Oh, the Irony: President Usurps Role of Legal Advisor to Make Illegal Kenya Copyright Board Appointment

PRISK Director Millicent Ogutu Kenya Copyright Board KECOBO Board Appointment Gazette Notice March 2016 Chairperson Uhuru Kenyatta

Where to begin?

Section 6(a) of the Copyright Act states that the Board of Kenya Copyright Board (KECOBO) shall consist of “a chairman, who shall be appointed by the Minister from amongst the members of registered copyright societies”. The Copyright Act as read with the Interpretation and General Provisions Act defines “Minister” as the Attorney-General who is “the Minister for the time being responsible for matters relating to copyright and related rights.” Under Article 156(4)(a) of the Constitution of Kenya states that the Attorney-General is the principal legal adviser to the Government” which presumes that the A-G, in the case of public appointments, would have been consulted on their legality or lack thereof especially where those appointments touch on the A-G’s own docket!

At this stage, it is already clear that the KECOBO appointment by President Kenyatta stands on very shaky ground. This appointment is further complicated by the fact that the High Court recently struck down a similar presidential appointment to another intellectual property enforcement body, Anti-Counterfeit Agency (ACA) on the ground that such appointment is flatly illegal if not made by the relevant Minister in accordance with the empowering statute. We previously discussed this case of the ACA Chairperson appointment by the President here.

The final point of concern is clearly illustrated by the above facebook announcement of the KECOBO appointment by Performers Rights Society of Kenya (PRiSK) which reads: “Congratulations to PRISK Director, Millicent Ogutu, as she is appointed by President Uhuru Kenyatta the new Chairperson of Kenya Copyright Board”

A look at PRiSK’s official website clearly confirms that the presidential appointee Millicent Ogutu is a Board Director.  This fact leaves the appointment open to more legal challenges since there is a clear conflict of interest as KECOBO is required to regulate collecting societies including PRiSK! Therefore it is questionable whether the appointee would be able to serve on both the Boards of KECOBO and PRiSK. Not to mention the tiny matter of the typo in the Gazette Notice stating that the PRiSK Director has been appointed until 2nd September of last year.

Viewed in this light, PRiSK’s congratulatory tweets and facebook post are not only premature but ill-advised unless, of course, accompanied with the announcement of the PRiSK Director’s resignation.

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