Pharmaceutical trade policies and access to medicines in Kenya

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.