Among the many unsolicited recommendations that African governments are being pelted with presently, those pertaining to patents and the pricing of a potential COVID-19 vaccine are arguably the most expedient. It is certain that the vaccine will arrive in a cocoon of patents which will make it significantly costlier than a generic version.

Even before COVID-19, some health economists argued that low vaccine prices cause shortages. As the global nature of the pandemic guarantees the potential vaccine’s scarcity, such arguments are likely to rationalize high prices, prolonging the access lag for the global south significantly.

Recently, the COVID-19 vaccine donor conference and a pharmaceutical company have been reassuring about the common and public nature of their efforts. However, beyond warm words, and in spite of the Doha Declaration which sought to prevent patent misuse rather than fundamentally question whether or not they should apply, there are currently no political or legal frameworks within the global multilateral trade regime that support these claims. All things remaining equal, COVID-19 presents the perfect opportunity for pharmaceutical companies to reap what they sowed in the 1970s and 1980s, and tested in the late 1990s. However, history also shows that resistance to this kind of nascent necropolitics is not futile.

December 10, 1998: on the steps of the St. George’s Cathedral in Cape Town, a dozen placard-totting comrades gather for a protest. They demand that the South African government develop a comprehensive and affordable treatment plan for all HIV positive South Africans and distribute azidothymidine (AZT) to HIV positive pregnant women to prevent mother to child transmission during childbirth. In a statement afterwards, the fledgling Treatment Action Campaign (TAC) emphasized that the high prices meant that people could not afford the medicine: patents were a key problem in the fight against the epidemic.

TAC is commonly referred to as the most innovative social movement in the 21st century, and its early work was dominated by drug pricing and access-related issues. TAC supported a proposed amendment of the South African Medicines Act to create competition in the medicines market, leading to lower prices. The Act also allowed parallel importation of medicines and made generic substitution of medicines whose patents had expired mandatory.

The activists soon learned that in an unprecedented move backed by the US government, a coalition of around 39 multinational pharmaceutical companies had sued the Mandela government in February 1998 seeking to sabotage the amendment. Deploying protest, shaming and transnational publicity, TAC immediately moved to stop the case, which they deemed an unreasonable attempt to deny South Africans access to affordable HIV treatment.

The global political economy within which the 1997 amendment was to occur was hostile for several reasons. The main one was the agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), part of the then novel World Trade Organization framework that replaced the General Agreement on Trade and Tariffs. TRIPS, effective on January 1, 1995, introduced comprehensive international minimum standards for the protection of copyrights, trademarks and patents. All members of the WTO were required to implement these into national law.

The narratives—and possibly, parts of the final agreement—were shaped by pharmaceutical industry associations in the USA from the 1970s until the 1980s. At that time, they advanced a discourse around the importance of intellectual property rights for international trade and framed their violation as a trade issue, proposing sanctions as a solution. Convinced by these arguments, the US government took legal action to protect intellectual property rights worldwide, including in South Africa, where the case dragged on in the courts.

Meanwhile, on an October 1999 trip to Thailand, two TAC activists returned with 3,000 capsules of Biozole—a generic brand of Pfizer’s fluconazole, which is used to prevent and treat candidiasis or fungal infections—in their luggage in violation of both Pfizer’s patent and national law. They confessed this at a press conference the following day after successfully going through customs. For the price of the 3,000 capsules they bought in Thailand, they could only buy 60 capsules of Pfizer’s brand in South Africa. With public opinion in their favor, the authorities pardoned them. They had made their point.

On the day of the court hearing on March 5, 2001, there were protests in thirty countries in response to TAC’s call. TAC had kickstarted the first transnational protest campaign of the 21st century. In Pretoria, five hundred people camped near the court overnight. Just before the hearing (which was promptly adjourned), five thousand people marched on the US Embassy. When the case resumed on April 18, 2001, the plaintiffs requested adjournment and withdrew from the case the next day. With the amended medicines act in sight, the first of many hurdles was out of the way.

A few months later, the new WTO negotiation round—the Doha Round—began. The corresponding ministerial conference adopted the Doha Declaration on TRIPS and Public Health in November 2001, addressing some of the issues raised by TAC. In essence, it recognized intellectual property protection’s negative impact on medicine prices, although it was generally considered to promote innovation. Per the declaration, the global south was disproportionately affected, hence the need for the TRIPS to address the issue. It asserted that public health measures ought to take precedence over a restrictive TRIPS interpretation.

But since 1995, and even after the 2005 amendment resulting from the Doha Declaration that strongly encouraged the use of TRIPS flexibilities such as compulsory licensing to ensure access, TRIPS has curtailed rather than incentivized access to medicines in most African countries. This is chiefly because it has legitimized pharmaceutical companies to sell drugs at prices that are out of reach for most African governments and citizens, creating a systemic access problem. On their part, most African countries have often viewed TRIPS flexibilities as a measure of last resort, because the “least developed country” transition period, which runs out right when a vaccine is likely to be released (July 2021), still applies. Compulsory licensing is when a state includes in their patent legislation provisions for use of pharmaceutical products without authorization of the patent-holder. It applies particularly for public non-commercial use, in national emergencies or other circumstances of extreme urgency. Consequently, African governments must be assertive in their use of TRIPS flexibilities, as Brazil has repeatedly done, to ensure that Africans have simultaneous or minimum-lag access to the COVID-19 vaccine as it becomes available. To state the obvious, the COVID-19 crisis is the last resort.