Rio de Janeiro, Brazil — For two decades, donor funding helped build one of the world’s most successful HIV responses. Now, as the United States scales back support, legal scholar Mnotho Ngcobo says Africa is confronting not just a funding crisis, but a constitutional and ethical one.
Ngcobo, an assistant professor of law at the University of Louisville Brandeis School of Law, presented his research at the AIDS 2026 conference in Rio de Janeiro, Brazil.
Across sub-Saharan Africa, the fight against HIV has long been shaped by a powerful external force: donor funding. Programmes such as the rollout of antiretroviral therapy and large-scale prevention initiatives have helped progress in reducing AIDS-related deaths and improving access to treatment in the region.
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Foreign aid is central to the fight against HIV/Aids in Africa and other low- and middle-income countries. Major global initiatives such as the United States President’s Emergency Plan for AIDS Relief (PEPFAR), the United States Agency for International Development (USAID) and the Global Fund have been pivotal in expanding access to prevention, treatment and care services for people living with HIV.
However, when the U.S. government froze foreign aid in January 2025, it carved out a waiver: life-saving HIV treatment, it said, would continue. Several aid organizations and communities expressed concerns about the decision since it reduced funding for critical programs that address hunger, health, and education. These reductions in aid over 18 months led to clinic closures, staff layoffs, disruptions in antiretroviral therapy (ART), and reductions in testing and prevention services (including PrEP), raising the risk of treatment failure, new infections, and HIV-related deaths.
“That lens is exactly what pulled me toward PEPFAR. When the US froze foreign aid in January 2025 and then dismantled USAID, I watched clinics close almost overnight, and health workers lose their jobs with no transition plan,” he said.
Much of the discussion that followed focused on money.
Ngcobo said that the crisis exposed something deeper: the absence of legal safeguards governing how international donors withdraw from health programmes that millions of people depend on.
“Everyone was calling it a funding crisis, a budget problem. As a lawyer, that framing bothered me,” he said. “Underneath the money was a legal and ethical failure nobody was naming. There was no framework anywhere governing how a donor exits a relationship that millions of lives depend on.” That gap, the absence of any legal architecture for how the world’s largest HIV donor could disengage, has become the centre of Ngcobo’s research into PEPFAR’s retreat from South Africa and Kenya, two countries that built decades of their AIDS response around American money.
“The first thing to fall away when the money left was prevention.”
“The first thing to fall away when the money left was prevention, the very thing a stretched system already struggles to protect. That gap is what I set out to examine,” he said.
Ngcobo’s interest in healthcare law is deeply personal. Growing up in South Africa, he relied on the public health system and experienced its strengths and weaknesses firsthand.
“I know what it is to sit in those queues,” he said. “Later, when I started travelling and experiencing healthcare elsewhere, the contrast was hard to miss. No system anywhere is perfect, and I want to be fair about that. But you notice things. You notice the long waits and the stockouts back home, and then you notice systems that put real weight on prevention, on catching things before they become emergencies”.
Where resources are tight, he said, a public system ends up spending most of its energy putting out fires rather than stopping them from starting. That isn’t a moral failing on anyone’s part; it’s what scarcity forces. But it stayed with me, and it shaped how I think about health as a question of law and not just of medicine.
Prevention first to disappear
The most immediate danger of PEPFAR’s withdrawal, Ngcobo said, is that treatment survives while prevention quietly disappears. Under fiscal pressure, governments protect the patients already on antiretrovirals, and prevention programs are what gets cut, a pattern he said was confirmed by Section27’s own assessment in South Africa.
“If you let prevention slide, you’re simply manufacturing the next wave of infections, and the bill comes due a few years later,” he said.
“The first things to disappear were PrEP, youth-friendly clinics and community outreach.”
That collapse has fallen hardest on people already on the margins. PrEP access for key populations, youth-friendly clinics, and community outreach were disproportionately funded by PEPFAR and were “the first things to disappear”.
In Kenya, he saw youth services close and adolescent dropout rates run as high as 55%. In South Africa, community groups like Anova laid off thousands of health workers, while community delivery of PrEP was gutted. “These aren’t line items,” he said. “They’re the difference between someone staying in care and vanishing from it.”
The longer-term projections are even more alarming.
Studies project more than half a million additional HIV deaths in South Africa over a decade if services aren’t restored, and UNAIDS estimates that a full collapse of US-supported services could mean around 6.6 million additional infections by 2029. Kenya, he added, is more exposed than South Africa, because PEPFAR covered more than half of its entire HIV budget. “The same shock does far more damage there,” he said.
Constitutional rights alone are not enough
One of the more surprising findings from Ngcobo’s research is that stronger constitutional protections do not necessarily translate into greater resilience.
The first is what he called a regulatory gap: neither South Africa nor Kenya had any law or policy governing what happens when a donor exits. Responsibility for keeping services running was scattered across institutions with no real accountability mechanism. Termination letters simply arrived, some, he said, signed off “God bless America,” leaving affected communities with no legal remedy at all.
“A state cannot outsource a constitutional duty to a donor.”
The second finding concerns what two decades of external funding quietly built: parallel health systems that ran alongside the public system. In Kenya especially, those structures became so entrenched that they obscured the government’s own constitutional duty until the money left. Ngcobo puts the underlying principle plainly: a state cannot outsource a constitutional duty to a donor. The obligation remains the government’s, he said, “whether or not the state is the one writing the cheque.”
