E-DRUG: SADC MPs demand action on vaccine intellectual property rights
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By Moses Magadza 28 April 2021
https://www.dailymaverick.co.za/article/2021-04-28-sadc-mps-demand-action-on-vaccine-intellectual-property-rights/
The Covid-19 pandemic has amplified the need to address issues related to
intellectual property and human rights, as well as for taking steps to benefit
from trade-related aspects of intellectual property rights flexibilities to
ensure access to medicines for all.
As least developed countries (LDCs) join the rest of the world in rolling out
Covid-19 vaccines, there are concerns over access, transparency, equity and
human rights violations. Against this backdrop, Southern African Development
Community (SADC) members of parliament are calling for all hands on board to
build the region’s capacity to produce medicines and to ensure that citizens
benefit from its vast medicinal plant resources.
A virtual joint session of the SADC Parliamentary Forum’s standing committees
and the Regional Women’s Parliamentary Caucus, held on 15 April, called on SADC
member states to harness the “flexibilities afforded by the Agreement on
Trade-Related Aspects of Intellectual Property Rights (Trips), to respond to
their various communicable and non-communicable disease public health
concerns”.
Their call followed advocacy presentations by the Aids and Rights Alliance for
Southern Africa (Arasa) and Southern African Programme on Access to Medicines
and Diagnostics (Sapam).
South African MP Darren Bergman, speaking on behalf of the chairperson of the
SADC Parliamentary Forum Standing Committee on Democratisation, Governance and
Human Rights, expressed the SADC MPs’ call at the end of the session. He said
following the outbreak of Covid-19 – and before that, HIV, TB, malaria and
other diseases – meant that “providing equitable access to healthcare remains a
challenge”.
He stressed the need for SADC MPs to “remain committed, and engaged, using the
tools and resources available to focus on intellectual property rights and
their impacts on access to medicines”.
His remarks followed revelations by Nyasha Chingore, the programmes lead at
Arasa, and Yunus Mohammed, the executive director of Sapam, that despite the
existence of enabling flexibilities within Trips, LDCs in SADC were not
exploiting them.
Furthermore, Chingore and Mohammed noted that, “The main challenge with
intellectual property rights and access to medicines in sub-Saharan Africa is
the gap between the huge disease burden and the slow uptake of Trips
flexibilities that are freely available to the countries” because of
“structural and technical factors”.
They highlighted challenges in the domestication of Trips flexibilities that
would allow LDCs to override pharmaceutical patents for essential medicines in
the public interest until 2033.
These include a “lack of understanding or appreciation of tangible benefits of
Trips flexibilities; conflicting interests between industrial policy, public
health and revenue collection; lack of clarity about which government agency
takes responsibility or lead e.g. health, trade and industry or finance;
national interests overriding potential benefits from regional cooperation,
e.g. not using LDC status for the benefit of a region; bilateral trade
agreements negating the benefits of Trips flexibilities, e.g. Trips+ through
bilateral trade agreements” and an “apparent inertia” in passing bills through
parliamentary processes to becoming law.
In their joint presentation, Chingore and Mohammed suggested increasing
understanding and appreciation to prioritise Trips flexibilities and ensuring
that relevant parliamentary committees drive the process of harnessing Trips
flexibilities and pharmaceutical waivers.
They recommended that generic manufacturers in LDCs team up with experienced
manufacturers for technology transfer to produce pharmaceuticals that meet
World Health Organization pre-qualification standards as well as strengthen
linkages between tools in pooled procurement/procurement cooperation strategy
and local production to maximise Trips flexibilities implementation.
Some of these strategies, they said, could include integrating to a
price-sharing medicines database, pooled procurement network, and regulatory
and review of patent legislation in the region, as well as patent pooling
“where a patent holder shares his patent with several other manufacturers who
are then allowed to make the drug for a small fee”.
They noted that these arrangements would not only promote the availability of
locally manufactured generic drugs but also create jobs, value chains and
downstream industries. They also acknowledged challenges such as sub-optimal
human resources, lack of coordinated policies, lack of locally available raw
materials, high operating costs and technological inadequacies, among other
hindrances.
Furthermore, the Arasa and Sapam representatives said that LDCs could avoid
bilateral agreements that may limit benefits from Trips flexibilities and
“strengthen harmonisation/convergence efforts in pharmaceutical value chains of
medicines registration, procurement and supply management standards and
practices”.
They argued that the vaccine supply gaps in SADC showed “the importance of
epidemic preparedness” and the need to adopt “progressive intellectual property
policies” to ensure member states were “able to leverage the Trips
flexibilities as and when public health emergencies emerge”.
Arasa and Sapam contend that using the Trips flexibility window and
capacitating regional manufacturing of generic drugs would allow SADC member
states to address the African Union’s Agenda 2063 provision on improving the
quality of life of citizens and achieving the United Nations’ Sustainable
Development Goal 3, which focuses on good health and well-being.
It became apparent during the meeting that parliamentarians could continuously
raise issues in Parliament and use their oversight function to ensure that laws
were implemented and resources budgeted for. It was suggested that MPs ensure
that offices dealing with patent issues were staffed by well-trained staff who
understood the impact of intellectual property on public health.
The SADC MPs’ call for action comes amid growing concern over the lack of
implementation of intellectual property acts enacted between 2012 and 2020 by
some SADC member states. Chingore said four out of the 16 SADC member states
had enacted new intellectual/patent legislations incorporating the Trips
flexibilities. These were Botswana, Mozambique, Seychelles and Namibia.
“Eswatini and Zambia have pending implementation regulations for their
intellectual property acts to be enforced. Madagascar and Mauritius developed
draft intellectual property bills in 2016 and 2017 respectively, but these
processes have stalled,” she said.
She explained that lack of implementing regulations, which administer and
enforce the provisions of the law by providing practical interpretative
guidance on how the law was to be applied, was one of the factors impeding
implementation.
“For some countries, it takes years for implementing regulations to be
developed and adopted. Namibia took six years to develop and consolidate
implementing regulations to the Industrial Property Bill of 2012,” she said.
Similarly, Zambia enacted its Patent Act in 2016 but implementation has been
stalled due to a lack of implementing regulations, leaving the country to rely
on the Patents Act of 1958 (Chapter 400, as amended up to Act No. 13 of 1994).
In Eswatini, the Patent Act No 19 of 2018 was not yet in force due to
outstanding regulations. The patent regime is governed by the Patents, Design
and Trade Marks Act of 1936. Chingore confirmed that there had been reports of
Covid-19-related corruption and violation of human rights in different parts of
the world.
“Examples include reported scandals in relation to the procurement of PPE and
Covid-19 test kits. In the context of vaccines, transparency sometimes is
lacking around conditions of bilateral agreements with suppliers,” she said.
Elsewhere, officials have created the impression that they intended to make
vaccination mandatory. “This is unfortunate, as informed consent is critical
to ensuring buy-in. Vaccine programmes should also ensure that they are not
solely centred in urban centres and that there is no discrimination on the
basis of geographical location or social or economic status,” she said. DM/MC
Moses Magadza is a freelance journalist based in Windhoek, Namibia, and a PhD
student with research interests in the framing of key populations by the media.
He won the SADC Media Award in 2008.
Carinne Bruneton
E-Med@healthnet.org
<carinne.bruneton@hotmail.fr>
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