A Triumph for Generic Medicines and the Right to Health in Africa: Patricia Asero Ochieng & Ors. v. Attorney General

Abstract

The right to health is a justiciable right in Kenya because Article 43(1)(a) of the Kenyan Constitution of 2010 provides that everyone has the right to the highest attainable standard of health, which includes the right to health care services, including reproductive health care. In 2012, a Kenyan High Court made some landmark pronouncements on the nature of the relationship between the right to health and intellectual property rights. Importantly, the court held that patent rights should not be allowed to trump the right to health of patients who require access to medicines. The court also held that the Kenyan Anti-Counterfeit Act which failed to specifically exclude generic medicines from the definition of counterfeit products infringed the right to health.

Keywords: Kenya, Right to Health, Patent Rights, Counterfeit, Generics