Abstract
Recently a Kenyan High court in P.A.O and others v Attorney General and another (hereinafter P.A.O) handed down a judgment in relation to sections 2, 32, and 34 of the Anti-Counterfeit Act vis-a-vis Kenya's obligations under international human rights law and the Constitution. For many Africans, access to medicines has remained a great challenge not least because of high prices mainly due to patent on these medicines. Although recent developments across Africa had shown that modest progress has been made in realizing access to medicines for people living with HIV, a great percentage of those in need of these medicines are not receiving them. One of the major obstacles to access to medicines in Africa is patent rights enjoyed by pharmaceutical companies on essential medicines such as anti-retroviral drugs.
Highlights
Facts of the caseThe petitioners in this case were all HIV positive adults, who had been living with HIV for periods ranging between eight and 19 years, who, with the exception of the second petitioner, had been on generic anti-retroviral drugs (ARVs) for about ten years
GLADYS MIRUGI-MUKUNDI, Coordinator and Researcher, respectively, Socio-Economic Rights Project, Community Law Center, University of the Western Cape
Forman has argued that states’ obligations with regard to ensuring access to medicines is of a higher threshold than obligations under trade agreements, including Trade-Related Aspects of Intellectual Property Rights (TRIPS), since the former will implicate the right to life which is regarded as the most fundamental of all human rights.74The United Nations (UN) Sub- Commission on Human Rights has noted that there is bound to be a conflict between the implementation of intellectual property rights agreements and human rights treaties
Summary
The petitioners in this case were all HIV positive adults, who had been living with HIV for periods ranging between eight and 19 years, who, with the exception of the second petitioner, had been on generic anti-retroviral drugs (ARVs) for about ten years. The petitioners contended that the Anti-Counterfeit Act will have negative effects on the manufacturing and accessibility of cheaper generics drugs, thereby infringing their rights to life, dignity and health guaranteed under articles 26(1), 28 and 43 of the Constitution of Kenya.. (2) A declaration that in so far the Anti-Counterfeit Act limits access to essential and affordable drugs and medicines, including generic drugs for HIV/AIDS, it constitutes an infringement of the petitioners’ rights to life, dignity and health all guaranteed under articles 26, 28 and 43 of the Kenya Constitution. (3) A declaration that the enforcement of the Anti-Counterfeit Act in so far as it affected access to affordable and essential drugs and medications, generic medicines, was a breach of the petitioners’ rights to life, dignity and health as guaranteed under articles 26(1), 28 and 43 of the Kenyan Constitution. During the pendency of this case, a non-governmental organisation, AIDS Law Project, was joined as an interested party, while the United Nations (UN) Special Rapporteur on the Right to the Highest Attainable Standard of Health was admitted as an amicus
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