Allan Maleche and Emma Day
To what extent has the right to access generic HIV medication been implemented in Kenya for the 1.6 million people living with HIV? How does this relate to the right to health under international and national law? This paper examines a constitutional challenge brought to the High Court of Kenya in 2009 (the “Anti-Counterfeit Case”) against the Anti-Counterfeit Act of 2008, which the petitioners, all of whom were living with HIV, argued would affect their ability to access affordable and generic antiretroviral medication. They argued that this would amount to a violation of their right to life, dignity, and health. This case is particularly interesting because the new Kenyan Constitution came into force in 2010, after the case had been filed, and specifically provided for the right to health for all of Kenya’s citizens, as well as giving direct effect to all international laws ratified by the Kenyan government. This paper follows the Anti-Counterfeit Case, which includes amendments filed by the petitioners following the new constitutional changes, the arguments by the different parties in the case, and the inappropriateness of counterfeit laws as measures to control substandard and falsified medicine. The case has resulted in the suspension of significant parts of the Anti-Counterfeit Act that would pose a challenge to parallel importation, and to the court issuing a directive that the sections be amended. The judgment is examined in detail, as are the broader implications of this case for other countries in Eastern Africa.