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This resource is hosted by the Nelson Mandela Foundation, but was compiled and authored by Padraig O’Malley. It is the product of almost two decades of research and includes analyses, chronologies, historical documents, and interviews from the apartheid and post-apartheid eras.

01 Feb 2000: Wessels, Leon

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(AIDS interview)

POM. You've had a wonderful life.

LW. I've had a wonderful life all over and the last ten years in particular. This is what we're looking at, it's been wonderful opportunities. I've had privileges and opportunities beyond my expectations because being in Foreign Affairs at the time that we first met it was almost as if we were right at the vantage point and looking out and being the trumpeters that were sounding that the new South Africa was coming and it's going to change and things were going to happen and we were looking at the responses to that, and beyond 1994 being involved in the Constitutional Assembly, and then 1996, as I mentioned earlier on, going into practising law, studying law, teaching law, researching law.

POM. You were at Heidelburg right, the Max Plank?

LW. I was at Max Plank Institute and I also spent some time at an Institute in Kiel right up in the north near Hamburg and I spent some time at that Institute and in politics there is not time to lose yourself in a library and amongst books and the excitement of just being in a library with books and no telephone calls and things like that gave me a lot of joy and it gave me a lot of perspective and in a way also helped to prepare me for this position and this job.

POM. Now what are you doing your doctorate on?

LW. The doctorate is on a topic which triggered me during the negotiation process, not the negotiations itself because the issue or the matter that I'm researching was never a bone of contention, it has to do with states of emergency like you've just had in Seattle and all over the world. But all the parties had agreed on the formulation of states of emergency but when the constitution came to the court for certification that suddenly became a little bit of a debate during the proceedings and I had had this desire to be a serious lawyer and a serious legal scholar beyond politics and this is a topic that just grew on me so I now call it 'The Derogation of Human Rights - The international law standards as they are applied in Southern Africa'. So I look at when is a situation so bad, when has it deteriorated so much that it allows you to suspend human rights. A lot has been written about this in American literature and European literature because of the experience of the Organisation of American States as well as the European Council and the European Convention, the courts, the commissions, how they function and work. But Africa does not have a derogation clause and because it doesn't have a derogation clause people seem to forget about it and forget about the states of emergency in SA. So I've done some research on states of emergencies in Southern Africa.

POM. I didn't mean to start on this point but that's where our conversation takes us. We'll take off on this point. If I said to you that sub-Saharan African is facing a plague of AIDS of proportions that are not easily still imagined and that the response to it demands original state of emergency, or at least within SA there has to be a state of emergency, that unless this problem is gotten under control (whatever that means) then such things as equality, end of discrimination, implementation of GEAR, economic programmes, sustainable development, all become second rate. You can't develop sustainable development and economic growth with people who are no longer there. Do you think the problem is at that level where despite all the hype that's given to it there is not that concentration of total political will that says this is the problem as we go into the 21st century and that will demand perhaps that we declare a state of emergency because everybody is dying around us?

LW. Well the state of emergency that you're looking at and you're referring to is not exactly the kind of internal strife, conflict kind of state of emergency that I'm looking at. But that does not diminish or take away from your argument that this sub-continent and this country is in a crisis given the level of AIDS and people HIV/AIDS infected, etc. Now I did mention earlier on how fortunate I had been the last ten years, my whole life, but we're talking of the last ten years. In that same office that you and I met I was approached wearing the Deputy Minister of Foreign Affairs hat by two ladies who approached me to discuss the vastness of the HIV/AIDS problem and I was reluctant to meet with them because I thought the officials I had been working with had made a mistake in granting this particular interview because we were dealing with Foreign Affairs matters and this was clearly a health problem and that they should have assisted these two ladies to meet with the Minister of Health at the time. That in itself was a long discussion but because they had already arrived and when I was informed of the nature of the meeting I agreed to meet with them and to sit down and discuss and be alerted by them and sensitised by them about the vastness of the problem.

POM. So that was in 1989?

LW. It might have been 1990. I am sure it was in the course of 1990. I will not ask you who you imagine those two ladies were but it happened to be Nkosasana Zuma and the present incumbent Minister of Health, Mrs. Mtsimang. They were working on the ANC Health Desk at the time and they had worked on the ANC Health Desk in Lusaka and upon entering this country they were working on a policy and I think, not I think, I am pretty sure, that that was the first encounter I had with the vastness of the problem and the shortcomings of the policy at the time. So you do not need to convince me how serious this is.

