JANUARY 26, 2012 BY SEAN FLYNN
The European Union Signed ACTA today – months after withholding its signature at the official signing ceremony in Japan. But the political atmosphere in the EU remains very much in flux. The key to the future is that, unlike the US, the EU has admitted that ACTA is a binding international agreement and therefore requires parliamentary approval. But Parliamentary approval in the EU is in doubt.

Marietje Schaake, a pro-business member of the Alliance of Liberals and Democrats for Europe in the European Parliament, known for being “Europe’s most wired politician,” recounted this week that “the European Parliament has the decisive voice on ACTA,” with the first public “exchange of views” on ACTA in the key committee scheduled for February 29th or March 1st. The committee will most likely hold its vote on the ratification of the treaty in April or May, with a full parliament vote expected in June.

The EU vote is likely to be close, especially in the wake of the short term defeat of SOPA and the heightened awareness of internet freedom in its wake. As Schaake notes:
“In November 2010 we proposed an alternative resolution on ACTA, which intended to take away the main concerns. It was voted down by a very slight majority, . . . 16 votes, out of 736.”
So Schaake and others are calling for a grass roots campaign to swing the handful of votes needed to defeat ACTA in the EU.

Meanwhile, the U.S. is still holding firm to its position that the executive branch can bind Congress to ACTA without the traditional congressional approval required of treaties or internationally binding Executive Agreements. Senator Wyden challenged the administration on this plan, most recently to the State Department’s top legal advisor, but as of yet the administration has not backed down or provided legal reasoning justifying the constitutionality of its course of action. A Constitutional showdown with Congress may be looming.

No other country has ratified ACTA. The Mexico Senate has voted once to reject it, albeit in a non-binding resolution. In the post-SOPA landscape, it looks more unlikely that it will go into effect than it did a few months ago. But the ultimate tally will be sure to be close.

Source: http://infojustice.org/archives/7508

Gichinga Ndirangu, HAI Africa

25 January 2012

After almost three years of waiting since three petitioners living with HIV filed a constitutional petition challenging the implementation of a law on anti-counterfeiting, the Kenyan High court is due to deliver a verdict on March 9.

The court will rule on whether the Kenya Anti-Counterfeit Act of 2008 which was enacted by the national parliament infringes on the right to access more affordable medicines especially for treatment of HIV and other public health challenges. Depending on the decision, it is widely expected that this case, the first legal challenge in Africa against a new push for anti-counterfeit legislation, could have significant implications on other countries preparing similar laws.

On April 23, 2010 Kenyan High Court Judge Roseline Wendoh issued a conservatory order stopping the government from implementing the Anti-Counterfeit Act with respect to medicines until the case heard and determined.

The three petitioners in the case have argued that the Kenyan law should be declared unconstitutional on the grounds that it infringes on their right to health by giving a broad definition and interpretation on what constitutes counterfeit medicines in a manner that affects access to more affordable generic medicines.

On January 24, 2012 the lawyers representing the petitioners and interested parties made oral submissions to the trial judge to which the Attorney-General, as legal representative of the government, was invited to respond.

The petitioners argued that the government was obliged to secure the right to treatment of all persons living with HIV which required unfettered access to medicines. The Kenyan law contained ambiguities, which if misinterpreted or abused would be detrimental to the government’s ongoing efforts to ensure access to essential medicines for all Kenyans.
The court was invited to address these ambiguities to safeguard any discrimination against more affordable generic medicines. It was argued that the definition of ‘counterfeiting’ could easily be misinterpreted, with a devastating impact on generic medicines which form the backbone of Kenya’s public health programmes.

The power of seizure conferred on the police could be abused to affect imports of generic medicines because there were no clear guidelines to safeguard the rights of importers and patients. This would result in derogation from constitutional rights and freedoms regarding unfettered access to treatment. The court was invited to take cognizance of seizures of generic medicines by customs officials in various transit points like Holland in the recent past.

“This is not an academic petition; the risk is real,” warned Steve Luseno, lead counsel for the three petitioners.

Mr Omwanza, representing the interested parties, warned that the Kenyan law went beyond the country’s obligations under the Agreement on Trade-related Aspects of Intellectual Property Rights (TRIPS) by seeking extra-territorial enforcement of Intellectual Property Rights not recognised under Kenyan law.

