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South Africa: AIDS Treatment Action
AFRICA ACTION
Africa Policy E-Journal
March 24, 2003 (030324)
South Africa: AIDS Treatment Action
(Reposted from sources cited below)
This posting contains an announcement of a civil disobedience
campaign by the Treatment Action Campaign in South Africa,
demanding that the South African government provide antiretroviral
treatment for people living with AIDS who need this treatment to
survive. It also contains an indictment by the TAC against two
government ministers for culpable homicide, for their repeated
refusal to act to provide such treatment. The campaign was timed
to coincide with the anniversary of the Sharpeville Massacre on
March 21, 1960, The March 21 anniversary is recognized
internationally as the International Day for the Elimination of
Racism.
According to news reports, TAC protesters were arrested in Cape
Town and dispersed by police with water cannons in Durban,
Demonstrations were also held in Sharpeville, The protests continue
this week.
For additional background on this latest action see the website of
the Treatment Action Campaign (
http://www.tac.org.za) and the
international solidarity page of the Healthgap website
(
http://www.healthgap.org/camp/tac.html). For more background on
treatment access, see
http://www.africaaction.org/action/access.htm
Editor's note: Africa Action continues engaged with other U.S.
groups and individuals in speaking out against the unilateral and
illegal U.S. invasion of Iraq. For an earlier statement of Africa
Action's position, see
http://www.africafocus.org/docs03ej/war0303a.php>
For current coverage of Africa and the war, we recommend
http://allafrica.com and
BBC (http://www.bbc.co.uk).
Among the invisible "collateral damage" from the war is lessened
public attention to other continuing threats to human security. The
Africa Policy E-Journal will continue to highlight a range of
critical issues, such as the action campaign covered in this
posting.
+++++++++++++++++end summary/introduction+++++++++++++++++++++++
TAC Civil Disobedience Campaign - 20 March 2003
Statement on civil disobedience campaign, which begins today
Docket of charges of culpable homicide against Mantombazana Edmie
Tshabalala-Msimang and Alexander Erwin handed over to police
CIVIL DISOBEDIENCE CAMPAIGN BEGINS TODAY
Tomorrow is Human Rights Day. On 21 March 1960, thousands of black
African people in South Africa left their passes at home. They
marched peacefully to police stations where they handed themselves
over for arrest. Our parents and ancestors chose to go to jail
rather than to obey unjust laws or to allow an immoral and
illegitimate regime to continue take away their dignity and
equality. Mandela, Sisulu, Mbeki, Sobukwe, Ngoyi, First, Slovo,
Kathrada and many thousands more sacrificed for democracy, equality
and justice.
Today, we have a democratic and legitimate government of the
people. Yet, today we are once again breaking the law. We accept
our Constitution. We voted for this government, we accept its
legitimacy and its laws.
But we cannot accept its unjust policy on HIV/AIDS that is causing
the deaths of more than 600 people every day. Today we break the
law to end an unjust policy not an unjust government. For four
years, we have done everything in our power to persuade government
to change this policy: we have provided information and given
evidence, campaigned successfully to lower the price of drugs such
as Fluconazole as well as anti-retrovirals. Eleven months ago, the
Cabinet tantalized people with AIDS by recognizing that
anti-retroviral drugs do "improve the condition of people with
AIDS". But the policy of non-provision of these medicines has not
changed.
So today, in Durban, Cape Town and Sharpeville 600 TAC volunteers,
many of them people living with HIV, are marching to police
stations to lay charges of culpable homicide against the Ministers
of Health and Trade and Industry. They are acting on behalf of
people who have died or who are dying because government policy
denied them the medicine needed to treat their HIV infection.
We demand a real partnership that prevents new infections and saves
lives.
We demand that the government immediately announce an
antiretroviral treatment programme in the public sector and that it
signs the NEDLAC treatment and prevention plan.
[ENDS]
PEOPLE'S DOCKET
We hereby demand that a police docket be opened to investigate the
deaths of the many thousands of people who died from AIDS or AIDS
related illnesses and whose deaths could have been prevented had
they been given access to treatment.
We further demand that the Accused be arrested and charged with the
offence of Culpable Homicide for negligently causing the deaths of
these people. The details of the charge and a summary of some of
the facts which form the basis of the Charge are attached.
