The Right to Health and Constitutional Imperatives for Regulating the Exercise Of Pharmaceutical Patents Rights in Sub-Saharan Africa

Abstract

The last half-century has spawned a considerable debate about human rights and its regime complex.1 This regime complex consists of a web of interlocking national laws, constitutions, customs and practices, judicial decisions, and international and regional agreements regarding human rights. Also prominent in the human rights rhetoric is a growing body of academic literature describing human rights norms as: jus cogens, global morality, obligations erga omnes, universal entitlements, the ‘veritable Magna Carta’ of humanity, and the inherent dignity and worth of humans.2 In legal circles, the concept of human rights has attained a high priority status in the hierarchy of international legal norms as compared with private interests in pharmaceuticals. Indeed, human rights norms are universal ideals that transcend any limitations and inadequacies associated with the Western concept of property ownership that supports the grant of exclusive rights over knowledge goods, such as medicines, to patentees (which include many pharmaceutical companies). Equally, the concept of human rights is immune to the criticisms levelled at the globalised patent regime and its workings in Sub-Saharan Africa (hereinafter SSA or Africa).3