Kenyan courts have in a judgement, P.A.O & 2 others versus the AG, upheld the notion that the right to life supersedes any others persons intellectual property rights. A brief explanation is this, when you are granted an intellectual property right by the state especially in the form of patents, then it means that nobody else can use that same information or invention without your permission. It basically grants you a monopoly over the invention made. In some instances, especially in the medicinal and pharmaceutical field, granting a manufacturer unlimited patent over the medicines made could endanger the life of millions.
This Kenyan judgement has upheld the right to life and categorically stated “the right to life, dignity and health takes precedence over any intellectual property matters including patents.” In Kenya, judgements made by the High Court remain binding and form part of law in what is known as case law. Therefore this judgement will definitely shift the Kenyan pharmaceutical field. The losers obviously will be the manufacturers who will have to contend with generic drugs being allowed in the market. The winners (and thankfully so) are the many Kenyans who depend on generic drugs to manage their conditions. The other winners are manufacturers of generic drugs who face a hostile legal environment in other countries. Generics are classified as counterfeit goods in other countries and are therefore subject to destruction. This destruction has had effects in Kenya where it has been reported that sometimes there are shortages of generics because the drugs me were destroyed en route to Kenya. Globally, it has been a long standing debate as to how far should one person be granted monopoly rights when the issue concerns inventions vital to preserve human life. Perhaps the thinking behind this is that, granting one person monopoly, may lead to very high unaffordable prices to the masses, control of production and many other dangerous methods that may threaten human life.
In other jurisdictions, generic drugs have been classified as counterfeit goods and therefore subject to seizure and destruction. This Kenyan judgement is very clear that no intellectual property right should threaten human life.
Very briefly, the petitioners were all adult persons infected with HIV and depended on generic drugs for a long time, to manage the condition. The Anti-Counterfeit Act contains a vague provision on the definition of counterfeit goods and this definition may include generic drugs, unless it is clearly stated that generics are not counterfeits. The Anti-Counterfeit Act gives the authority a lot of enforcement powers including seizure and destruction of any counterfeits. The effect is that it could have been legally possible for generic drugs to be destroyed on the assumption that they are counterfeits. The respondent in their defence said the petitioners’ fears were unfounded for the spirit of the Act was to protect the public from the harmful effects of counterfeits. I wrote on this issue some years back….arguing from the side of the petitioners and again arguing from the side of the respondents. Counterfeits are very harmful, and the rationale behind making the Act was to protect Kenyans from their harmful effect. However the petitioners argued that they have depended on generic drugs for long and it is these generics that have preserved their life. Leaving the Act as it is, would endanger their life and their health.
Many Kenyans depend on generic drugs with a majority not even being able to afford basic health care. It would be drastic to outlaw generic drugs from the Kenyan market and thereby threatening the lives of millions. This is one of the rulings that I have strongly supported as it guarantees the rights to life for many. Rather than grant one entity monopoly rights it is better to preserve the lives of millions.
The ruling made was to the effect that certain provisions of the Anti-Counterfeit Act are a threat to human life.
What does this ruling mean to interest parties? For the pharmaceuticals it is a big loss as they have to face competition from generics and legally so. This will affect any license holders, importers and retailers of original drugs as the market is open for competition and legally so. Generic drug manufacturers have a reason to smile as they can relax and carry out their business without fear of the law. I foresee a situation where Kenya will be a hostile legal environment for makers of original drugs while a favourable legal environment for makers of generic drugs. Makers of generic drugs have suffered a lot of losses in other countries where there products are seized and destroyed, so maybe we shall have more of the generic drug manufacturers eyeing Kenya as a suitable base.
The public is the biggest winner here.
C Mputhia Advocates – Read More