Members of the World Trade Organization (WTO) are trying to find ways to ensure that patent rights do not place desperately needed medicines beyond the reach of the poor in countries such as ours.
As African leaders, we support this effort, but with a caveat: whatever solution is found must be faithful to the spirit in which we helped launch the current round of multilateral trade negotiations two years ago in Doha. It must be genuinely pro-poor and pro-development.
We are concerned that in the rush to forge a consensus on the patent issue by next month’s WTO summit in Cancun, critical realities may be overlooked, and we may end up with an agreement that does more harm than good.
We want the Doha round to empower African countries to reap the full fruits of integration into the rules-based international trading system. Obstacles to Africa making the most of its comparative advantages, especially in the area of agriculture, must be struck down. That is the strongest contribution the round can make to alleviate the interrelated blights of poverty and disease afflicting our people.
We welcomed the Doha declaration endorsing the full exercise of flexibilities already contained in the WTO agreement on trade-related intellectual property (TRIPS) to prevent patents becoming a barrier to public health.
We were pleased that the declaration instructed members to find ways to let countries such as ours,facing legitimate public-health crises, use the compulsory licensing provisions in TRIPS to procure competitively priced copies of patented drugs from more advanced developing countries like India.
However, we have serious misgivings about the direction the discussions have taken over the past year. The focus on helping the poorest countries, most of them in Africa,to obtain medicines for HIV/AIDS, tuberculosis, malaria and other epidemic and endemic infectious diseases has been lost.
The solution must be carefully tailored. It would be a travesty if the very real suffering of our people was used as a pretext for letting companies from the most advanced developing countries in Asia and Latin America produce copycat drugs for any ailment in any country claiming a need.
What incentive will these companies have to make copies for the poor of Africa at tiny profit margins if they can market them more lucratively to wealthier populations elsewhere? As for the companies that are forced to surrender their patent rights, what incentive will they have to continue developing the new drugs and vaccines for which we in Africa pray daily?
Any solution must also throw up roadblocks to diversion. If not, it will encourage criminality. If and when we exercise the right to obtain copies of a patented HIV/AIDS drug made under a compulsory license in, say, India, we have to ensure that the medicine ends up in the intended hands rather than finding its way to Europe or the United States, where itcommands a far higher price.
The huge profits to be made from such diversion will fan corruption which will eat at the reforms we have undertaken to attract investment and spur economic growth. Without investment and growth we have no hope of defeating poverty and disease. The enticement of illicit fortunes will also be a powerful incentive for criminals to dump fake or substandard products onto the weak and the sick that cannot fight back.
It is essential, therefore, that compulsory licensed copies be clearly distinguishable as such, and that their sale or distribution outside the approved manufacturer-to-patient chain be enforceably prohibited. Without this, the fundamental pro-poor purpose of the exercise will be sacrificed to thieves and con men.
The solution must be rooted in recognition that Africans have no less a right than anyone in the developed world to expect safe, effective, properly-tested, non-counterfeit medicines. We can no longer be guinea pigs for the consequences of others’ good intentions, ideology or selfish agendas.
Finally, we would like to reiterate that changes in the international patent regime, while desirable if accompanied by the proper safeguards, represent only a small fraction of what must be done if the Doha round is to deliver on its promise. As a consolation prize for failure to make real headway against the rich-country subsidies that are crippling African farmers and fuelling African famine, TRIPS modification will be wholly inadequate.
The real target of Cancun should be to end protectionism in agriculture regardless of what happens to the debate on copied drugs.With more trade access in agricultural value-added products, Africa could even buy all the drugs it needs and do many other things.
John Kufuor is President of Ghana and Yoweri Museveni is President of Uganda.