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By Primah Kwagala

October 13, 2011

Uganda is often used as a model for Africa in the fight against HIV and AIDS. There are an estimated 1.2 million people living with HIV in Uganda, which includes 150,000 children.

An estimated 64,000 people died from AIDS in 2009 and 1.2 million children have been orphaned by this devastating epidemic. The number of new infections (an estimated 120,000 in 2009) exceeds the number of annual AIDS deaths (64,000 in 2009), and it is feared that the HIV prevalence in Uganda may be rising again. There are many theories as to why this may be happening, including the government’s shift towards abstinence-only prevention programmes, and a general complacency or ‘AIDS-fatigue’.

It has been suggested that antiretroviral drugs have changed the perception of AIDS from a death sentence to a treatable, manageable disease. This may have reduced the fear surrounding HIV, and in turn have led to an increase in risky behaviour.

In Uganda today, not everyone who needs ARVs has access to them. The whole management of ARVs has been and still remains a paradox to treatment providers. While access to ARVs has increased lately, mainly due to price reductions led by increased importation of generics into the country, the greater majority of Ugandans who still need the therapy cannot afford it. Yet the government can only afford to support only a third of the larger group that needs these medicines.

It is generally agreed that legislation and international agreements are some of the main causes of difficulty in accessing these life saving medicines. Uganda like so many other countries is a member of the World Trade Organization and thus carries a mandate under the TRIPS (Trade Related Aspects of Intellectual Property) Agreement to protect all sorts of intellectual property including pharmaceuticals. In a bid to comply with this agreement the Law Reform Commission drafted the Industrial Properties’ Bill and Anti- Counterfeit Bill. These have been forwarded to parliament. However, critics of the bills say the bills are confusing and the terms used in them need further clarification in order to exploit the advantages brought forth by the Doha Declaration on Public health.

It has been proposed by NGOs working on access to medicines that Uganda should not hurry to implement its obligations in the TRIPS but rather learn from the best practices of other countries like Rwanda, which already has an exemplary law regarding protection and enforcement of intellectual property laws.

In addition, Uganda is under no obligation to patent pharmaceutical products until 2016, as per the Declaration on the TRIPS agreement and Public Health (Doha Declaration). The proposed Industrial Properties Bill, however, does not provide for this extension. The Bill further does not take advantage of certain safeguards and provisions of the Doha Declaration. It is thus significantly more stringent in some cases than even TRIPS, and it has more often than not been recommended that some of these stringent provisions be revised to suit the needs of ordinary Ugandans.

The other concern has been regarding some of the definitions in both the Anti- Counterfeiting Bill and the Industrial Properties Bill. For instance, “counterfeits” have been defined to mean all goods that are “substantially similar“ to the originator product. What critics say is that counterfeits should be limited to trade mark and copyright infringement and exclude pharmaceuticals. This is because Uganda depends on mainly generic drugs. In fact it is said that almost 90 percent of Uganda’s imported drugs are from generic producers, if they defined generic medicines as “counterfeits” then poor people who cannot even earn a dollar a day will not be able to afford these life saving therapies. What the government needs to do is invest some more money in persons drafting these legislations to consider best practices in countries like Rwanda to inform our laws.

Further, it is important that Uganda takes advantage of the Doha Declaration and its parallel decision regarding Paragraph Six of the declaration. This requires a number of steps, among which include: 1) in most cases, compulsory licenses issued by importing and exporting countries, 2) the importing country’s establishment of insufficient or no local manufacturing capacity in the specified pharmaceutical sector, 3) importer notification to the WTO of its intention to use the system detailing product(s) requested and quantities (accompanied by confirmation of insufficient manufacturing capacity and that a compulsory license is or will be granted), and 4) notification of the exporting country’s compulsory license to the WTO and the conditions attached.

It should also be noted that parallel imports are also of particular importance in meeting public health needs since the pharmaceutical industry generally sets differential prices globally for the same medicine. Thus, parallel importation of a patented medicine from a country where it is sold at a lower price, will enable more patients in the importing country to gain access to cheaper drugs. Paragraph 5(d) of the declaration explicitly reaffirms members’ freedom to determine their own regimes for the exhaustion of intellectual property rights without challenge.

The TRIPS Agreement further has several provisions, which deal explicitly with the issue of technology transfer. For instance, Article 7 states, to the effect that protection and enforcement of intellectual property rights should contribute to technological innovation and to transfer and disseminate technology, to the mutual advantage of producers and users of technological knowledge and in a manner conducive to social and economic welfare and to a balance of rights and obligations. Despite such provisions, little technology transfer to Uganda has taken place. In order to strengthen local industry, Uganda ought to still chase initiatives to absorb new technology. Public-private partnerships (PPPs) may be one mechanism to achieve this. Generally, PPPs require private sector companies to provide the technology and expertise while public sector partners provide development funding and help ensure access to the medications.

One of the major setbacks of TRIPS is to oblige all countries, rich and poor, to grant at least 20 years patent protection for new medicines, thereby delaying production of the inexpensive generic substitutes upon which developing-country health services and poor people depend. It is therefore important that Uganda makes and puts these laws in place to safeguard public health issues of access to medicines. Latest research reports have shown that using treatment as a prevention strategy could actually bring the HIV/AIDS scourge to an end, investing in treating everyone should be priority as reports have it that Rwanda is acting on these research findings. Government of Uganda is urged to invest more in enabling its citizenry to access ARVs.

Source: KC team

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