We believe that many thousands of people can bear witness to this
horrible crime.
ACCUSED NO. 1
NAME: MANTOMBAZANA EDMIE
SURNAME: TSHABALALA-MSIMANG
OCCUPATION: THE MINISTER OF HEALTH, SOUTH AFRICA
ACCUSED NO. 2
NAME: ALEXANDER
SURNAME: ERWIN
OCCUPATION: THE MINISTER OF TRADE AND INDUSTRY, SOUTH AFRICA
THE CHARGE
THE PEOPLE versus MANTOMBAZANA EDMIE TSHABALALA-MSIMANG alias
"MANTO", MINISTER OF HEALTH (RSA) and ALEXANDER ERWIN alias "ALEC",
MINISTER OF TRADE AND INDUSTRY (RSA). Hereinafter respectively
referred to as Accused No. 1 and Accused No. 2.
Both accused are charged with the crime of culpable homicide in
that during the period 21 March 2000 to 21 March 2003 in all health
care districts of the Republic of South Africa, both accused
unlawfully and negligently caused the death of men, women and
children. They also breached their constitutional duty to respect,
protect, promote and fulfill the right to life and dignity of these
people.
- Both accused Ministers knew that failure to provide adequate
treatment including anti-retroviral therapy for people living with
HIV/AIDS would lead to their premature, predictable and avoidable
deaths.
- In their capacities as Ministers in the government of South
Africa, both accused had the legal duty and power to prevent 70% of
AIDS-related deaths during this period through developing a
treatment and prevention plan, providing medicines and using their
legal powers to reduce the prices of essential medicines for
HIV/AIDS including anti-retroviral therapy.
- Both accused Ministers had in their possession scientific,
medical, epidemiological, legal, social and economic evidence of
the devastation of potential and actual AIDS deaths on individuals
and communities. They not only ignored this evidence but suppressed
it.
- Both accused Ministers consciously ignored the efforts of
scientists, doctors, nurses, trade unionists, people living with
HIV/AIDS, international agencies, civil society organisations,
communities and faith leaders to develop a treatment and prevention
plan, to make anti-retroviral therapy available and to ensure that
medicine prices in the public and private sector were reduced to
save lives.
- Both accused Ministers were under a legal duty, by virtue of
their public office and the provisions of the Constitution of the
Republic of South Africa, to provide access to health care services
by reducing the price of essential medicines for HIV/AIDS including
anti-retroviral therapy, and by providing them through the public
health sector. They remain under this legal duty.
- Both accused Ministers negligently failed to carry out their
legal duties. Their conduct in failing to make these medicines
available to people who need them does not meet the standards of a
reasonable person, and in particular a reasonable person holding
the position of Minister of Health or Minister of Trade and
Industry.
- During the period 21 March 2000 and 21 March 2003, this failure
caused the death of between 250 and 600 people every day as a
direct result of premature, avoidable and predictable AIDS-related
illnesses.
THE PEOPLE versus MANTOMBAZANA TSHABALALA-MSIMANG (Minister of
Health) (hereinafter referred to as The Minister of Health) and
ALEXANDER ERWIN (Minister of Trade and Industry) (hereinafter
referred to as The Minister of Trade and Industry)
CHARGE: Culpable Homicide (unlawfully and negligently causing the
death of another human being)
SUMMARY OF SUBSTANTIAL FACTS
- During the period 21 March 2000 to 21 March 2003, many people
throughout the Republic of South Africa died from AIDS or diseases
caused by AIDS.
- Information on the prevalence of HIV/AIDS and HIV/AIDS related
deaths each year has been available to both Accused Ministers
throughout their terms in office.
- It is estimated that at least 600 people in South Africa die
from AIDS-related illnesses each day.
- In the past 12 years, the HIV sero-prevalence among first time
antenatal clinic attenders, as indicated by the Minister of
Health's own Department's Annual Antenatal Clinic surveys has risen
from 0.76% in 1990 to 10.44% in 1995 to 28.4% in 2001. Based on
these surveys, it is estimated that there are currently 5 million
South Africans infected with HIV. The latest survey estimates that
15,4 percent of women under 20 years, 28,4 percent of women between
20 and 24 years and 31,4 per cent of women between 25 and 29 years
are living with HIV/AIDS. The survey further notes that "high HIV
prevalence rates have significant implications on the future burden
of HIV-associated disease and the ability of the health system to
cope with provision of adequate care and support facilities."
