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Looking back on ten years of democracy, one of the Republic of South Africa (1996) is the product of a things that most distinguishes the Mandela government negotiated settlement, which, even whilst it allowed from the Mbeki government is the emergence of a for majority rule, left pre-1990 class relations largely more focused and visible left opposition to some of undisturbed. Rather than producing a big bang that the policies and omissions of the government. This has fulfilled the ANC’s election slogan of ‘Jobs’ and ‘Land’ taken a range of forms including the consistent criticism for the previously disenfranchised, it set these goals by COSATU on economic policies such as GEAR and as aspirational values, promising “human dignity, the its consequence in job losses and privatization, as well achievement of equality and the advancement of
as the emergence of a variety of ‘social movements’, human rights and freedoms.” (my emphasis) that are vociferously challenging government on issues Undoubtedly the Constitution entrenches some of the such as landlessness, evictions, electricity cut-offs and compromises on fundamental rights that were made in the pre-1994 negotiating process2. However, centuries The Treatment Action Campaign (TAC) is often listed old political conflicts are rarely resolved on a piece of as one of these movements. However, one of the factors paper and it might be argued that one of the inherent that distinguishes TAC from most other pro-poor strengths of the Constitution is precisely its organisations is the opportunity it has seen and the unambiguous signal that, by 1996, the transformation advantage it has taken of the Bill of Rights in South of South Africa was still unfinished business. Indeed, Africa’s Constitution and of a wide variety of with its non-derogable references to human dignity constitutionally mandated statutory bodies1. At different and equality and with its command that the state must points the TAC has directed its campaigns through the ‘promote and fulfill’ the rights in the Bill of Rights it High Courts, the Constitutional Court, the National invites – and offers to order – future contestation over the best way to improve the lives of the historically (NEDLAC), the Human Rights Commission, the Public disadvantaged. Similarly, the finding of the Protector, the Commission on Gender Equality and the Constitutional Court in its very first judgment3 that ‘socio-economic rights’ are justiciable was a signal This article examines how TAC links its advocacy for that the Court would pass judgments in future cases of HIV treatment to the Constitution, as well as its conflict over whether government was fulfilling its approach to alliances and the political contest over positive duties to better people’s lives.
what policies are best for the poor as has become In the light of this, there are two approaches to the Constitution that can be adopted by organizations campaigning to better the lives of the poor: one approach Struggle and South Africa’s Supreme law
sees it as an ossified and incontestable legitimization of relations of inequality and refuses to engage it other There is no disputing that the final Constitution of the than describing it as a ‘sell out’. This approach is manifested in organizations like the Anti-Privatisation the time the Sunday Times estimated that this would Forum, who protest that in the new South Africa “the result in savings of over R2bn per year for consumers capitalists are protected… the roots of this lie in the of medicines. Similarly in 2003 the settlement Constitution, which protects private property; a agreement negotiated between TAC and BI and GSK, constitution that the Alliance, including the SACP, under the auspices of the Competition Commission, led to the two companies effectively surrendering their Another approach sees the Constitution, and the Bill intellectual property rights, and thus their markets, on of Rights in particular, as a site where battles can be three essential anti-retroviral medicines and their fought to leverage the social and economic position of combinations5. By December 2004 GSK had issued the poor beyond what was granted in 1994, as well as voluntary licenses to five different companies, including to contest new incursions of policy and law on poor its Cipla, an Indian generic company that had never people that emanate from the new government. The previously been the beneficiary of a licence from GSK.
