Ochieng v. Attorney General

The petitioners were Kenyan citizens living with HIV/AIDS. They petitioned seeking a declaration that the fundamental rights of life, human dignity and health as protected and envisaged by the Constitution, encompassed access to affordable and essential drugs and medicines, including generic HIV/AIDS drugs. The petitioners also sought a declaration that the Anti-Counterfeit Act, 2008 and its enforcement, severely limited access to these generic drugs, and infringed on petitioners’ right to life, human dignity and health, guaranteed by the Constitution.

The petitioners claimed that the definition of “counterfeit goods” in Section 34 of the Anti-Counterfeit Act, 2008 was too broad, and that it could include generic AIDS drugs. Section 34 gives law enforcement the power to detain drugs for suspicion of importing counterfeit goods which can cause serious problems for people like the petitioners, who are dependent on these drugs. This limitation on access to essential and affordable drugs, argued the petitioners, violated their constitutionally protected rights to life, the right to equity for HIV/AIDS positive persons, the right to family life and the right of health of their children.

The respondents claimed that the definition of “counterfeit” in Section 2 of the Anti-Counterfeit Act is clear that generic is not counterfeit. The respondents claimed that counterfeit drugs in Kenya had a serious detrimental effect on public health, and that it was the purpose of the Anti-Counterfeit Act, 2008 to crack down on counterfeit drugs to attain the highest standard of healthcare. Respondents also argued that the Industrial Property Act, 2001, which allowed the importation of generic drugs, would prevail over Section 2 of the Anti-Counterfeit Act, 2008.

The court granted the declarations the petitioners sought, finding that the State has a duty to ensure people have access to medication they require to remain healthy, and that the State also has the negative duty not to restrict such access to healthcare services and drugs. Further, the State violated that duty by enacting and enforcing the relevant sections of the Anti-Counterfeit Act (that restrict or threaten to restrict access to (generic) medication), constituting a violation of the petitioner’s rights to life, human dignity and health under the Constitution.

The court refuted the arguments of the respondent by pointing out that the real intention of the Anti-Counterfeit Act is to protect the Intellectual Property rights of individuals, not the standard and quality of drugs. In addition, considering the potentially serious consequence of detention of AIDS drugs by law enforcement befuddled by the subtle difference between generic and counterfeit medication, the court ruled that the right to life and health trumps the right to intellectual property.

“The state’s obligation with regard to the right to health therefore encompasses not only the positive duty to ensure that its citizens have access to health care services and medication but must also encompass the negative duty not to do anything that would in any way affect access to such health care services and essential medicines. Any legislation that would render the cost of essential drugs unaffordable to citizens would thus be in violation of the state’s obligations under the Constitution.” Para 66

“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.” Para 84

“States parties should prevent the use of scientific and technical progress for purposes contrary to human rights and dignity, including the rights to life, health and privacy, e.g. by excluding inventions from patentability whenever their commercialization would jeopardize the full realization of these rights.” Para 86