The tenth World Trade Organisation (WTO) Ministerial Conference, dubbed MC10, set for Nairobi, Kenya in December will be one of those major international events in the region to watch out for. The forum is a biennial summit that sets pace for countries to negotiate trade agreements and settle disputes resulting from international trade under the WTO. And the summit being held in Kenya is apt (reason of which I will revert to shortly), especially coming in the wake of the United States and the European Union demanding an overhaul of India’s regime on patents to phase out compulsory licensing and to allow data exclusivity to drug companies. Compulsory licensing is when a government allows someone else to produce the patented product or process without the consent of the patent owner. And – especially as it relates to medicines – it is one of the flexibilities on patent protection included in the WTO’s agreement on intellectual property. India has had legal provisions echoing this since 1970, and which made it possible for the country’s generic drug companies to replicate drugs manufactured by brand name pharmaceutical companies. Consequently, India has over the decades established itself as the most important supplier of generic pharmaceuticals to the developing world, including all the EAC countries. Generic drugs imitate the exact formulas used in branded medicines by the – usually – “big” multinational pharmaceutical companies (big pharma). The drugs are the equivalent of the branded products and are effective. The drugs, including antiretrovirals (ARVs), can cost as little as less than tenth of the brand price. But, now, the big pharma want India to change its patent laws and protect their businesses. It is here that hosting the MC10 in Kenya becomes apt. In 2001, the Kenyan Parliament passed the Industrial Property (IP) Act, after much push by a coalition of health, legal and development activists (who included this writer). And despite pressure from the pharmaceutical industry to weaken the IP Bill, the Act not only made it possible for generic drugs to be imported in the country, but paved the way for other countries in the region and around the continent to follow suit. Among the IP Act’s provisions was the right to shop around the world for the cheapest patented drug (in a legal process known as parallel importation) and, among others, allowing compulsory licenses for the production or importation of cheaper generic medicines. Along with similar efforts in South Africa at the time, the Kenyan achievement set a precedent for developing countries to stand up to powerful industry lobbies and ensure competitive prices, bringing affordable medicines for TB, HIV and Malaria to those who need them most. Today, Kenya and Uganda are manufacturing some ARVs, among other generic drugs, due to this. In Uganda, and not coincidentally, the Indian generic drug maker Cipla Limited has been manufacturing ARVs and artemesinin-based combination therapies (ACTs) for malaria in collaboration with Quality Chemicals Limited (QCIL) since 2009. For this reason, the US and EU demand for an overhaul of the regime on patents to phase out compulsory licensing is not only an affront to India, but to the gains made to ensure affordable medicines across the developing world. Though India is considering the proposals, it should not be without caveats to ensure easy and affordable access to essential medicines to those who need it most. Therefore, “two months before MC10,” as Kenya’s Foreign Affairs Cabinet Secretary Amina Mohamed told a meeting of G7 trade ministers in Istanbul, Turkey, earlier this week to drum up support for the summit, “we should start to place substantive cards on the table, collectively.” On the cards should be emphasis on the importance not to jeopardise subsidy medical treatment programmes such as those for TB, HIV and Malaria that have been possible under WTO rules. And, as she also expressed, “We must leave confrontation behind and work together respectfully and with full sensitivity for the constraints of others.”
