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Judgment on generic medicines – Kenya’s first victory on the right to health

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Kenya is celebrating after a landmark judgment on Friday <20 April> ruled that sections of the Anti-Counterfeit Act 2008 will not apply to generic medicines – protecting access to affordable treatment.

The case, which was filed by three people living with HIV and has been ongoing since 2009, challenged the aspects of the Anti-Counterfeit Act 2008 that confused counterfeiting with patent infringement, therefore threatening the importation of the generic medicines, including ARVs for people living with HIV.

In her judgment, Lady Justice Ngugi ruled that intellectual property should not override the right to life, right to health and right to human dignity outlined in the Constitution of Kenya 2010. Patent holders will therefore not be able to use the act to legitimately block the import of generic medicines, as was feared by the petitioners.

KELIN -- the organisation promoting health and human rights – has been campaigning for access to affordable medicine to uphold the Right to Health and provided research support to the lead counsel of the petitioners Mr. Luseno of Majanja and Luseno Advocates. Speaking about the victory, KELIN`s Coordinator Allan Maleche said:

“This case was a matter of life or death for the thousands of people in Kenya who use generic medicine for treatment and we applaud the High Court for upholding the Right to Health.

“To make it clear, we are not supporting counterfeit and substandard medicines, but generics – legitimate exact copies of original brand name medicines. We hope this victory will have a positive effect on other East African countries considering law and policy around anti-counterfeiting.”
Maureen Murenga, a woman living with HIV in Kenya, who was one of the three petitioners in the case, said:

“It has been a long battle since we filed this case four years ago. Like thousands of people in Kenya, my son and I rely on generic antiretroviral medicine to stay healthy and its important that we fight to protect our access.

“I don’t think people understand what might happen to the health of East African nations if pharmaceutical companies are ever allowed to challenge the use of generic medicines here.”

The Attorney General will now ask the government to make amendments to the Anti-Counterfeit Act 2008 to reflect the ruling.

To view the full judgment follow this link http://kelinkenya.org/wp-content/uploads/2012/04/Judgment-Petition-No-409-of-20092.pdf

3 Comments

Gerald Tushabe

April 23, 2012

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This is a landmark development in the realization of the right to health in the East Africa sub-region and globally. Congratulations to everyone involved in this epic progress.

Nelson Otwoma

April 24, 2012

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And we still have to be vigilant. The big pharmaceuticals will never relent in their profit seeking behaviour. Remember, they can still lobby the draftersa nd parliamentarians to re-introduce the bill some day in some form. They also seem to be having a hold on our parliamentarians. I also think the government need to be proactive and honest, if anything it is the government that procures generic medicines for her population

FRANCIS OTIENO RAKEWA

June 13, 2012

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A great step towards the full implementation of The Constitution of Kenya 2010,we need to be more vigilant.

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