States’ Obligations in Relation to Access to Medicines: Revisiting Kenyan High Court Decision in P.A.O and Others v Attorney General and Another

Abstract

Recently a Kenyan High court in P.A.O and others v Attorney General and another (hereinafter P.A.O) handed down a judgment in relation to sections 2, 32, and 34 of the Anti-Counterfeit Act 13 of 2008 vis-a-vis Kenya’s obligations under international human rights law and the Constitution. For many Africans, access to medicines has remained a great challenge not least because of high prices mainly due to patents on these medicines. Although recent developments across Africa have shown that modest progress has been made in realising access to medicines for people living with HIV, a great percentage of those in need of these medicines are not receiving them. One of the major obstacles to access to medicines in Africa are patents enjoyed by pharmaceutical companies on essential medicines such as antiretroviral drugs. This paper examines the decision of the Kenyan High Court in P.A.O and others v Attorney General and another in relation to the nature of states’ obligations to ensure access to medicines for their people. After highlighting the facts of the case and the holding, the authors critically evaluate the decision of the court based on three important issues - access to medicines as a human right, patents versus human rights, nature of states’ obligations in relation to access to medicines and lessons from this decision for other African countries.