Framing the National Interest: Debating Intellectual Property and Access to Essential Medicines in Kenya

• Author: Alasdair O'Hare,John Harrington
• DOI: http://doi.org/10.1002/jwip.12020
• Date: 01 March 2014
• Published date: 01 March 2014

Framing the National Interest: Debating Intellectual

Property and Access to Essential Medicines in

Kenya

John Harrington

Cardiff University,

Alasdair O’Hare

British Institute in Eastern Africa,

This paper draws on theories of nodal governance and discursive framing to investigate the rhetorical strategies

adopted by campaigners in the ongoing contest over access to medicines and the protection of intellectual property

rights in Kenya. It focuses specifically on debates surrounding the implementation of the WTO’s TRIPs Agreement in

2001 and the passage of anti-counterfeit legislation in 2008. A survey of parliamentary debates and media sources, as

well as interviews conducted with key participants, indicates that “the nation” provided a common overarching frame

for arguments made by opposing sides to these debates. The salience of specifically national considerations confirms

our view that studies of framing and health governance need to extend their focus beyond developments in

international and developed country fora. It also highlights the continued purchase of the national interest as a means

of mobilizing the key state institutions needed to implement global legal regimes in Africa.

Keywords East Africa; HIV/AIDS; counterfeit; generic drugs

Since 2001 Kenya has been a particularly important site of struggle between access to medicines

campaigners, including local and international non-governmental organizations, and proponents of strong

protection of intellectual property rights (IPRs), particularly multinational pharmaceutical companies.

The stakes in this contest are defined on one hand by Kenya’s status as the largest market in Eastern Africa

with pharmaceutical imports valued at US$240 million in 2008 and its role as an important transport hub

for the distribution of medicines across the region. On the other hand, between 1.5 and 1.7 million

Kenyans are living with HIV/AIDS out of a total current population of approximately 41.6 million.

1

With

43% of the population living on under US$1.25/day, the availability of anti-retroviral therapies depends

upon support from the US President’s Emergency Plan for AIDS Relief (PEPFAR) and, to a lesser extent,

from the Global Fund for Tuberculosis, AIDS and Malaria (GFTAM).

2

The latter in turn are largely

provisioned with off-patent, generic medicines manufactured in India, which accounted for an estimated

US$70 million of total drug sales in 2008 (Mey, 2010, pp. 403, 406).

Legislators responded to these acute needs in 2001, when Kenya was obliged to reform existing

intellectual property legislation to comply with its obligations under the World Trade Organization’s

(WTO) Trade Agreement on Intellectual Property Rights (TRIPs). Notwithstanding the pressure exerted

on developing country states by the major pharmaceutical manufacturers and their governments, Kenya

was able implement the so-called “flexibilities” contained in TRIPs in an expansive manner which tended

to promote access to essential medicines, including imported generic medicines (Sihanya, 2005, p. 264).

More recently Kenya and East Africa more generally have been a focus of the worldwide “anti-

counterfeiting” campaign backed by major IPR holders in pharmaceuticals and other industries, a

campaign which resulted in dedicated legislation on the topic in 2008. It was widely argued by scholars

and activists at the time that this legislation tended to restrict access to essential medicines (Von Braun and

Munyi, 2010, p. 238).

16 ©2014 John Wiley & Sons Ltd

The Journal of World Intellectual Property (2014) Vol. 17, no. 1–2, pp. 16–33

doi: 10.1002/jwip.12020

Taking the debates over legislation in 2001 and 2008 as its focus, this article details the terms in which

the struggle over access to medicines and the protection of IPRs has been conducted in Kenya. It uses

theories of nodal governance and discursive framing to investigate the rhetorical strategies adopted by

commentators and campaigners and to consider the reasons for their relative success. Drawing on a review

of parliamentary debates and media sources, as well as interviews conducted with key participants, it will

show that “the nation” provided a common overarching frame for arguments made by opposing sides. The

salience of specifically national considerations confirms our view that studies of framing and health

governance need to extend their focus beyond developments in international and developed country fora.

It also highlights the continued purchase of the national interest as a means of mobilizing the key state

institutions needed to implement global legal regimes in Africa.

Nodes, Frames and Nations

Debates on intellectual property and access to essential medicines in Kenya can be seen as moments of

global health governance, which has been powerfully modeled by Drahos, Burris and Shearing using

nodal theory (Burris et al., 2005, p. 30). On this account collective actors, such as access to medicine

campaigns and industry associations, as well as institutions, such as parliament and the courts, are “nodes”

which pursue certain governance outcomes by enrolling other nodes and leveraging their powers. The

governing potency of a given node depends on: (1) its institutional structure; (2) the material resources

available to it; (3) the technologies which it can use to exert influence, such as publicity, but also its legal

powers and rights; and (4) its characteristic “mentality,” that is how it understands problems and

communicates the importance of solving them (Burris et al., 2005, pp. 37–9). The emphasis on publicity

and communication suggests that global health governance has an important rhetorical dimension. Nodes

neither govern and nor are they enrolled solely by mechanical means, such as legal compulsion, physical

force or bribery, but also through plausible argument. Of course the law itself may specifically require

authorities to engage in rhetorical action: for example, promoting awareness of and respect for IPRs.

3

Law

enforcement against counterfeiters may also be staged to gain such publicity.

4

In this paper, we are,

however, chiefly concerned with the persuasive strategies deployed by activist and corporate groups,

seeking to enroll Kenyan state nodes toward their desired governance outcomes: that is more or less

permissive patent rules and enforcement in relation to medicines.

These rhetorical strategies can be usefully investigated using the theory of “framing” developed by

scholars of social movements. “Frames” have been defined as schemes of interpretation, guiding

collective action, which offer a diagnosis of a particular social problem and a prognosis as to how it is to be

corrected, as well as a language capable of mobilizing adherents to the cause (Benford and Snow, 2000,

pp. 611, 614, 615).

5

McInnes and Lee have identified five key frames which shape campaigning and

governance in global health: evidence-based medicine, human rights, economics, security and

development (McInnes and Lee, 2012, p. 191). Among the factors determining the success of a given

frame are: the credibility of its proponents; its salience to the needs and imperatives of the node to which it

is addressed; its resonance with the “mentality” of that node and with broader cultural values, myths and

common sense (Benford and Snow, 2000, pp. 611, 621, 622, 628). For example, national health officials

seeking a scientific basis for measures to combat infectious diseases are more likely to be persuaded where

that problem is cast in terms of evidence-based medicine, gathered say, by the World Health Organization

(WHO) (Kamaradt-Scott, 2012, p. 111). Framing is a strategic, dynamic and contingent process as rival

groups seek to gain acceptance for their own presentation of the issues. For instance, economic

justifications for high levels of patent protection have been met by human rights claims for wider access to

medicines (Drahos, 2007, p. 111). Indeed a given frame may be taken over and rearticulated by the

opposing side, as where an economic case is made for relaxing patent standards (Williams, 2012, p. 127).

Framing the National Interest John Harrington and Alasdair O’Hare

©2014 John Wiley & Sons Ltd

The Journal of World Intellectual Property (2014) Vol. 17, no. 1–2 17