POM. I used the words 'state of emergency'. I used the word 'plague'. I used the word 'catastrophe'. I see half a billion people dying. I see life expectancies reduced twenty years. I see sustainable development in countries like Botswana wiped out. I think the President of Botswana went public a couple of weeks ago and said, "Everything we've gained in the last 30 years we've lost." You have countries that are being crippled, that are altering their demographic base, their family structures, their skill base, capacity for development. Why would you use the word 'crisis' where I would use the words 'things are just about out of control'?

LW. The only reason I steer away from the words 'state of emergency' is because of the particular kind of legal construction that I have about that in my own mind, but certainly state of emergency and some of the terminology that you would have used would be adequate to describe the situation. I am not trying to diminish or take away from the seriousness of it when I use different terms.

POM. But, having watched the development of this over the last ten years, in fact the first question I asked of Barend du Plessis when he was Minister of Finance, was what provisions did he make in the budget for AIDS. He looked at me as though I was a strange man.

LW. I think you're right. We did not, certainly over the last ten years we have come a long way in building and creating an awareness, but having said that, and even looking at my own growth and understanding of this topic, I would have to hasten and tell you that I don't believe we're there yet in spite of the awareness that's been created all along. We're not there yet, nearly. I mean there's not a commitment. Before coming here in 1998, in 1997 and 1998 I was the chairman of the Afrikaanse Handelsinstituut (AHI) which is a Trade Institute and the most influential Afrikaans speaking business businesses would be members of the AHI and they had a presentation, could be 1997, could be 1998, on how important it was that business per se develops an understanding that this is not government's problem, it is the nation's problem and no matter how you look at it, from what angle, we will all be affected by it and it will take on proportions that we just cannot even imagine. So even at that level it was addressed in a very, very serious way.

POM. Could you give Erica the spelling of that organisation because I'd like her, if it's still in existence, to get in touch with them.

LW. Absolutely. I'll try and let you have their telephone numbers. Its AFRIKAANSE HANDELSINSTITUUT. They're based in Pretoria, it's a huge organisation. I will help you.

POM. Just two questions, because I still feel that we're almost talking the same thing but we're not. I am talking plague, disaster, regions going down the drain, the need for, as for the first time the US under (not my favourite country by the way) but under Richard Holbrook taking over the presidency of the Security Council said that AIDS must be put on the same priority level with the UN in terms of intervention as with military intervention. There must be that commitment, it must be a mobilisation of resources particularly from the west. What you do with those resources that's different, you plan it and work it out, but there must be that will to say this is a global problem, this is not a nation problem, it's not a regional problem, it is a global problem and at the rate the disease is replicating itself in different strains it's beyond scientists. They're not catching up, they're losing. The best scientists you talk to say we're losing. So what do you declare? That's one.

. Two, in that regard what is the relationship between what is individual right and in a state of whatever you want to call it, that the collective good overtakes the rights of the individual?

LW. Technically that is what a state of emergency is, where you take into consideration the joint communal rights of the community and that in a particular way receives precedence over the rights of an individual. Now you may call it a state of emergency. There certainly is you can have states of emergency when there are natural disasters, floods, earth tremors, etc., etc., that also is states of emergency. So once again I am not in disagreement when we look and talk about the proportions of it all but I just don't believe everything that can be done or ought to be done in terms of normal processes, speaking from a technocratic point of view, bureaucratic point of view, short circuiting, tender procedures, marshalling collective decision making processes, marshalling consultative making processes with government, private institutions, concerned NGOs, human rights groups, I don't believe all of that has taken place yet.

POM. Why shouldn't the Human Rights Commission be at the forefront mobilising that as a major, major, major thing rather than, just to be argumentative, spending lots of money doing a study on subliminal racism in the media that turned out to be a rather stupid piece of work by any standard, that diminished the reputation of the commission, not enhanced it, and that was actually stamped by the board and said, "This is fit for publication", when they should be saying we're not throwing our money into that silly kind of thing, there are more important things to do, there are more important issues on the table. There are more important things, there are people, millions of people who are going to die.

LW. But you know the President, of course, was right when he spoke in Davos when he said poverty in this country and matters of racism are the two unresolved and very important issues still outstanding in this country. And the HRC I don't believe has given an opinion on that research done and that chapter and that book is not closed yet. But let me tell you as we sit and talk, we in the HRC are engaged in very serious correspondence, research, investigation with the government to determine whether the Minister of Health is doing what she should be doing in terms of progressive realisation of the socio-economic rights in the constitution pertaining to, amongst others, the AIDS problem. So it's by far not over and done and it's by far not anything but not correct to infer that the HRC is not prioritising this as a major project. We're involved in it right now as we sit and talk.

