Patricia Asero Ochieng’s argument


Remember “Silence = Death”? There’s more. Withholding = Death. Withholding necessary funds. Withholding lifesaving medications. Withholding life. In Nairobi last week, Patricia Asero Ochieng, Lucy Ghati, and Rose Kaberia joined Maureen and Anyango and many others to raise a ruckus about the trickle of Pepfar funding for people in Kenya living with AIDS. In particular, they were raising their voices, placards and fists over $500 million dollars allocated but not yet spent for antiretroviral medications. That’s a lot of money, drugs, and lost lives. And of course all the major agencies blame all the other major agencies. US officials argue it’s Kenyan ministerial inefficiencies. Kenyan officials take one of two lines: it’s US processes, or, it’s all fine and you’re overreacting.

Those living with AIDS, such as Patricia Asero Ochieng, know better. They know that all the agencies are guilty of squandering time, money, lives. They know that neither the US government nor the Kenyan government nor any of their proxies has ever really addressed the stigma, has never really addressed the toxic nexus of poverty and health and illness, has never ever really listened to the people or communities living with HIV and AIDS.

Women like Patricia Asero Ochieng know about the guilt, and they know that the only way forward is organizing and standing up to the powerful. Talking truth to power may be important, but organizing a counter-power equal to and greater than the ruling power … that’s the ticket.

Patricia Asero Ochieng has been demonstrating that wisdom for years. She was the named plaintiff in 2009, in something called Petition No. 409. In 2008, Patricia Asero Ochieng saw new legislation about intellectual property rights and counterfeit drugs. She looked into it and realized that much of the discussion was actually about generic drugs, and she knew that her access and the access of all the women, children, men in Kenya, and beyond them across the continent and the world, was under threat. So, Patricia Asero Ochieng and two others, Maurine Atieno and Josephy Munyi, took the State to court. They were joined by the local AIDS Law Project, directed by Jacinta Nyachae. Arguments were made in courts and arguments were made in the streets, homes and hallways of Kenya.

Patricia Asero Ochieng’s argument was direct and powerful: the Kenyan Constitution protects the right to life, dignity, and health of people above all else. In particular, above the ‘right’ to protection for intellectual property. For three years, Patricia Asero Ochieng and her colleagues waited and organized, all the while arguing that this is a civil rights issue, a human rights issue, a women’s rights issue. Women’s rights both because of the number of women in Kenya living with AIDS and because of the centrality of women to the pandemic, from mother-to-child transmission to primary caretakers of extended, and often devastated, households and communities.

Justice Roseline Wendoh effectively agreed, and, in April of 2010 stopped implementation of the law with respect to the generic case. Then it sat until April 20, 2012, when High Court Judge Mumbi Ngugi concurred with the earlier ruling, the core of which is:

The right to life, dignity and health of people like the petitioners who are infected with the HIV virus cannot be secured by a vague proviso in a situation where those charged with the responsibility of enforcement of the law may not have a clear understanding of the difference between generic and counterfeit medicine. The primary concern of the respondent should be the interests of the petitioners and others infected with HIV/AIDS to whom it owes the duty to ensure access to appropriate health care and essential medicines. It would be in violation of the state’s obligations to the petitioners with respect to their right to life and health to have included in legislation ambiguous provisions subject to the interpretation of intellectual property holders and customs officials when such provisions relate to access to medicines essential for the petitioners’ survival. There can be no room for ambiguity where the right to health and life of the petitioners and the many other Kenyans who are affected by HIV/AIDS are at stake.

There can be no room for ambiguity when the right to health and life are at stake. Two weeks later, when representatives of the US and Kenyan government were meeting in one of the poshest hotels in central Nairobi, you know who was outside, singing, dancing, shouting, and raising a ruckus? Patricia Asero Ochieng, and all the women and men in Kenya who know and teach … there can be no room for ambiguity.

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