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.

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