Patricia Asero Ochieng & Others v. Attorney General

The applicant alleged that the provisions of the Anti-Counterfeiting Act restricted their access to affordable, essential medicines, including generic medicines for HIV and AIDS.

Decision | 01 January 2012

Facts

The Petitioners were citizens of Kenya living with HIV. They claimed that provisions of the Anti-Counterfeiting Act, 2008 (hereinafter “the Act”) restricted their access to affordable, essential medicines, including generic medicines for HIV and AIDS, and therefore violated their fundamental rights to life, dignity and health under articles 26(1), 28 and 43 of the Constitution of Kenya. The Petitioners claimed that the Act’s definition of counterfeit goods was unclear and could be interpreted to include generic medicines. Consequently, the importation of generic medicines into Kenya could be prohibited and generic medicines could be seized at any time by authorities, limiting access to affordable and life-saving medicines for HIV-related diseases. The Petitioners further argued that the Government failed to take into account the provisions of the Industrial Property Act, 2001, and the HIV and AIDS Prevention and Control Act, 2006, which authorized the importation of affordable generic drugs in Kenya and established the Government’s obligation to ensure the availability of resources to guarantee access to medicines to treat HIV.

Decision and Reasoning

The Court held that a law which has the effect of limiting the accessibility and availability of HIV medicines would “ipso facto threaten the lives and health” of people living with HIV and violate their rights under the Kenyan Constitution. The Court held in its ruling that the Act “[was] vague and could undermine access to affordable generic medicines since [it] had failed to clearly distinguish between counterfeit and generic medicines”. The Court called on Kenya’s Parliament to review the Act and remove ambiguities that could result in arbitrary seizures of generic medicines under the pretext of fighting counterfeit drugs. It also held that intellectual property rights should not override the right to life and health.