USA-Kenya Trade Agreement: No IP barriers to affordable medicines

“Access to medicines is a fundamental element of the right to health” states our partner, the Kenya Legal and Ethical Issues Network on HIV and AIDS (KELIN), in a letter to Kenya’s Ministry of Industry, Trade and Enterprise.

The Ministry invited KELIN, a human rights NGO that works on intellectual property and access to medicines issues, to comment on the proposed trade agreement between the USA and Kenya.

KELIN made a written submission opposing the inclusion of an intellectual property (IP) chapter in the proposed US-Kenya Trade Agreement.

The network expressed concern that such a chapter is highly likely to contain stronger intellectual property protection than the requirements of the TRIPS Agreement (TRIPS-Plus provisions) which would adversely impact access to affordable medical products in Kenya, such as medicines, vaccines, masks, ventilators and other technologies needed to deal with the current pandemic, future epidemics, as well as HIV, TB, malaria and other diseases.

The negotiations are so far confidential, so while we have been unable to review a draft at this date, the Make Medicines Affordable campaign would urge the Kenyan government to ensure TRIPS-Plus measures are kept out of any agreement.

“It is not uncommon for bilateral agreements, under the guise of increased trade opportunities supposedly to benefit both sides, to incorporate increased intellectual property protections.
If pharmaceutical products and technologies are given higher IP protections than exist in international agreements, it can result in a situation where patent holders in one country are set to benefit, at the detriment of people needing access to essential medicines in another. If an IP chapter is included, there is a risk that in practice it will not become a mutually beneficial agreement,” says Allan Maleche, Executive Director of KELIN.

“Internationally agreed IP protections and flexibilities are already in place. In order to safeguard public health and be in a position to respond to the COVID-19 pandemic, HIV, TB, and other epidemics and illnesses, the Kenyan government must ensure that any TRIPS-Plus measures are kept out of the trade agreement,” says Timothy Wafula, a health and human rights lawyer, and KELIN’s Health and Governance Program Manager.

“In our experience from observing bilateral and multilateral trade agreements around the world, the US has a track record of pushing for TRIPS-Plus measures, and often succeeding in getting extremely restrictive provisions incorporated,” says Othoman Mellouk, Make Medicines Affordable campaign lead. 

Any potential benefits could be swamped by higher prices for medicines – Mellouk.

However, there is no legal or diplomatic reason to bow to this pressure. We’ve seen with other agreements, such as the EU-Mercosur Trade Agreement and the Comprehensive and Progressive Agreement for Trans-Pacific Partnership (CPTPP), which had higher IP protections in the draft, that these were removed before the final versions was signed (EU-Mercosur), or suspended (CPTPP). We strongly recommend that Kenya ensures the same, otherwise savings they make in one area of trade could be swamped by the higher prices that the country could be forced to pay for essential medicines,” Mellouk concludes.

KELIN’s submission:

Through the submission, KELIN also expressed concern that negotiations for the agreement had been launched amid the COVID-19 pandemic, instead of focusing government efforts towards addressing the adverse effects of the pandemic.

The submission made the following three recommendations:

  1. That, from the onset, the Trade Agreement is not an absolute necessity given that Kenya already has market access to the USA through the African Growth and Opportunity Act (AGOA), a US Trade Act that currently allows about 71% of Kenya’s goods exports to the USA tariff-free.
  2. That an Intellectual Property Chapter should not be part of the agreement but rather that the government focuses on obtaining a goods-only agreement.
  3. That if the agreement must have an intellectual property chapter, it must not have TRIPS-plus provisions: that the government should oppose any proposal for stronger intellectual property protection (TRIPS+) than is required by the World Trade Organization.

KELIN is monitoring the negotiations and will at every available opportunity remind the government of its constitutional obligation (under Articles 10, 21, 43(1)(a)) to be guided by national values and principles of governance, and to respect, protect and promote the right to the highest attainable standard of health for all Kenyans. Negotiating any trade agreement that may undermine access to affordable medicines would go contrary to this obligation.