The year 2020 having been largely disrupted by the Covid – 19 pandemic, the news and prospects of getting a vaccine could be the best thing 2021 could offer. As the world welcomes the Covid-19 vaccines, the media reported that the available doses have been pre-purchased by rich countries. This is not the first time the world is in such a place of fighting a public health crisis. When several countries agreed to be signatories to the Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS Agreement) in 1994, patentability of pharmaceutical products was approved and this meant that pharmaceutical companies had the monopoly to determine the prices of medicines. This would in turn diminish the ability of most developing countries in accessing drugs. At the time, the world was battling the HIV/Aids epidemic and this meant that the impact of the epidemic would escalate especially in poor countries, which could not access medicines.
Although Article 31 of the TRIPS Agreement assigned governments an avenue of compulsory licensing for purposes of remedying anti-competitive practices, cases of emergency, government use, public interest grounds and in instances of insufficiency of working of an invention; most countries that tried to invoke these flexibilities faced resistance from pharmaceutical companies. This explains why in 1998, over 39 pharmaceutical companies instituted a case against the government of South Africa after enacting a new patent law that permitted it to use both parallel importation and compulsory licensing during the surge of HIV/Aids epidemic in the country. However, the pharmaceutical companies withdrew their case in 2001 after pressure from civil society organisations globally.
Such developments influenced the international debate that saw developing countries seeking a declaration from the World Trade Organisation Ministerial Conference in Doha (November 9 to 14, 2001 on grounds that the TRIPS Agreement should not prevent members from adopting measures necessary to ensure access to medicines hence the birth of the Doha Declaration. On December 6, 2005 the TRIPS Council adopted the Protocol amending the TRIPS Agreement. The amendment made it possible for countries to export medicines under compulsory license to countries with no or insufficient manufacturing capacity. The amendment also allowed members to issue compulsory licences for the production and export of pharmaceuticals to an eligible importing member. The amendment took effect onJanuary 23, 2017.
As much as there have been such progressive developments in the international legal regime, the realities and challenges faced by poor countries continue to soar and the emergence of Covid-19 presents new challenges. On December 14, 2020, The East African newspaper reported that majority of the East African citizens will have to wait until 2022 to access the Covid-19 vaccine and that the region would have to be a beneficiary of the GAVI vaccine initiative, co-led by the World Health Organisation. And on December 9, 2020, the Ministry of Health of Uganda tweeted that it had submitted a COVAX application on December 7, 2020 under the GAVI COVAX facility where it hopes to access nine million doses of the vaccine to cover 20 per cent of the population. The mere fact that poor countries are not applying directly to the manufacturers says a lot as to how the intellectual property regime continues to hamper access of medicines in poor countries.
The efforts by governments of the poor countries to access the vaccine through the COVAX application is also subject to the production capacity of the few intellectual property holding manufacturers.
Mr Andrew Wandera is a lawyer