accordingly, it is submitted that the Respondent has taken all reasonably practicable and necessary measures to combat and prevent corruption, and that it has therefore acted in accordance with its obligations in terms of Article 22 of the African Charter and in terms of the Convention on Corruption.


3. THE LACK OF A COMPREHENSIVE HIV/AIDS TREATMENT PROGRAMME

3.1 The admissibility of the issue
While anybody, or any NGO, either acting on their own behalf or on behalf of someone else, and thus regardless of whether they are the direct victim of the complaint, may submit an application to the African Court,[19] it is submitted that these generous rules of standing only apply to Applicants bringing applications on behalf of specific individuals or specific groups of identified individuals. In order for a petition to the Inter-American Commission on Human Rights to be admissible, it must mention “concrete, individually identified and distinguished victims.”[20] It is submitted that an actio popularis brought on behalf of the entire AIDS-affected population of Kibunia is too wide in scope to be admissible. The Applicant is not entitled to argue that the state is in breach of its obligations as it has failed to identify the direct victim or victims of such an alleged breach, nor can it argue that the complainant’s deceased mother is representative of any abstract class of victims.

3.2 The Respondent state’s obligations
3.2.1 Article 16(1) of the African Charter provides that “Every individual shall have the right to enjoy the best attainable state of physical and mental health,” while Article 16(2) imposes a positive obligation on the Respondent to “take the necessary measures to protect the health of [its] people and to ensure that they receive medical attention when they are sick.”
3.2.2 In accordance with the African Court’s intended role, Article 16 of the Charter must be interpreted so as to allow for:
- the direct enforcement of the right enshrined in Article 16(1), and for
- the evaluation of the measures undertaken by states to give effect to such right, as contemplated in Article 16(2).
3.2.3 In the light of the South African Constitutional Court’s judgement in Government of the Republic of South Africa v Grootboom,[21] in which it was held that the reasonableness of legislative and other measures adopted by the state in discharging its obligations can be evaluated by a court,[22] the key to the justiciability of socio-economic rights is the standard of reasonableness. Furthermore, the state is only obliged to take steps, within its available resources, to achieve the progressive realisation of the right; thus in Soobramoney v Minister of Health (KwaZulu-Natal),[23] the Constitutional Court held that an unqualified obligation to realise the socio-economic rights contained in ss26 and 27 of the Constitution would not, in the light of the state’s lack of resources, be capable of being fulfilled.[24] In Minister of Health v Treatment Action Campaign[25] the Constitutional Court emphasised that s27(1) of the Constitution, which enshrines the right to health,[26] cannot be read in isolation from s27(2), and does not give rise to a self-standing and independent right enforceable irrespective of the above qualifications. It should be noted that the jurisprudence of the South African Constitutional Court is of considerable persuasive authority to the African Court.[27]
3.2.4 Thus, it must be determined whether the Respondent’s ongoing failure to provide ARV medication to its AIDS-affected population is unreasonable bearing in mind its available resources and the imperative that the right to the best attainable state of health be progressively realised.

3.3 The role of generic fixed-dose combination ARV medication
Fixed-dosed combination (FDC) ARV medication is regarded by many experts as essential to the treatment of AIDS, tuberculosis and malaria, as well as to limiting the development of drug resistant strains of these diseases. From March 29-31 2004, a conference of government officials, representatives of drug regulatory agencies and experts was held in Gaborone, Botswana concerning the scientific and technical principles for the use of generic FDCs in the treatment of AIDS, tuberculosis and malaria. Prior to the conference the US Department of Health and Human Services had called the safety and effectiveness of these drugs into question, as, although approved by the World Health Organization (WHO), they have not been approved by the US Food and Drug Administration. The participants at the conference agreed to formulate a set of principles to be used for evaluating generic FDC ARVs, which has not yet been made available.[28] It is submitted that, pending finalisation of the principles and standards to be used in evaluating FDC medication, it cannot be assumed that generic FDC medication should necessarily form an integral part of a “comprehensive” HIV/AIDS treatment programme, nor is the Respondent in a position to choose between the various generic products which are available. If an inferior product is imported and supplied to the population and then later withdrawn, the serious problems of reduced drug effectiveness and the development of viral drug resistance arise. It is thus submitted that the Respondent state has not acted unreasonably in not yet providing ARVs to its affected population.

