Interpretation of Intellectual Property Rights in Kenya’s Constitution: Lessons from Supreme Court Advisory Opinion on the One-Third Gender Rule

Supreme Court Fountain Kenya

It is true the constitution will present the courts with inconsistencies, grey areas, contradictions, vagueness, bad grammar and syntax, legal jargon, all hallmarks of a negotiated document that took decades to complete. It reflects contested terrains, vested interested that are sought to be harmonized, and a status quo to be mitigated. These features in our constitution should not surprise anybody, not the bench, or the bar or the academia. What cannot be denied, however, is we have a working formula, approach and guidelines to unravel these problems as we interpret the constitution. We owe that interpretative framework of its interpretation to the Constitution itself. – W. Mutunga, CJ, Supreme Court of Kenya, Advisory Opinion No. 2 of 2012.

On 10th October 2012, the Attorney General sought the Supreme Court’s advisory opinion on one notable issue: Whether Article 81(b) as read with Article 27(4), Article 27(6), Article 27(8), Article 96, Article 97, Article 98, Article 177(1)(b), Article 116, and Article 125 of the Constitution of the Republic of Kenya require progressive realization of the enforcement of the one third gender rule or if it requires the same to be implemented during the general elections scheduled for 4th March 2013.

This month, the Supreme Court delivered its Advisory Opinion on the issue raised above, in which the majority view supported progressive realisation of the gender equity rule and whereas a dissenting view in the minority argued for immediate realisation of the constitutional rule. The four Supreme Court judges in majority namely Justices Tunoi, Ojwang, Wanjala, Ndungu were of the opinion that the gender equity principle in Article 81(b) of the Constitution is a statement of aspiration and would only transform into a specific, enforceable right after it is supported by a concrete normative provision.

In arriving at this majority view, the following statement was made:

“The word “shall” in our perception, will translate to immediate command only where the task in question is a cut-and-dried one, executed as it is without further moulding or preparation, and where the subject is inherently disposable by action emanating from a single agency.”

Read the rest of this article on the CIPIT Law Blog here.

Intellectual Property in ICT: The Challenge of Changing Perceptions Among Start-ups in Kenya

iHub Research Study on IP in ICT Kenya

Blame ought to be directed to African startups for patenting things that can easily be discovered by competitors and failing to keep them as trade secrets. – Cisco Senior Vice President, Howard Charney.

Recently iHub Research released an insightful report titled “Intellectual Property in Technological Innovations: Perceptions from Tech Start-ups in Kenyan ICT Hubs”, which is available online here.

The 45-page report published in late November 2012 was the result of an exploratory research with 15 tech startups through in-depth interviews. Here are some of the findings:

1. Only 7% of respondents understand the processes of IP protection and where to go for advice/help and other IP-related services.

2. Over 60% of respondents believe that IP-related information and/or services are difficult to understand, expensive, tedious and in most cases not readily available.

3. Out of the 87% of respondents who claimed to know where to go to seek IP services, 77% of them named KIPI as their first port of call, followed by KECOBO and CIPIT both at 8%.

4. None of the respondents had taken any step to file a patent for their ICT-based innovations despite 87% of them having their products readily available in the Kenyan market.

5. Over 67% of the respondents have not seriously considered copyright protection for their tech innovations with the majority saying “they have not really thought about the whole process and were working on growing their brand first”

6. Over 93% of the respondents had not considered trade secrets protection for their tech innovations largely because they did not understand the process.

7. Over 67% of the respondents have not registered their tech products’ names and logos as trademarks largely due to what the report describes as ‘small company syndrome’, which is defined as the perception that the trademark system is a preserve of the ‘big companies’ that have huge financial backing and can afford to protect their IP way beyond their local jurisdiction. There was also the perception that ‘trademarking’ was ‘not a vital and necessary step in their business structure.’

8. 87% of the respondents had not conducted any searches and/or assessed the intellectual property rights of their competitors, largely because they found the process expensive and saw no need to conduct it as they felt that they had no competition.

ihub research logo

The Report goes on to make several recommendations directed at the Government, ICT Hubs and Private IP experts and entities:

1. The Government should play a more active role in enforcement of IP laws, which respondents in the Study percieved as a ‘toothless’.

2. The Government should encourage tech start-ups to use the IP system by providing incentives such as tax holidays and subsidies.

3. The Government should increase their human capacity to address issue of awareness creation

4. The Government should put in place processes and systems that are transparent, up-to-date and readily accessible to the public.

5. ICT hubs ought to consider having customer services that all innovators to access information and interact with IP experts in real-time.

6. ICT hubs ought to facilitate practical IP events and workshops where IP experts and tech innovators can meet and share knowledge.

7. ICT hubs ought to publish more on IP in IT subject matter, including case studies, success stories, etc.

8. ICT hubs ought to engage with tech startups on the benefits, opportunities and hidden costs involved in using the IP system

9. ICT hubs ought to promote a culture of IP rights through collaborations particularly with Government

10. Private IP experts and entities are encouraged to take time to understand the background of tech startups

11. Private IP experts and entities are encouraged to make their charges IP services affordable

12. Private IP experts and entities are encouraged to spread their skills and expertise with other professionals so to increase the numbers of personnel that are versed in IP and IP in ICT.


The report by iHub Research underscores the ever-present need to demystify intellectual property in Kenya.

IP knowledge and expertise must move from being the preserve of a handful of lawyers and spread to other professionals such as inventors, innovators and entrepreneurs who are actively involved in IP-intensive sectors of the economy.

Startups in particular must be sensitised on the different subject matter of IP protection and the attendant formal and substantive requirements. Startups also require direct access to IP practitioners who will be able to enlighten, advise, guide and assist startups in all matters relating to IP. More specifically, it is clear from the report that startups want practical advice in IP and licensing matters as opposed to merely general views and recital of IP laws. This type of specialised IP assistance requires IP experts to invest time in understanding individual startups and the nature of their business and the type of technological innovations involved.