COMBATING THE SCOURGE OF HIV/AIDS IN SUB-SAHARAN AFRICA: THE IMPERATIVE OF LOOKING BEYOND INTELLECTUAL PROPERTY RIGHTS BARRIER TO PHARMACEUTICALS

A. A. Adedeji[(]

Introduction

Since 1980, when AIDS was first reported in the United States of America, the disease has spread widely, affecting all continents and all countries of the world[1]. From what was called a white man’s plague during the early 1980’s, AIDS has come to be known today as the most devastating health and socio-economic problem afflicting the global community, since the 14th century. [2]

At the end of 2004, WHO/UNAIDS estimated that 40 million people were living with HIV/AIDS worldwide.[3] While 37 million of these were adults, 18.4 million were women and 2.5 million were children under the age of 15. Five million of those living with HIV/AIDS had been newly infected during 2003, the majority under 24 years of age, while 3 million people died of HIV/AIDS related causes.[4]

Perhaps the most startling development of the AIDS problem is the development of drugs by pharmaceutical companies for curbing the symptoms of HIV/AIDS in recent years. Within a decade of the availability of antiretroviral drugs, new classes of drugs and their use in combination have dramatically changed the management of HIV infection.[5] Although the drugs and treatments are not a cure and present new challenges of their own to people living with HIV/AIDS, they have considerably improved the rates of mortality and morbidity, prolonged lives, improved the quality of life, enabled people to come back to work and to care of their household, relieved from care of HIV/AIDS victims, revitalised communities and transformed perceptions of HIV/AIDS from a plague to a manageable, chronic illness.[6] However, the global extension and application of intellectual property rights particularly in the patenting of pharmaceuticals which results in the increase of price and decrease choice of sources of pharmaceuticals constitute a major barrier to the availability and affordability of the drug in sub-Saharan African countries.

This unwholesome development has spurred debates and drawn a lot of attention on the issue of patenting of ARV drugs as the main problem of access to the treatment and combating the scourge of the HIV/AIDS epidemic in sub-Saharan Africa. In the process an impression that if the problem of accessibility and affordability of ARV’s is surmounted, the HIV/AIDS epidemic would be checked and effectively controlled in sub-Saharan Africa has been created. This paper seek to emphasis the need to look beyond the issue of hindrances to the availability and affordability of ARV drugs by identifying some other important factors that are potent obstacles to checking the spread of the disease in sub-Saharan Africa that need to be urgently addressed. The paper posits that if the problem of IPRs barrier to pharmaceuticals is resolved without addressing some of the issues discussed hereunder, the battle against HIV/AIDS crisis would still not be effectively won in sub-Saharan Africa. To put the discussion in proper perspective, we examined the sub-Saharan Africa experience with the HIV/AIDS epidemic, the problem of intellectual property rights barrier to pharmaceuticals for HIV/AIDS treatment, before considering other issues that constitute hindrances to effective curtailment of the disease which are as equally important as the problem of barrier to anti-retroviral drugs and which need to be addressed before the scourge of HIV/AIDS can be checked in sub-Saharan Africa.

HIV/AIDS EPIDEMIC: SUB-SAHARAN AFRICA EXPERIENCE

HIV is the Human Immunodeficiency Virus. It is not a disease, but an infection that may not show signs of its existence for several years. However, once lodged inside the body, it progressively damages the immune system putting an infected person at risk of developing illnesses, or opportunistic infections that may otherwise not have been contracted. This general inability of the body’s immune system to fight off common colds and infections slowly progresses into what medical literatures understands as the Acquired Immune Deficiency Syndrome (AIDS) which eventually cause death as a result of the body’s inabilities to fend off disease.[7]

Perhaps the most deadly aspect of the HIV/AIDS epidemic is that it can take years before symptoms of HIV fully present themselves and since the virus can be transmitted sexually and through blood transfusions, infections can occur without the knowledge of either party involved. This lag that exist create a window of time that is often large enough to result in multiple infections, and the disease can spread to potentially thousands of people, all of whom would be completely ignorant as to whether or not they have the virus.[8]

In several ways, the experience of sub-Saharan Africa with the AIDS epidemic could be attributed or traced to this blind, uninformed pattern of infections, and its effects on the population and economic growth of the region have been brutal to say the least. According to studies conducted by the World Health Organisation, of the estimated 17.2 million deaths that AIDS had caused as of 1994, 9.7 million of them, or over 56 percent, occurred in sub-Saharan Africa. The large devastation that the African population has suffered as a result of AIDS is further exhibited by worldwide totals, which show that the proportion of adults infected by AIDS in sub-Saharan Africa is 2.5 percent, compared with the global proportion of only 0.4 percent.[9]

It is however important to note that these broadly sweeping figures greatly conceal the differences between countries of the region. Indeed within the region, some countries were more brutally hit than others by the AIDS epidemic. As a matter of fact, the estimated levels of prevalence seems to be most highly concentrated in a select number of countries, some of which include Rwanda, Uganda, Zimbabwe, Kenya, and Botswana. And even within countries, disparities grow even further. Most of the infected population reside in the large urban areas.[10]

Expectedly, the characteristics of those infected within a geographic area are correlated with the nature of how the disease spreads from one person to another. The highest concentration of prevalence rates occur within the younger age groups of adults, as these age groups of adults are the most sexually active and often foster the most “high risk” types of behaviour.[11]

Data on the health, social and economic impact of HIV in most African countries reveals that the epidemic has a tendency to devastate families, communities, and undermine the economic development of nations. From impact at the individuals to national level, the consequences are indeed beyond imagination. Villages and communities have been decimated and hard won health and economic development gains wiped out by the HIV/AIDS epidemic in country after country in sub-Saharan Africa.[12]

The effect of the epidemic is seen on all sectors of the society prominent among these is the life expectancy which has been adversely affected. Gains made in this area in the years before 1980’s have been lost and it is estimated that life expectancies in countries affected badly by HIV/AIDS infection may be less than 40 years.[13]

The economic implications for such a decrease in the anticipated life-spans are quite overwhelming and frightening.[14] Since HIV is in a large part, “responsible for a massive increase in the death among men and women in their most productive years”, according to a UN Report, the advent of the AIDS epidemic has been detrimental to the growth of the labour force.[15] Both the market for the consumption of goods and services have been reduced as a result.[16] The shrinkage in the size of the market reduces the potential for economic growth as it reduces the life expectancies of entrepreneurs, workers, and consumers alike[17].

