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Harrington, John --- "Intellectual property and the life sciences in Kenya: enforcement and access to medicines" [2017] ELECD 823; in Matthews, Duncan; Zech, Herbert (eds), "Research Handbook on Intellectual Property and the Life Sciences" (Edward Elgar Publishing, 2017) 395

Book Title: Research Handbook on Intellectual Property and the Life Sciences

Editor(s): Matthews, Duncan; Zech, Herbert

Publisher: Edward Elgar Publishing

ISBN (hard cover): 9781783479443

Section: Chapter 22

Section Title: Intellectual property and the life sciences in Kenya: enforcement and access to medicines

Author(s): Harrington, John

Number of pages: 13

Abstract/Description:

The interaction between the right to health and intellectual property rights has been the focus of considerable scholarly attention over the last decade and a half. The contest between pro-access campaigners and commercial interests has been shaped in recent years, on the one hand, by the increasing recognition of an enforceable right to health in national constitutions, particularly in developing countries, and, on the other hand, by a worldwide move to strengthen intellectual property enforcement. These struggles have been fought out not only at international level, but also in regional and national fora. Kenya came to prominence in 2012 as one such site with the decision of the Nairobi High Court that anti-counterfeit legislation was unconstitutional due to the threat it posed to the supply of affordable essential medicines. This chapter sets that decision in historical context, examining debates over the implementation of TRIPS in the early 2000s and the lobbying which preceded passage of the Anti-Counterfeit Act 2008.It concludes by considering the factors which have limited implementation of the High Court’s judgment. The relative extent to which Kenyan law recognizes the claims of patent holders, or proaccess campaigners, matters to ordinary citizens in the first instance. There are around 1.4 million Kenyans living with HIV out of a total current population of approximately 48 million. Although levels of infection among adults have fallen from around 14 per cent in the late 1990s, prevalence remains relatively high at over 7 per cent.Kenya is also marked by relatively high levels of poverty with 43.4 per cent of the population living on under US$1.25 per day.Government spending on essential medicines is massively augmented by support from the US President’s Emergency Plan for AIDS Relief (PEPFAR) and, to a lesser extent, from the Global Fund for Tuberculosis, AIDS and Malaria (GFTAM). Nonetheless it remains the case that 52 per cent of Kenyans in advanced stages of HIV infection and 27 per cent of infected pregnant women still go without crucial anti-retroviral drugs.