Documents obtained via High Court order reveal negotiations favoured multinational pharma corporations over public interest during SA Covid-19 vaccine negotiation.

The Health Justice Initiative (HJI) released its second analysis on SA's COVID-19 vaccine procurement last month. As with the first report from September 2023, HJI found that negotiations favoured multinational pharmaceutical corporations over public interest, based on documents obtained via a High Court Order in late 2023. 

Supported by Public Citizen, HJI reviewed negotiations with several companies, focusing on Moderna and Pfizer. SA ultimately did not procure Moderna vaccines but engaged in negotiations governed by a binding Confidential Disclosure Agreement. These documents, which pharmaceutical companies globally did not want public, reveal their profit-maximising strategies during the pandemic. 

Fatima Hassan, Director of HJI, said, “The analysis of the negotiation documents reveals a pattern of bullying and one-sided terms, especially by Moderna and Pfizer, who profiteered from a global health emergency. It is inconceivable that companies forced countries into concessions when we most needed supplies. The attempts by these companies to demand monopolistic and high prices for life-saving vaccines are documented and now clear for all to see. This must influence the current efforts in Geneva to negotiate a global Pandemic Accord. The absurd power that CEOs have in health emergencies must be addressed urgently and resolutely.” 

Jishian Ravinthiran, a researcher with Public Citizen, added, “These documents show that corporations exploit public health emergencies to coerce governments, particularly those in low- and middle-income countries, into unreasonable agreements on life-saving medicines. International efforts to address future health emergencies, like the Pandemic Accord, must include robust provisions to rein in these corporate interests and ensure the equitable supply of vital countermeasures for everyone.” 

HJI’s analysis revealed that Moderna aggressively sought to shield itself from public accountability, demanding: 

• Excessive prices compared to other countries. 
• Broad indemnification clauses. 
• SA's sole responsibility for delivery from Moderna’s European sites. 
• Extreme confidentiality provisions. 
• The right to override contractual arbitration proceedings. 

These conditions likely explain why SA did not obtain supplies from Moderna. The documents also show SA officials attempted to mitigate Pfizer's control over the supply agreement, though largely unsuccessfully. Officials marked draft agreements with comments like: “We need to be able to disclose and be accountable…” Pfizer's rejection of proposed amendments highlights the concentrated corporate power overriding public interests. 

Hassan said, “Private companies operating in the shadows is not good for anyone other than the companies, especially under the soon-to-be-implemented NHI in SA.” Pfizer rejected provisions for disclosing confidential information during emergencies, despite efforts by SA officials to reference the World Health Assembly’s resolution on market transparency. Officials warned these confidentiality clauses might hinder oversight from lawmakers and the Auditor General. 

“The totality of the agreements and negotiation records show that these companies wanted secrecy and no transparency, profiteering at the public’s expense during the pandemic,” said Hassan. The report concludes that corporate bullying by pharma companies undermined SA’s vaccination programme, calling for mandated transparency in procuring lifesaving vaccines using public funds in health emergencies and under the forthcoming NHI system. 

HJI believes that making these contracts and negotiations public sets an important legal precedent, ensuring that publicly funded medical supplies are not shrouded in corporate secrecy during health crises. “People’s lives must come before pharma secrecy and profiteering. This conduct was unethical, against our Constitution, and cannot be allowed in future health emergencies or under the NHI in SA.” Hassan said.