Ten Years Later: Dismal Performance Scorecard for Kenya’s Anti-Counterfeit Agency

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In 2008, Anti-Counterfeit Agency (ACA) was birthed as Kenya’s TRIPS-plus experiment to spearhead intellectual property (IP) rights enforcement by coordinating efforts among various state agencies. In our humble opinion, ACA deserves no score higher than 3/10 for its performance in fulfilling its overall statutory mandate in Kenya.

It was envisioned that ACA would be a shining example of an inter-agency approach to IP rights enforcement with private sector coordination. Ten years later, it is safe to say that ACA has failed to live up to its potential. The reason? Two words: Institutional Corruption.

Lawrence Lessig, a globally renowned scholar at Harvard Law School, conceptualises institutional corruption as follows:

‘Institutional corruption is manifest when there is a systemic and strategic influence which is legal, or even currently ethical, that undermines the institution’s effectiveness by diverting it from its purpose or weakening its ability to achieve its purpose, including, to the extent relevant to its purpose, weakening either the public’s trust in that institution or the institution’s inherent trustworthiness.’

In the last seven plus (7 +) years of covering IP developments on this blog, we have never encountered any single state agency with as many corruption scandals and controversies as ACA.

ACA is a creature of statute established under The Anti-Counterfeit Act. At its inception in 2008, ACA joined a growing list of statutory institutions charged with administering and enforcing various aspects related to IP rights in Kenya. The main institutions include Kenya Industrial Property Institute (KIPI), Kenya Copyright Board (KECOBO), Kenya Plant Health Inspectorate Service (KEPHIS), Kenya Bureau of Standards (Kebs) and Kenya Revenue Authority (KRA), some of which are represented on ACA’s Board of Directors. It was hoped that the wealth of knowledge and experience among the various ACA constituent agencies would guarantee ACA’s success but this was not to be the case. On the contrary, ACA seems bent on usurping and duplicating the mandates of the state agencies that preceded it.

The Anti-Counterfeit Newsletter 5th Edition March 2018 ACA Agency Cover

ACA’s core mandate is as follows: (a) Enlighten and inform the public on matters relating to counterfeiting; (b) Combat counterfeiting, trade and other dealings in counterfeit goods; (c) Devise and promote training programs to combat counterfeiting; and (d) Co-ordinate with national, regional or international organizations involved in combating counterfeiting. However, according to a recent media report: ‘Rampant corruption, negligence, poor coordination among State agencies manning the country’s borders and other systemic weaknesses give counterfeiters an easy time, making Kenya a free field for importing and dumping fakes.’ In its 2017-2022 Strategic Plan, ACA has identified and set four key result areas which are: Enforcement, Awareness, Market Research and Institutional Capacity.

However a scan through ACA’s official website www.aca.go.ke currently reveals laziness on ACA’s part with regard to its primary mandate of enlightening and informing the public. In the last 10 years, ACA has only published five (5) newsletters which are largely filled with glossy pictures of vainglorious self-promotion rather than relevant and useful information on counterfeiting in Kenya. Take for instance, the latest edition of The Anti-Counterfeit Newsletter (front cover pictured above) published in March 2018 by ACA. It is troubling to note that this edition makes no single reference to ACA’s plan to push for legislative amendments, intended to give itself more powers and introduce a new layer of IP rights administration, which has been widely condemned by stakeholders here, here, here and here.

Similarly, it is concerning that ACA’s website only contains 5 research paper abstracts. Does this mean that ACA has only successfully completed 5 research studies over the past 10 years? One wonders why ACA has refused to openly share the full-length research papers on its website yet it appears that these papers were commissioned and prepared by ACA staff in performance of their public duties. At any rate, ACA’s research and awareness strategic objectives are clearly undermined by its failure to make the full versions of all its research papers available to the public. The same concern may be raised with regard to the total lack of any reports, manuals, brochures, pamphlets or any other information, education communication (IEC) materials anywhere on the ACA website.

Laziness aside, one important consequence of institutional corruption is that the institution is incapable of achieving its purpose. This rings true for ACA, particularly in the context of its crucial enforcement mandate. On numerous occasions, courts of law have been called upon to reign in ACA’s lawlessness. Take for instance, the case of Hassan Elmi & 4 others v Anti-Counterfeit Agency [2015] eKLR in which ACA seized and confiscated 5 motor vehicles from ordinary Kenyans on the suspicion that the vehicles carried counterfeit liquified gas cylinders. One wonders why ACA needed to seize and confiscate both the cars and the gas cylinders.

At any rate, the court ruled correctly as follows: ‘Going by the definitions under Section 2 of the [Anti-Counterfeit]Act, I am persuaded that a vehicle can only be used to ferry goods that may be suspected to be counterfeits. In my view, Section 23(c) empowers the inspectors to remove suspected goods for detention from either a vehicle or premises. There is no where in the entire act that a detention of a vehicle is envisaged or allowed. If that were the intention, it would have been expressly spelt out. To that extent, I find no reason for the continued detention of the five motor vehicles. (…) For the reasons stated, the application dated 1st July 2015 is allowed in part in the following terms: 1. That pending the hearing and determination of the suit the Respondent [ACA] is ordered to forthwith and unconditionally release to the Applicants Motor Vehicles.’ Similarly, there is another case reported in the media of a bungled raid by ACA in two Nairobi homes for contraband goods in June 2015 that could cost the taxpayer up to Sh2 billion in compensation.

