Health CSO statement on Kenya _US STIP

Your REF:  TBA          Our REF:  CSO/STIP/2023/1     Date: 22 February 2023

Alfred K’Ombudo

Principal Secretary

State Department for Trade

Ministry of Investments, Trade, and Industry

Kenyatta Avenue, Teleposta Towers, 18th Floor

Email: ps.trade@trade.go.ke 

Dear Alfred K’Ombudo,

Re: Health Sector CSOs statement on the Kenya – United States Strategic Trade and Investment Partnership (STIP)

_______________________________________________________________

We, the undersigned, are representatives of civil society and community-based organisations working on health and human rights. We are part of a think tank that advocates for increased access to essential medicines by ensuring that intellectual property laws and policies do not create unnecessary barriers to access to affordable essential medicines, especially for people living with and affected by HIV and TB.

This statement is in reference to the Statement on the Kenya – United States First Round of the Strategic Trade and Investment Partnership Talks published by the Ministry of Trade on 6th February 2023 (attached),[1] and a later press release dated 10th February 2023[1] confirming that the United States and Kenya had “concluded a week of productive meetings on the U.S.-Kenya Strategic Trade and Investment Partnership (STIP).” From the statements, the public was notified that the US and Kenya had identified initial areas of negotiation to include: “(1) agriculture, (2) anti-corruption, (3) digital trade, (4) environment and climate action, (5) good regulatory practices, (6) micro, small, and medium size enterprises, (7) protecting worker’s rights and protections, (8) services domestic regulation, (9) supporting the participation of women, youth, and others in trade, (10) standards collaboration, and (11) trade facilitation and customs procedures.”

First, we take this opportunity to applaud the Ministry for making attempts to strengthen trade ties with the United States. 

Second, without endorsing the negotiations, we would like to take this opportunity to congratulate the Ministry for ensuring that intellectual property is not one of the identified areas of negotiation. We would like to urge the Ministry to ensure that this position is maintained throughout these negotiations.

We have previously written an advisory to the Ministry warning of the potential danger that trade agreements pose on access to essential medicines (see attached).

In 2020, when Kenya and the USA began negotiating a Free Trade Agreement that contained an intellectual property chapter, we expressed concern that such a chapter is likely to contain stronger intellectual property protection than the requirements of the TRIPS Agreement (‘TRIPS plus’) and will thus adversely impact access to affordable medical products in Kenya such as medicines, vaccines, masks, ventilators and other technology needed to deal with the COVID pandemic, future epidemics, as well as the HIV, TB, Malaria and the NCD disease burden. We expressed concern that the unequal power relations between Kenya and the US pose a real danger on whether Kenya may negotiate for better terms – considering the fact that the US is one of the largest donors for Kenya’s HIV treatment budget. Further, we noted that the US is more pro-intellectual property and protectionist of private interests.

Whereas the US – Kenya FTA negotiations seems to have been abandoned, it is our hope that the issues of concern raised therein are not reintroduced via the current STIP.

Relatedly, noting the implications of such negotiations, we urge the Ministry, in compliance with the Constitution, to facilitate public participation, and make available to the public information to enable effective and meaningful participation. The Ministry must ensure transparency of the entire process in strict compliance with the law.

We remind the government of its constitutional obligation under Articles 10, 21, 43(1)(a) to be guided by national values and principles of governance, and to respect, protect and promote the right to the highest attainable standard of health for all Kenyans. Negotiating trade agreements that may undermine access to affordable medicines will go contrary to this obligation.

Endorsed by:

  1. Kenya Legal and Ethical Issues Network on HIV and AIDS (KELIN)
  2. Kenya Treatment Access Movement (KETAM)
  3. Network of TB Champions Kenya
  4. Pamoja TB Group
  5. Nelson Mandela TB HIV Information CBO
  6. Wote Youth Development Projects CBO
  7. National Empowerment Network of People living with HIV/AIDS in Kenya (NEPHAK).
  8. Health NGOs Network (HENNET).
  9. Kamukunji Paralegal Trust (KAPLET)
  10. ICW – Kenya
  11. Action Group for Health Rights and HIV/AIDS Uganda (AGHA)

cc:

Hon. Moses Kiarie Kuria

Cabinet Secretary

Ministry of Trade, Investment, and Industry

Social Security House, Block A, 17th (Eastern Wing), 23rd Floor (Eastern Wing)

P.O. Box 30418-00100,

Nairobi, Kenya

Email: cs@industrialization.go.ke

[1] STATEMENT ON THE KENYA – UNITED STATES FIRST ROUND OF THE STRATEGIC TRADE AND INVESTMENT PARTNERSHIP TALKS | State Department For Trade

[1]  See United States and Kenya Conclude Opening Round Under the U.S.-Kenya Strategic Trade and Investment Partnership, February 10, 2023, at https://ustr.gov/about-us/policy-offices/press-office/press-releases/2023/february/united-states-and-kenya-conclude-opening-round-under-us-kenya-strategic-trade-and-investment