Mbeki and the charge of genocide - Frans Cronje

The former president is morally but perhaps not criminally liable for AIDS deaths

The minister of health, Dr Aaron Motsoaledi, has blamed Thabo Mbeki and his administration for the Aids pandemic in South Africa. Dr Motsoaledi referred to a report that South Africa had 0.7% of the world's population but 17% of people infected with HIV and Aids. The Young Communist League has gone even further and called for Thabo Mbeki and his health minister to be charged with genocide. Data the Institute has published in its annual South Africa Survey this month shows the extent of the death and suffering inflicted on black South Africans by the Mbeki administration's HIV and Aids policies.

The South Africa Survey was published this week. Its 729 pages of data on economic, social, and political trends on South Africa places the progress made in the country since 1994 in context. Eight pages are devoted to HIV/Aids trends, indicators, and forecasts, and echo what the health minister said last week.

The data shows that approximately 5.7 million South Africans were living with HIV/Aids in 2009. Eighteen percent of the adult population was infected. Half a million new infections were recorded in 2009. Over 300 000 people died of Aids-related illness in 2008 including 47 000 children under the age of 14. In total, to July 2009, 2.9 million South Africans had died. Approximately half of all deaths in the country were related to HIV/Aids. 

African South Africans carried almost the entire brunt of the pandemic. Their total infection rate in 2008 was 13.6% compared to 1.7% for coloured people and 0.3% for white and Indian people.

The consequences for South Africa's social and family relations have been devastating. The number of Aids orphans living in South Africa was estimated at between 1.1 million and 1.4 million in 2007. The number is expected to rise to just under 2 million by 2010. A figure of as many as 700 000 child-headed households has been estimated. The psychological damage to poor black communities is immeasurable.

South Africa's infection rate was far higher than the 5% average for sub-Saharan Africa, and the 0.3% average for North Africa and the middle-east. Infection rates for the rest of the world were without exception lower than 1%. 

Why African South Africans have such an extraordinarily high infection rate has never been properly explained. It is very likely, however, that the contradictory and obstructionist policies of the Mbeki administration must carry some of the blame. These policies denied the relationship between HIV and Aids and caused much public confusion. However, the government also allowed activities such as the Abstinence - Be faithful - Condomise, or ABC campaign, to operate. Most of the people infected over this period also had a personal choice in the decision they made to have unprotected sex or to have scores of different partners. They therefore have to carry much of the responsibility for having been infected. The same does not obviously apply to rape victims and the like. Any case for Mbeki's culpability can therefore not hinge solely on South Africa's HIV infection rate.

His government's HIV/Aids policies were however responsible for denying access to life-saving medication through the public health sector. The government accused critics of its treatment policy of racism, and publicly promoted ‘traditional African remedies' of potatoes, beetroot and lemon juice. The government told people that ‘western' medicine was dangerous and had ‘side effects'. Where public sector doctors did prescribe anti-retroviral drugs they were in many cases dismissed. Non-profit organizations trying to promote anti-retroviral medication at public hospitals were banned from these institutions. As a result of failing to get proper treatment almost 3 million people died.

Three things need to be determined before considering a case for Thabo Mbeki's possible liability for these deaths.

1. The first is whether the Government had an obligation to provide healthcare services to poor people.

2. The second is whether the government could afford to provide such services.

3. The third is whether the provision of medication could have prevented many of the three million deaths.

On each of the three points the answer is probably yes. The Constitution requires that the State provide adequate healthcare services within its resources. The ANC certainly regards itself as having that responsibility sometimes to the extent of seeking to curtail the efforts of the private healthcare sector. The State should have been able to afford anti-retroviral treatment both within its own budget and considering the groundswell of international sympathy and likely financial assistance that would have been generated by South Africa pursuing a determined treatment campaign. The efficacy of the drugs themselves was never in doubt outside of Thabo Mbeki's small circle of advisors.  

Mr Mbeki therefore has at least the moral liability for the unnecessary deaths of hundreds of thousands of South Africans. His government had a constitutional responsibility to provide treatment to people infected with Aids but they chose not to provide such treatment. This decision was not made on the grounds that the treatment was not affordable or could not be obtained from international donors but rather on the grounds that it was not necessary. It was presumably not Thabo Mbeki's intent to kill hundreds of thousands of people but in this case the absence of intent does not alter the fact that the consequences of his negligence and indifference were foreseeable.

Throughout the time that Mr Mbeki foisted his Aids policy on South Africa, Parliament had the legal, and the ANC the political, power to remove him from office. Not once in this period did a member of his cabinet publicly disagree with him or resign in protest. The ANC therefore shares collective responsibility with Thabo Mbeki. What is often described as Thabo Mbeki's Aids policy would in fact be better described as the ANC's Aids policy. When the ANC did remove him from office it was over a simple power play in the ruling alliance suggesting that the party saw an internal power squabble as more serious than the deaths of so many of their own supporters.

What then to make of the proposal that he be charged with genocide? As this morning's Business Day points out, ' the legal definition of genocide almost certainly does not apply to the government's Aids policy. And if charges of murder were laid the evidential burden would be difficult to discharge'Business Day then goes further to suggest an HIV/Aids truth commission which it says would be less acrimonious than criminal charges. However, as the youth league of the ANC has already intimated, the party would never allow the idea to get off the ground for fear that the collective responsibility of its sitting leaders would be uncovered. In any case, South Africa's politicians have already demonstrated how they manipulate truth commission proceedings to their own political advantage.

There is however another option open to the victims of the ANC's HIV/Aids policies. That is to pursue class action-style civil claims against the government and the ANC for loss of breadwinner support and the like that resulted from deaths of their family members. But incredibly, many of the victims remain among the most loyal and steadfast supporters of the ANC and are unlikely to initiate any action against their leaders.

This column is left to conclude how different things would have been had the white government clung to power for another twenty years and during that time pursued an Aids policy that denied treatment to mainly black people. The resulting deaths would surely have featured at the highest levels of international politics and been on the agenda of the United Nations' Security Council. Terms like ‘crimes against humanity' would have been loosely tossed at the government and the ANC would have used the government's indifference to black life as a primary campaign upon which to rise to political power in South Africa. However fifteen years after white South Africans surrendered political power to the ANC, that party has presided over exponentially more deaths of black people than were killed in the preceding 400 years of colonial rule.

Frans Cronje is deputy CEO of the South African Institute of Race Relations. This article first appeared in the Institute's weekly online newsletter SAIRR Today, November 20 2009

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