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The upward ratcheting of intellectual property rights protection has manifested itself in various forms including of late in anti-counterfeiting laws in East Africa. Kenya passed its Anti-Counterfeit Act in 2008 providing for amongst other things patent linkage amidst opposition from public health actors. The main concern was that the law as enacted would restrict access to generic drugs in Kenya and beyond. Since Kenya is a developing country, its public health system is heavily dependent on generic medicines. The situation has been exacerbated by the HIV and AIDS scourge. Therefore, three persons living with HIV and AIDS accompanied by local non-governmental organizations including AIDS Law Project (ALP) petitioned the High Court in Kenya to declare the law unconstitutional. They relied on the constitutional right to health, right to life and right to human dignity. The petition was decided in the favour of the petitioners and remained unchallenged by the government. As such, the government may chose to either repeal or amend the legislation.

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Paul Ogendi is an intellectual property (IP) and access to medicines lawyer. He holds an LLM (Human Rights and Democratisation in Africa) from the University of Pretoria, Centre for Human Rights (CHR). He was previously awarded a fellowship by the Open Society Initiative Access to Essential Medicines Initiative (OSI-AEMI).

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