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[e-drug] SADC MPs demand action on vaccine intellectual property rights

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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