COMPULSORY LICENSING AND ACCESS TO MEDICINES IN POST DOHA ERA: WHAT HOPE FOR AFRICA?

Abstract

This article examines the importance of compulsory licensing – using a human rights lens – to facilitate access to life-saving medications for Africans and its use after the historic decision at Doha in 2001 (popularly called ‘Doha Declaration’). It further considers the August 2003 Decision of the Council for TRIPS and the subsequent December 2005 amendment of the TRIPS Agreement in an attempt to resolve paragraph 6 of Doha Declaration. It submits that both are neither faithful to the spirit of Doha nor are they in line with provisions of human rights instruments, which guarantee the rights to health and life. Also, the article reasons that recent developments in the world on the use of compulsory licensing, such as the new Canadian legislation on this issue, have not in any way brought succor to Africans. The article further argues that in view of the above situations, particularly the failure of both the August 2003 Decision of the Council for TRIPS and its amendment of the TRIPS Agreement to find a lasting solution to the unresolved paragraph 6 of Doha, African countries may need to be creative in invoking other provisions of the TRIPS such as Article 31(k) so as to ensure affordable medicines for their citizens. The article then considers the likely tension that may exist between human rights and intellectual property rights, and submits that the obligations of states under the former should supercede the latter.