19 - Patents, parallel importation and compulsory licensing of HIV/AIDS drugs: the experience of Kenya

Summary

The problem in context: patent issues in access to AIDS drugs in Kenya

Patents, the WTO Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) and Kenya's Industrial Property Act, 2001 have been singled out as the main scapegoats in the problem of accessing AIDS drugs in Kenya. This has prevented the pursuit of a more realistic national health policy and strategy to address the problem. Remarkably, AIDS related deaths are also associated with limited care and support. AIDS is generally undermining Kenya's survival, development, productivity and competitiveness.

The daily number of deaths in Kenya from AIDS has reached about 300, and Dr Patrick A. Orege, the Director of the National AIDS Control Council (NACC), reports that there are 1.5 million people living with HIV/AIDS (PLWHA) in Kenya. Another report, by Noel Wandera, puts the PLWHA figure at 1.2 million. The reporting and computation of AIDS-related deaths is controversial; there are indications that as compared with other African countries, and even in absolute terms, infection rates in Kenya may actually be declining.

Remarkably, a publication issued in August 2004 by the African Civil Society Governance and AIDS Initiative (GAIN), ‘HIV/AIDS, Democracy and Governance in Africa’, states that recent statistics published by UNAIDS on HIV prevalence show that ‘previous estimates appear to have been too high’.

The document goes on,

There have recently been suggestions that even the lower figure for HIV numbers in Africa is too high, and that the real figure may be as much as 25% lower.[…]