- In the Department of Health's Second Interim Report on
Confidential Enquiries into Maternal Deaths in South Africa (1999),
non-pregnancy related sepsis mainly caused by AIDS was recorded as
the leading cause of maternal deaths. In the Report, 35.5 percent
of women whose deaths were reported were tested for HIV and 68
percent of these were HIV positive. The Report noted that HIV is
significantly under-diagnosed.
- A study by the Medical Research Council, estimated that about 40
percent of adult deaths aged 15-49 that occurred in 2000 were due
to HIV/AIDS and that, if combined with the deaths in childhood, it
was estimated that AIDS accounted for about 25 percent of all
deaths in 2000 and was the single biggest cause of death. The
Report continued that projections indicate that, without treatment
to prevent AIDS, the number of AIDS deaths with grow within the
next 10 years to double the number of deaths due to all other
causes. The Report estimates that approximately 200 000 people died
of an AIDS-related illness in 2001 alone. The Minister of Health
was directly involved in attempts to suppress this report.
- A report issued by Statistics South Africa on 21 November 2002
entitled Causes of death in South Africa 1997-2001: Advance release
of recorded causes of death, indicates that unnatural causes still
remain the leading cause of death. However, the report states that
HIV-related deaths are significantly under-reported. One reason
advanced for the under-reporting is that such deaths are often
recorded as TB or pneumonia-related. Of particular significance is
the finding that patterns of mortality shifted dramatically over
this period, primarily as a result of HIV, TB and pneumonia-related
deaths. In 2001, for example, 8.2% of all recorded deaths were
attributable to unspecified unnatural causes, down from 15.3% in
- In contrast, 34.6% of all recorded deaths in 2001 were
attributed to HIV, TB, influenza/pneumonia and "ill-defined causes
of death", up from 29.5% in 1997.
- The largest single impact of HIV/AIDS on the public health
sector lies in the hospital sector. Research commissioned by the
Department of Health (Abt Associates, 2000) indicates that, in the
year 2000, an estimated 628 000 admissions to public hospitals were
for AIDS related illnesses, which amounts to 24% of all public
hospital admissions. As more people who are already HIV positive
become sick each year, this demand for hospitalisation will
increase steadily every year in the absence of significant
alternative interventions. In financial terms, the cost of
hospitalising AIDS patients in public facilities was estimated at
the time to amount to at least 12.5% of the total public health
budget.
- Many of these people would not have died if they had access to
anti-retrovirals
- HIV/AIDS is a progressive disease of the immune system that is
caused by the Human Immunodeficiency Virus (HIV).
- When left untreated HIV profoundly depletes the immune system
and may prove fatal because of the inability of the body to fight
opportunistic infections such as tuberculosis, pneumonia and
meningitis.
- The scientific evidence indicates that without effective
treatment, the majority of people with HIV/AIDS die prematurely of
illnesses that further destroy their immune systems, quality of
life and dignity.
- Early diagnosis, clinical management, medical treatment of
opportunistic infections and the appropriate use of anti-retroviral
therapy prolongs and improves the quality of life of people living
with HIV/AIDS.
- Anti-retroviral drugs are a class of drugs that suppress viral
load activity and replication. When used effectively they reduce
the volumes of HIV to undetectable levels in the blood. This leads
to immune reconstitution. It also prevents and delays the
destruction of a person's normal immune system.
- In its HIV/AIDS Policy Guideline, entitled Prevention and
Treatment of Opportunistic and HIV-related diseases in Adults
(August 2000), the Department of Health (which operates under the
direction of The Minister of Health) has recognised the efficacy of
anti-retroviral treatment, stating as follows: "Current research
also strongly indicates that suppressing HIV viral activity and
replication with anti-retroviral therapy or Highly Active
Antiretroviral Therapy (HAART) combinations prolongs life and
prevents opportunistic infections".
- The Medicines Control Council, has the statutory duty to
investigate and determine whether medicines are suitable for the
purpose for which they are intended, and whether their safety,
quality and therapeutic efficacy is such that they should be made
available in South Africa. They have registered various
anti-retroviral drugs for treatment of people who have HIV/AIDS.