3.4 International intellectual property law and the ability of developing countries to obtain generic ARV medication
3.4.1 Under the WTO’s Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), WTO members have to provide patent protection for pharmaceuticals, and are thus not permitted to allow the manufacture, within their countries, of cheaper generic drugs. However, Article 31 of TRIPS provides for the issuing of compulsory licences which allow the manufacture of a patented product without the consent of the patent holder, provided the conditions set out in sub-articles (a) to (l) are met. At the Doha Ministerial Conference in November 2001, WTO member governments issued the Declaration on the TRIPS Agreement and Public Health,[29] in which it was recognised that Article 31(f) of TRIPS, by limiting use of a product manufactured under compulsory licence to the domestic market of the government which has issued the licence, prevents countries capable of manufacturing a generic pharmaceutical under compulsory licence from exporting it to developing countries unable to manufacture it for themselves, such as Kibunia.[30] However, exporting countries’[31] obligations in this regard have subsequently been waived in terms of the Decision of the General Council of 30 August 2003,[32] and thus these countries are now able to manufacture generic drugs under compulsory licence and export them to an “eligible importing member,” provided that both countries have issued compulsory licences.[33] Furthermore, the importing country’s obligation[34] to pay the patentee for the issue of the compulsory licence is also waived. However, it may still have to pay the manufacturing (ie exporting) country, as the latter’s obligations in this regard are not waived.
3.4.2 In the light of the above discussion it is clear that Kibunia, which possesses no capacity to manufacture ARV medication itself, would not, prior to the above WTO Decision, have been able to obtain generic ARV medication from another country which was able to manufacture the drugs but which was bound by TRIPS.[35] While some developing countries which had not yet introduced patent protection (and which were not, therefore, bound by TRIPS), and which had the necessary manufacturing capacity, such as Brazil and India, could theoretically have supplied the Respondent with generics prior to the Decision, the Respondent[36] would still have been required, when issuing a compulsory licence for its importation, to pay the patentee, in accordance with TRIPS.[37] It would have been unable to afford to do so.
3.4.3 While it may be conceded that it may now be easier for the Respondent to gain access to cheaper generic ARV medications, it is submitted that the Respondent’s failure to date cannot be regarded as a breach of its obligations, for the following reasons:
3.4.3.1 ARV medication is only one aspect of a comprehensive treatment program, and counselling, testing, and psycho social support mechanisms first need to be developed. It is, indeed, critical to the effectiveness of ARV medication and the prevention of viral drug resistance that very strict treatment regimes be followed: thus, not only must patients regularly take the medication at the prescribed times, but, furthermore, a reliable and necessarily sophisticated distribution network must be developed in order to ensure the regular supply of the drugs. Premature importation and provision of the medication before the health care system is adequately developed would in fact, in the long term, be detrimental to the AIDS-affected population, as drug-resistant strains of the disease would develop and spread, making continued treatment less effective and, eventually, possibly ineffective.
3.4.3.2 While the Respondent’s obligation[38] to pay the patentee for the importation of a generic pharmaceutical has been waived by the above Decision, the exporting country’s obligations in this regard have not. All developing countries (including those able to manufacture the generics) have to provide patent protection from 1 January 2005 and thus all manufacturing and exporting countries will be bound by Article 31(h) from this time. It is thus inevitable that the Respondent will have to pay any exporting country after this date. It should be remembered that one of the main sources of donor funding for the provision of ARV medication, the US President’s Emergency Plan for AIDS Relief (PEPFAR), currently favours funding for the provision of patented ARV medications only.[39] This severely limits the quantities of medicine obtainable. In the current climate of uncertainty surrounding these issues it is submitted that it would be inappropriate for the Court to make a finding that the Respondent is in breach of its obligations.


