Promoting the Right to health in Kenya

Promoting the Right to health in Kenya

The Constitution of the Republic of Kenya provides for one’s right to health. It states that every person has the right to the highest attainable standard of health, which includes the right to health care services including reproductive health care.

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For one to wholly appreciate the magnitude of this right, it is imperative to have a basic understanding of the term ‘health’. The preamble of the 1946 World Health Organization’s (WHO) Constitution defines health as a state of complete physical, mental and social well-being and not merely the absence of disease or infirmity. It goes on further to state that the enjoyment of the highest attainable standard of health is one of the fundamental rights of every human being without distinction of race, religion, political belief, economic or social condition. This right is broad in its scope and entails the right to access essential medicines.

The International Covenant on Economic Social and Cultural Rights, Article 12, states that the steps taken by the state parties to the present covenant (such as Kenya) to achieve the full realization of the right to health shall include those necessary for the prevention, treatment and control of epidemic, endemic, occupational and other diseases and the creation of conditions which would assure to all, medical services and medical attention in the event of sickness. This right[2] was expounded by the United Nations Committee on Economic, Social and Cultural Rights in its General Comment No. 14 on the ‘Right to the Highest Attainable Standard of Health’ paragraph 12, to include access to essential medicines. In fact, it went further to explain access to essential medicines to include three main elements. First is the ‘physical accessibility’ whereby, the good or service must be within the safe physical reach of majority of the population. Second is the ‘economic accessibility’ whereby the good or service must be affordable to a majority of the population and third, ‘informational accessibility’ whereby the right to seek, receive and impart information concerning health issues is safeguarded.

Economic accessibility to essential medicines is hampered by the fact that majority of Kenya’s population cannot afford to buy these essential drugs. This is largely due to the fact that, protection of intellectual property rights, specifically patents[3], leads to an increase in the price of these drugs. This is because, a patent is an exclusive right that enables the right holder to prevent others from making, using, selling or importing the invention for the duration of the patent right; usually 20 years as provided for by section 60 of the Industrial Property Act (2001) of Kenya that states, ‘A patent shall expire at the end of twenty years from the filing date of the application’.[4] As a result, a monopoly of sorts is created by the right holder who is able to control not only the output as per the demand but also control the price of the patented product. Thus, translated to pharmaceuticals, the price of essential medicines is dependent on the price offered by the patent holder and as such a higher price is often quoted than that which is within the range of those most in need.

It is because of this that the World Trade Organization (WTO) came up with compulsory licensing in an international agreement referred to as the Trade Related Aspects of Intellectual Property Rights (TRIPS)[5]. This agreement neither defines compulsory licensing nor specifies when exactly a compulsory license can be granted. It does however; stipulate under Article 31 that any WTO Member such as Kenya can issue a compulsory license after certain procedures have been met. This was further embodied in our Industrial Property Act of 2001 that attempts to give a concrete definition of compulsory licensing. It describes compulsory licensing as the means by which a government can license to a company, government agency or other party the right to use a patent without the consent of the patent holder. Part XI of the Industrial Property Act (2001) provides for the exploitation of patented inventions by the government or by third persons authorized by the government. Section 80(1) (a) of the aforementioned Act, provides that such exploitation may only be carried out on the basis of public interest, in particular, national security, nutrition, health, environmental conservation or the development of any other vital sector of the national economy so required. Section 80 (1) (b), further provides that the Managing Director of Kenya Industrial Property Institute (KIPI), can on application to the licensee, in the prescribed form and after consultation with the Institute and the owner of the patent, order that the protected invention shall be exploited by the government ministry, department, agency or other person as the Minister may designate in the order, subject to the payment of adequate compensation[6] to the owner of the patent in accordance with this section.

It is important to note, however, that compulsory licensing cannot be awarded arbitrarily. In addition to the above mentioned requirements, Section 74 (1) provides that a compulsory licence shall not be granted unless the person requesting the licence satisfies the Tribunal that he has asked the owner of the patent for a contractual licence but has been unable to obtain the licence on reasonable commercial terms and within a reasonable time; and offers guarantees satisfactory to the Tribunal to work the relevant invention sufficiently to remedy the deficiencies or to satisfy the requirements which gave rise to his request. This prerequisite shall be waived in the case of a national emergency or other circumstances of extreme urgency, provided the………………………………..