State capture threatens the right to health

State capture threatens the right to health

Mark Heywood, SECTION27

“In a sector that is scarce and expensive to begin with, corruption can mean the difference between life and death.” – Viva Dadwal, Deputy Editor of Globalisation and Health

“Making corruption a research subject and a responsibility of health systems

“All constitutional obligations must be performed diligently and without delay.” Section27

researchers in South Africa and elsewhere allows us to name the problem, measure it, and develop and test ideas about how to address it. Such research also allows the global community of health system researchers to contribute towards improved efficiency, effectiveness and social accountability of health systems.” – L Rispel et al, ‘Exporting corruption in the South African health sector’, Health Policy and Planning, 2015, 1–11

In 2017, a debate raged at the Treatment Action Campaign’s (TAC) National Congress about how to respond to corruption across the country. As the levels of scandal and shock around President Jacob Zuma’s behaviour have risen, TAC’s allies have often called on it to take to the streets and join organisations such as the Save South Africa campaign that are calling for Zuma to step down.

However, within TAC, some activists have asked: ‘What does health have to do with party politics?’ They argue that TAC should stick to its mission – the right to health – and avoid being caught in a morass of political mudslinging. There is a level of truth in this argument; however, the very birth of organisations such as TAC was in response to a failing political strategy, government and healthcare service, responsible for the deaths of millions of people when they refused to provide adequate treatment for patients with HIV.

Our struggle for the right to health has always been political, and will always remain political. Everywhere in the world, the quality of health has everything to do with politics. South Africa is no exception.

Under apartheid, the majority of the population were denied access to quality health services. When apartheid ended in 1994 there were gross inequalities in health outcomes. That is why “access to health care services” was included as a right for “everyone” in our Constitution.

Today, the Constitution is our supreme law. But South Africa’s Constitution started its life as a political agreement between parties to mark the dawn of democracy. The Constitution is like a finely woven tapestry; it has many threads and many strands. Each one weaves in and out of another. Looked at from afar, they compose a picture that promises everyone in our country equality, dignity and social justice.

However, very few of the threads can exist independently. The right of access

to healthcare services, for example, cannot be realised in a silo. It is dependent in many ways on good governance, accountability, and a government that is diligent in the performance of public functions. These too are parts of the Constitution. For example, Section 195 of the Constitution says that:

“Public administration must be governed by the democratic values and principles enshrined in the Constitution, including the following principles:

  1. A high standard of professional ethics must be promoted and maintained.
  2. Efficient, economic and effective use of resources must be promoted.
  3. Public administration must be development-oriented.
  4. Services must be provided impartially, fairly, equitably and without bias.
  5. People’s needs must be responded to, and the public must be encouraged to participate in policy-making.
  6. Public administration must be accountable.
  7. Transparency must be fostered by providing the public with timely, accessible and accurate information.”

Section 237 says: “All constitutional obligations must be performed diligently and without delay.” What this means is that where government is bad, access to health services fails. Without access to healthcare services, people’s health will deteriorate.

Very few people now deny that we have a very bad government. In the last two years our country has been in the throes of a crisis caused by what is now known as ‘state capture’. Theft by people such as the Gupta family has been facilitated by President Zuma and other Cabinet members.

Unfortunately, the story of state capture has been told in a one-sided way. Most of the focus has been on institutions such as SARS, Eskom, SAA, PRASA and now the Treasury. But with the combined budget of the national and provincial health departments now around R190 billion per year, the health system also offers rich pickings for those intent on theft. In this context, the capture of big health tenders, ambulances and institutions such as hospitals is also common.

How corruption manifests itself in the healthcare system

Corruption is a serious threat to the majority of the population who rely on public hospitals and clinics. Not only does it make it difficult for them to receive proper treatment when they are vulnerable and cannot pay a bribe, but when funds, medicines and equipment are stolen or misused by officials, it can have devastating effects on communities at large.

Type of corruption Examples
Informal paymentsUnofficial payments given to healthcare providers which are more than the official cost of a service, or for services that are supposed to be free
Selling of government postsA senior official in a position of power demands a payment from government agents to secure or keep their positions
MoonlightingHealthcare professionals abusing leave policies or conducting their private practice during work hours
BribesMoney or something of value promised or given in exchange for an official action
Procurement corruptionIncludes many types of abuse, such as bribes, kickbacks, fraudulent invoicing, collusion among suppliers, failure to audit performance on contracts, etc.
Theft or misuse of propertyTheft or unlawful use of property such as medicines, equipment or vehicles for personal use, for use in a private medical practice, or for resale or renting out
FraudIncludes false invoicing, ‘ghost’ patients or services (billing for patients who do not actually exist or services that were not rendered), and diversion of funds into private bank accounts
Embezzlement of fundsOfficials, healthcare providers or other individuals stealing or deliberately diverting national funds allocated for healthcare services
NepotismEmployment opportunities are given to friends and family members based on personal connections instead of merit
Improper healthcare accreditationIndividuals or groups approve a healthcare professional’s qualifications due to personal or political connections with the professional or the receipt of a bribe
Inappropriate healthcare facility certificationOfficials provide unwarranted certification to a healthcare facility, due to personal or political connections with the facility operators or the receipt of a bribe
Inappropriate healthcare training facility certificationOfficials provide unwarranted certification to a healthcare training facility, due to personal or political connections with the college owners or the receipt of a bribe

