By Timothy Wafula
“Vaccine equity is the challenger of our time, and we are failing,” WHO Director-General Tedros Adhanom
Compared to the high-income nations, the vaccine situation in Kenya and other African countries speaks of unprecedented inequality, inequity, and a broken system in the face of a ravaging pandemic.
The access gap continues to widen despite the irrefutable fact that equitable access to safe and effective vaccines is critical to ending the COVID-19 pandemic. In addition, it is also clear that the absence of a comprehensive approach to ensure vaccine access in developing countries threatens to prolong the pandemic, escalating inequalities and delaying the global economic recovery.
According to ourworldindata.org, only 1.43% in Africa had been fully vaccinated against COVID-19 by July 15th 2021, compared to 52.4% in the UK, 48.1% in the US, 45.6% in Germany, and 40% in France. At the same time, the positivity rate has declined to 3.20% in the UK, 1.40% in France, 4.80% in the US, and 1.10% in Germany.
These figures suggest a worrying trajectory: a comparably worse off situation in Africa, a region with extremely low vaccination figures than regions with higher vaccination.
For instance, Kenya received its first batch of 1.02 million doses of Astra Zeneca vaccine in March 2021. It has vaccinated an estimated 1.18 million people with at least one dose of the vaccine, representing 1.85% of the population. As per the National COVID-19 vaccines deployment and vaccination plan 2021, Kenya had set out to vaccinate 30% of its 49 million people (equivalent to an estimated 15.8 million people) by the end of June 2023 in three phases.
Phase one targeted 1.25 million frontline health workers and critical services comprising teachers, uniformed forces, immigration officers, and instructors in religious institutions and people aged 58 years and above.
Although the effectiveness of COVID-19 vaccination in preventing new severe infections in the general community is still unclear, it is a fact that vaccination can substantially mitigate illness, hospitalisations, and deaths. If the current trend continues, we will likely witness a scenario where African countries will be fighting recurrent upsurges in infections long after western countries have ‘stabilised.’
African countries have further been hard hit by India’s decision to halt the export of the two-shot AstraZeneca vaccine temporarily. African countries rely on vaccines from the global vaccine sharing initiative, COVAX, which largely depended on vaccine supplies from the Serum Institute of India (SII). However, a lethal second wave in India led to an export restriction by the country.
Currently, Africa is in the third wave, with over 23 countries experiencing increased infections and deaths. According to the Africa CDC, this wave has seen cases rising faster than the previous two, with over one million new cases being reported over the last month.
Inequity across developed and developing countries: a case for the TRIPS Waiver
In October 2020, India and South Africa proposed to the World Trade Organization (WTO) a waiver on the Agreement on Trade-Related Aspects on Intellectual Property Rights (TRIPS). The proposal requests that WTO members waive four categories of Intellectual Property rights – copyright, industrial designs, patents, and undisclosed information for all COVID – related health products until the majority of the world population receives effective vaccines and develops immunity to COVID-19.
Over 60 member states have supported the proposal. However, most high income or wealthy countries have continued to oppose it.
The TRIPS Agreement sets minimum standards for protecting intellectual property rights (IPRs) for all fields of technology, including the pharmaceutical sector. All 164 countries that are members of the WTO are obligated to protect intellectual property rights that include patents, copyrights, industrial designs, and trade secrets through enacting and enforcing national intellectual property laws that are compliant with the TRIPS Agreement.
However, access to medicines at affordable prices has been a recurrent concern for the global community since the TRIPS Agreement was adopted in 1995. Rapid access to affordable medical products, including diagnostic kits, medical masks, other personal protective equipment and ventilators, and vaccines and medicines for the prevention and treatment of patients, is now a matter of top global concern.
By adopting the TRIPS waiver proposal, WTO members will have the legal right under international trade rules not to apply, enforce or implement four types of intellectual property under the TRIPS Agreement – patents, undisclosed information, industrial design, and copyrights – concerning COVID-19 medicines, vaccines, diagnostics, and related technologies and materials, for the duration of the pandemic, until global herd immunity is achieved.
A waiver will ensure that IPRs do not create barriers to timely access to COVID-19 vaccines and other medical products. It will also help avoid procedural and administrative delays in addressing IP barriers and allow for potential collaboration to develop, produce, and supply needed medical products.
The foregoing will result in more countries and companies producing COVID-19 medical products, increasing availability and access to these products.
Voluntary action not working
The inequitable access to COVID-19 vaccines in Africa demonstrates that voluntary action has not worked— whether timely sharing of doses with low and middle-income countries or sharing knowledge through the World Health Organization. For instance, high-income countries have elbowed out COVAX and bought millions of doses directly from manufacturers.
In his address to a special ministerial meeting of the Economic and Social Council on April 16th, 2021, WHO Director-General Dr Tedros Adhanom noted that of the 832 million vaccine doses administered, 82 per cent had gone to high or middle-income countries, while only 0.2 per cent to their low-income counterparts. And that in high‑income countries alone, one in four people had been vaccinated, a ratio that drops to 1 in 500 in poorer countries.
Further, bilateral deals between high-income nations and manufacturers have reduced the global supply of vaccines, driven up prices, and contributed to inequitable access. Moreover, without the widespread backing of member nations, COVAX loses its ability to negotiate the equitable pricing and distribution of vaccines. Legal commitments are needed, and the proposed intellectual property waiver is appropriate.
Consequences of this inequitable access
First, it has been projected that if the current vaccine inequity persists, mass immunisation efforts for poorer countries could be delayed until 2024 or beyond, prolonging human and economic suffering for all countries.
The delay in immunisation is likely to result in the continued uncontrolled spread of COVID-19 worldwide with the risk of developing further variants of the virus. In short, developing and poor countries are likely to continue being exposed to the infection, leading to serious health risks, deaths and suffering. This situation will further widen the gap between rich nations and poor nations.
For instance, ‘vaccines passports’ are likely to lock out citizens of developing and poor countries from travelling to western countries. This could be through the introduction of COVID-19 vaccination as a mandatory travel requirement to these countries. We are also witnessing “vaccines diplomacy” in play where some countries are using their vaccines to strengthen regional ties and enhance their power and global status.
The detrimental impact of these developments compared to any potential benefits is unlikely to be enjoyed by poor and developing countries if the current access to vaccines trend is sustained. In conclusion, all countries must recognise the need for solidarity and adopt global measures to advance equitable access to vaccines.
Urgency needed in adopting TRIPS waiver
Adopting the TRIPS waiver is one such measure that addresses the legal barriers to maximising the production and supply of medical products needed for COVID-19 treatment and prevention.
Even as the TRIPS waiver is being negotiated, African countries should deliberate efforts to exploit existing flexibilities in the TRIPS Agreement to produce or procure essential COVID-19 medical products. The flexibilities operate as ‘policy spaces’ for countries to mitigate the impact of patents.
The adoption of the Doha Declaration on TRIPS and Public Health, 2001, provided clarity about the flexibilities in the TRIPS Agreement and many developing countries used these flexibilities to facilitate access to medicines, especially in the HIV and AIDS context.
The same should be extended to the COVID-19 situation. An example of flexibility is the right to grant compulsory licenses and the freedom to determine the grounds upon which such licenses are granted.
Pharmaceutical companies and research institutions also need to share their technology, know-how, and intellectual property on COVID-19 vaccines and treatments through the WHO’s COVID-19 Technology Access Pool – to maximise production by other quality producers.
Timothy Wafula is a health and human rights lawyer and Program Manager of the Health and Governance thematic area at KELIN.
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