These two examples demonstrate the value that resides Since late 1998, the TAC has constantly invoked in the Constitution and the law to challenge private Constitutional Rights to legitimate and promote profiteering. Some critics of this approach, challenge demands for access to treatment for poor people. In it on the grounds that the victories are only temporary this context it is important to note that the Bill of Rights reforms with no impact on the relationships of power does not only have value for social activists in the that cause the problem in the first place. This too is actual process of litigation, but also as part of securing mistaken: there is no doubt that legal action and high- and holding a moral high ground and mobilizing people visibility campaigns against profiteering from medicine to stand up for their rights. Similarly, it is not only of influenced the World Trade Organisation’s (WTO) use in holding the State to account, but can also be August 2001 clarification of the TRIPS agreement and used to restrain abuses in the private sector.
its explicit declaration that intellectual property rights Generally, TAC has used law and mobilization may be over-ridden, not only in cases of emergency, concurrently. For example, when TAC challenged the but in the interest of public health generally “and, in Pharmaceutical Manufacturers Association (PMA) in particular, to promote access to medicines for all.6” 2001 and the multi-nationals GlaxoSmithKline (GSK) and Boehringer Ingelheim (BI) in 2002-03, both in In addition to applying human rights law against human court and out of court, intellectual property ‘rights’ rights violations by the private sector, TAC has also and their application were challenged legally and demonstrated how advocacy campaigns combined with politically on the basis of constitutional rights to life, litigation can be used to hold the government to account dignity and access to health care services. Whilst and to compel it to implement policies that favour the arguments took place in court, demonstrations were poor and disadvantaged. However, this too is contested, held outside: often the former reinforced the moral not surprisingly by both the government and the ANC.
In an edition of ANC Today in November 2004, TAC’s The result was that in both cases powerful multi- use of the constitution and frequent threats of litigation national companies backed down, ceding considerable against government are belittled by an (unnamed) ground in the process. In 2001, for example, the PMA’s writer. Whilst it is admitted that the use of legal action decision to withdraw its legal action against the “at face value . may appear to be based on a genuine government made it possible for the government to cause to further the interests of people living with HIV implement policies of mandatory generic substitution, and AIDS” it is claimed that in reality this is merely substantially lowering the cost of medicines and an expression of an “academic desire to test the limits reducing the profits of multi-national companies. At of our constitution and the law in general in pursuit of [the TAC and AIDS Law Project’s ] subjective goals Schedules for the Operational Plan on Comprehensive as lobby groups.7” The author goes on to boast that HIV and AIDS Treatment and Care, became necessary after 11 unsuccessful attempts were made to request “All the efforts and resources that are invested this information in letters to the Department of Health, in pre-court case processes, none of the legal Parliament and the ANC – as well as through the threats has ended up in court except for the procedures that are set out in the Promotion of Access case around the use of nevirapine … which dragged on for the most part of 2001 into TAC’s critics on the left and the right dispute what litigation has achieved, but again the outcomes are In the same article the ANC argue, “An independent very tangible and concrete. According to the 2004 judicial system that is fair and able to promote and Annual Report of the Health Ministry there are now defend social and other rights of citizens is all that we 1,600 sites providing MTCT services (as opposed to desire.” This is a desire that is shared fully by the 18 sites that the Minister spent over R4 million TAC, which has used litigation and legally created defending in the legal action against TAC); by bodies, not with the objective of frustrating or December 2004, nearly 20,000 people were receiving maligning government, but as an instrument to advance ARV’s through the public sector (in contrast with none policy in circumstances where other democratic one year earlier); and the budget for HIV prevention avenues have been closed. Thus, for example, the and treatment has been increased to R12 billion over litigation around the use of Nevirapine for the prevention of mother to child HIV transmission, came Contrary to the assertions made in ANC Today this at the end of a long and failed process of engagement would not have been achieved without litigation, with government, rather than at its outset8.
