Petition No. 409 of 2009

Petitioners were indigent Kenyan citizens that were infected with HIV/AIDS. Petitioners depended on antiretroviral drugs for treatment of their condition; and, because of their poverty, relied on a program administered by the Kenyan government and an NGO for the provision of these drugs at little or no cost. This program could afford to operate as a result of the wide availability, and resulting inexpensiveness, of generic antiretroviral drugs.

In 2008, Kenya enacted the Anti-Counterfeiting Act (the Act), which criminalizes trading in counterfeit goods, and permits governmental seizure of such goods. Section 2 of the Act defines “counterfeit” goods to include those that “are imitated in such manner and to such a degree that [they] are identical or substantially similar copies of … protected goods.”

Petitioners filed a claim, challenging sections of the Act as violating their rights to health, life, and human dignity, protected under Articles 26(1), 28, and 43 of the Constitution of Kenya. Specifically, the petitioners asserted that the Act’s definition of “counterfeit” was ambiguous, and could be interpreted and applied to include generic antiretroviral drugs. In doing so, the Act would permit Kenya to seize generic antiretroviral drugs, and thus restrict the petitioners’ access to affordable and essential medicine, and compromise their constitutional rights to health, life, and human dignity.

Petitioners sought a declaration that the constitutional rights to life, human dignity, and health encompasses access to affordable and essential drugs and medicines; and, insofar as the Act restricts]ed the petitioners’ access to affordable and essential drugs and medicines, it was unconstitutional, and should not be enforced. Petitioners were supported in their petition by the AIDS Law Project, which further contends that sections of the Act violate the right to equality for HIV persons and “pose a threat” to the constitutional right of children to basic health care services. The United Nations Special Rapporteur for Health also files an amicus brief in support of the petitioners.

The Court held that sections 2, 32, and 34 of the Anti-Counterfeiting Act violated Articles 26(1), 28, and 43 of the Constitution of Kenya, and that it was consequently “incumbent on the state to reconsider [the Act].”

In reaching this disposition, the Court first found that the constitutional right to health protects individuals’ access to affordable and essential medicine. The Court reasoned that Committee Notes for the International Covenant on Economic, Social and Cultural Rights supported this finding by providing that the right to health includes “the right to … a wide range of socio-economic factors that promote conditions in which people can lead a healthy life,” and further concluding that access to affordable and essential medicine is such a socio-economic factor. The Court also reasoned that other jurisdictions, like South Africa, had recognized access to medicine as an integral component of the right to health.

The Court next found that these sections of the Act could be interpreted to include generic drugs under its definition of “counterfeit,” and thus permit the government to restrict HIV/AIDS persons’ access to affordable and essential generic drugs. The Court reasoned that the text of the Act and the actions of other nations with similar laws supported this interpretation.

Joining these two findings together, the Court concluded: “The fundamental right to life, human dignity and health as protected and envisaged by Articles 26(1), 28 and 43(1) of the Constitution encompasses access to affordable and essential drugs and medicines including generic drugs and medicines.…In so far as the [Act] severely limits or threatens to limit access to affordable and essential drugs and medicines including generic medicines for HIV and AIDS, it infringes on the petitioners’ right to life, human dignity and health guaranteed under Articles 26(1), 28 and 43(1) of the Constitution.”

“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.” Para. 66.

“[T]he right to life, dignity and health of people like the petitioners who are infected with the HIV virus cannot be secured by a vague proviso in a situation where those charged with the responsibility of enforcement of the law may not have a clear understanding of the difference between generic and counterfeit medicine. …There can be no room for ambiguity where the right to health and life of the petitioners and the many other Kenyans who are affected by HIV/AIDS are at stake.” Para. 84.

“While … intellectual property rights should be protected, where there is the likelihood, as in this case, that their protection will put in jeopardy fundamental rights such as the right to life of others, I take the view that they must give way to the fundamental rights of citizens in the position of the petitioners.” Para. 86.