Integrated Regional Information Networks - August 5, 2002

Pressure is mounting on the Kenyan government to re-amend the Industrial Property Act to allow for the importation of generic anti-retroviral medicines (ARVs) into the country, as parliament prepares to go into recess until October at the end of this week.

The Industrial Property Act, which became law on 1 May 2002, allowed for the importation of any drugs into Kenya which were registered, and therefore legally available, in another country. In the case of ARVs - a lifeline for those who are HIV positive or have AIDS - this means a difference in price of 2,000 Kenyan shillings (US $26) per month for generic drugs from India, as opposed to 8,000 shillings for patented drugs (currently available) produced by international pharmaceutical companies.

However, on 7 June, an amendment was made to section 58 of the act, which made it mandatory to seek the "express consent" of the original patent holders of the drugs before importing, the Daily Nation reported on 25 July. Campaigners agree that such permission - to effectively undercut the bigger pharmaceutical companies - is highly unlikely to be granted.

Meanwhile, the ministers for trade and health, and the attorney-general - whose office is responsible for the drafting of all bills - have denied any involvement in the amendment. "It cannot be pinpointed exactly who was responsible for amending the section, but the matter has been raised with the attorney-general," the Kenyan newspaper Daily Nation quoted Health Minister Sam Ongeri as telling parliament.

"This is the first time in Kenyan history that an amendment to a law has been made without the instigation of a ministry," Newton Kulundu, chairman of the parliamentary health committee, told IRIN. "None of them liked to admit responsibility," he added.

The Kenya Coalition on Access to Essential Medicines (KCAEM), an umbrella group of campaigners, is seeking to have the act re-amended to its original wording, Robert Lettington, legal consultant for the Coalition, told IRIN. If this is not possible before parliament goes into recess (which may be delayed until next week due to outstanding issues), another alternative would be for the government to issue an interim order, which would effectively nullify the disputed amendment, until the original wording is reinstated.

Kulundu told IRIN that parliament was due to discuss the matter this week, and added that Ongeri had been put under "intense pressure" to name those responsible for the amendment.

While the debate rages over responsibility, however, ordinary people continue to suffer. The United Nations estimates that 700 people die of HIV/AIDS and related illnesses in Kenya each day, and only 6,000 people have access to ARVs.

Lisa Kyambo of Cry for the World told IRIN that not everyone would be able to afford the 2,000 shillings per month for the generic ARVs, but that it would certainly make them a lot more widely available. "It's a progressive thing. They used to cost US $1,000 per month, now they cost about US $100, and we are pushing to get them for US $25."

If the re-amendment to the Property Act were to be effected, pressure on the government would also result in the generic ARVs being widely available in Kenya within two to three months, she added.

In the meantime, the KCAEM is exploring possible courses of action to take. "At the very least, the amendment was made in a very unorthodox manner," Lettington told IRIN. "Its legality is a bigger question. We are exploring our legal options in terms of the constitution and whether the amendment would be considered constitutional or not."
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