Over the past several months a number of senior ANC figures have taken to complaining that our constitutional system is an impediment to transformation. This has attracted the retort - from former Chief Justice Arthur Chaskalson and others - that this is nonsense as transformation is, in fact, a constitutional imperative. This debate seems to me to be somewhat misdirected. If there is a serious minded charge to be made against the Constitution it is that it allowed for too much "transformation" not too little.
In particular the Constitution's defences against the ANC's centralisation of power in the late 1990s were weak and ineffective. Indeed, the ANC's efforts to destroy the checks and balances integral to liberal democracy - all in the name of transformation - have been so successful that there has yet to be a proper accounting for the abuses that occurred during that period.
One of these is obviously the Arms Deal, though it is now the subject of a slow moving judicial inquiry. The other is the ANC's involvement in the development of the putative AIDS cure, Virodene, between 1997 and 2002. The Virodene story was extensively documented on Politicsweb in 2007 but two recent books provide important confirmatory evidence of the extent of the involvement of the ANC and Thabo Mbeki in the whole affair.
Virodene was (illegally) tested on HIV/AIDS patients in late 1996 and the miraculous results presented to cabinet by then Deputy President Mbeki in February 1997. In his memoir Politics in my Blood the late Kader Asmal describes how cabinet were bowled over by the presentation. He writes: "Virodene's champion was Mbeki himself. He couldn't wait to prove Africa's potential in the field of science and technology." He comments:
"It made perfect sense that the solution to Africa's problems would come from Africa. There was a logic, even an inevitability , about it. It was preordained. Or was it? We never, ever, in my ten years in Cabinet, agreed there and then to write a cheque for millions of rands for any project. We did then, that day, and we wrote it out for snake oil. I was shocked. Not even Manuel could resist, as Mbeki promised to find the funds other than from Treasury. Later, at the usual post-Cabinet press conference, Mbeki said the government would ‘look favourably' on the researchers' request for R3.7 million to continue their studies. In fact, the deal was already done and for considerably more than R3.7 million. My recollection is that it could even have been four times as much. It was unheard of to make such an award, for anything at a Cabinet meeting."
This funding fell through after the Medicines Control Council intervened to block testing of Virodene on human subjects. The ANC thus needed to urgently come up with an alternative source of funding if the promise of this drug was to be realised. Incidentally, any serious inquiry into the Arms Deal would need to examine the possible links between the two scandals as there is significant chronological overlap between them.
I would assume that at this February 1997 meeting cabinet gave a mandate to the National Intelligence Agency to involve itself in protecting this "national asset" - something which would explain NIA's subsequent involvement.
Through the course of 1997 the MCC under the chairmanship of Professor Peter Folb resisted huge pressure from Mbeki and Health Minister Nkosazana Zuma to allow human testing of Virodene. In March 1998 the ANC's patience snapped and Folb and other officials were purged from the MCC.
The new leadership of the MCC did not allow testing either - thanks mainly to the clever detective work of Professor Antoine van Gelder (an ‘old guard' member of council) - and Virodene's researchers and promoters gave up trying to have the drug tested in South Africa.
Mbeki and Nkosazana Zuma remained intimately involved in the development of this African cure for HIV/AIDS however. The researchers directed a series of requests for funding to Mbeki in this period. And in September 1998 Phase 1 trials of the drug were successfully conducted in London.
The following month the ANC government put a stop to the trialling of a rival AIDS treatment - AZT - for the prevention of mother to child transmission of HIV. This was a decision that was regarded as inexplicable and which became increasingly controversial as time wore on.
From November 1998 the Virodene researchers requests for funding were redirected from Mbeki to a confidante of his Max Maisela. In his recently released book Tinderbox: How the West sparked the AIDS epidemic and how the world can finally overcome it (co-authored with Daniel Halperin) Craig Timberg writes that Maisela - who passed away recently - acknowledged in an interview that he had organised $3.5m from investors for Project V:
"The orders to embark on the venture, he said, came from Mbeki and were transmitted through the party's treasurer general [Mendi Msimang].... In retrospect, he said, he wished he had studied Virodene and its research term more carefully before becoming the ANC's lead agent on the project. ‘That's basically how I operated, as a cadre of the ANC', recalled Maisela. ‘You don't do your own thing. You act in the interests of the ANC'."
It was the Virodene researchers who introduced now President Mbeki to the ‘dissident' or ‘denialist' view of HIV/AIDS in October 1999. Mbeki seized on this literature to justify the already long running refusal to provide AZT through the public health care system. (He would soon become a zealous convert to the 'dissident' view of HIV and AIDS.)
As Timberg notes "Pushing Mbeki along were the Virodene researchers, the deepening political and financial investments of ANC activists, and the hope that the drug might eventually end the epidemic." He quotes an anonymous former top government official as stating: "Every step of the way, he had a hand in it. The possibility of a breakthrough by South African scientists was something that made people involved in it very, very passionate."
Through the course of 2000 and 2001 - as Mbeki very publicly challenged the scientific orthodoxy of HIV/AIDS - Phase 2 trials of Virodene were being secretly conducted in Tanzania, funded by the ANC. Timberg states that "Spies dispatched by South Africa's intelligence service kept tabs on the tests, which ran from September 2000 through March 2001." Although a sense of hope initially prevailed - and the trial subjects were well fed and accommodated - "gradually some of the participants began reporting problems, including abdominal swelling, pain, and other symptoms that could have indicated liver abnormalities."
On April 17 2002 the cabinet announced an abrupt reversal of policy and agreed to allow ARVs to HIV positive pregnant mothers and rape victims. This decision is usually put down to public pressure and a pending Constitutional Court decision on the matter. However, as Timberg notes, "there was another, quieter factor as well in the decision. The final results from the Virodene trials in Tanzania had arrived [a few weeks earlier], and they were disappointing." Moreover, "South Africa's intelligence service... had picked up troubling side effects, and President Mbeki's point man on the project, Maisela, had walked away from it in disgust."
The final Constitutional Court judgment - which arrived three months later - ordering government to allow the provision of Nevirapine (an inferior free substitute for AZT) in the public health care system is today regarded as a great triumph for the constitution. Though the judgment was a necessary and commendable one the whole affair points rather to the weaknesses of the checks and balances enshrined in our democratic system.
In 1997 and 1998 the ANC essentially crossed over into illegality both with regards to the Arms Deal and with its involvement in the development of Virodene. Crucially, it was concurrently able to take control over all levers of state power in the name of "transformation".
One legacy of this period is a politicised and dysfunctional state unwilling to act against corrupt members of the dominant ANC faction. Another though is the fact that the Virodene affair has never been subjected to any proper state investigation or even parliamentary hearings. As a result, the significance of the central fact of the scandal - that the ANC was pouring tens of millions of rands into secret Virodene trials even as it denied AZT to HIV positive pregnant mothers and rape victims - has yet to fully register on the public consciousness.
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