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HEALTH: Uganda’s Counterfeits Bill Threatens Access to Medicine

Wambi Michael

KAMPALA, Nov 6 2009 (IPS) - Uganda is considering an anti-counterfeit bill which analysts say will impair the country’s ability to import and export cheap but effective generic medicines. Activists fear that the bill, once enacted, will deny Ugandans access to safe, effective, quality and affordable generic medication which currently forms the bulk of Uganda’s medicine imports.

The Counterfeit Goods Bill seeks to prohibit trade in goods that ostensibly infringe intellectual property rights. The bill, which was tabled by Uganda’s trade ministry, will empower the commissioner of customs to seize suspected counterfeit goods.

The bill defines “counterfeiting” as manufacturing, producing, packaging, re-packaging, labelling or making, whether in Uganda or outside Uganda, any goods which are imitated so as to be substantially similar to the protected goods without the authority of the intellectual property right owner subsisting in the country or elsewhere.

President Yoweri Museveni in February asked his trade ministry to draft a strict law to curb counterfeit goods that he said were affecting local industries.

“I think in China they’ve got some good solutions because you remember the other man who sold milk which killed children? I think he was put in front of the firing squad. If somebody kills children, do you think the Chinese are very wrong?” he asked.

But Edgar Tabaro, a Ugandan lawyer specialising in trade-related matters, questions the necessity of the bill. He told IPS that whatever the bill ostensibly seeks to address is covered by different laws like the Trademarks Act, Copyright Act, the Patents Act and the Trade Secrets Act.

“So we are asking whether this bill is being pursued on behalf of our national agenda or whether there are some embedded interests behind this bill. Why should we deny our people cheaper drugs by making laws that are not in our interest?” he asked.

Rosette Mutambi, executive director of the Coalition for Health Promotion and Social Development (HEPS-Uganda), regards the bill as a threat to the lives of many Ugandans who largely depend on generic anti-retroviral drugs and other medicine. HEPS is a health consumers’ organisation advocating for health rights and also represents health practitioners.

Mutambi said only about 10 percent of the medicines used in Uganda are locally manufactured. And only about five to seven percent of the imported medicines are original brands, meaning that about 93 percent of imported drugs are generics. These are mostly imported from India.

Patrick Mubangizi, the coordinator of Health Action International Africa’s (HAI-Africa) office in Nairobi, said during a recent meeting in Kampala that he was “very concerned” about the bill because policy makers and the public didn’t understand its implications for public health. HAI-Africa is part of an independent global network seeking to enhance access to medicines.

HAI-Africa is opposed to the Ugandan bill because it deviates from the official definition of counterfeit medicine as provided by the World Health Organisation (WHO).

“WHO describes counterfeit medicine as ‘medicine which is deliberately and fraudulently mislabelled with respect to identity and/or source. Counterfeiting can apply to both branded and generic products and counterfeit products may include products with the correct ingredients or with the wrong ingredients, without active ingredients, with insufficient active ingredients, or with fake packaging’,” explained Mubangizi.

Geoffrey Nalima, a manager at Quality Chemicals Limited, the first antiretrovirals (ARVs) manufacturing plant in East Africa, told IPS that they were alarmed by the bill because it classifies their products as counterfeits. Moreover, the bill will make it difficult for their products to be exported to other countries in the region.

Other countries in the region have expressed interest in the drugs, which are being manufactured under a license from Cipla of India.

Sisule Musungu, a policy analyst specialising in intellectual property, trade and innovation, told IPS that Uganda, like Kenya, will become a victim of multinational companies pushing for intellectual property right enforcement.

“Internationally, there is a big push towards intellectual property enforcement for trade reasons. With the trade negotiations going on at the World Trade Organisation (WTO), the U.S. and European Union will have to reduce subsidies for agricultural production. All that remains are technology-based goods. That is where intellectual property rights enforcement comes in,” Musungu explained.

Uganda as a least developed country (LDC) which, under the WTO’s Trade-Related Aspects of Intellectual Property Rights (TRIPS) agreement, does not have to provide protection for trademarks, copyrights, patents and other intellectual property rights until July 2013. Regarding pharmaceuticals, Uganda does not have to put in place protections on medicine until 2016.

The idea behind these “allowances” is for developing countries to take advantage of technological advancements and gain the capacity to produce their own drugs. Uganda would therefore be preventing itself from doing so by adopting this bill, according to Musungu.

“If Uganda wants to pass an intellectual property rights law, the benchmark should not be to comply with TRIPS. The benchmark should be determined by asking what Uganda wants for this law. And, therefore, which type of law should we have. The draft bill goes beyond TRIPS’s requirements,” he said.

Nathan Irumba, a former Ugandan ambassador to the WTO and now senior strategic advisor to the Southern and Eastern African Trade Information and Negotiations Institute (SEATINI), agreed that Ugandan government needed to protect its citizen from counterfeits. But, he said, the problem with the bill is that it mixes issues of trademarks and the question of standards.

“I agree counterfeits should be dealt with but in the process we should not outlaw generic medicine. We should not be tricked by multinationals to have their rights enforced in our courts. We should instead utilise our space for development. TRIPS gives us leeway. But in the bill we (Ugandans) are trying to restrain these flexibilities,” he pointed out.

Elimu Elyetu, a project manager with Uganda’s Trade Capacity Enhancement project that is also steering the bill, told IPS that they were ready to include amendments to the bill to take care of activists’ concerns.

Uganda’s trade minister Gagawala Wambuzi told IPS that government was determined to have the bill enacted into law before the end of this year. “There has been a disease of counterfeits. People are crying. Some of the counterfeits are manufactured inside here; some are from abroad. And we are saying this must stop.”