AFRICANEWS

Kenya

Nkosi: The AIDS orphan who first campaigned for access to essential drugs

Medicine/international trade

The passage of Industrial Property Bill in Parliament to allow access to essential drugs to millions of Kenyans who are suffering from HIV-AIDS is a major breakthrough, thanks to Nkosi, who many AIDS orphans will identify with.

During the same week as South African Freedom Day, armed robbers invaded Johnson Nkosi's Johannesburg home at one o'clock in the morning, pointing a gun at his caregiver, Grace. The thieves took off with a television set and VCR, among other items. Nkosi had been a witness to yet another criminal act in a country recording a high crime rate and rising unemployment levels. Nkosi and Grace were both left traumatised.

This is not a story about urban crime, but international crimes committed by multinational pharmaceuticals against developing countries. It is also a story about today's African heroes. It revolves around Nkosi, the AIDS orphan who became a voice for other children orphaned by AIDS. Nkosi lost his parents to AIDS, was infected with AIDS, and died of AIDS at the age of 12.

Nkosi captured the world's attention last summer when he stood up in front of the whole assembly of dignitaries and delegates attending the International AIDS Conference in Durban and urged Thabo Mbeki's government to give the anti-AIDS drug AZT to pregnant mothers, or "mommies," as he called them.

His eloquent and electrifying call has already changed official health policy in South Africa. It has also been felt IN Nigeria, Kenya, and other places far outside of South Africa's borders.

For instance, on Thursday, April 26, the South African government won a landmark legal battle in Abuja, Nigeria, when 39 of the world's top pharmaceutical firms dropped their lawsuit that sought to block the government from importing or producing cheaper versions of their patented brand-name drugs, including HIV/AIDS medication. IRIN news agency reported that "it took less than a minute for the drug companies' lawyer to withdraw the case and agree that they would pay all costs. The capitulation was regarded as a humiliating climbdown and a public relations catastrophe for the companies involved."

At around the same time, the Kenya government drafted the Industrial Property Bill 2000 to legalise the importation of cheap, generic HIV/AIDS drugs. The Daily Nation, the country's widely read newspaper, quoted Health Minister Sam Ongeri as saying that brand-name drugs protected by "unrealistic" laws are "unaffordable." But he added that the government's new initiative would not violate patent-protection provisions of the World Trade Organisation, of which Kenya is a member.

Ongeri further said that 700 Kenyans die of AIDS each day, and that 2.2 million people in the country are infected with HIV.

On June 12, the Kenyan Parliament unanimously passed the Industrial Property Bill, which is now awaiting presidential approval before it is enacted into law.

Trade and Industry Minister Nicholas Biwott said the absence of such legislation had impoverished African scientists and other professionals whose inventions have been taken over by foreigners. The advocacy group People Living with AIDS (PLO), AIDS workers, and activists greeted the new legislation with much appreciation and sighs of relief.

A day before the draft legislation was tabled in Parliament for debate, Mboi E. Misati, an officer in charge of the Patent Information and Documentation Centre at the Kenya Industrial Property Institute (KIPI), told AFRICANEWS that he thought the Bill would sail through despite the prolonged war on access to cheaper drugs by pharmaceutical companies. "Drug companies have strongly lobbied against the Bill, arguing that Kenya has no capacity to implement the complicated use of AIDS drugs," Misati said.

The new legislation now allows the government to have access to cheap drugs through compulsory licensing, parallel importation, and governmental use, which are actions in line with WTO rules if done to combat a national emergency. Section 58(2) will enable goods from different manufacturers, with different prices, to be available in the Kenyan market at much lower prices. This clause has been applied to medicinal goods and in particular to drugs used for the management of HIV/AIDS.

Misati also noted that drug manufacturers continue to sell their drugs at a high price long after the patent expires. They can do this because most people are not aware of Intellectual Property Rights (IPRs) rules. Manufacturers are also able to use the same process to create the same product under the name of a generic drug.

To clear up the misunderstanding that a generic drug is inferior to an original one, Misati explained: "Generic drugs have the same physical, chemical, and thus functional, properties as the original product, only that the latter is patented and thus the cost is high than the former."

He also warned that not all HIV/AIDS medicines are patented and are therefore not justified to be so highly priced. "A Diflucan, a retroviral, was costing over KSh18,000 (US$234) and went for Ksh8,000 (US$104) hardly three months ago, while a local pharmacist was dispensing a retroviral at over KSh20,000 (US$260), which now costs KSh300 (US$4)," Misati said.

But why are the drug companies uncomfortable with lowering the prices for HIV/AIDS drugs in developing countries such as Kenya to save millions of people who are suffering of the disease? Misati explained that the majority of these drug companies are based in the so-called developed world including European countries and the United States.

Another fact is that both European countries and the U.S. allow parallel importation of drugs and other goods. This means that generic drugs sold at a cheaper price in Kenya or other countries may find their way back to the European countries or the U.S. through parallel importation.

"If this is allowed to happen then it will interfere with fair competition and erode the essence of patent rights: the monopoly to enable an inventor or corporation to recoup the investment in time, money, effort and other resources expended in order to create a new contribution to technology," said Misati, the second Kenyan to earn a Masters of Intellectual Property.

It became necessary to repeal Kenya's Industrial Property Act due to a number of developments in intellectual property law on the international scene, and in particular the Patent Law Treaty and the agreements on Trade-Related Aspects of Intellectual Property Rights (TRIPs).

The TRIPs Agreement sets minimum standards to protect intellectual property rights. All countries party to the WTO are supposed to amend their IPRs laws to conform to this agreement or otherwise face international trade sanctions.

Kenya is a member of WTO, and like all other developing countries, was supposed to conform to the TRIPS Agreement by January 1, 2000.

On April 27, African leaders signed a joint declaration in Abuja, Nigeria, in which they urged the United Nations to increase funds to fight the AIDS epidemic. They also encouraged the governments to use "appropriate legislation and international trade regulations" to provide affordable, effective AIDS drugs to those infected with the disease. The virus has killed 23 million people globally, 17 million in sub-Saharan Africa alone.

Meanwhile, Nyumbani Home for HIV-positive orphans in Nairobi became the first organisation to receive generic drugs. The 14 cartons of the antiretroviral drug AZT that Nyumani received from the Brazillian company MSF will benefit 76 AIDS orphans.

After all is said and done, Nkosi will be remembered for his achievement in influencing official health policies of world governments. He did not make his plea in vain.

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