The ability of select sub-Saharan African countries to utilise TRIPs Flexibilities and Competition Law to ensure a sustainable supply of essential medicines: A study of producing and importing countries
The impact of the WTO Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPs) on access to essential medicines in the developing world is an issue that has gripped stakeholders for years. The landmark Doha Declaration on TRIPs and Public Health, the 30 August Agreement of the WTO General Council (2003), and most recently, the December 2005 Decision of the TRIPs Council to permanently amend Article 31 of TRIPs, have increased the legal certainty on flexibilities available to developing countries. These developments have been criticised as remaining insufficient to address concerns about drug prices, and consequently, increased access to treatment for the poor. Instead of focusing on the debate above, this paper examines the degree to which countries in eastern and southern African have utilised the flexibilities contained in the 30 August Agreement to increase access to treatment in their countries. Three countries were chosen for their diversity in pharmaceutical manufacturing capacity and developmental status: South Africa, Kenya and Zambia.
The paper further examines the use of competition law and policy as a tool for reducing prices and consequently increasing access to essential medicines and points out the advantages to developing countries of using competition law and policy: first, the TRIPs Agreement accords member countries considerable flexibility in implementing competition law and policy most appropriate for its purposes; second, countries have leeway to define what constitutes anti-competitive behaviour; third, competition law and policy is well suited to implementation by an independent competition authority vested with strong investigative powers; and finally, competition law and policy has been successfully employed by South African activists and stakeholders to reduce the prices of essential medicines.
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