Stakeholder’s resolve to review the definition of “counterfeiting” in the Kenyan law; an opportunity to ultimately ensure access to medicines

Published on Friday, 27 September 2013 11:41

In a promising turn of events, the Kenya Anti counterfeit Agency (ACA) has agreed to review the term “counterfeiting” as defined in the controversial Anti-Counterfeit Act, 2008.

This was after a stakeholder’s forum held that the Utalii Hotel in Nairobi on 25th September 2013. Since the judgment of Justice Mumbi in the landmark case ‘Patricia Asero Ochieng and two others vs. the Attorney General and another (2012), (Petition No. of 409 of 2010), health rights activist have relentlessly been pushing to ensure legislations and policies on anti-counterfeiting, in Kenya (Anti-Counterfeit Act 2008) and regionally, the East African Community Anti-Counterfeit Bill (2010), do not threaten access to affordable generic medicines. During the forum convened by the agency, key issues raised by health rights activists for amendment included;

The term counterfeiting in the Act due to the very ambiguous definition fails to appreciate the different regimes of Intellectual Property (IP) rights treating all property rights infringement in the same manner.
The powers of enforcement of IP rights go beyond our national territory thus engaging domestic resources to enforce private IP rights not recognized in Kenya.
Harmonization of the provisions in light of the provisions of the Constitution and other existing intellectual property rights legislations in Kenya. They cited overlapping of the mandate of the ACA with other agencies such as the designation of customs officials as drugs safety inspectors, which is the responsibility of the Kenya Pharmaceuticals and Poisons Board.

“The term “counterfeiting” as defined in Section 2 of the Act is a major source of confusion and presents challenges in the interpretation of numerous provisions of the Act. We welcome this review process and with support from our national and regional partners, we will continue to engage the ACA and parliament to ensure the adaptation of provisions that will not only guarantee access to affordable generic medicines but also ensure national development by facilitating the growth of legitimate trade in Kenya.” commented an optimistic Melba Katindi; KELIN’s Advocacy and Training Officer, after the forum.

Health rights activists are hopeful that the proposed amendments will be made in line with the minimum requirements of the World Trade Organization (WHO) Trade Related Aspects of Intellectual Property Rights (TRIPs) Agreement and further recommendations by United Nations Development Programme (UNDP). They will be making comprehensive submissions in this regard to the ACA in the coming few weeks. It is expected that the review of the Anti-Counterfeit Act will align it with the provisions of the Constitution and harmonize with other relevant national and regional laws.

Once finalized, these proposals will be submitted to the Ministry of East African Affairs, Commerce and Tourism to betabled before parliament for ammendment.

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Source: KELIN Kenya