The Rise of Constitutional Intellectual Property in Kenya

In a recent judgment in the case of Patricia Asero Ochieng, Maurine Atieno and Joseph Munyi vs Republic H.C.C.C. Petition No. 409 of 2009 handed down by Lady Justice Mumbi Ngugi (also known as “Kenyan Jurist” in blogging circles), the Constitutional Division of the High Court held that one of Kenya’s intellectual property laws namely the Anti Counterfeit Act was unconstitutional.

The full text of the judgment is available here.

At paragraph 87 of the judgment, the court’s ruling on the unconstitutionality of this IP act reads as follows:

Sections 2, 32 and 34 of the Anti Counterfeit Act threaten to violate the right to life of the petitioners as protected by Article 26 (1), the right to human dignity guaranteed under Article 28 and the right to the highest attainable standard of health guaranteed under Article 43 (1) and the court hereby grants the declarations sought by as follows:

(a) The fundamental right to life, human dignity and health as protected and envisaged by Articles 26(1), 28 and 43(1) of the Constitution encompasses access to affordable and essential drugs and medicines including generic drugs and medicines.

(b) In so far as the Anti Counterfeit Act, 2008 severely limits or threatens to limit access to affordable and essential drugs and medicines including generic medicines for HIV and AIDS, it infringes on the petitioners’ right to life, human dignity and health guaranteed under Articles 26(1), 28 and 43(1) of the Constitution.

(c) Enforcement of the Anti Counterfeit Act, 2008 in so far as it affects access to affordable and essential drugs and medication particularly generic drugs is a breach of the petitioners’ right to life, human dignity and health guaranteed under the Constitution.

At the beginning of the year, IPKenya in a post titled “Kenya’s Anti-Counterfeit Act: Intellectual Property and Constitutionalism Collide” argued that the Constitutional Division of the High Court ought to consider the persuasive jurisprudence emanating from South Africa’s Constitutional Court in the landmark case of Minister of Health and Others -v- Treatment Action Campaign and Others (2002). In this case, it was held that the failure of the state to ensure access to the drug Nevirapine to pregnant women to prevent mother to child transmission of HIV was a violation of the constitutional right to the highest attainable standard of health.

The present case that pitted the State against individuals living positively with HIV.
The crux of the dispute before the court was whether, by enacting sections 2 in its present form, and by providing the enforcement provisions in section 32 and 34 of the Anti-Counterfeit Act, the State is in violation of its duty to ensure conditions are in place under which its citizens can lead a healthy life; and whether these provisions will deny the petitioners access to essential medicines and thereby violate their rights under Articles 26(1), 28 and 43(1), as well as sections 53 with regard to the rights of children.

By finding in favour of the petitioners (the individuals living positively with HIV/AIDS), IPKenya believes that the courts have in this judgement, set a landmark precedent in law. IPKenya is particularly pleased with the well-articulated and clear reasoning of the judge in this case.

Below are some of the salient remarks made by the learned judge in arriving at her ruling:

At paragraph 78:

“In my view, the definition of ‘counterfeit’ in section 2 of the Act is likely to be read as including generic medication. I would therefore agree with the Amicus that the definition ‘would encompass generic medicines produced in Kenya and elsewhere and thus is likely to adversely affect the manufacture, sale, and distribution of generic equivalents of patented drugs. This would affect the availability of the generic drugs and thus pose a real threat to the petitioners’ right to life, dignity and health under the Constitution.”

At paragraph 83:

“The Anti-Counterfeit Act has, in my view, prioritised enforcement of intellectual property rights in dealing with the problem of counterfeit medicine. It has not taken an approach focused on quality and standards which would achieve what the respondents have submitted is the purpose behind the Act: the protection of the petitioners in particular and the general public from substandard medicine. Protection of consumers may have been a collateral issue in the minds of the drafters of the Act. This is why for instance, the rights of consumers of generic medicine are alluded to in the proviso to Section 2 of the Act.”

At paragraph 86:

“While the intellectual property rights of patent holders should be protected, where there is the likelihood, as in this case, that their protection will put in jeopardy fundamental rights such as the right to life of others, I take the view that they must give way to the fundamental rights of citizens in the position of the petitioners.”

In conclusion, IPKenya concurs with the learned Judge at paragraph 88 that it is incumbent on the state to reconsider the provisions of section 2 of the Anti-Counterfeit Act alongside its constitutional obligation to ensure that its citizens have access to the highest attainable standard of health and make appropriate amendments to ensure that the rights of petitioners and others dependent on generic medicines are not put in jeopardy.