4. THE CUSTOMARY RULE OF PRIMOGENITURE

4.1 Admissibility
It is submitted that the Court is not in a position to dictate policy reform to African countries in the area of customary law, for the reasons proposed in paragraph 4.2.2 below. It is thus submitted that the Court should find this issue inadmissible.

4.2 Justifications for the continued existence and recognition of the rule of primogeniture
4.2.1 It is submitted that although the existence of the practice of primogeniture in the State of Kibunia may constitute a violation of certain rights of the complainant (in particular, her right to equality);
4.2.1.1 the discrimination resulting from the practice is justified by the fact that the heir only acquires the rights of control and administration of the property of the deceased subject to the obligations of the head of the family, one of which is the duty to maintain and support the members of the family. In the South African case of Mthembu v Letsela[40] it was held this consequence of the rule justified the discrimination associated with its operation.[41] Studies have shown that customary law throughout Southern Africa still recognises the concomitant obligation of support placed upon the heir.[42]
4.2.1.2 the Respondent state is, in terms of both its own constitution and in terms the African Charter, obliged to recognise and promote cultural practices.[43] While it may be argued that this obligation is qualified by the obligations imposed upon the State to take appropriate legislative measures to eliminate harmful practices and all forms of discrimination against women,[44] it is submitted that it is not within the competency of the African Court to judge the appropriateness of the measures adopted by the Respondent in this regard, as this can only be determined by gauging public opinion and practice with the country itself.
4.2.2 It is submitted that any investigation into the issue of whether this rule of customary law should be regarded as acceptable or not should not be undertaken by a court (especially a supra-national court), but rather by a body specifically tasked with making policy recommendations to Legislatures based upon investigation and public consultation. Both the Zimbabwean Supreme Court[45] and the South African High Court and Supreme Court[46] have held that matters of legal reform are best left to the legislature. The South African Law Commission has recognised that this is the only way to give effect to the twin imperatives of the need for urgent investigation into the acceptability of the practice, and the need for proper consultation with all interested parties.[47] Any proposed reform of the customary law is, according to the Law Commission, a “sensitive legislative experiment,”[48] and cannot thus be undertaken by a Court. Furthermore, the practice cannot simply be excised from customary law (that is, with a court order) as it is inextricably related with the African concept of family and kinship.[49] The removal of one of the important principles of customary law, without a comprehensive investigation into the needs of the people which have been subject to it for centuries, would serve to place the entire system of customary law in jeopardy.
4.2.3 While the High Court of South Africa has held that the application of the principle in the context of “black” intestate succession is unconstitutional,[50] this order is yet to be confirmed by the South African Constitutional Court. While the judgement of the Constitutional Court is yet to be delivered, it appears from media reports that at the initial hearings[51] the Court was particularly concerned about the effects of the order sought and its potential to undermine the importance of customary law.[52] In particular, Ngcobo JA is reported to have stated that it would be inappropriate for a Court “to get rid of a justice system with the stroke of a pen.”[53]