- The World Health Organisation (WHO) has included
anti-retrovirals on the Core List of its Model List of Essential
Drugs (12th edition, April 2002). The Minister of Health is aware
of the inclusion of anti-retroviral medication in the World Health
Organisation's Essential Drugs List.
- With access to anti-retrovirals people with HIV/AIDS are able to
lead longer and healthier lives and it directly results in an
improved quality of life and the restoration of dignity, allowing
people with HIV/AIDS who were previously ill to resume ordinary
everyday activities, such as work.
- A comprehensive plan to treat people living with HIV/AIDS as
advocated by civil society organisations, faith based
organisations, scientists, health care workers, trade unionists,
activists and communities over the past four years, would have
reduced the number of people dying of AIDS related illnesses and
would have mitigated the horrendous impact of AIDS on people in
South Africa.
- Both Accused were aware of need to make anti-retrovirals
available to prevent these deaths.
- The Minister of Health has had direct knowledge of the serious
impact of HIV/AIDS and the need for care and treatment of people
living with HIV/AIDS, before she took up her position as Health
Minister. As early as 1994 The Minister of Health was a key drafter
or the NACOSA National AIDS Plan for South Africa 1994 - 1995. (The
Plan states that "The number of people becoming ill as a result of
HIV infection is already high and will continue to increase
dramatically over the next few years ? the health care systems will
have to cope with this increase and strengthen their ability to
provide HIV/AIDS care in order to reduce the impact of HIV/AIDS on
individuals, their families and communities"). In terms of this
Plan, it is also clear that The Minister of Health was fully aware
of the need to broaden access to treatment for people living with
HIV/AIDS ("In dealing with HIV/AIDS, an essential drug list should
be developed, based on the efficacy of the drugs in the clinical
management of the disease, as well as on costs and availability? As
research develops and knowledge about treatment expands, it may be
necessary to add drugs to those which are routinely supplied. All
drugs and medicines should be available as widely as possible").
- The Minister of Health and the Minister of Trade and Industry
were aware of the Joint Statement issued by the then Minister of
Health, Dr Nkosazana Dlamini-Zuma and Treatment Action Campaign,
which confirmed that all treatment for HIV/AIDS and all related
medical conditions is a basic human right (30 April 1999). At the
time, the Minister of Health called on all sectors to pressurise
companies to unconditionally lower the price of all HIV/AIDS
medications to an affordable price for poor people and countries.
- The Minister of Health has herself confirmed that "access to
affordable drugs is a matter of life and death in our region"
(World AIDS Day speech, 1 December 2000). During this speech, The
Minister of Health also emphasized that access to drugs should be
improved and that "drugs at current prices remain unaffordable".
The Minister of Health, in her capacity as Minister of health, and
as a doctor, knew that action had to be taken to reduce the prices
and that she could use her legal power to procure or produce
generic anti-retrovirals and other essential HIV medications.
- In its Cabinet statement of 17 April 2002, Cabinet, and the
Accused as members of the Cabinet, recognised that anti-retrovirals
can improve the conditions of people with HIV "if administered at
certain stages ... in the progression of the condition, in
accordance with international standards."
- After taking up office, The Minister of Health and the Minister
of Trade and Industry have consistently been reminded of the need
to improve access to treatment for people living with HIV/AIDS
since 1999 (e.g. Speech by Edwin Cameron at the 2nd National
Conference for People Living with HIV/AIDS on 8 March 2000, in the
presence of the Minister of Health; the Call for a Global March
issued in March 2000; COSATU's Submission on HIV Treatment to
Health Portfolio Committee on 10 May 2000; letter by TAC requesting
meeting with President and Minister of Health on access to
treatment dated 20 March 2000).
- Both Accused had the legal duty to protect health and prevent
deaths.
- Our Bill of Rights mandates the state to "respect, protect,
promote and fulfil" all rights including the rights to health, life
and dignity.
- The state is obliged to create an enabling framework by putting
in place laws and regulations so that individuals will be able to
realise their rights free from interference.
- The state may be obliged to provide "positive assistance, or a
benefit or a service?creating the conditions in which the rights
can be realised by the individual". This extends to the direct
provision of basic resources or devices where a failure to do so
would result in a denial of the realisation of rights.