POM. You're saying you're not prioritising? It's incorrect to say that you're not - ?

LW. It is not correct to believe that we are not prioritising. In other words to put it positively, we do prioritise and we do believe it's

POM. Can you see any problem that you would prioritise more?

LW. Let me tell you, if one is to look at the way we prioritise, I don't think we go about it in that particular fashion by saying this right is more important than the other right. What we have to do, amongst others, we have a responsibility to report to parliament on an annual basis on how we have monitored the socio-economic rights.

POM. I would say with the number of people dying, with the number of hospital beds being filled, no space for any other people in hospital, with the health budget being cut, with the disease increasing exponentially with nobody in control of it at all, that somebody must say stop, look, listen. President Mbeki's AIDS Partnership is one of those public relations gestures that did nothing, releasing condoms on people does nothing. These things have been shown not to work to change the way a devastating pandemic itself through a community. And yet everybody here is saying, well there are more important things, GEAR is, equality is, but I am saying if there are no people there's no equality.

LW. But let me tell you something, you're making a major mistake in your argument.

POM. That's fine, I'm used to that.

LW. Because I'm not saying that you are wrong, what I am telling you is that where we are sitting now in the HRC if we have to deal with an individual complaint about a forced marriage for example and the terrible consequences that has had and that there is in that respect a conflict between customary law and the constitution, that individual complainant and that individual constitutional difficulty has to be resolved, but that does not mean that when we deal with that particular issue we are neglecting or would like to neglect what is happening in this other field.

POM. But with limited resources you have to put your resources where you believe the biggest most threatening problem to the existence of society is.

LW. But our responsibility is the whole constitution, it's the whole Bill of Rights. We would like to say to people that we are not complaints driven in the sense that we also determine themes, but by and large a lot of our energy is being sapped and taken because of the individual complaints that we resolve. But once we've done that we are saying to one another over and over and over again, there are certain themes of which AIDS would be one that we are not going to lose sight of and in that respect we take it and we do what we can.

POM. But Leon, this is I suppose where I lose it, you see maybe it's my own sensationalism or the way I see it. I told you I don't see it as a crisis, I don't see it as a disease passing through, I see it as a plague wiping all development, there will be no foreign investment, there is going to be none. There is going to be no health sector, none of this, none of that, there is going to be no education, all the teachers are gone and it's like saying hold it! The forest and the trees, what's important here? Do we look at each individual tree or do we save the forest?

LW. Well I think I want to tell you that as I sit here I am reasonably, not completely, but reasonably comfortable that this commission understands the importance of AIDS and the interaction that this commission has had with the government, the further research and possible litigation that will come from this commission in terms of what we believe may be the shortfall or the loopholes in government's approach towards this problem, we will not shy away to alert and alarm people to that.

POM. Just on that level, and I don't want to go back to flogging a dead horse so to speak, but do you not think that when a decision is made investigating 'subliminal' racism in the media is deserving of more resources and attention, when the same resources and attention and scarce resources could be diverted into doing exactly - looking for exactly the kind of gaps in government policy and the co-ordination and the understanding and the commitment and where the government actually stands? What we've heard in the last week is that government is very ambivalent, very ambivalent. There might be a rhetorical kind of let's all wear our AIDS pins and lets do this and have AIDS' days and let's do this and that, but when it comes down to the nitty gritty there are different schools of thought.

LW. I think it's not correct and it's not sympathetic or constructive to compare the HRC's investigation into racism in the media and the importance it attaches or does not attach to AIDS.

POM. What?

LW. Well simply because of the following reasons. I have come to learn in this country that for a white man from Krugersdorp to tell a black South African, fellow South African, what is important and not important about racial issues is not a good debate because I have not been on the receiving end of racism but I have learnt over the years and in particular in this commission how the racism that you find in our society and even in the press, the far reaching hurt that that inflicts on fellow South Africans and one should not forget that as far as the media enquiry is concerned it was not as if this commission sat here peacefully and quietly and saying to itself, well what is there to be done, what should we do, what should we investigate?