5. ADMISSION TO A STATE ORPHANAGE / CHILD CARE INSTITUTION

5.1 Parents, guardians or “other persons responsible for the child” have the primary responsibility to care for the child.[54] This is a consequence of the recognition[55] that children should grow up in a family environment of happiness, love and understanding. Thus, the Respondent is obliged to protect and support the family as “the natural unit and basis of society.”[56]
5.2 In all actions concerning the child, the child’s best interests are “the” or “a” primary consideration.[57] The child has a right to have his or her best interests taken into consideration.[58] While the child’s own views must be taken into account in the determination of his or her best interests,[59] they are not necessarily decisive,[60] and the degree of importance to be attached to them depends upon his or her age, maturity, and emotional or psychological status. Thus is should be borne in mind that Caroline is clearly suffering from emotional and psychological distress after the recent death of her mother and understandably feels uncomfortable in the environment of an extended family with other children who have not lost their parents. It is submitted that with counselling she will be able to overcome the psychological and emotional trauma caused by the death of her mother and adjust to life in her extended family. It should also be recognised that it would be in her best interests to remain with her sister, Nicole, as it has been observed that a factor which contributes to psychological trauma is the separation of orphans from their siblings, as siblings are likely to depend heavily upon each other for emotional support.[61] There is no indication of any maltreatment, abuse, or neglect on the part of Caroline’s uncle or the extended family. Caroline is, regrettably, far more likely to suffer abuse, maltreatment and neglect at one of the few orphanages established in Kibunia. Orphanages are typically overcrowded and unable to provide the “family” environment to which orphans are entitled due to a lack of resources available to care for the huge, and increasing, numbers of AIDS orphans.[62] Thus, UNICEF’s official policy is that the institutionalised care of orphans is not an appropriate option,[63] and UNICEF-supported programs avoid solutions that separate children from their families.[64] Resources should rather be spent on strengthening the ability of families and communities to care for orphaned children.
5.3 Even if Caroline were admitted to an orphanage, there is no guarantee that she will be able or willing to remain there, bearing in mind the likelihood of abuse and neglect.
5.4 Furthermore, Caroline has duties towards her family,[65] bearing in mind the central place and importance of the extended family in African cultural and social life.

The Respondent thus prays that the above honourable Court decline to grant the orders and/or relief sought by the Applicant.

TABLE OF AUTHORITIES

African Charter on Human and Peoples’ Rights

African Charter on the Rights and Welfare of the Child

Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS)

AU Convention on the Prevention and Combating of Corruption

Constitution of the Republic of South Africa Act 108 of 1996

Convention on the Elimination of All Forms of Discrimination Against Women

Convention on the Rights of the Child

Decision of the General Council of the WTO of 30 August 2003 concerning the Implementation of paragraph 6 of the Doha Declaration on the TRIPS Agreement and public health

Doha Declaration on the TRIPS Agreement and public health

UN Declaration on the Right to Development (UN General Assembly Resolution 41/128)

Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa

Protocol to the African Charter on Human and Peoples’ Rights on the Establishment of an African Court on Human and Peoples’ Rights
____________________________________________________________________________________________

Africa Action (Washington DC) Press Release, April 6 2004. Available from http://allafrica.com/stories/200404060695.html

Archibald, Sally “Customary Law Challenged in Concourt” iafrica.com news; SAPA. Wed 14 April 2004. http://iafrica.com/news/sa/307010.htm

Bowman, Cynthia Grant and Kuenyehia, Akua Women and Law in Sub-Saharan Africa. Accra: Sedco Publishing, 2003

Collins, Tara and Pearson, Senator Landon “What does the “best interests of the child” mean?” Discussion Paper of the Senate of Canada, Office of the Personal Representative of the Prime Minister to the UN Special Session on Children. http://www.sen.parl.gc.ca/lpearson/htmfiles/hill/17_htm_files/ Committee-e/Tara-ABestInterests.pdf

De Waal J, Currie I and Erasmus, G The Bill of Rights Handbook Landsdowne: Juta, 2001

“Guidelines for Submission of Communications” Information Sheet 2, Published by the Secretariat of the African Commission; http://www.achpr.org/english/information_sheets/ACHPR inf. sheet no.2.doc

Harrington, Julia “The African Court on Human and Peoples’ Rights” In Evans, Malcolm, and Murray, Rachel, eds. The African Charter on Human and Peoples’ Rights: The System in Practice, 1986-2000. Cambridge: CUP, 2002

