Patricia Asero Ochieng and 2 Others v. the Attorney General & Another
Petition to challenge constitutionality of Kenya’s Anti-Counterfeit Act of 2008 due to its negative impact on accessing generic anti-retroviral medications for people living with HIV and AIDS; Violation of constitutional rights to life, health and human dignity.
Three Kenyan citizens using generic anti-retroviral medications and living with HIV or AIDS challenged the constitutionality of Kenya’s Anti-Counterfeit Act of 2008. The petitioners argued that Section 2 of the Act confused generic drugs with counterfeit medicine and if implemented, the Act would inflict civil and criminal penalties on generic medicine manufacturers and severely restrict access to affordable medicine in Kenya. Such restrictions would violate the petitioners’ right to life, health and human dignity under the Articles 26(1), 28 and 43 of the Constitution and Article 12 of the International Covenant on Economic, Social and Cultural Rights.
The High Court ruled for the petitioners and declared Sections 2, 32 and 34 of the Act unconstitutional. It held that the definition of “counterfeit” in the act would likely to be read as including generic medication and was therefore likely to adversely affect the manufacture, sale, and distribution of generic drugs. This in turn would hamper the availability of the generic drugs and pose a threat to the petitioners’ right to life, dignity and health under the Constitution.
Keywords: Patricia Asero Ochieng and 2 Others v. the Attorney General & Another, Health, HIV/AIDS
The Court ordered the Kenyan parliament to review the Act and amend the section that confuses generic medicines with counterfeits. The Court also ordered the parliament to remove ambiguities that could result in arbitrary seizures of generic medicines under the pretext of counterfeits.
AIDS Law Project (interested party)
UN Special Rapporteur on the Right to Health (amicus)
A vast majority of people living with HIV and AIDS in Kenya rely on generic drugs for their survival. This ruling is a major victory for millions of Kenyans who depend upon generic medicine for their treatment.
The Court cites in its opinion the International Covenant on Economic, Social and Cultural Rights and holds that the state’s failure to promote conditions in which its citizens can lead a healthy life means that it has violated, or is likely to violate, their right to health. Furthermore, the judgment emphasizes that individual intellectual property rights should not supersede the right to life and health.