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HEALTH: Kenyans’ Right to Affordable Drugs in Hands of Court

Suleiman Mbatiah

NAIROBI, Jul 22 2010 (IPS) - Kenya’s Constitutional Court is due to set a date on Jul 22 for a hearing on the application against the Anti-Counterfeit Act of 2008, of which clauses pertaining to medicines have been suspended pending the court’s decision on whether the law violates the right to health and life.

Three people living with HIV and AIDS applied in July 2008 for the act to be suspended as it threatens the importation or manufacturing of affordable and life-saving generic antiretrovirals, thus denying Kenyans their constitutional right to health and life.

In April 2010, Justice Roselyn Wendoh appreciated that the petitioners would suffer irreparable damage if their plight were not addressed. In her ruling, Justice Wendoh issued a conservatory order on the application of the law to medicines until a verdict is delivered in the case.

Parties enjoined in the case are supposed to file written submissions for the main constitutional application before Jul 22.

Jacinta Nyachae, executive director of the Aids Law Project, told IPS that the law contravenes sections of the Industrial Property Act of 2001, including section 58 (2) providing for parallel importation and section 80 on government use.

Parallel importation is when a product that is not counterfeit is imported from another country without the patent holder’s consent. The AIDS Law Project is a non-governmental organisation defending access to adequate healthcare and treatment for people living with HIV and AIDS. It is one of the parties to the case.

Section 58 (2) waives patent rights pertaining to some products on the market in Kenya or in any other country or imported into Kenya.

“This provision facilitates, among other things, access to affordable medicines by all,” Nyachae said. Section 80 on government use allows the government or its agents to exploit a patent in the public interest.

With the Industrial Property Act of 2001, Kenya used the flexibilities afforded least developed countries in the Doha Declaration of 2001 with regards the Trade-Related Aspects of Intellectual Property (TRIPs) agreement.

Health rights activists argue that developed countries are trying to force TRIPs-plus agendas (intellectual property rights protection that goes beyond TRIPs) regarding medicines on developing countries in favour of IP rights holders, of which the majority are multinational companies from the North.

Activists argue that the Anti-Counterfeit Act of 2008 fails to acknowledge and to specifically exempt generic medicines from the definition of counterfeits.

Moreover, TRIPs identifies intellectual property (IP) rights as “territorial rights”. IP on medicines would only be protected in the territory where it is registered. However, the Anti-Counterfeit Act of 2008 upholds IP rights registered in countries outside Kenya.

“This automatically makes generic drugs imported into or transiting through Kenya illegal if a patent exists anywhere in the world,” noted Christa Cepuch, programme director at Health Action International (HAI) Africa. HAI Africa is part of an independent global network that supports the right to health.

For the Eastern Africa Treatment Access Movement (EATAM) the April court ruling on generics set a precedent in the public interest and, more specifically, regarding the rights of people living with HIV, said Rose Kaberia, EATAM’s regional coordinator.

A favourable court ruling will keep the doors of treatment open for affordable drugs, Kaberia told IPS. EATAM works towards access to treatment for all.

She also thinks that it would demonstrate that public health rights are respected by the judicial system in Kenya. “It would be a great success for the common person who cannot afford branded drugs.”

However, a ruling in favour of the act would threaten and undermine the fundamental health rights of people living with HIV and the general public.

“This would therefore mean that the common person in Kenya has no voice and it would be tantamount to denying Kenyans one of their basic rights, namely to access affordable treatment,” Kaberia told IPS.

Cepuch is confident that the court will ultimately uphold the injunction barring the newly created anti-counterfeit agency from implementing the act regarding medicines.

“We hope the court will provide clear direction on how to protect public health and ensure access to medicines for all Kenyans vis-à-vis the widely acknowledged risks that this act poses,” Cepuch told IPS.