Source: Corruption Watch/SECTION27

However, while we can point to specific instances of corruption in the health system (as I do below), there has not been enough investigation of the overall levels of corruption – or its impact. But it is large. In 2011, for example, SECTION27 and Corruption Watch commissioned research (Corruption in the South African Health Sector, Benguela) that concluded that up to R20 billion a year was being lost to corruption in the public and private health sector. It warned that: “If the current corruption risk remains and is not appropriately addressed, it will inflate the cost of health care, limit access to services, and negatively impact on the quality of care.”

More recently, research by Laetitia Rispel and others recorded that the majority of people they interviewed “were of the opinion that corruption is pervasive, particularly in the public health sector. For example, commenting on corruption in the public sector, respondents note that it is ‘rampant’ (Private Hospital Manager) and has ‘reached uncontrollable levels’ (Provincial Department of Health Director).”

Rispel et al attempt to quantify the cost of corruption in health by studying levels of “irregular expenditure” that are recorded in reports of the Auditor General. Irregular expenditure is money that is spent without proper authorisation and outside of the legal framework. It is not automatically corrupt – but a very large part of it is. They found, for example, that in four financial years between 2009 and 2013, the total amount of irregular expenditure within provincial health departments was over R24 billion.

This is a huge amount of money! It is the equivalent of the annual budget for the HIV conditional grant, or twice the amount currently spent on Emergency Medical Services (which we know to be woefully inadequate).

Below are some examples of corruption that have been confronted by SECTION27 and TAC.

Gauteng Health Department: a rogue unit

The Gauteng Health Department is possibly one of the most corrupt provincial health departments in the country. Its irregular expenditure for the period of 2010/2011 to 2016/2017 was calculated by the Auditor General to be a massive R6.9-billion.

The rot appears to have started about ten years ago, with then-MEC for Health Brian Hlongwa. Hlongwa is facing charges of corruption. Due to the capture and collapse of our criminal justice system, Hlongwa has not yet faced the consequences of his corrupt behaviour. Hlongwa is currently facing charges of corruption and money laundering relating to two tenders worth R1.4-billion. It is alleged that in 2007, Hlongwa fraudulently rigged two tenders so that they could be awarded to 3P Consulting and Boaki Consortium, and that he received various kickbacks in return. 3P was initially paid R120 million to establish a project management unit for the department, but they ended up earning R392 million by the time their contract was cancelled in 2009. Boaki was awarded a tender worth R1.2 billion to set up a health information and health records system. By the time their contract was cancelled in 2008, they had been paid R400 million, but no infrastructure had been set up.

In 2010, the Special Investigating Unit (SIU) was given a mandate to investigate these matters by a Presidential Proclamation. It has been seven years, and still no-one has been brought to book. Hlongwa is currently serving as the ANC Chief Whip in the Gauteng Legislature, and has continued to operate with impunity. He recently noted: “I was once a minister, an MEC of health from 2006 to 2009 in Gauteng. There is a cloud hanging over my head. I am supposed to be somebody who is corrupt as well. It has been nine years. But there is no case.” Looking at the current state of affairs and the political puppets in charge of the National Prosecuting Authority, it seems unlikely that Hlongwa will be brought to justice for crippling the GDoH.

In 2009 Hlongwa was replaced by disgraced MEC Qedani Mahlangu. Between the two of them they have managed to bankrupt the GDoH.

As a result the price of corruption is being felt in collapsing services; community health workers go unpaid because of corruption; babies die or are disabled because there are not enough midwives and nurses; people acquire TB and MDR-TB because there are no systems for infection control. As we saw recently, hospitals treat dead bodies like the carcasses of animals.

The worst example of the results of corruption is the Life Esidimeni disaster, which caused the death of at least 143 mental-health patients. The arbitration currently under way aims to find the truth. At this point, the real reasons patients were moved out of Life Esidimeni and dumped into unregistered ‘NGOs’ where most of them died must still come out. But some of the evidence seems to suggest that senior officials such as Dr Makgabo Manamela, the head of mental-health services, may have had corrupt relationships with some of the ‘NGOs’ to which they sent patients.

These ‘NGOs’ profited from patients the GDoH sold them to care for, several of them making hundreds of thousands of rands. There is also some evidence that they benefited from the patients’ disability grants and life insurance.

But Life Esidimeni is not just about a few corrupt individuals. The Gauteng healthcare system has been corrupted. Instead of being managed as a system for health care, it is seen by politicians and public servants as a get-rich-quick scheme. And the most senior officials in government – like president Zuma – turn a blind eye to this, because the individuals involved are usually part of a political faction whose support they depend upon.

