World Health Organization

The African Pharmaceutical Technology Foundation (APTF) was established in 2023 to improve Africa’s local pharmaceutical capacity and access to technologies needed to discover and manufacture medicines. This new initiative was prompted by the vaccine inequities experienced during the COVID-19 pandemic. In this article, I highlight four critical concerns regarding the structural and operational framework of the APTF, which have the potential to undermine the Foundation's objectives and legitimacy: the misallocation of public resources due to the existence of a similar agency established by the African Union (AU), the Foundation's endorsement of BioNTech's opaque "black box" system, which conflicts with its objectives, the continental approach that overlooks the diversity of the African continent, and the lack of a clear public accountability structure in its governance framework. Consequently, I offer preliminary suggestions on how these concerns might be addressed.

The book discusses the manner in which patent rights adversely affect access to medicines by developing countries and proposes ways to mitigate this. From the author’s point of view, the current international patent rights system as embodied in the World Trade Organization’s (WTO) Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS Agreement) is too concerned with protecting the interests of innovators at the expense of all other users. In this way, the TRIPS Agreement, by introducing mandatory minimum and stronger standards for the protection of patent rights, has provided an incentive for pharmaceutical companies to charge inflated prices while concentrating their investments mainly towards diseases that affect developed countries. Further, the TRIPS Agreement has diminished the policy space available for developing countries to design patent regimes that are suitable for their developmental and technological needs and circumstances.

In South Africa’s constitutional scheme, all public power, including foreign policy powers, is subject to judicial review for legality, rationality and compliance with the Bill of Rights. However, the scope of the judicial review – and in particular the standard of rationality – is informed by a certain deference to the executive, in order to respect the democratic principle and its institutional competence. The level of deference will depend on the facts and circumstances of each case. This means that the level of scrutiny to be afforded the other branches of government’s respective foreign relations powers and responsibilities cannot be predicted with any degree of confidence. Rather, the particular circumstances and context of the case will be the primary concern of the courts.

This colloquium will examine Africa’s response to the pandemic, in particular, those relating to international economic law. This colloquium fills the gap left by the absence of our biennial conference in 2021 and will instead hold virtually in July 2021.

Traditional medicines have an equally important role as vaccines, therapeutics and medical devices protected through classical IPRs such as patents. For this reason, it is important to include traditional medicines within the scope of IPR protection, including within the WTO’s TRIPS Agreement. Doing so would go beyond the classical debate of protecting medicines, vaccines and therapeutics mainly through patents as currently understood within the TRIPS Agreement.

Halting the rapid transmission of COVID-19 and reversing the trend of consequential global distress is a global concern and goal. As the WHO has rightly pointed out, this goal is only achievable when everyone, everywhere can access the health technologies they need for COVID-19 detection, prevention, treatment and response. This highlights the importance of international cooperation and solidarity for restoring global health security, now and for the future.

International law constructed along the voluntarist orthodoxy doesn’t help in the time of pandemic. It leaves the poorer at the good will of the mighty, for it largely ignores the actual power relations between states. The inter-state deals struck “voluntarily” and the policy choices thus fixed reflect the bargaining power of the States. This being the case, the international law is likely to reinforce and perpetuate inequalities, rather than being a check against the use of political power. As the post-corona crisis is likely to strike the poorest nations hardest, the bright future for some may mean dim prospects for others.

To mitigate the risk of speculation, I have proposed  that the international community should create a Debts of Vulnerable Economies Fund (a “DOVE” fund) to help African countries deal with their private sector debt. The fund could be created by an African institution such as the African Development Bank or the African Union. The fund should be financed by governments, foundations, financial institutions, companies and individuals. In order to demonstrate its independence from both debtor countries and creditor institutions it should be managed by an independent board representing all stakeholders.

Corruption takes many shapes in times of crisis, improper procurement decisions is one of them. In corona times, emerging corruption trends in the health care sector are taking advantage of the greater demand for medical goods and the resource deficit. If not addressed properly, the possible consequences of corruption might echo louder than the pandemic itself in the most unequal regions of the globe, such as the Americas and Africa, particularly in countries where corruption networks had already permeated into the health care system.

Aside from price-related breaches of competition law, horizontal coordination measures are now put in place by businesses to provide essential services to consumers in order to keep the economy afloat. Such coordination, which ordinarily raises competition red flags, is now temporarily permitted in some jurisdictions, especially as the economy now runs on a skeletal basis. As the exigencies of the pandemic seem to have upended market practice, one wonders if competition law rules are fit for this perilous time and ponders on the intervention of the Nigerian Federal Competition and Consumer Protection Authority (“The Commission”) in the situation.