Kenyan High Court rules on right to health

[HIV Ethics & Policy]

Cross-posted from Activist

---------- Forwarded message ----------
From: Zackie Achmat
Date: 24 April 2012 11:02
Subject: [ACTIVIST] Fwd: Kenyan High Court rules on right to health

Dear All

 "The right to life, dignity and health of the petitioners must take precedence over the intellectual property rights of patent holders."  A great judgment from Kenya. Thanks to Anneke Meerkotter from Southern African Litigation Centre for a copy of the judgment. Check two paragraphs below.

Marvellous.

Zackie

84.However, the right to life, dignity and health of people like the petitioners who are infected with the HIV virus cannot be secured by a vague proviso in a situation where those charged with the responsibility of enforcement of the law may not have a clear understanding of the difference between generic and counterfeit medicine. The primary concern of the respondent should be the interests of the petitioners and others infected with HIV/AIDS to whom it owes the duty to ensure access to appropriate health care and essential medicines. It would be in violation of the state’s obligations to the petitioners with respect to their right to life and health to have included in legislation ambiguous provisions subject to the interpretation of intellectual property holders and customs officials when such provisions relate to access to medicines essential for the petitioners’ survival. There can be no room for ambiguity where the right to health and life of the petitioners and the many other Kenyans who are affected by HIV/AIDS are at stake.

85. Further, contrary to the respondents’ counsel’s assertion, the Anti- Counterfeit Act, being later in time, would prevail over the Industrial Property Act in the event of a conflict, and the proviso to Section 2 may not be of much help to the petitioners. Should the Act be implemented as it is, the danger that it poses to the right of the petitioners to access essential medicine which they require on a daily basis in order to sustain life is far greater and more critical than the protection of the intellectual property rights that the Act seeks to protect. The right to life, dignity and health of the petitioners must take precedence over the intellectual property rights of patent holders.

_______________________________________________
ACTIVIST mailing list
ACTI...@tac.org.za
http://maillist.tac.org.za/mailman/listinfo/activist