AIDS Law Project applauds land mark Judgment on access to quality generic medicines.
The long awaited judgment was finally delivered on 20th April 2012 by Lady Justice Mumbi Ngugi: The case was filed by three petitioners (Patricia Asero, Maurine Atieno and Joseph Munyi), AIDS Law Project was enjoined as an interested party; and the UN special Rapportuer on the right to health joined as Amicus Curiae:
The Judge ruled that sections 3, 32 and 34 of the Anti counterfeit Act of 2008 were unconstitutional being a threat to the right to life, dignity and health. she noted that “There can be no room for ambiguity where the right to health and life of the petitioners and the many other Kenyans who are affected by HIV and AIDS are at stake”, the Judge found that these three sections could severely limit or threaten access to affordable and essential drugs including generic medicines for HIV/AIDS and therefore infringed the right to life, dignity and health of the three Petitioners.
She also noted that there appears to be a conflict between the intellectual property rights and the rights of the people living with HIV and AIDS and in such an instance the lives of citizens’ who form a large constituency must be given priority. On this the judge held that “While … intellectual property rights should be protected, where there is a likelihood, as in this case, that their protection will put in jeopardy fundamental rights such as the right to life of others… they [IP rights] must give way to the fundamental rights of citizens …”
Lastly she pointed out that Kenya has ratified the various international treaties and conventions and as a result those same conventions are applicable law in Kenya. Seeing that majority of the international treaties do protect the right to health, and specifically with regard to against scientific invention and trade, therefore the right to health has to be upheld, her noted that “The parties have referred the court to various decisions in which the High Court has applied international law and urged the court to be guided by those decisions. However, Article 2 of the Constitution now makes it clear that all international treaties to which Kenya is a party are now part of the laws of Kenya. I am therefore bound by the Constitution to have regard to these treaties.”
Effect of this judgment: this judgment means that the said sections 2, 32 and 34 of the anti counterfeit act have been declared unconstitutional and therefore cannot be enforced.
Way forward: the minister concerned upon advice for the Attorney general will be required to amend the said sections to reflect the spirit of the judgment and by extension the constitution.
AIDS Law Project acknowledges with thanks the support of Open Society Initiative for East Africa (OSIEA) and Akiba Uhaki foundation.
- Download Press Statement: Health activists welcome High Court judgment on anti-counterfeit law [pdf 42 kb]
- Download the judgement here [pdf 1.1 mb]
Image of Kenya Judicary building By Wing (Own work) used by permission CC-BY-SA-3.0