something that is admitted by the Minister of Health in a report of the Public Protector, where she states More recently, the threat of litigation to compel the that “Government’s cautious approach to the use of government to adopt a mechanism for the interim ARVs, not withstanding their wide use in many procurement of anti-retroviral medicines came about developed and developing countries, was accelerated as a result of a refusal by the Minister of Health to by the judgment of the Constitutional Court in the countenance legally sanctioned methods to purchase TAC matter.9” Report Of The Public Protector On An medicines in the absence of the finalisation of the Investigation Into Allegations Of Impropriety In official tender process for the procurement of anti- Connection With The Approval By The Cabinet Of retroviral medicines. Given that even by December An Operational Plan For Comprehensive HIV And 2004 tenders had not been awarded is proof that the AIDS Care, Management And Treatment For South result of this was going to be to delay the start of the Africa, Designed By The National Department Of ARV rollout by over a year, at a cost of tens of thousands of lives. However, in a demonstration of In conclusion therefore it is worth reminding both the its bona fides and as evidence that TAC is not just government and the ‘social movements’ that the legal engaged in an “academic exercise”, in March 2004 framework that was introduced in 1994 very the TAC withdrew its legal case within hours of consciously created institutions intended for use by receiving a letter from the Minister of Health reporting the poor and disadvantaged, of whatever hue, to pursue that the Health MINMEC had agreed to interim – via democratic and legal means – a better life for all. It foresaw that governance would bring with it a Similarly, in November 2004 TAC’s resort to the High contest between opposing class interests and that on Court in an application for access to the Implementation occasion even a democratic government would act in a fashion contrary to the interests and needs of parts most ordinary people still have to an essentially of our society. In such cases resorting to the courts to progressive government and party, and the determine the exact meaning of, and duties created by constitutionally enshrined rights to freedom of Constitutional rights would be justifiable. This, expression (section 16) and the right to “assemble, to presumably, was what the late Dullah Omar, South demonstrate, to picket and to present petitions.” (section Africa’s first Minister of Justice, envisaged when he 17) In this respect it is arguable that TAC’s campaigns told the first conference of the Human Rights have contributed to the deepening of democracy precisely because they have always been situated in “I have one fear concerning the Bill of Rights the ‘mainstream’ of progressive politics, forcing individuals and organizations into moral and political inherited, only a few people have the capacity dilemmas that they can easily avoid when a pro-poor to enjoy their rights and the danger that we movement conducts itself in a fashion that allows it face is that the Bill will be the sole preserve to be cast – rightly or wrongly -- as ‘the ultra-left’.
This was recognised by Graca Machel who, in 2003 Approach to alliances:
“that South African democracy is stronger for the efforts of those we recognize tonight, we The campaign for treatment is, of necessity, a political need to rejoice because their efforts have helped one, but TAC has always avoided projecting itself as move this country closer to that idealized just a new political force. It has also avoided simplifying South Africa’s political transition via a crude reductionism that describes the ANC and all its allies In this context another point needs to be made: in as having ‘sold out’ the poor. TAC views the ANC as pursuing the issues that link themselves to access to a heterogenous organization, that encompasses both treatment it is important to project the demands of the people whose sole aim is to exploit it for what Nelson poor and people with HIV for social justice and fairness Mandela recognized as “instant gratification11”, as in a manner that is not clouded by a meaningless well as people fully committed to the democratization political dogma which may alienate potential and development of South Africa in a fashion that supporters. Thus, whilst there is no disputing that dramatically improves the condition of the poor. As capitalism and the path followed by globalisation the 1999 and 2004 elections demonstrated, the ANC (rather than globalisation itself) are major determinants also still attracts the expectations of most of the of both the global spread of HIV and inequity in countries’ poor. It is for these reasons that, in all of treatment, little benefit accrues to 21st century poor its campaigns, TAC has expressed a broad sympathy by campaigning around aspirational but meaningless with the ANC and its alliance partners, COSATU and slogans such as ‘Smash capitalism – Build Socialism the SACP. This permits a real engagement over difficult now’. Neither is there advantage in using the AIDS political and policy issues and even though TAC has epidemic, or other social ills, to persuade a new pushed conflicts over ANC-decided policy into generation of people angered by poverty that the ANC litigation and sometimes bitterly accusatory protest, government will ‘sell out the poor’. The challenge is it had continued to collaborate with government and to make the constitutional state fulfil its duties and the ANC with the implementation of good policies work for the poor by pushing the limits of social reform and programmes. The positioning of TAC’s advocacy to ensure that people’s dignity as well as the tangible within the broad church of the ANC alliance has advancement of all of their “human rights and sometimes created a tension between the loyalty that TAC is categorised by some as a social movement unleashed in the uprisings and strikes against apartheid presumably because it has mobilised thousands of and its laws. They were also inspired by the potential people who are predominantly young, black, of the organizations that they had created, such as the unemployed, female and have HIV. But the campaign United Democractic Front (UDF), the Federation of for access to HIV/AIDS treatment has simultaneously South African Trade Unions (FOSATU) and then later been able to attract the sympathy and active or passive of COSATU, to overthrow apartheid. A momentum support of middle classes, and even some of the grew behind a diverse social movement that led to the cumulative strengthening of civil society, despite intense Some of the ‘left’ have described TAC’s use of the repression, over a period of 20 years.
