Kenya’s Anti-Counterfeit Act: Intellectual Property and Constitutionalism Collide

In 2009, three HIV/AIDS patients petitioned the Constitutional Court to declare the Anti-Counterfeit Act illegal because it could deny them access to generic medicines. The move sought to have the 2008 Anti-Counterfeiting Act made unconstitutional on the grounds that it could rob them of their right to life.

The Constitutional Court is due to deliver a verdict on March 9, 2012. As one of the petitioners in this case explains:

“The court will rule on whether, the Kenya Anti-Counterfeit Act of 2008 which was enacted by the national parliament infringes on the right to access more affordable medicines especially for treatment of HIV and other public health challenges. Depending on the decision, it is widely expected that this case , the first legal challenge in Africa against a new push for anti-counterfeit legislation, could have significant implications on other countries preparing similar laws.”

Public health advocates have consistently argued that the Anti-Counterfeit Act’s definition of what constitutes a counterfeit product is too vague, and could be used to block the import and local manufacture of generic drugs. The Act is so broad that it could, for example, allow a pharmaceutical company to charge legitimately produced generics as counterfeits in Kenya even if its patent is not registered there, which is argued to be “against the whole principle of territorial application of IP rights”.

The Act defines ‘counterfeiting’ thus:

“…taking the following actions without the authority of the owner of any intellectual property right subsisting in Kenya or elsewhere in respect of protected goods:
(a) the manufacture, production, packaging, re-packaging, labeling or making, whether in Kenya or elsewhere, of any goods whereby those protected goods are imitated in such manner and to such a degree that those other goods are identical or substantially similar copies of the protected goods;…

(b) the manufacture, production or making, whether in Kenya or elsewhere, the subject matter of that intellectual property, or a colourable imitation thereof so that the other goods are calculated to be confused with or to be taken as being the protected goods of the said owner or any goods manufactured, produced or made under his licence;

(c) the manufacturing, producing or making of copies, in Kenya or elsewhere, in violation of an author’s rights or related rights.”

The effect of this law is that it applies civil and criminal penalties to generic medicine manufacturers. Many HIV-positive citizens rely on generic anti-retrovirals because they are cheap and affordable. Therefore, enforcing this Act will limit their access to generic HIV medicines.

In many ways, this case is reminscent of the South African Constitutional Court case involving the Minister of Health and the Treatment Action Campaign (TAC). In that case, the TAC contended that restrictions on the availability of ARVs were unreasonable when measured against the human rights principles of the South African Constitution. TAC contended that the Constitution commands the state and all its organs to give effect to the rights guaranteed in the Bill of Rights, in particular sections 27(1), 27(2) which deal with the right to have access to health care services.

Finding in favour of the TAC, the South African Constitutional Court held that ss.27(1) and (2)
of the Constitution require the government to devise and implement within its available resources a
comprehensive and co-ordinated programme to allow access to health services to combat HIV.
The moral of the story here is that the rights of people living with HIV/AIDS to have access to ARVs came to be more widely seen as an inalienable human right (enshrined in the Constitution) distinct from the temporary property right associated with intellectual property.

Kenya’s 2010 Consitution in Article 43 has similar wording to South Africa’s section 27 and goes even further by adding the words: “highest attainable standard of health”. The intention of the constitutional drafters is therefore beyond question. IPKenya hopes that the Constitutional Division of the High Court will be guided by the TAC decision in South Africa and find in favour of the petitioners. IPKenya is aware that the Anti-Counterfeit Agency has been engaging with its constituent member agencies as well as other interested parties to come up with recommendations on possible amendments to the Act and its Regulations.

2 thoughts on “Kenya’s Anti-Counterfeit Act: Intellectual Property and Constitutionalism Collide

  1. It is debatable whether the Constitutional court will address the problem of the Anticounterfeit law and generic medicine, at least from recent experience of Kenyan courts in handling IP issues. For example, recall the earlier ruling by the high court that the Kenyan Anticounterfeit Act had been applied to seize generic medicine a consignment of generic medicine in Europe!

    The problem gets even more complicated owing to misunderstanding (generic-izing) of what is meant by generic medicine vis-à-vis IP law. The question that ought to be answered is under what circumstances can generics exist in the market without infringing IP rights.

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