Kenya Probes Official Link Into Bid To Strip Government Of CL Powers

By Paul Garwood
Kenyan authorities are probing who in government may have been “compromised” by the pharmaceutical industry to try strip the African country of its right to produce medicines without patent-holder approval, a senior official said Friday.

Ahmed Ogwell, head of international health relations at Kenya’s Health Ministry, said the Attorney-General’s office is investigating who in the same office had, possibly, been repeatedly putting forward a proposed amendment to the Industrial Property Act, which has been defeated in parliament three times, most recently on 12 September (IPW, Public Health, 14 September 2007).

“Someone has been compromised in the system and tried to bring amendments that are pro-industry,” Ogwell told Intellectual Property Watch. “It (the proposed amendment) offered nothing for Kenya. The only ones who benefit would be industry.”

There have been repeated efforts to delete parts of Section 80 of the Industrial Property Act, which was enacted in 2001. It enabled the government to issue compulsory licenses to local manufacturers to produce generic versions of pharmaceuticals, such as antiretrovirals for HIV/AIDS patients, without seeking approval from the drug company that holds the patent rights.

Governments can issue compulsory licenses to produce medicines more cheaply than prices offered by drug companies without seeking patent holder consent under the World Trade Organization Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS). TRIPS allows countries, particularly in the developing world, to make drugs to safeguard public health in national emergencies or for non-commercial purposes.

The first attempt to amend Section 80 was made by the state-run Kenya Industrial Property Institute, apparently because the provision offered no compensation to pharmaceutical firms for the copying of their products, lawyers have said. But no one has claimed responsibility for putting forward the latest attempt to amend the laws, including the health and trade ministries.

Ogwell suggested that officials within the Kenya Attorney General’s office may have been behind the most recent draft amendment, as that office was the source of all draft legislation produced to go before parliamentary debate.

“Hopefully we can isolate who this particular group of people are,” Ogwell said. “It is a very sensitive process. There is an investigation taking place through the Attorney General’s office into who within their office is actually behind this.”

While saying he was unclear who in government was involved, Ogwell was categorical that someone within the pharmaceutical industry had a hand in the affair.

“I have no doubts in my mind who is promoting this. Who is going to benefit? For me it is very clear, one way or another, that industry is involved in this. I do not know what the motivations (of the officials) are but it is clear that industry somehow would be the only ones opposed to the legislation.”

A spokesman for the Geneva-based International Federation of Pharmaceutical Manufacturers and Associations, which represents drug-makers, rejected the notion that one of its members would have influenced Kenyan officials to try scrap the legislation.

“Very few of our members patent any kind of medicine whatsoever in Kenya, therefore they have no interest to promote such an amendment,” Guy Willis said.

Ratifying the amendment would have resulted in the government relinquishing its power to issue compulsory licenses to local manufacturers to produce drugs for public health emergencies. It, in turn, would have compelled authorities to negotiate directly with the big pharmaceutical firms that hold the patents to obtain medicines.

In Kenya, between 270,000 and 300,000 people living with HIV need treatment, of which some 150,000 receive antiretroviral therapy, access-to-medicine campaigners have said. Most medicines are generic versions of patented medicines and are obtained through parallel importation, mainly from India, which is a prime source of low cost, high quality pharmaceuticals.

Kenya has never issued a compulsory license, but came close in 2004 before German pharmaceutical major Boehringer Ingelheim agreed to enter into a voluntary license agreement with Kenyan drug firm Cosmos to produce generic versions of its patented anti-AIDS drug nevirapine.

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