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Countries-ESCR litigation Archives: Kenya

Patricias Asero Ochieng and 2 others v. the Attorney-general & Anotherke

Year: 2012 (Date of decision: 20 April, 2012)

Forum, Country: High Court; Kenya

Standards, Rights: Human dignity; Right to health; Right to life

Summary Background: Case centres on a challenge to the constitutionality of the Anti-Counterfeit Act 2008, due to the negative impact of the Act on access to generic HIV/AIDS medication. Sections of the Act appeared to inappropriately conflate generic drugs with counterfeit medicine. The application of these sections would result in civil and criminal penalties for generic medicine manufacturers and thus harshly restrict access to affordable medicine in Kenya. This lack of access in turn would impair the right to life, health and human dignity.

Holding: The Court, in agreement with the impact assessment of the Act as outlined by the petitioner, held that the sections in question were unconstitutional and concluded that it is incumbent on the state to reconsider the provisions of section 2 of the Anti-Counterfeit Act [paras. 87 (b)(v) and 88].

The Court held that the right to life, human dignity and health as protected by the Constitution encompasses access to affordable and essential drugs and medicines including generic drugs and medicines [para. 87(a)].

It further held that fundamental rights (for instance the rights to life, human dignity and health) take precedence over intellectual property rights [para. 86].

The Court in its decision referenced the ICESCR as well as General Comment No. 14 on the Right to Health and stipulated that the State’s failure to put in place conditions in which its citizens can lead a healthy life means that it has violated, or is likely to violate, their right to health [paras. 58-59 and 61-63].

Additional Comments: This case examines State’s obligations in the context of ESC rights, particularly the duty to respect and protect.

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