Title: Intellectual Property and Human Rights: Wto Trips Agreement
Authors: Kemunto N. Maraga
The right to health is one of the fundamental human rights vital in any attempt to build a democratic, social and political order. The burden of HIV and Non-communicable diseases (NCDs) and their high mortality rates in many low and middle income countries (LMIC) especially those within Sub-Saharan Africa are a culmination of deficiency as to access to essential medicine. This deficiency and strainocity in access is due to a myriad of factors and not limited to distribution difficulties, international trade and patent agreements and high costs of medicines. With regards to International trade and patent agreements, the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement) offers global protection of Intellectual Property Rights (IPRs) by specifying the minimum standards of IPRs. Intellectual protection for medicines has been on the rise thus resulting to a clash and battle with other human rights: the right to health, life and human dignity. This battle is essentially between the issuance of compulsory licenses and the manufacturing of generic/copycat drugs and exporting or distributing them. This article examines Kenya’s legislative framework to access to medicine(s) and the extent to which the right to health is realized. It seeks to provide a novel working mechanism of justifying the position that for greater provision as per the TRIPS Agreement and access to medicine in Kenya, there ought to be an intersection of IPRs and human rights. It however, emphasizes the value of elevating the status of human rights over intellectual property rights.
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