Third, he added, and this is the comparison people find most surprising, constitutional strength on paper didn’t predict who coped better. Kenya has the stronger formal right to health. Article 43 of its constitution is more ambitious than South Africa’s section 27, and Kenyan courts have been willing to enforce health rights. Yet Kenya suffered the worst harm, because it was structurally more dependent on PEPFAR. South Africa held up better not because of superior law but because it relied on the US for a smaller share, roughly 17%, and could put emergency money on the table.
Why does that matter right now? he said, because the temptation everywhere is to treat this as a purely fiscal problem to be solved with a bigger budget.
The lesson Ngcobo drew from this is blunt: “a strong constitutional right is worthless if the institutions and financing to deliver it were never built. Courts can enforce rights against governments. They can’t conjure fiscal capacity out of nothing.”
The legal vacuum
Perhaps the most striking finding from Ngcobo’s work is what did not exist.
The gap is wide, he said. Both South Africa and Kenya carry enforceable constitutional obligations to ensure continuity of essential HIV care. South Africa has the Treatment Action Campaign line of cases; Kenya has the PAO judgment.
But those duties, Ngcobo said, had effectively been “quietly discharged” by a foreign-funded system no domestic court or institution actually controlled. The right existed on paper, he said, but “its real content depended entirely on decisions made in Washington by people who owe nothing to a patient in KwaZulu-Natal.”
He identified three places where this gap is most visible.
On the regulatory side, there was no legal process for a managed exit, so the withdrawal happened as an unregulated administrative act. On the ethical side, the harm was completely foreseeable, and nobody was required to prevent it. He said that clinical trials are bound to a standard when they close, there are duties to participants, yet a donor could dismantle a national programme with none of that ethical review.
The consequences were immediate.
In South Africa, an mRNA HIV vaccine trial at the University of Cape Town was halted days before it was due to begin. The disruption extended far beyond research, he said, exposing deep inequalities in the health system.
“The equity side is the ugliest, because the burden landed on exactly the people with the least power to absorb it – adolescents, key populations, people in the poorest districts,” Ngcobo said. He pointed to a KwaZulu-Natal audit that found that facilities serving over half the province’s people living with HIV were disrupted, including clinics that had never received a cent of direct PEPFAR money.
Preparing for donor transition
Ngcobo believes African governments now have an opportunity to fundamentally reshape how donor transitions are managed.
His first recommendation is legislative.
The reform he cares about most is turning donor exit into something governed by statute rather than left to chance. Withdrawal, he said, should never be an overnight administrative decision. It should be a managed legal process built around minimum notice periods, mandatory joint transition planning, and an enforceable duty to maintain continuity of access.
“Turn withdrawal, something that happens to a country, into something a country has legal tools to manage,” he said.
He also said that governments should integrate donor-funded health workers and delivery systems into national health services rather than allowing parallel structures to persist indefinitely.
Governments need explicit, budgeted plans to absorb the parallel systems that donor funding built, including bringing externally funded health workers onto public payrolls. As long as delivery lives in a parallel structure, Ngcobo said, the state’s obligation and the state’s actual capacity don’t line up, and you’re one policy change away from collapse.
He further proposed that donor exits undergo ethical review comparable to that required for clinical research, ensuring foreseeable harms are assessed before programmes are dismantled. Put ethical review around exit, he said. If we make trial sponsors account for the harm of closing a study, a donor dismantling a life-saving programme should face review proportionate to the foreseeable harm. That principle should bind both the donor and the recipient government,” he said.
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However, domestic financing remains essential.
Fund it honestly at home. This is the hard one.
South Africa already funds around 77% of its own AIDS response and has built in above-inflation budget increases, which Ngcobo sees as the right direction, provided that it has to be real money, not a line in a budget that never arrives. The deeper obstacle, he said, is that it can’t be done while debt repayments swallow the health budget, which is the deeper structural trap most of the continent is in.
Despite mounting challenges, Ngcobo sees reasons for cautious optimism.
He sees more resilience than the headlines suggest, much of it driven by civil society. In South Africa, organizations including Section27, APHA and clinician-researchers have systematically documented the harm as it happened. “You can’t hold anyone accountable for damage nobody recorded,” he said.
Governments have moved too. South Africa put emergency money in and redirected patients to public facilities. Kenya stood up a crisis team and pushed on domestic antiretroviral manufacturing. At the continental level, twenty-two African countries are now building transition plans, and eleven have actually increased their national HIV budgets for 2026. That’s real political commitment, not just rhetoric, said Ngcobo.
“But I won’t pretend the trajectory is safe,” he said.
The U.S. has announced that it’s ending PEPFAR support to South Africa, with funding expected to run out by early 2027. This isn’t a reduction anymore; it’s a full exit from the country with the largest epidemic in the world, he said. And at the UN this year, the new political declaration on AIDS passed without consensus for the first time since 2001, with the US voting against it.
The global solidarity that carried this response for twenty years is fracturing in real time, said Ngcobo.
So, what has to happen? The gains hold only if governments treat continuity as a legal duty rather than a policy preference, if the transition to domestic financing is managed rather than forced by a shock, and if the new tools actually reach people. Lenacapavir, the twice-yearly injection, could genuinely change the trajectory of new infections, but right now too few manufacturers are licensed to make a generic, and it isn’t reaching the people who need it, he said.
“The science to end AIDS exists. Whether we do is now a question of political choice, and of law, far more than a question of medicine,” said Ngcobo.
