KENYA: Update on importation of HIV/AIDS drugs

Activists are racing against the clock to have the Industrial Property Act amended to enable the importation of generic anti-retroviral drugs (ARVs) into Kenya, before parliament goes into recess on Tuesday.

The Industrial Property Act, which became law on 1 May 2002, allowed for the importation into Kenya of any drugs which were registered, and therefore legally available, in another country.

In the case of ARVs - a lifeline for those who are HIV-positive or have AIDS - this means a difference of about 50 percent in price (3,000 Kenyan shillings per month, or less than US $40, including distribution) between generic drugs produced in countries like India or Brazil, and patented drugs produced by international pharmaceutical companies.

Five weeks later, however, an amendment appeared in Section 58 of the Act, which made it mandatory to seek the "express consent" of the original patent holders of the drugs before importing them.

Campaigners agree that such permission - to effectively undercut the bigger pharmaceutical companies - is highly unlikely to be granted.

While the controversy over who was responsible for the amendment to the act raged - the ministers for trade and health denied any involvement - the Kenya Coalition for Access to Essential Medicines (KCAEM) and mission hospitals ordered ARVs and were given permission to import them under "special importation licences" granted by the Kenyan Ministry for Health.

The first shipment, organised by Medecins Sans Frontieres (MSF) and ActionAid Kenya, was currently benefiting 150 patients for four months in a home for AIDS orphans and a mission hospital in the Kenyan capital, Nairobi, the KCAEM reported in a statement issued on 9 August.

The second and larger shipment, would be enough to treat about 600 patients for three months in 45 mission hospitals countrywide.

While activists agree that the "special licences" granted by the health ministry are a satisfactory interim measure, they do not solve the problem of an effective ban on the importation of generic drugs into the country.

Furthermore, such a licence can only be applied for by the non-profit sector, (which caters for about 40 percent of Kenya's health facilities), and it is granted on an ad hoc basis, which means permission to import could be refused at any stage.

"The licences are given out at the whim of individuals," said Liza Kimbo, of Cry for the World Foundation. "It's a very precarious situation," she added. "We need to provide a competitive market and the legal framework for good quality medication to be available from anywhere in the world at the best price to Kenyans."

Wyger Wentholt, spokesman for MSF, agreed that the importation licences were an acceptable "second-best option", given the circumstances, but were neither ideal nor sustainable.

Several assurances had been given to the KCAEM by Minister for Trade Nicholas Biwott that the Industrial Property Act would be re-amended, Wentholt told PlusNews. If this was not possible, a "governmental use" order could be issued to suspend the changed parts of the act until parliament resumed in October.

Either of these options would mean that ARVs could be widely available in Kenya within two to three months, Kimbo said. "I'm really expecting that the amendment will go through this week," she said.

Others are not so sure. "I am not very hopeful, because of all the presidential hype. AIDS is taking a back seat at the moment - it's no longer in the news. I have not heard a single politician mention it in a recent political rally or heard President Moi mention it since he put Uhuru Kenyatta forward for the presidency. It's a very poor show," said Chris Ouma of ActionAid.

Meanwhile, the United Nations estimates that 700 Kenyans per day die of HIV/AIDS-related illnesses, and that only 6,000 people can afford to purchase ARVs at their current prices.

Ouma added that the KCAEM would continue its struggle if the amendment was not made. "We intend to go on with the importations," he added. "We will order drugs [without seeking a special importation licence] and let them stop us from bringing them into the country - that will precipitate a crisis," he said.

Theme (s): Care/Treatment - PlusNews,

[This report does not necessarily reflect the views of the United Nations]