. What happened here was that a complaint was lodged with this commission. That was before my time and that complaint has resulted in this enquiry and I simply would like to repeat that the final chapter has not been written on that particular enquiry. That is something as important as you can imagine, that South Africans, black South Africans, Africans still experience a lot of pain when it comes to the issue of racism.

. I just want to say that and having said that you may then argue and say, well you are not attaching importance to AIDS, you are not throwing enough resources into your AIDS campaigns and that may be correct, but I tell you as I sit and as I speak and as I think of the individual commissioners in this commission and members of this commission, how they feel about AIDS and how they go about their business when it comes to AIDS and I will simply defend them and say to you that I just believe, I just will not buy into the argument that they do not attach enough importance to it, that they have not been sensitised enough.

. But you have to appreciate one thing and that is when the HRC evaluates government's actions against its constitutional obligation we are up against the best lawyers and resources government can throw at us and therefore we may be faulted possibly by saying we are too careful -

POM. There's kind of an irony in that.

LW. - in dragging government to court or whatnot, but we have not shied away to start our investigative and research programmes in this particular field, holding government accountable to its constitutional responsibilities in terms of it's socio-economic obligations which include AIDS and right to health, etc.

POM. But that almost puts AIDS on the same level as other rights whereas my point, I suppose, would be that you are past the point of rights here. You are in a plague, the different measures must be taken.

LW. That fact that we have an AIDS problem does not take the other problems away and we have a commissioner that's responsible for socio-economic rights and she's giving that problem her best shot. But the fact that she's involved with that particular issue does not mean that the other commissioners should relinquish their responsibilities and join hands with her. She is the commissioner responsible for socio-economic rights and there's a Complaints Committee that deals with complaints that we deal with and those complaints come in thick and fast and they come from different quarters and they involve different rights and they have to be attended to.

POM. So to end for the moment this part of the conversation, because I don't want to end it but to bring it to some kind of a closure, if I said to you what is the most important issue facing SA in the next 15 years, and to make it almost simpler would it be the consolidation of its birthing democracy or the elimination of a plague?

LW. I don't think government works like that, government does not have the luxury to deal with one issue at a time. All the issues are on the table. AIDS is certainly on it.

POM. Just an issue?

LW. Well you call it a plague, I call it a serious problem, an emergency, crisis, whatever, I don't want to stumble over the words.

POM. There's a huge difference then in the way we think about it.

LW. If I use different words I don't in any way want to argue or reason that it is of lesser importance, of lesser proportions. It's a crisis. In my words crisis is pretty strong and there may be stronger words to be used than crisis, but it is a crisis. So if I say it is an issue I do not take away from the proportions of the crisis. And if you say it's a plague, I mean the statistics, the projections remain the same.

POM. OK, let's maybe leave it there because I would say that again it goes back to you see Thabo in Davos this weekend and he's putting Africa on the map for next year or he did that at the Commonwealth Conference last year, and it means nothing because the problems are accumulating and getting worse and somebody has got to say, not from here, to make the case to the west it would appear to me - you know what? If you allow this to happen it's in your own interests to stop it. In other words, you invest billions, you get the civilian global intervention that one would do of the mobilisation whether it's a Kosovo or a Bosnia or whatever and you would tackle it at that level and you would take it with that seriousness and you would get the Security Council in at that level and you would get countries to say this is the way we've got to attack something that is getting out of control across not just Africa this year, it's India next year. But everybody's taking in particles rather than seeing the large picture that more people, as Al Gore I think said three weeks ago, will be wiped out in the first 20 years of this century than in all the wars of the last century. Everyone says oh, on we go.

LW. No I don't think it works like that. There are a number of disciplines that a government has to deal with, I'm talking about governments and then I'm talking about the commission. The fact that AIDS has taken on the proportions that it has, be that a plague, crisis, a matter of serious concern, the statistics, the projections remain the same. There is a Minister of Health. Having said that, there is also a Minister of Police dealing with the crime problem and there's a Minister of Education and collectively I just do not believe that they are unsympathetic and the way I've listened to Thabo Mbeki speak on national television, the way I've listened to Jacob Zuma speak on national television, the way I've listened to Barney Pityana speak in this commission, the way I've listened to other colleagues speak about it in this commission, I have to conclude that they are sympathetic and understand the magnitude of the problem.

POM. OK, let's leave that one there for the moment. That was only I didn't even come here to talk about that. Do we have time to talk about something else?

LW. Sure, you're welcome.

POM. You tell me when your time is up.

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