On Thursday, a court in South Africa ordered the country’s health department to make public contracts it signed with COVID-19 vaccine providers, handing a victory to those who advocate against government secrecy.
By June 2023, more than 38 million COVID vaccine doses were administered in South Africa. The government obtained these shots through direct purchase, as well as through donations and COVAX, a program managed by the World Health Organization to provide vaccines donated or offered at lower prices to less-developed countries.
The actual cost of these vaccines, according to the advocacy group Health Justice Initiative (HJI), has never been disclosed, although the South African government allocated 10 billion rand ($712 million) for the purchase and distribution of vaccines in its 2021 budget alone.
The content of the vaccine procurement agreements, including the complete details of the contracting parties, also remains a secret. The HJI said these contracts, at the very least, involve Johnson & Johnson and Pfizer, since these were the vaccines administered in the government’s national rollout.
The group asked the National Department of Health (NDOH) to disclose copies of all vaccine contracts and agreements using the Promotion of Access to Information Act (PAIA)—the South African counterpart of FOIA in the United States, but the government refused, claiming that it is bound by lawful non-disclosure agreements clauses and that a compelled disclosure would prejudice “future agreements” with vaccine makers.
In February 2022, HJI sued the government on behalf of the public, arguing that the secrecy over COVID vaccine deals undermines the public’s constitutional right to information.
Fatima Hassan, who heads the HJI, also said there are reasons to believe that the South African government may have overpaid for vaccines or have accepted terms that would allow vaccine manufacturers to profit at the public’s expense.
“Essentially, our government traded secrecy for scarce supplies at the behest of very powerful vaccine manufacturers and intermediaries, who made huge profits on sales,” Ms. Hassan said in a statement. “By agreeing to these onerous non-disclosure agreements, our government is enabling secrecy that only pharma companies benefit from.”
“Non-disclosure of any of the records sought means that a shroud of secrecy is placed over the entire negotiation, procurement, and payment process the very mischief which our constitution and legislation such as PAIA seeks to address,” a Pretoria superior court judge wrote.
The judge also agreed that the disclosure of those agreements is especially important now, given that vaccine companies are lobbying the South African government to shield them from those seeking vaccine injury compensations.
“The NDOH reports to Parliament suggesting that some or all of the vaccine [manufacturers]/suppliers insisted that government provided them with far-reaching indemnities, and establish a vaccine injury fund, failing which vaccines would not be supplied seems to me to be grotesque having regard to the context within which they were negotiated,” the judge wrote.
“It is, in my view, self-evident, that there is a public interest in the disclosure of the records.”
Specifically, HJI is asking for copies of contracts and agreements the South African government made with vaccine makers Johnson & Johnson, Pfizer, South Africa’s Aspen Pharmacare, India’s Cipla, and China’s Sinovac, as well as African Vaccine Acquisition Task Team (AVATT), an organization established by African Union to help member states procure vaccines in partnership with United Nations and World Bank.
“It is not clear whether South Africa has opted out of this mechanism,” HJI said, speaking of AVATT.
The Cape Town-based organization welcomed the ruling, praising the court for upholding “principles of transparency and accountability.”
“With increasing reports of corruption within the healthcare sector, we cannot have a healthcare system shrouded in secrecy,” it said. “Procurement must be held in check, as it will involve powerful multi-national companies, particularly from the pharmaceutical industry.”
The National Department of Health said they are looking at the court order and will respond in due time.