“HHS Proposes Rapid Process For Review of Fixed Dose Combination and Co-Packaged Products”
http://www.hhs.gov/news/press/2004pres/20040516.html

Human Rights Watch “In the Shadow of Death: HIV/AIDS and Children’s Rights in Kenya.” (2001) Human Rights Watch, Children’s Division June 2001, Vol. 13, No. 4(A) report available from http://www.hrw.org/reports/2001/kenya/kenya0701.PDF

“Joint statement issued regarding principles for fixed-dose combination drug products.” http://www.hhs.gov/news/press/2004pres/20040408b.html

Mutua, Makau “The African Human Rights System: A Critical Evaluation” 28. UN Development Program: http://hdr.undp.org/docs/publications/background_papers/MUTUA.PDF
Piron, Laure-Hélène “The Right to Development: A Review of the Current State of the Debate for the Department for International Development – Annexes.” http://www.odi.org.uk/pppg/publications\papers_reports\dfid\issues\rights\right_to_dev_Annex.pdf

Sengupta, Arjun “Development Cooperation and the Right to Development.” (2003) . Paper prepared for the François-Xavier Bagnoud Center for Health and Human Rights, Harvard School of Public Health.. http://www.hsph.harvard.edu/fxbcenter/FXBC_WP12--Sengupta.pdf

Themba et al in Ncube & Stewart (eds) Widowhood, Inheritance Law, Customs and Practices in Southern Africa. (1995) WLSA Harare

Thomas, Nigel & O’Kane, Claire “When children’s wishes and feelings clash with their ‘best interests.’” In The International Journal of Children’s Rights 6: 137-154, 1998, p. 137.

Udombana Nsongurua J. “The African Regional Human Rights Court: Modelling its Rules of Procedure” (2002) 107 www.humanrights.dk/upload/application/b61a7401/ udombana_-_african_human_rights_court.pdf

South African Law Commission Discussion Paper 93. http://www.law.wits.ac.za/salc/discussn/paper93sum.html

Summary of Discussion Paper 93, Project 90, August 2000; http://wwwserver.law.wits.ac.za/salc/discussn/paper93sum.html

UNICEF Fact Sheet: “Orphans and other children affected by HIV / AIDS” United Nations Children’s Fund (UNICEF), New York, 2002. http://www.unicef.org/publications/pub_factsheet_orphan_en.pdf

UNICEF: “Family environment and parental guidance” http://www.unicef.org/crc/bg019.htm



Bhe and others v The Magistrate, Khayelitsha and others; unreported judgement of the CPD. Case 9489/02

Government of the Republic of South Africa v Grootboom 2001 (1) SA 46 (CC)

Magaya v Magaya 1991 (1) Zimbabwe Law Reports (100)

Minister of Health v Treatment Action Campaign 2002 (5) SA 721 (CC)

Mthembu v Letsela 1997 (2) SA 936 (T)

Soobramoney v Minister of Health (KwaZulu-Natal) 1998 (1) SA 765 (CC)

IACHR, Case 12.404. Report Nº 51/02 (Peru)

IACHR Petition 453/01 Report Nº 92/03 (Venezuela)


