SADC MPs call for action on IP, TRIPS flexibilities |26 April 2021
The raging Covid-19 global pandemic has amplified the need to address issues related to Intellectual Property (IP) and human rights.
The pandemic has also highlighted the need for eligible countries to take steps to benefit from Trade-Related Aspects of Intellectual Property Rights (TRIPS) 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, SADC members of Parliament last week called for collaboration to build the region’s capacity to produce medicines and to ensure that citizens benefit from their vast medicinal plant resources.
A joint session of the SADC Parliamentary Forum’s Standing Committees and the Regional Women’s Parliamentary Caucus called on SADC member states to harness flexibilities afforded by TRIPS, to respond to communicable and non-communicable disease (NCD) 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 lawmaker Honourable Darren Bergman, speaking on behalf of the chairperson of the SADC PF Standing Committee on Democratisation, Governance and Human Rights, expressed the SADC MPs’ call at the end of the virtual joint session.
He said following the outbreak of Covid-19, and before it, HIV, TB, malaria and other diseases, “providing equitable access to health, remains a challenge”.
He urged 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, Least Developed Countries (LDCs) in SADC were not exploiting them.
Furthermore, the duo noted that the main challenge with IP rights and access to medicines in sub-Saharan Africa was 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 thwarting domestication of TRIPS flexibilities which allow LDCs to override pharmaceutical patents for essential medicines in the public interest until 2033.
They include lack of understanding or appreciation of tangible benefits of TRIPS flexibilities; conflicting interests between industrial policy, public health and revenue collection; and lack of clarity about which government agency takes responsibility or lead.
National interests overriding potential benefits from regional cooperation; bilateral trade agreements negating benefits of TRIPS flexibilities “apparent inertia in parliamentary processes in getting to Bill stage then Act of Parliament” were also cited as hindrances.
In their joint presentation, the duo suggested increasing understanding and appreciation to prioritise TRIPS flexibilities and ensuring 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 WHO pre-qualification standards”.
Some of these strategies, they said, could include integrating a price sharing medicines database and review of patent legislation in the region. 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”, could also be considered.
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, however, acknowledged challenges such as suboptimal human resources, lack of coordinated policies, lack of locally available raw materials, high operating costs and technological inadequacies among other interruptions.
Furthermore, the Arasa and Sapam representatives said that LDCs could “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 show “the importance of epidemic preparedness” and the need to adopt “progressive IP policies” to ensure member states, “are 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. It could also help in achieving the United Nations’ Sustainable Development Goal 3 which focuses on good health and wellbeing.
It became apparent during the meeting that parliamentarians could continuously raise issues in parliament and use their oversight function to ensure that laws are actually implemented and resources budgeted for.
It was suggested that MPs ensure that offices dealing with patent issues are manned by well-trained staff who understand the impact of IP on public health.
The SADC MPs’ call for action comes amid growing concern over 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 IP/Patent legislations incorporating the TRIPS flexibilities. These are Botswana, Mozambique, Seychelles and Namibia.
“Eswatini and Zambia have pending implementation regulations for their IP Acts to be enforced. Madagascar and Mauritius developed draft IP 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 is 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,” Chingore said.
Zambia enacted her Patent Act in 2016 but implementation has 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 is 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 (Personal Protection Equipment) and Covid-19 test kits. In the context of vaccines, transparency sometimes lacks 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 centered in urban centres and that there is no discrimination on the basis of geographical location or social or economic status,” she said.
By Moses Magadza