- At minimum, the state is required to take reasonable steps
towards creating the legal framework necessary for accessing
affordable treatments for HIV/AIDS. The right of access to health
care services, as entrenched in section 27 of the Constitution,
therefore places a positive obligation upon the state to take all
reasonable measures to ensure that anti-retrovirals are made
affordable.
- This interpretation of section 27 is strengthened by the
recently issued document entitled "Revised Guideline 6: Access to
prevention, treatment, care and support", which updates the
International Guidelines on HIV/AIDS and Human Rights, jointly
issued by the Office of the United Nations High Commission for
Human Rights (OHCHR) and the Joint United Nations Programme on
HIV/AIDS (UNAIDS). Guideline 6 has been revised to give effect to
development on access to HIV/AIDS-related prevention, treatment,
care and support, as well as in recognition of increased
commitments regarding human rights related to HIV/AIDS, including
improved access to health care services. The government's
International Obligations in this regard is clear: The Commission
on Human Rights has confirmed that access to AIDS medication is a
key component of the right to the highest attainable standard of
health, enshrined in the Universal Declaration of Human Rights, the
International Covenant on Economic, Social and Cultural Rights and
the Convention on the Rights of the Child. The Committee on the
Economic, Social and Cultural Rights made it clear that the right
to health included inter alia access to treatment.
- Adding to these specific international human rights instruments,
all Member States of the United Nations adopted a Declaration of
Commitment on HIV/AIDS in June 2001 which pledged to scale up the
response to HIV/AIDS within a human rights framework. In November
2001 in Doha, the Ministerial Conference of the World Trade
Organisation declared that the Agreement on Trade-Related Aspects
of Intellectual Property Rights (TRIPS) should be interpreted to
support public health and allow for patents to be overridden if
required to respond to emergencies such as the AIDS epidemic.
- In response to these developments, in July 2002, The OHCHR and
UNAIDS convened a group of experts to update the International
Guidelines of HIV/AIDS and Human Rights? The resulting revised
Guideline 6 on "Access to prevention, treatment, care and support"
will assist States to design policy and practice to ensure respect
for human rights. ? Human rights are more than principles to guide
the national and global response to AIDS: they are among the most
powerful tools to ensure its success."
- Both Accused had an ethical and common law duty to protect
people and promote the public interest.
- Both Accused had knowledge of the legal and other powers
available to them to increase access to anti-retrovirals but did
not act positively where there was a legal duty to do so.
- The Minister of Health and the Minister of Trade and Industry
have been aware of the different patents existing on HIV/AIDS
medicines since the end of 1999, if not earlier. Both Accused were
further aware of the remedies available to them in terms of the
Patents Act and other legislation to facilitate access.
- There have been repeated requests that the Minister of Trade and
Industry issue compulsory licences for anti-retroviral treatment
(e.g. Memorandum from TAC to Department of Trade and Industry dated
14 February 2001 and Meeting between Department of Trade and
Industry and TAC on 23 February 2001). These requests came amidst
independent statements by generic pharmaceutical companies on the
availability of generic anti-retroviral and other HIV medications.
- The Minister of Trade and Industry has been aware of the
existence of generic anti-retroviral medication and has repeatedly
been requested to ask pharmaceutical companies to give voluntary
licences for the manufacture of generics in terms of section 78 of
the Patents Act (e.g. letter by TAC to Department of Trade and
Industry dated 23 February 2001).
- The Minister of Trade and Industry has been aware of the
capacity existing within South Africa for the manufacture of
generic anti-retroviral and other medication (e.g. letter by
Department of Trade and Industry dated 25 September 2002).
- The Minister of Trade and Industry has been aware of and
understands the regulatory options at his disposal to ensure the
reduction in the price of essential medicines (e.g. Meeting between
Department of Trade and Industry and TAC in 2001; and document
presented by AIDS Law Project on 22 November 2002).
- The Minister of Health and the Minister of Trade and Industry
have acknowledged the importance of the Medicines and Related
Substances Amendment Act, in particular section 15C on parallel
importation to ensure that the prices of medicines are reduced
(e.g. Meeting between Department of Trade and Industry and TAC on
23 February 2001).
- In a meeting with Minister Tshabalala-Msimang, as the new
Minister of Health, on 29 September 1999, it was clear that the
Minister of Health was aware of the possibility to issue compulsory
licences or use parallel importation as mechanisms to increase
access to medication, including medication to treat people living
with HIV/AIDS. Instead she declined to use these provisions pending
the resolution of the court case by the Pharmaceutical
Manufacturers' Association against the South African government's
Medicines and related Substances Control Amendment Act. At this
meeting the Treatment Action Campaign also formally raised the
concept of a comprehensive treatment and prevention plan as a
viable option to provide affordable treatment and to train health
care workers.
