Seriously, if you’re a stakeholder of Anti-Counterfeit Agency (ACA), you should be very concerned about some of the dangerous signs that were on full display during the ACA ‘Stakeholders Consultative Forum on the Proposed Amendments of the Anti-Counterfeit Act, 2018: Towards Improving Service Delivery of the Big 4 Agenda’ held on 13 June 2018 at Boma Inn Hotel, Nairobi. These proposed legislative changes have been previously discussed on this blog here, here, here and here.
For those who would have wanted to attend and participate at this important forum, that’s too bad since ACA decided to give its ‘esteemed stakeholders’ a mere 48 hours prior notice that the Forum would be taking place in Nairobi. From the vaguely-worded invitation letter from ACA, the one thing that seems clear (with the benefit of hindsight, of course) is that the Forum’s sole objective was for ACA’s top brass to ‘sensitise’ participants on the proposed amendments (i.e. obstinately defend their legislative proposals) rather than engaging in any form of meaningful deliberation or consultation on the best way forward.
It was abundantly clear from the Forum that ACA has only been paying lip service to the inter-agency approach of cooperation and coordination envisaged among intellectual property (IP) offices. This blogger did not spot a single representative from Kenya Copyright Board (KECOBO) or Kenya Plant Health Inspectorate Service (KEPHIS) at the Forum. The absence of any representative from Kenya Industrial Property Institute (KIPI) was the most conspicuous, not only because KIPI is directly affected by the proposed changes to the Act but also because the KIPI headquarters is less than 5 minutes away from the venue of the Forum.
By far the most disappointing aspect of the Forum was the presentation made by ACA’s Deputy Director for Legal Services (infamous at ACA here and here) in which he basically regurgitated a summarised table from way back in January 2018 containing some brief notes justifying the proposed amendments. It appears that the presenter was the one-man legal drafting team responsible for coming up with the proposed bill which has already received widespread condemnation from his own legal fraternity. The ACA Legal Director’s presentation and subsequent remarks degenerated into an incoherent rant about putting Kenya’s strategic economic interests first, protecting jobs, industries and investment (One wonders when such a skewed protectionist agenda suddenly became ACA’s core mandate). The ACA Legal Director repeatedly spat in the face of stakeholders at the forum with his warped view that ease of doing business must be equated to ease of enforcement no matter how high the cost (See the ‘recordation’ discussion below).
On the proposed elevation of ACA’s status from ‘Agency’ to ‘Authority’, the Forum participants were told that the name ‘Agency’ apparently lacked the necessary ‘impetus’ and ‘muscle’ needed in the fight against illicit trade of counterfeits. Thus the proposed name change was intended to ‘give a better impression of the enforcement function of the institution’. No one really seemed to buy this explanation from ACA with some participants echoing concerns about the considerable financial costs that would be involved in re-branding for an institution that claims to be cash-strapped.
On the proposed changes to section 16 of the Act, ACA claimed that the intention was for purposes of budgeting and planning. The limiting of time periods within which actions can be brought against ACA was justified for purposes of introducing certainty with regard to any civil liability for actions. There was the concern from ACA that it needed to be shielded from direct attachment in the execution of judgment awards to save it from embarrassment by auctioneers. These proposals read together with the indemnification sought from complainants creates the impression that ACA is more concerned about obtaining the fullest possible protection for itself as opposed to carrying out its mandate without any fear of court cases.
On the proposed changes to section 23, ACA argued that the stakeholders themselves wished for ACA inspectors to have more powers to ‘investigate any offence related or connected to counterfeiting’ as well as all other powers exercised by customs officers under the East African Community Customs Management Act. In Kenya, ACA states that its inspectors have in the course of their investigations come across offences related to IP rights outside the Anti-Counterfeit Act i.e. offences in other pieces of legislation relating to standards, customs and tax. It is not clear why ACA would want to engage in such blatant overreach yet the relevant authorities were not even present at the Forum to demonstrate and explain their support for such proposals.
As expected, the most thorny issue at the Forum was the proposed section 34B on recordation of IP by ACA. In fact, one of ACA’s big wigs (infamous for the car plates scandal) lackadaisically attempted to make a case for the recordation system proposed by ACA in a 20-minute presentation. The presentation lacked any evidence, data or empirical studies from Kenya to support the Agency’s position which is sadly ironic since the presenter’s official job title at ACA is Deputy Director, Awareness and Research. Overall, the majority of the participants at the Forum disapproved of the recordation system as drafted by ACA yet this plain fact did not seem to bother the two Deputy Directors who presented, the ACA staff moderating and the Executive Director who all shamelessly defended the proposal.
Stakeholders at the Forum should be concerned that ACA appeared non-committal and ambivalent about the way forward in terms of ensuring that their views, comments/proposals expressed at the Forum would be properly channeled to and followed up with the Minister and Parliament. There was no clear mechanism put forward for collecting all the views presented, an accessible record of these views and the plan behind ensuring that the views are duly reflected in the proposed amendments to the Act.