The UN Special Rapporteur on Health and Human Rights, Anand Grover, invited the court to consider that access to medicines is key to the progressive realisation of the right to health and that the Kenyan law undermined this right.

In his response, the Attorney-General contested that the Act limited or threatened access to generic medicines. The AG argued that generic medicines were distinct from counterfeit medicines and argued the need to check on counterfeits because of the risk to health. It was argued that the Kenyan Act was necessary to regulate counterfeit medicines.

The High Court is set to make a ruling on March 9. If declared unconstitutional, the Kenyan parliament will be expected to review the Act to safeguard the right to access treatment and address the ambiguity over counterfeit and generic medicines.

Gichinga Ndirangu is Regional Coordinator, HAI Africa

By Ellen Hodnett, professor ellen.hodnett@utoronto.ca

Traditional birth attendants, regardless of how well trained or resourced, are commonly thought to be a poor substitute for care by skilled birth attendants (defined as care providers with professional qualifications, such as doctors, midwives, or nurses) in a healthcare facility. In the linked meta-analysis of studies of deliveries assisted by traditional birth attendants, Wilson and colleagues found that offering training, support, and resources—such as clean delivery kits—to traditional birth attendants reduced perinatal and neonatal deaths in low income countries. This study provides compelling evidence that trained and supported traditional birth attendants save babies’ lives.

There are enormous economic and logistical barriers to the provision of skilled birth attendants in many countries, especially where women live in remote areas with inadequate transport to healthcare facilities. “Healthcare facility” is a term that encompasses everything from a stand alone birth centre to a tertiary care hospital. There is little evidence on the relative merits of most types of healthcare facility, although a review concluded that outcomes for healthy childbearing women and their babies are better for hospital based alternative birth settings than for conventional hospital wards. There are also enormous obstacles to changing care givers’ attitudes and behaviours in healthcare facilities. Innovations such as the World Health Organization Reproductive Health Library and the Better Births initiative in South Africa have involved comprehensive strategies to increase the likelihood of humane evidence based care, with modest success.

The authors of the current meta-analysis acknowledge the heterogeneity of interventions in the included studies, but they argue that the consistency of the individual studies’ findings supports the message that traditional birth attendants make a difference. It could be argued that heterogeneity poses a major challenge to successful implementation of interventions, particularly in resource poor countries, because the key components of the intervention under study cannot be definitively identified. However, the notion that the “active ingredients” of a complex intervention can be pinpointed is rooted in an assumption that the various components can be treated as though each is a single intervention and standardised into a one size fits all package. A BMJ editorial challenged this view, arguing that effective complex interventions are based on theory driven principles, which ensure that the process is standardised while the content is tailored to identified community needs.

Over the past six years, despite massive efforts, there has been little progress towards achieving millennium development goal 4 (reducing child mortality) or millennium development goal 5 (improving maternal health), except in a few countries where recent statistics give reason for hope. We know much about what constitutes safe and effective care for most pregnant women. The major research challenges are in the translation of this knowledge—how to effectively implement what is known, and how to influence policy to support the proper delivery of interventions that are known to be effective. With clear evidence that training and support for traditional birth attendants reduces perinatal mortality, WHO is ideally positioned to lead the way in the knowledge translation efforts that are the crucial next steps. But WHO cannot act without the invitation and backing of countries themselves. How can the political will be created, particularly in societies where women and children are at best second class citizens?

At least one country has resorted to legislation. The review of continuous support for women during childbirth was used to persuade the government of Brazil to enact the “Companion Law,” which states that all women have the right to companionship during labour and birth. But surely legislation is not the only, or best, solution to all forms of substandard care. We badly need more effective and flexible means of ensuring knowledge translation.

Trained, supported, and adequately resourced traditional birth attendants save babies’ lives and potentially save their mothers’ lives too. Some countries may welcome communication of this information. For settings in which less positive attitudes to maternal and child health prevail, the urgent research priority is to devise effective knowledge translation strategies that will ensure that the fundamental human rights of women and children are met.

Source: BJM (Helping doctors make better decisions)

http://www.bmj.com/content/344/bmj.e365