- Accused did not reasonably make use of these powers, causing
more harm than benefit in the process.
- The Minister of Health and the Minister of Trade and Industry
have repeatedly delayed the implementation of the Medicines and
Related Substances and Control Amendment Act and its Regulations.
- The Minister of Health and the Minister of Trade and Industry
are aware of the measures implemented in other countries like
Brazil to increase access to essential medicines, including
anti-retrovirals, but has denied offers by such countries to
transfer technology and provide other assistance.
- Accused directed their will towards ensuring government policy
is the non provision of anti-retrovirals. Accused knew and foresaw
that this would cause the deaths of many people but remained
undeterred by this probability.
- After a consultative process towards the government's Strategic
Plan on STDs and HIV/AIDS 2000 - 2005, where various organisations
endorsed the position that treatment and management of HIV/AIDS be
prioritised as part of a holistic strategy, treatment was however
not included as part of the government's Strategic Plan. (The
recommendations by the HIV and Human Rights Consultation which was
issued in November 1999, further recommended the publication of
national standard guidelines on the clinical management of
HIV/AIDS; the auditing of health districts for drug availability;
the use of compulsory licensing and parallel import mechanisms to
reduce the costs of drugs; and the investigation of bulk-buying for
the SADC region to create economies of scale for the generic
manufacturing of all drugs including cost-effective antiretroviral
therapies.)
- The Minister of Health has continued to deliberately exclude
anti-retroviral medication from the Department of Health's
"Enhanced response to HIV/AIDS and TB in the Public Sector" budget
policy document (compare the July 2001 and September 2001 versions
of the document).
- The Minister of Health has repeatedly omitted to implement
measures aimed at increasing access to anti-retroviral medication.
- The Minister of Health ignored the recommendations of the
National Health Summit which was convened by the Department of
Health in 2001, and which recommended the implementation of pilot
sites where anti-retrovirals would be provided.
- The Minister of Health has suppressed a report from a conference
of scientists convened by the Department of Health and the Health
Systems Trust on 13-14 August 2002. This report recommended the
establishment of anti-retroviral pilot treatment programmes in the
public sector.
- The Minister of Health further ignored the suggestions raised by
prominent scientists, medical professionals and organisations that
promoted the implementation of pilot antiretroviral sites,
including the recommendations in the Bredell Consensus Statement of
2001.
- In the latest obstruction, the Minister of Health ignored the
attempts to reach a negotiated NEDLAC Framework Agreement for a
National Prevention and Treatment Plan, firstly holding back all
sections of the original draft that refer to the use of
anti-retroviral medicines and then denying the existence of the
NEDLAC process.
- The Minister of Health has further deliberately ignored
wide-scale civil society attempts to engage her amicably on the
issue of treatment provision for people living with HIV/AIDS.
These are some of the facts, many more can be added.
The Minister of Health, Manto Tshabalala-Msimang, and the Minister
of Trade and Industry, Alec Erwin, have unlawfully and negligently
caused the death of men, women and children. The majority of people
who die without access to medicine are poor and black. Both accused
Ministers and all members of parliament have access to private
medical insurance and to anti-retroviral therapy should they need
it. Not only have they been complicit and responsible for the
deaths of people living with HIV/AIDS, they also breached their
constitutional duty to respect, protect, promote and fulfil the
right to life, dignity, equality and health care access of these
people. Both accused Ministers have disregarded their legal duty
of care to all people living with HIV/AIDS in South Africa. They
must immediately be arrested and charged with culpable homicide.
+++++++++++++++++++++Document Profile+++++++++++++++++++++
Date distributed (ymd): 030324
Region: Southern Africa
Issue Areas: +health+ +political/rights+
The Africa Action E-Journal is a free information service
provided by Africa Action, including both original
commentary and reposted documents. Africa Action provides this
information and analysis in order to promote U.S. and
international policies toward Africa that advance economic,
political and social justice and the full spectrum of
human rights.
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