Abstract:
The implementation of the World Trade Organization (WTO) Trade Related Intellectual
Property Rights (TRIPs) Agreement at the national level via pharmaceutical trade policies
may adversely affect access to medicines especially in developing countries. Access to
medicines is protected under many international and national instruments on the right to
health including the International Covenant on Economic, Social and Cultural Rights, the
African Charter on Human and Peoples’ Rights (African Charter) as well as the Constitution
of Kenya, 2010. The right to health norms on access to medicines require the full and
effective use of all TRIPs Agreement flexibilities by developing countries as confirmed by the
Doha Declaration on the TRIPs Agreement and Public Health (Doha Declaration), 2001. In
this regard, access to medicines is affected by failure to provide for all the TRIPs Agreement
flexibilities in pharmaceutical trade policies as well as the incorporation of TRIPs plus
standards in trade policies including bilateral and multilateral free trade agreements (FTAs).
In order to identify and mitigate on the potential adverse impacts of pharmaceutical trade policies on access to medicines, the mechanism of human rights impact assessment (HRIA)
is needed. The HRIA can resolve beforehand the adverse impacts of pharmaceutical trade
policies on access to medicines. However, the implementation of the HRIA or specifically the
right to health impact assessment (RHIA) mechanism by developing countries including
Kenya is rare. This study therefore explores, using mixed methodologies including desktop
literature review and expert interviews with selected trade policy makers in Kenya, how
HRIA may be utilised by the government in order to resolve the potential adverse impacts of
pharmaceutical trade policies on access to medicines.
