Pascal Lamy is the Director General of the World Trade Organisation (WTO). In this position he is fully responsible for the actions of the WTO Secretariat. The WTO Secretariat, who work for Lamy to carry out the functions of the organisation, actually changed a document after it was signed by the member countries of the WTO. The change was not approved by the countries who complained about it. Under normal circumstances this would constitute fraud and fraud is a criminal offence. The least that should have been done by the Director General was that the WTO staff responsible for the fraud should have been been called to a disciplinary hearing and fired for trying to pull off such a trick in full view of all the WTO members.

To be fair, when the poor countries complained about the changes, the Secretariat made a minor change to the fraud but did not remove the change. They were so bold as to admit that their changes were not on the signed document. This in of itself should have been sufficient to ensure dismissal of the fraudsters and perhaps even their criminal conviction.
What did Pascal Lamy do? Pascal Lamy did nothing and forced the poor countries of the world to negotiate using the document with the fraudulent changes still on it. Since he is aware of the changes made, and is after all an international civil servant, he must take responsibility for the actions of the Secretariat. Since he has taken no
action, he is complicit in the fraud. Aside from the principle of not changing documents after they are signed, the agreement has a life and death impact on billions of the poor around the world whose access to medicines is at risk.

The WTO Trade Related Intellectual Property Rights Agreement (TRIPs) created a number of problems particularly for African countries. Suffering from a wide range of diseases African countries were unable to produce or import adequate amounts of pharmaceutical drugs to meet their peoples needs. The TRIPs agreement made it difficult for them to purchase cheap imported generic drugs when they could not afford the more expensive branded drugs.

The TRIPs agreement had a number of flexibilities that would have allowed African countries to obtain generic drugs, but they have been prevented from using these legal rights due to political pressure from the rich countries, notably the United States and the European Union. After a number of attempts at trying to negotiate a solution to these problems a temporary agreement was signed on 31 August 2003. This agreement proved to be so complicated that it was useless and has never been used. The agreement was made permanent in December 2005 and we will
have to wait and see if it is useful to African countries.

The Secretariat made changes to the August 2003 decision which would have made it even more difficult for poor countries to secure access to medicines. They did this by adding a footnote which referred to a speech made when the agreement was signed. The speech tried to add more conditions to the signed agreement, but were not included because they were not agreed to. African countries objected to this and the footnote was changed saying the reference was for information purposes only. The Secretariat fraudsters understood that even such a small change would
have had an important impact on interpreting the agreement and, even after being exposed as fraudsters, refused to remove the footnote.

The US was clear that it wanted the first fraudulent change to be part of the agreement, while African countries insisted that it cannot be included. The Europeans tried to broker a compromise that would have allowed the US and the Secretariat to get away with the fraud by asking the poor countries to accept a compromise middle ground. Where exactly is the middle ground between the lives of our people and a fraud committed so openly is a question that perhaps only the Europeans can answer. Under these circumstances poor countries negotiated and reached
agreement which made the August 2003 decision permanent.

Poor countries desperate for a solution to their public health needs were forced to reach an agreement with the rich countries while this fraud was known to all. The Director General of the WTO did not see it as appropriate to have countries negotiate on orginal documents but allowed them on changed documents. This is the person who is tasked with the safeguarding of all other agreements that are negotiated in the WTO. With this kind of a track record it is clear that he is not up to this simple task. In future our countries should therefore take copies of signed documents and ensure that they have hard copies in (preferably in triplicate) that have been proof read and compared line by line with the WTO copy, otherwise it is possible that this (or worse) may happen again.

Now sticking to original signed documents and ensuring that changes are not made to them is not too complicated a task. Yet Pascal Lamy has shown that this is beyond him. Perhaps it is incompetence and his suitability for the post should be reviewed. However with any crime, and fraud is a crime, it is always useful to see who benefits from the
crime, /ce bono/. In this case the US, EU and other rich countries benefit because they own most of the intellectual property rights for the more expensive branded drugs and would loose sales if generics drugs were supplied. Is it just coincidental that Pascal Lamy was the EU's Trade Commissioner before becoming Director General of the WTO?

WTO members are now stuck with an agreement that has proven useless in the past and we have to wait and see if it is usable now that it is permanent. Perhaps the poor people of the world have to ask whether such an agreement is in fact valid and legally enforceable given the fraudulent circumstances under which it has been signed. But with pharmaceutical drugs, it hardly matters if it is legal or not because South Africa was prevented from using perfectly legal rights under TRIPs in the past.

The rich countries continually blame the poor countries in the negotiations for undermining the international trading system, a castigation Lamy used frequently after the Seattle negotiations. Are unilateral changes to signed documents not an undermining of the trading system? Since no one has been disciplined or fired for this fraud then it is reasonable to assume that the Director General is at the centre of this openly committed fraud. Otherwise Lamy would have taken steps to distance himself from this crime. Is Lamy a fraudster or merely incompetent? You decide, but remember with bad apples, rot spreads from the core.

Riaz Tayob
Johannesburg