law and its location within the Alliance as a class But here the similarities end. Anti-apartheid activists compromise of poor people’s interests. In particular had to hide from the police and other agents of the they lament TAC’s continued efforts to engage the State -- but were succoured and shielded in communities ANC13. But achieving a broader appeal for issues of they came from. Their heroism was acknowledged inequality around HIV/AIDS has not been done through from the outset and those who died – such as Hector compromise – but by highlighting the human Petersen, Matthew Goniwe, Ruth First - were consequences of inequity, putting forward rational memorialized instantaneously. Organising in the AIDS arguments, and continually appealing for justice. In epidemic is different. Despite the advent of formal this respect, it is instructive that some of TAC’s most democracy and constitutionally entrenched rights to ‘radical’ campaigns – including the 2003 civil equality and dignity, community organization around disobedience campaign -- created extensive public HIV is more difficult. Stigma and denial suffocate debate on the issues they raised and drew support for people with HIV/AIDS and inhibit organized responses.
across both class and race lines. These campaigns also This was borne out in South Africa’s 2004 general provide examples of how, even within TAC’s support elections where the issue of HIV/AIDS was not formally base, initial disagreement gives way to support in the raised as a priority by the electorate – despite the fact face of engagement and persuasion. For example, in that it is a cause of pain and suffering to millions of 2000 TAC was publicly criticised by COSATU when people. Based on research that showed this, the ANC it first broke patents by unlawfully importing generic decided to downplay and largely ignore the AIDS Fluconazole from Thailand. However, one year later, epidemic during its election campaign. Arguably this COSATU Deputy President Joyce Phekane, was part added to the stigma, by creating an image of South of a TAC delegation that went to Brazil to collect and Africa on the tenth anniversary of democracy that was a picture of robust health, zeal and an awakening and revival of African culture. Bed-ridden people in Whither TAC?
hospitals and ‘home based care’, or people with the visible scars of HIV infection, must have struggled to Thus far, HIV/AIDS has been the catalyst, and TAC find themselves in these images, strengthening the the vehicle for the awakening of a new generation of inclination to lie low and die rather than spoil the party.
socio-political activists in South Africa. In the 1970’s A final but crucial difference is that whilst anti-apartheid the Soweto Uprising, followed by the emergence of activists risked and suffered assassination, HIV is more the independent trade union movement, also gave birth cruel. Many of the TAC’s community leaders who to a new generation of political leaders. Individuals mobilized ordinary people behind the struggle for such as Murphy Morobe, Mosiua Lekota, Cyril treatment have died -- despite their best efforts to stay Ramaphosa, Cheryl Carolus and many more were alive. In reality HIV has a greater capacity to rob civil inspired by the power of the poor that, they felt, society of its nascent social capital than the apartheid security police, vicious though they were.
and inequality. In the 1970s and 1980s the vision of As acknowledged above, the HIV/AIDS epidemic is an alternative form of socialist organization was a a manifestation of economic and social inequalities major driver and unifier of the anti-apartheid movement.
and a ‘new world order’ that condones this type of There was a belief that, whatever the degree of adversity, crisis. In 2004 TAC has begun to redirect its campaigns apartheid and capitalism were historically predetermined to focus more singularly on the health system generally.
