Framing the National Interest: Debating Intellectual Property and Access to Essential Medicines in Kenya

Harrington, John; O'Hare, Alasdair

doi:10.1002/jwip.12020

Cited by 4 publications

(2 citation statements)

References 48 publications

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“…155 Harrington and O'Hare equally note that the Kenya Association of Manufacturers played a key role in securing the passage of the Act. 156 According to Harrington and O'Hare, the Kenya Association of Manufacturers "represents over 700 members, both domestic and foreign-owned firms, among whom are major pharmaceutical concerns marketing and manufacturing their products in Kenya". 157 They note that the Association established an Anti-Counterfeit Committee and "engaged closely in the legislative process itself" while also "frequently briefing key parliamentary committees".…”

Section: Kenyamentioning

confidence: 99%

The Right to Health in Pharmaceutical Patent Disputes

Oke¹

2023

SSRN Journal

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Section: Kenyamentioning

confidence: 99%

The Right to Health in Pharmaceutical Patent Disputes

Oke¹

2023

SSRN Journal

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“…Its outcome is likely to be a ranking of normative orders – a constitutionalisation of global health in ways that can set limits to democratically established constitutions. The ‘national’ is indispensable in these processes: juridically, as a source of facilitating or obstructing rules; and culturally as a focus for values and idioms for the vernacularisation of global health norms, and also for resistance to them (Harrington and O'Hare, 2014, p. 16; Merry, 2006).…”

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‘Choking the national demos’: research partnerships and the material constitution of global health

Harrington

2021

International Journal of Law in Context

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By foregrounding a widened view of the rule of law in transnational legal processes, the works under discussion in this symposium can support innovative critical perspectives on global health law –a field that has gained wide attention due to the spread of COVID-19 around the world (Lander, 2020; Bhatt, 2020). Legal and socio-legal scholars in the decade and a half before the pandemic worked on locating global health law and articulating its underlying principles. Lawrence Gostin's 2014 monograph offers a synoptic view centred on international institutions (e.g. the World Health Organization, World Trade Organization, UN Human Rights Council) and problems (e.g. infectious-disease response, tobacco control), along with an elaboration of its normative basis in universal moral principle and international human rights law (Gostin, 2014). Struggles over access to essential medicines and intellectual property in the early 2000s are, for example, represented in terms of the right to health constraining international trade law. Andreas Fischer-Lescano and Guenther Teubner's 2004 reading is oriented more by social theory than by doctrinal or ethical frames (Fischer-Lescano and Teubner, 2004, pp. 1006, 1008). A functional health regime has ‘differentiated out’, they observe, and operates as a discrete communication system across borders, albeit one that is threatened by the preponderant economic system. On this model, the battle for access to medicines amounts to ensuring, via human rights guarantees, that the rationality of the health system is not replaced by that of its economic rival in legal and policy communications (Fischer-Lescano and Teubner, 2004, pp. 1030, 1046).

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Patent Rights, Access to Medicines, and the Justiciability of the Right to Health in Kenya, South Africa and India

Oke

2015

Justiciability of Human Rights Law in Domestic Jurisdictions

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This chapter examines how the national courts in three developing countries (Kenya, South Africa, and India) have addressed the tension between patent rights and the right to health in some of the cases litigated before them. National courts in developing countries are increasingly being confronted with disputes involving tensions between the enforcement of patent rights and the enjoyment of the right to health. As a result of the WTO's Agreement on Trade Related Aspects of Intellectual Property Rights, developing countries that are members of the WTO are required to provide patent protection for pharmaceutical products. These patent rights however create a tension between the rights of pharmaceutical companies that own patents on essential drugs and the right to health of poor patients who cannot afford to pay for some of these patented drugs. The chapter is structured into three main parts. Part one examines the nature of the relationship between patent rights and the right to health while part two deals with the justiciability of the right to health in Kenya, South Africa, and India. Part three provides an analysis of how the national courts of these three developing countries have adjudicated some of the pharmaceutical patent cases involving tensions between the right to health and patent rights.

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Framing the National Interest: Debating Intellectual Property and Access to Essential Medicines in Kenya

Cited by 4 publications

References 48 publications

The Right to Health in Pharmaceutical Patent Disputes

The Right to Health in Pharmaceutical Patent Disputes

‘Choking the national demos’: research partnerships and the material constitution of global health

Patent Rights, Access to Medicines, and the Justiciability of the Right to Health in Kenya, South Africa and India

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