Kenyan Parliament To Debate Scrapping Compulsory Licensing Powers

By Paul Garwood
Kenyan lawmakers are set to debate proposed amendments to a bill that, if passed, would prevent the government from issuing compulsory licenses to produce urgently needed medicines without seeking approval from the patent holder.

The amendments, which involve deleting parts of Kenya’s Industrial Property Act of 2001, were first expected to be debated Thursday. But Peter Munyi, an intellectual property lawyer in Nairobi close to the issue, told Intellectual Property Watch that parliamentarians were meeting late Wednesday to discuss the proposed changes.

Opponents of amendments to Section 80 of the act said that if they are ratified, they would stop the government from being able to issue compulsory licenses for local manufacturers to produce drugs for public health emergencies, such as antiretrovirals for HIV/AIDS patients and antibiotics. The changes would also compel the government to negotiate directly with patent holders to obtain needed medicines.

“The amendments have not been thought through,” Nairobi-based IP lawyer Robert Lettington said. “It is not a good idea to cut off future options to respond to emergencies.”

Governments can issue compulsory licenses to produce medicines without the patent holder’s consent under the World Trade Organization Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS). The TRIPS agreement allows countries, particularly in the developing world, to manufacture drugs to safeguard public health.

Kenyan officials were not immediately available for comment. But Lettington said the amendments had been proposed because the Industrial Property Act in its current form did not offer compensation to pharmaceutical companies whose products could be produced, under compulsory licensing, by a state-approved company.

The amendments form part of an omnibus Miscellaneous Amendments Bill and have been proposed several times since the Industrial Property Act was enacted in 2001. The bill was expected to go before Parliament in 2006 but was withdrawn at the last minute (IPW, Public Health, 21 December 2006).

Complicating the issue, lawyers said, is that the ministries of health and trade are not taking responsibility for suggesting the proposed amendments, which were first floated more than five years ago by the state-run Kenya Industrial Property Institute. This fact alone, Munyi said, could lead to the amendments being scrapped altogether by the Ministry of Justice and Constitutional Affairs.

“Neither the Ministry of Health nor Ministry of Trade are taking responsibility for the proposed amendments and we are hearing that the Ministry of Justice may well reject the amendments on these procedural grounds alone,” Munyi said.

Munyi said he had no knowledge of whether large pharmaceutical companies had been involved in lobbying for the deletion of the compulsory licensing provisions, but added that they would be the major beneficiaries of any such act.

Kenya has no history of issuing compulsory licenses. Most of the country’s acquisition of medicines has been done via parallel importation, mainly from India, which is a prime source of low cost, high quality pharmaceuticals.

Paul Garwood may be reached at pgarwood@ip-watch.ch.