Why Do Health And Human Rights Issues Matter For SSA?

By John Harrington, Visiting Research Scholar, APHRC.

July 13, 2012

There are big decisions being made in Kenya and other sub-Saharan African (SSA) countries that are being largely determined and influenced by global institutions and companies. These decisions may or may not be in the best interest of the people living in African countries and so it is important to understand the historical context of each country and how the health laws are currently being influenced or changed by these external actors. This is why I am focusing on the intersection of health, law and governance during my time as a Visiting Research Scholar at APHRC.

Rights Within and Rights to Health Care

Human rights are important to health in SSA and elsewhere else in two ways. First individuals can be said to have rights within health care. Health care workers, administrators and researchers are obliged by human rights law to respect the dignity, privacy, autonomy and physical integrity of the patient or research subject. Authoritarian practices in the colonial and independence periods have sometimes lead to these rights being violated in the name of collective development and the promotion of public health. These rights impose duties not just on local staff and institutions, but also on foreign and international bodies working on health in SSA. 

Second individuals can be said to have rights to health and health care.  Given the ongoing HIV/ AIDS pandemic, the continued threats from tuberculosis and malaria, as the well as the notable increase in non-communicable diseases; the question of access to medical and other health facilities is of great importance. International covenants and some national constitutions guarantee a right to health care, or to the ‘highest attainable standard of health’. Yet, given the scarcity of resources in SSA countries this right has to be qualified: not everyone can go to court to demand every possible treatment. The right to health also generates obligations of solidarity between developing and developed countries. What is meant by this is not just a requirement to transfer resources for health. It may be just as important for developed countries to reform international systems of trade and business which are preventing SSA countries from improving the health of their populations.

The Anti-counterfeit Law and Kenya

Another interesting development in Kenya has to do with the right to health care, specifically the right to be able to afford medicines versus the need to provide safe quality medicines to people.

The Anti-Counterfeit Act 2008 was passed by the Kenya parliament after intensive lobbying from local and multinational industries, including manufacturers of branded pharmaceuticals. It imposes harsh criminal penalties on those participating in the production and distribution of counterfeits. It gives wide powers to customs officials seize and destroy products suspected of being counterfeits.

Clearly counterfeiting is a problem for the economy and also for health, eg. fake car parts cause accidents, fake medicines can kill the patient. The problem with the Act however is that it defines ‘counterfeit’ so broadly that it can be taken to cover bona fide generic medicines. Campaigners argued that it could be used by patent holders to interrupt the supply of generics at ports and airports. This had already been happening in Europe, where Dutch officials had seized generics passing through Schiphol airport on their way from India to Brazil and elsewhere. Over 80% of Kenyans living with HIV/ AIDS use generics and over 80% of these are imported from India.

A number of Kenyans living with HIV/AIDSWHA, supported by human rights and health NGOs challenged the Act under the new constitution. They claimed that the threat to affordable generics was a threat to their rights to life and health. In April of this year the Kenyan High Court ruled in their favor, holding that the Act could not be applied to generic medicines. Intellectual property rights, such as patents, could not be allowed to ‘trump’ the basic needs of patients.

As well as being important for ordinary Kenyans, the case is also a victory for pro-access campaigners in the region and internationally. Anti-Counterfeit laws have been promoted and in some cases passed elsewhere in SSA after lobbying by the pharmaceutical multinationals and others. These have also been active at the WHO and in the Council of Europe in promoting what is called the ‘intellectual property enforcement agenda’. The case demonstrates to governments, courts and activists that human rights law can be used to defend access to essential medicines.

The impact of the international institutions:

As major providers of anti-retrovirals and other essential medicines, the Global Fund (GFTAM) and PEPFAR have a keen interest in the cost of drugs. This is also true of international NGOs involved in service provision in Kenya and elsewhere in SSA, such as Médicins sans Frontières. The need to manage costs is increasing given the limitation on funding available to these bodies as a result of the economic downturn in developed countries. It is not surprising therefore that NGOs such as MSF and Health Action International have been actively involved in legal campaigning, for a relaxation of patent laws and against the specific terms of the Kenyan Anti-Counterfeit Act.

What is happening in Other Developing Countries?

In South Africa a combination of health campaigning, litigation and awareness campaigns were used to bring this problem to light. The South African government passed legislation allowing ‘compulsory licensing’ of essential drugs still under patent. This would permit the production of generic copies of drugs. International drug companies responded by claiming South Africa was in breach of its obligations under the TRIPs Agreement of the WTO. They started litigation and also mobilized diplomatic pressure from the developed countries. This threat to access was successfully resisted by a coalition of local and international NGOs who argued that public health needs had to take precedence in this case.

Ironically the US had made just this calculation during the ‘anthrax crisis in 2001. There the government threatened to issue a compulsory license, allowing patents to be overridden so that suitable drugs could be produced more cheaply. The threat was sufficient to make the manufacturers reduce their prices voluntarily.

The most prominent South African NGO in the area of health, the Treatment Action Campaign later scored a notable victory against the government which had been reluctant to commit adequate resources to dealing with HIV/ AIDS. They successfully used the right to health in the South African constitution to obtain a declaration of the Constitution Court compelling the government to roll out a program of Anti-Retroviral therapy to combat mother-to-child infection across the country.

Other examples of international players impacting global health at the country level in SSA:

The governance of health and health care in Kenya has already been ‘globalized’ many sectors. The law on access to essential drugs, which we talked about above, is a mix of national constitutional law and legislation, but also international human rights law and international trade law, within the framework of the World Trade Organization.

Infectious disease control is another area where global influences are prominent. Kenya has ratified the World Health Organization’s revised International Health Regulations, binds Kenya to report disease outbreaks and to co-operate with the WHO in combating them. This multilateral regime is bolstered by important bilateral co-operation particularly with the US. American legislators are concerned about the threat to their country from bioweapons. These fears are increased by the political instability in parts of the Eastern African region, and the presence of highly infectious microbes. Under the Global Pathogen Surveillance Act, a domestic measure, the US is committed to providing direct aid for capacity building and surveillance to those countries willing to co-operate with it and with the WHO on the control of infectious diseases.

It is my goal that the work I am doing to study the impact of the interaction of health and the law and global governance in Kenya will help health researchers to understand the bigger picture, and influence how real impacts can be made through more critical thinking when it comes to changing health related laws and creating new ones.