Generally speaking, leadership and governance issues at ACA have damaged it’s corporate image over the years. In this regard, ACA Board Chair (and this blogger’s classmate) AGN Kamau candidly notes in his 2013 LL.M thesis as follows: ‘It is manifestly clear that State Corporations are bedeviled by a multitude of problems and challenges because they address the objectives of the politicians rather than maximize efficiency and performance. A principal objective of the politicians is the provision of jobs for their electorate. This therefore means that the main thrust of State Corporations is geared towards the desire to harness votes to secure political power rather than foster the productivity of the State Corporations.’

In the news clip featured above, ACA Chief Inspector Kennedy Agutu claimed in 2012 that his employment was unlawfully terminated due to nepotism by the management of ACA. He alleged that ACA conducted a flawed recruitment process that saw those politically-connected get jobs at ACA that they were unqualified for. In 2014, media reports here and here revealed the decision by the State to suspend ACA Acting Executive Director and Deputy Director for failure to address the proliferation of illicit brews in the country. In 2015, it was reported here that the same ACA officials along with other staff members were sent on compulsory leave over allegations of gross misconduct. In the same year, the ACA officers sent on compulsory leave sued ACA in the reported case of Johnson Otieno Adera & 3 others v Anti-Counterfeit Agency & 3 others [2015] eKLR. These included: Deputy Director for Enforcement, Prosecution and Legal Services Mr. Johnson Adera, Assistant Director for Enforcement Mr. Abdikadir Mohamed, Anti-Counterfeit Inspector II Mr. Weldon Kiprotich Sigei and Anti-Counterfeit Inspector I, Mr. Sammy Arekai Sarich. In 2016, we highlighted here a High Court judgment in the case of Republic v Anti-Counterfeit Agency Ex parte Moses Maina Maturu [2016] eKLR, in which the High Court quashed Gazette Notice No. 9451 published on 24th December, 2015 illegally appointing several individuals as inspectors of ACA.

In 2015, many readers will further recall that Johnson Adera, who is currently a Deputy Director at ACA, was on the radar of the Ethics and Anti-Corruption Commission (EACC). EACC’s second quarterly report of 2015 published on August 20th 2015 reads as follows:

“INQUIRY NO.10/2013

Inquiry into allegations of corruption against officers of the Anti-Counterfeit Agency in the manner in which Exhibits were disposed of in respect of a Criminal Case before the Principal Magistrate’s Court, Winam, Kisumu.

Investigations established that the Anti-Counterfeit Agency preferred charges of counterfeit against a hardware dealer in Kisumu. The said case was however withdrawn after the complainant in the case reached an out of court settlement with the persons charged. Whereas the Court did not make an order that the goods in question be released to the owner of the hardware, the Deputy Director Enforcement, Prosecution and Legal Services, at the Anti-Counterfeit Agency released the goods. He failed to observe the provisions of section 27 and 28 of Anti-Counterfeit Act, 2008 in disposing off exhibits in question.

A report was compiled and forwarded to Director of Public Prosecutions on 23rd April, 2015 with recommendation that the Deputy Director Enforcement, Prosecution and Legal Services be charged with the offence of abuse of office contrary to section 46 as read with section 48(1) of the Anti-Corruption and Economic Crimes Act, 2003.

On 18th June, 2015, the DPP advised that further investigations be carried out.

In 2016, John Akoten who is currently a Deputy Director at ACA, was embroiled in controversy after it emerged that the private number plates for his official ACA car were forged. Akoten was also found to have altered the tracking device on one other government vehicle assigned to him as ACA boss. According to one media report:

‘Ironically, the revelations that a vehicle assigned to the ACA had fake number plates would never have been brought to light had the car not been involved in an accident on December 21, 2014. A report on the cause of the accident revealed the wanton misuse of a government resource and raised the probability that there could be other government vehicles on the roads fitted with fake number plates, and being used for private errands with impunity. A committee investigating the circumstances of the crash heard how acting ACA director John Akoten gave his driver money to procure the fake set of civilian plates to replace the blue ones assigned to his official car, a Volkswagen Passat, registration number KBQ 633D. The car was valued at Sh3.6 million.’

It is not hard to see how this chain of appalling events involving ACA and its staff (including a list of other shenanigans at ACA not yet in the public domain) may have weakened public trust in the institution and the institution’s inherent trustworthiness. Presently, this blogger is reliably informed that the controversial amendments to the Anti-Counterfeit Act proposed by ACA (see links above) were recently signed off by the Minister and are likely to sail through the parliamentary process with relative ease. If these legislative proposals are enacted in their current form, it is more than likely that they will be subject to judicial challenge in the courts.

 

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