(by a mixture of moral and Marxist reasoning) to give However, the campaign will remain a focused one because whether (or not) people have obtained access Today, the strong belief in social justice that has to treatment is a narrow and easily quantifiable advanced organisations of the poor is much more objective. Gradations of success or failure are easily cloudy and less theoretically elaborated – there is no determined. This continues to allow the setting of philosophical underpinning or coherent alternative goals, self-evaluation and prevents the watering down vision of the state and economy equivalent to that set of objectives. Put bluntly, either people have access to out by Marxist theoreticians. Before long, social medicine and dignified health care or they do not.
movements, including TAC, will have to confront this In conclusion there is no doubt that in the mid-to-long if human rights struggles, and the use of rights-based term a health activist movement, such as TAC, has to Constitutions, are to bring about lasting shifts in the establish alliances with genuine social movements to address both the symptoms and aetiology of poverty FOOTNOTES
1 This is not the only factor. At a recent workshop of ‘social movements’ (Globalisation, Marginalisation and New Social Movements in South Africa, 28-29 October 2004, School of Development Studies, Centre for Civil Society, University of KwaZulu Natal) TAC drew almost as much wrath from organisations aligned to the Anti-Privatisation Forum (APF), for its alleged toenadering with the government and the Alliance, as they express towards the government itself. TAC is variously accused of being too close to the government; too close to COSATU; or, too uncritical of traditional left anathemas such as the World Bank.
2 H Klug, Constituting Democracy, Law, Globalisation and South Africa’s Political Reconstruction, Cambridge University Press, 2000.
3 Ex Parte Chairperson of the Constitutional Assembly: In re Certification of the Constitution of the Republic of SA, 1996 (4) SA 774 (CC); 1996 (10) BCLR 1253 (CC) para 78.
4 APF Supports LPM: Land, Food and Jobs, pamphlet November 2004.
5 See The Price of Life, Hazel Tau and Others vs GlaxoSmithKline and Boehringer Ingelheim: A Report on the Excessive Pricing Complaint to South Africa’s Competition Commission, available on . Also Competition News, the official publication of the Competition Commission, ‘GSK and BI issue anti-retroviral licenses’, February 2004.
6 Declaration on the TRIPS Agreement and Public Health, WTO Resolution WT/MIN (01)/DEC/2, Ministerial Conference, 20 7 ANC Today, Volume 4, No 4, 4-11 November 2004, ‘TAC Court Case: Constant Legal Threats Don’t Help HIV and AIDS Fight 8 Heywood M, Preventing Mother To Child HIV Transmission in SA: Background, Strategies and Outcomes of the TAC Case Against the Minister of Health, SA Journal on Human Rights, Vol 19, 2003 (2).
9 Report Of The Public Protector On An Investigation Into Allegations Of Impropriety In Connection With The Approval By The
Cabinet Of An Operational Plan For Comprehensive HIV And AIDS Care, Management And Treatment For South Africa, Designed By The National Department Of Health, October 2004, para 9.8 10 A Omar, “Speech at the Opening of the SAHRC Conference” Conference Update, May 22, 1997.
11 N Mandela, Biko, Tambo and the RDP of the Soul, Umsebenzi, October 2004 12 Comments by Mrs Graca Machel on the Occasion of Presentation of the Nelson Mandela Award for Health and Human Rights,

Source: http://cpp.org.za/publications/critical_dialogue/vol2no1_2005/chapt4.pdf

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