[1] Art.8 of the Protocol to the African Charter on Human and Peoples’ Rights on the Establishment of an African Court on Human and Peoples’ Rights (“the Protocol”), and Rule 81 of its Rules of Procedure respectively
[2] Rule 81(c)
[3] Rule 81(b)
[4] Harrington (2002) 332; Udombana (2002) 107
[5] Mutua 28.
[6] Ibid.
[7] Ibid.
[8] Ibid., 33
[9] para 1.2.1
[10] Art.22 of the African Charter
[11] UN Declaration on the Right to Development Art.1(1); Sengupta (2003) 3.
[12] Sengupta op cit 2.
[13] Art.3 of the Declaration
[14] Arts. 2(3) and (8) of the Declaration
[15] Art.8
[16] As a UN General Assembly resolution, the Declaration is a non-binding legal pronouncement. See Piron.
[17] Art.3(5)
[18] Art.2(1)
[19] African Commission’s “Guidelines for the Submission of Communications,” Mutua op cit 17
[20] IACHR, Case 12.404. Report Nº 51/02 (Peru) quoted in IACHR Petition 453/01 Report Nº 92/03 (Venezuela)
[21] 2001 (1) SA 46 (CC)
[22] paras 41-42
[23] 1998 (1) SA 765 (CC)
[24] para 11
[25] 2002 (5) SA 721 (CC)
[26] see fn38 supra
[27] Mutua op cit 34
[28] “Joint statement issued regarding principles for fixed-dose combination drug products” US Department of Health and Human Services (HSS)
[29] WT/MIN(01)/DEC/2
[30] Para6 of the Decision
[31] ie., those which are bound by TRIPS
[32] Available online : http://www.wto.org/english/tratop_e/trips_e/implem_para6_e.htm
[33] Para 2.
[34] In terms of Art.31(h) of TRIPS
[35] In particular, Art.31(f)
[36] The Respondent has provided patent protection for Nivirapine; it must be assumed that other ARVs, including FDC ARVs, have also been patented. Alternatively, all references to generic ARVs must be interpreted as references to generic Nivirapine.
[37] Art31(h)
[38] Art31(h)
[39] Africa Action (Washington DC) Press Release, April 6 2004. The HHS has recently proposed an “expedited review process” for PEPFAR, and manufacturers of both brand-name and generic drugs have been urged to “work with [the] FDA and submit applications.” See “HHS Proposes Rapid Process For Review of Fixed Dose Combination and Co-Packaged Products” May 16, 2004
[40] 1997 (2) SA 936 (T)
[41] 945E-F
[42] SALC Discussion Paper 93 at 50. The SALC refers to the results of a study conducted by an NGO, the Women and Law in Southern Africa Research Trust in 6 southern African countries, reported in Themba et al in Ncube & Stewart (eds) (1995)
[43] Art.17
[44] Article 2 of the Convention on the Elimination of All Forms of Discrimination Against Women and the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa
[45] in Magaya v Magaya 1991 (1) Zimbabwe Law Reports (100), in Bowman and Kuenyehia (2003) 189 et seq
[46] in the Mthembu matter; 1998 (2) SA 675 at 686F-G ; 2000 (3) SA 867 (SCA)
[47] SALC Discussion Paper 93 para 1.4.5 and 1.4.6. It should be noted that this project was undertaken by the SALC after the Customary Law of Succession Amendment Bill (1998) was withdrawn after strong opposition from traditional leaders. (x-xi). The Bill has not yet been re-introduced.
[48] Summary of Discussion Paper 93, Project 90
[49] SALC Discussion Paper 93, para 1.2.2
[50] Bhe and others v The Magistrate, Khayelitsha and others; unreported judgement of the CPD; order 307 (25 September 2003)
[51] 2 and 3 March 2004; CCT49/03
[52] Archibald “Customary Law Challenged in Concourt”
[53] ibid.
[54] Convention on the Rights of the Child (CRC) Art.18(1), African Charter on the Rights and Welfare of the Child (ACRWC) Art.20
[55] in the preambles to both the CRC and the ACRWC
[56] ACRWCArt 18(1)
[57] ACRWCArt.4; CRC Art.3 respectively
[58] Mininster of Welfare and Population Development v Fitzpatrick 2000 (3) SA 422 (CC) para 17
[59] ACRWCArt.4(2); CRC Art.12
[60] Thomas and O’Kane (1998) in Collins and Pearson.
[61] HRW report, 17
[62] HRW report, 26; UNICEF: “Family environment and parental guidance”
[63] UNICEF Fact Sheet: “Orphans and other children affected by HIV / AIDS” 2002.
[64] Ibid.
[65] African Charter Art27(1) and 29(1); ACRWC Art 30