Research Paper 233, 14 April 2026
Access to Medicines and Intellectual Property: taking advantage of TRIPS flexibilities for post-COVID-19 resilience in Africa
By Ismaelline Eba Nguema
The call by India and South Africa for the provisional lifting of patents on pharmaceutical products has had the merit of putting the issue of access to medicines and public health back on the agenda. However, the difficulty of reconciling access to medicines and intellectual property has many factors which cannot be reduced solely to the commitments of WTO member states. A more in-depth analysis reveals the intrinsic limitations of some of its members. These include the weakness of the legislative and regulatory framework in some countries, such as those on the African continent. Consequently, the aim of this article is to demonstrate that effective use of the flexibilities in the TRIPS Agreement is only possible if African countries equip themselves with an appropriate legal framework, in addition to the judicial institutions that are supposed to guarantee the effectiveness of the standards adopted. The methodology used consisted of an exegesis of various documents, including articles, working documents of the TRIPS Council, declarations and resolutions of various bodies, as well as the national case law of certain WTO members, etc. This method led us to conclude that the compatibility between access to medicines and intellectual property is caught between human rights and economic interests. However, for the TRIPS flexibilities to be fully utilized by African countries, they would benefit from reforming their legal frameworks to take advantage of the flexibilities in the TRIPS Agreement.