Moreover, as the populations most likely to be affected by the AIDS epidemic are those in urban areas, as African countries attempt to develop, successful urbanisation becomes more difficult to achieve, and development is hindered.[18] The outcomes resulting from a decrease in population are as varied as they are malignant; anything from a loss of certainty, a decrease in the potential for innovation, and disruptions in demographic trends could occur, all of which have devastating effects on development and welfare.[19]

All the devastating effect of HIV/AIDS necessitated the adoption of preventative measure and the development of antiretroviral drug though not yet a final solution to the problem but could potentially lay the foundations for the road to an eventual eradication of HIV from Africa.[20] In the developed countries, ARV drugs have helped to treat AIDS patients with significant successes, and given time, they will most likely play a large role in the eventual eradication of the disease from many continents.[21] However, most developing nations have no experience with the drugs and cannot benefit from them as a result of their exorbitant prices[22].

HIV TREATMENT AND THE PROBLEM OF IPRS BARRIER

TO PHARMACEUTICALS

The huge financial requirements for research necessitated the intervention and participation of corporate bodies, capable of shouldering the financial burdens, in the field of bio-medical research. However, unlike the charitable researchers of old, the new crop of researchers and their corporate financial backers want to profit from their efforts through the marketing of the products or processes derived from the research. A means of effectively achieving this is to obtain intellectual property right in the form of patent over such products or processes.[23] A patent vests in the patentee, in respect of products, the right to exclude any other person from making, importing or selling the products, or stocking the products for the purpose of sale or use. In the case of process, a patent confers on the patentee the right to exclude all others from applying the process or doing, in respect of a product obtained directly from the process, any of the acts previously stated relating to products[24]. Generally, a patent subsists from a period of twenty years[25]. Put simply, patent confers the patent holder with monopoly over marketing and other rights pertaining to the invention on which patent is granted.[26] The goal of patenting is to encourage technological innovation[27]. Essentially, the right is granted to the inventor in exchange for putting in his time, money and labour to invent the product, and then making it available to the public. To safeguard the interest of patent holders across international frontiers, the World Trade Organisation (WTO) prepared the Agreement on Trade Aspects of Intellectual Property (TRIPS Agreement).[28]This treaty, essentially, mandates state parties to protect and enforce patent granted in one country in other member countries.[29]

One consequence of the interaction of commerce and scientific research is the high cost of medical products. Another consequence has been the introduction of unwholesome practices, propelled by the drive for financial gains, into the realm of scientific research.[30] The development of antiretroviral (ARV) drugs for HIV treatment provides a good illustration of this issue.[31] The impact of commercialisation of research has manifested in the prohibitive cost of ARV drugs used in treatment of HIV. Due to the high cost of the treatment, many HIV sufferers in the poor countries public health care systems cannot afford the drugs, and the infected persons are equally too poor to afford them on their own.[32] While appreciating the fact that irresponsiveness and neglect by governments in some of these countries equally contribute to inaccessibility of essential drugs, it is important to note that the use of intellectual property right in the form of patent and the TRIPS Agreement to maximise profits also prominently feature. Largely, the battle strategy of the corporate bodies in obstructing access to ARV is to invoke their patent rights, with backup from their government invoking the TRIPS Agreement.[33] It is also an undeniable fact that the patent monopoly they enjoy over their products has given them an advantageous position. This has not only enabled them to control the quantity of available drugs but also the price at which they are made available since TRIPS Agreement oblige all countries rich and poor to grant at least 20 years’ patent protection for new medicines, thereby delaying production of the inexpensive generic substitutes upon which developing countries health services and poor people depend.[34]

The following scenario provides helpful illustration. When Brazil for instance wanted to procure ARV at prices lower than the prices charged by patent owners, in the course of its government-supported campaign against HIV/AIDS, the United States filed a complaint of violating TRIPS Agreement against Brazil[35]. Similarly, the United States confronted South Africa over its promulgation of the Medicines and Related Substances Control Amendment Act[36] which was to facilitate the procurement of ARV at reduced price.

In addition, the United States government in concert with 39 drug manufacturing trans-national companies sued the government of South Africa in court to prevent it from acquiring cheaper patented drugs for HIV/AIDS patients[37] on the ground that it violated South Africa’s obligations under the TRIPS Agreement and the South African constitutionally guaranteed right of protection of property.[38] It is important to note that at the time the United States and pharmaceutical companies were combating South Africa over its efforts to obtain ARV at reduced prices, the country had, and still has the largest number of people infected with HIV/AIDS in the world.[39] It is the bright ray of hope ART offered for combating the scourge of the HIV/AIDS epidemic and the IPR barrier induced non-affordability to people living with HIV/AIDS in Sub-Saharan Africa as a result of the high price that has diverted attention to this obstacle thus relegating other important issues that need to be addressed if the spread of HIV/AIDS is going to be put under control in sub-Saharan Africa to the background.