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Judgment on generic medicines – Kenya’s first victory on the right to health

Kenya is celebrating after a landmark judgment on Friday <20 April> ruled that sections of the Anti-Counterfeit Act 2008 will not apply to generic medicines – protecting access to affordable treatment.

The case, which was filed by three people living with HIV and has been ongoing since 2009, challenged the aspects of the Anti-Counterfeit Act 2008 that confused counterfeiting with patent infringement, therefore threatening the importation of the generic medicines, including ARVs for people living with HIV.
In her judgment, Lady Justice Ngugi ruled that intellectual property should not override the right to life, right to health and right to human dignity outlined in the Constitution of Kenya 2010. Patent holders will therefore not be able to use the act to legitimately block the import of generic medicines, as was feared by the petitioners.

KELIN – the organisation promoting health and human rights – has been campaigning for access to affordable medicine to uphold the Right to Health and provided research support to the lead counsel of the petitioners Mr. Luseno of Majanja and Luseno Advocates. Speaking about the victory, KELIN`s Coordinator Allan Maleche said:

“This case was a matter of life or death for the thousands of people in Kenya who use generic medicine for treatment and we applaud the High Court for upholding the Right to Health.
“To make it clear, we are not supporting counterfeit and substandard medicines, but generics – legitimate exact copies of original brand name medicines. We hope this victory will have a positive effect on other East African countries considering law and policy around anti-counterfeiting.”

Maureen Murenga, a woman living with HIV in Kenya, who was one of the three petitioners in the case, said:
“It has been a long battle since we filed this case four years ago. Like thousands of people in Kenya, my son and I rely on generic antiretroviral medicine to stay healthy and its important that we fight to protect our access.

“I don’t think people understand what might happen to the health of East African nations if pharmaceutical companies are ever allowed to challenge the use of generic medicines here.”
The Attorney General will now ask the government to make amendments to the Anti-Counterfeit Act 2008 to reflect the ruling.
To view the full judgment follow this link http://kelinkenya.org/wp-content/uploads/2012/04/Judgment-Petition-No-409-of-20092.pdf


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