“I studied law because I wanted to do social justice work,” says Hassan, now a senior attorney at the AIDS Law Project in Cape Town. “There had been very little legal work done on HIV/AIDS and I was working with some of the leading lawyers on the issue. And the constitution was brand new, so every case we worked on was groundbreaking.”
Five-and-a-half million South Africans live with HIV or AIDS, yet only 300,000 of them receive treatment, Hassan says, with evident frustration. She lays the blame for “unnecessary death and suffering” on South Africa’s leaders — President Thabo Mbeki long denied that HIV causes AIDS, and a long-serving health minister actively opposed anti-retroviral drugs. “Government inaction has cost us thousands and thousands of economically active lives [and] has undone many of the gains that we’ve made as a society moving into a democracy,” Hassan says.
The irony, she adds, is that South Africa possesses the framework to be the leader in the developing world in the fight against HIV and AIDS, with top-flight researchers, an active civil society, the rule of law, and a “fantastic” constitution in which access to health care services is an entrenched right, a tenet at the core of all of her cases.
“Our courts have recognized that ‘health care services’ includes access to medicines,” she says. She notes that however “denialist” it may be about AIDS, the government’s respect for the rule of law is genuine. She also sees some hope in the recent negotiation of a five-year national strategic plan on AIDS policy and programs that aims to bring treatment to one million infected people by 2011.
A second-generation South African of Indian descent, Hassan developed her passion for social justice while growing up in apartheid Johannesburg, in what she calls “an Indian world.” “You were only allowed to live in an Indian neighborhood, only allowed to go to Indian movie houses, parks and beaches. You went to Indian schools and had Indian friends.” She recalls, as a 7-year-old, seeing police chase a group of elderly black housekeepers, her family’s among them, and arresting those who could not produce papers allowing them to venture into non-black neighborhoods. “It was clearly dehumanizing for those women,” she says.
Hassan entered the liberal University of the Witwatersrand in the last days of apartheid — Nelson Mandela was released from prison during her freshman year. She admits to rarely being in class during her last year of law school; instead she was working to educate voters as South Africans prepared for their first multi-racial elections.
Her career path has kept Hassan’s activist instincts sharp as she and her colleagues have adapted some tactics from the antiapartheid struggle to the fight for progress on HIV and AIDS. They also have been creative in the courtroom.
To secure access to essential medicines at affordable prices, they charged pharmaceutical giants GlaxoSmithKline and Boehringer Ingelheim, among others, with anti-competitive behavior. “There were no drugs in the public sector, so we went after prices in the private sector,” Hassan says. “It was a very backdoor way of getting what we wanted, but at the time it was the only way we could do it.” It worked. In 2003, the companies settled the case by granting multiple voluntary licenses for the production of patented pharmaceuticals — “and people got drugs,” she says.
The success of that litigation and other actions have benefited from international alliances, Hassan says. “Activism isn’t just about the law or one case. It’s about international and local mobilization and literacy around the case — and really about naming and shaming the companies into making concessions and negotiating agreements that pave the way for people throughout the developing world to get access to life-saving medicines.”
After five years of intense focus on HIV and AIDS law, a period during which most of her clients died, Hassan took a “break” with a yearlong clerkship at South Africa’s Constitutional Court, the country’s highest judicial body. “It was an amazing experience to work there when the top judges were reshaping our common law, bringing it in line with our constitution, and bringing in concepts and values that were new, such as human dignity, equality, and nondiscrimination — all things that were foreign to us,” she says. Following up the clerkship with her year of study at Duke, Hassan returned to South Africa and the fight against HIV and AIDS.
Ever the activist — and now married to Kabir Bavikatte, an attorney and activist in human rights and environmental law — Hassan “can’t see any other way but to use law to lead and forge new territory.” Issues relating to HIV and AIDS continue to offer that opportunity, she says. “Besides, it’s a great time to be a constitutional lawyer.”