[Ip-health] IP-Watch: Kenya Probes Official Link Into Bid To Strip Government Of CL Powers

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 Intellectual Property Watch

28 September 2007

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 (
<http://ip-watch.org/weblog/wp-trackback.php?p=741> 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
<http://www.wipo.int/clea/docs_new/en/ke/ke001en.html#P695_89461>  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.



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