One significant casualty of corruption in the GDoH is the National Health Laboratory Services (NHLS). The NHLS can be thought of as being the arteries of the public-health system, and particularly of the response to HIV and TB. It is like the Eskom of health. Controlling AIDS and TB is totally dependent on laboratory tests for HIV such as CD4 count and viral load, and on technologies such as GeneExpert. However, the GDoH owes over R2.5 billion to the NHLS… but says it can’t afford to pay its bill.

To make matters worse, people who work in the NHLS allege that there is rampant corruption and mismanagement by senior officials. In the latest financial year, the NHLS incurred nearly R1 billion in irregular expenditure. If the NHLS collapses as a result of its burden of debt and corruption, large parts of the health system will go under with it.

Corruption in the Free State Department of Health

But Gauteng is not the only provincial health system where thieves rule. For several years, TAC and SECTION27 have tried to spotlight corruption in the Free State Department of Health. Dr Benny Malakoane, who was the MEC for health between March 2013 and October 2016, had already learnt his thieving ways by the time he became MEC. He is on trial for charges of corruption related to his past employment, but every time he is due in court he and his accused seem able to engineer a postponement.

In 2015 a whistle-blower contacted SECTION27 to tell us that Benny Malakoane had introduced a programme for unproven stem-cell treatment of geriatric patients at two hospitals in Bloemfontein. The programme was costing the Free State DoH R3 million a month, and would run for three years. It was alleged that Malakoane had a direct relationship with the company that was providing the ‘service’. Fortunately, on the basis of the information provided by the whistle-blower SECTION27 was able to inform the Director General in the DoH, who quickly investigated and then closed the programme down. Tens of millions of rands were saved from theft.

Theft of medicines

As we know, South Africa now has the biggest anti-retroviral (ARV) programme in the world. Billions of rands are spent on medicines every year. This is also an area vulnerable to corruption. For example, when the issue of major stock-outs first became a concern in 2013, one of the reasons was rampant theft at provincial medicine depots such as that in Umtata. A report produced by TAC and MSF at the time noted that at any one time, the Umtata depot would have medicines in stock worth up to R40 million – and noted how much of this was at risk of being stolen. In recent years – in part because of TAC and SECTION27’s activism, and the monitoring of the Stop StockOuts Project (SSP) – the management of provincial medicine depots has improved, reducing the risk of corruption.

Conclusion: AIDS activists must be anti-corruption and social justice activists!

The examples I have given above are reasons that AIDS activists must also be political and social justice activists.

Politicians are the gatekeepers of the resources allocated to and spent on healthcare services. When their greed supersedes the needs of the people, and results in the crippling of our health institutions – and in many instances, leads to the deaths of our most vulnerable – we must then admit that we are indeed a sick society. The president might not have had direct involvement in cases such as Life Esidemeni and the crumbling of the NHLS; but the system of thievery that festered under his leadership allows for a Qedani Mahlangu, and makes the call for his removal all the stronger.

The fact that access to healthcare services is a constitutional right does not mean we should think that health is automatically protected. It is contested by the everyday behaviour of officials who steal from funds intended to realise that right. If we don’t root out corruption in the public-health system, the health system will collapse. According to Rispel and others: “Poor governance and corruption share a reciprocal relationship and negatively impact on the morale of healthcare providers, the majority of whom are committed to service excellence”. They go on to say that:

“Although legislation seems adequate, initiatives by government to identify and ameliorate vulnerabilities to corruption within the health sector need to be further developed. Proactive mechanisms to detect corruption and the enforcement of negative sanctions against those found guilty of corruption are important interventions to create disincentives for engaging in corrupt activity.”

Unfortunately, it doesn’t seem that the national and provincial health departments take corruption seriously, or that it is being seriously investigated by bodies such as the Hawks or the NPA. Their responses are usually reactive to reports by civil society and the media, rather than part of a proactive plan to root out corruption in the health sector. Until there is political commitment to really fighting corruption, civil society will have to fill the gap by exposing and reporting corruption.

On a day-to-day basis this requires strengthening of community oversight through participation in hospital boards and clinic committees. It means organisations that monitor health-service delivery (such as the Stop Stock-outs Project) are vital. Re-establishing bodies such as the Budget, Expenditure and Monitoring Forum (BEMF) is also essential.

Civil society needs to constantly monitor institutions such as SANAC, from where there have been reports of corruption involving civil society leaders. We also need to investigate tenders worth hundreds of millions of rands, such as that given to the controversial company Sadmon for a health communications strategy that is mostly invisible and ineffective.

Finally, on a political level it means that TAC should join forces with those challenging corruption at the highest level, including that of the President and the ruling party.

If state capture and corruption is not investigated and punished, South Africa will end up with a public-health system as broken and dysfunctional as that in other African and Asian countries. That, surely, is something we must do everything we can to avoid.