3, 2, 1: Action as Film Regulation Moves to ICT Ministry

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Last month, the President signed Executive Order No. 1 of 2018 on the Organisation of Government which, inter alia, assigned functions and institutions among Ministries and State Departments. One interesting new change in the structure of the Government is that Kenya Film Classification Board (KFCB) and Kenya Film Commission (KFC) are now listed under the State Department for Broadcasting and Telecommunications in the ICT Ministry. In addition the Ministry’s functions now includes overall responsibility for policies on film development in Kenya and the development of the country’s film industry.

This may all seem like a mundane bureaucratic detail but in reality it may well represent a fundamental shift in Kenya’s approach to the development of the creative economy and the important contribution of the film industry. But like every good story, there is a plot twist: the only thing that KFCB and KFC seem to agree on is that they are better off separate than together. Lately, the two lead film agencies have been at loggerheads (see video clips here and here) over how best the film industry should be regulated for the development of this vital pillar of the creative and cultural industries.

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Behold, The Inter-Agency Anti-Illicit Trade Executive Forum and Technical Working Group

Kenya Gazette July 2018 Inter-Agency Anti-Illicit Trade Executive Forum and Technical Working Group Ministry Industry Trade

The recently formed Inter-Agency Anti-Illicit Trade clique sounds like it could have been a WhatsApp group. In last Friday’s Kenya Gazette, the Minister at the time announced the establishment and appointment of both an Inter-Agency Anti-Illicit Trade Executive Forum (23 members in total) and an Inter-Agency Anti-Illicit Trade Technical Working Group (24 members in total). The Executive Forum and Technical Working Group are apparently expected to deliver on the President’s Big 4 Agenda pillar of enhancing manufacturing so that the sector contributes 15% to the country’s Gross Domestic Product (GDP) from 9.2% in 2016.

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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.

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Time to Rethink Kenya Copyright Board?

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Question: What do the proposed amendments to the Copyright Act in 2017 and 2018 both have in common? Here’s a hint, it has to do with Kenya Copyright Board (KECOBO). In 2017, the Copyright Amendment Bill proposed changes to the functions of the Board, composition of the Board and qualifications of the Executive Director whereas the recently tabled 2018 Bill proposes specific changes to KECOBO Board Membership. Arising from these two sets of proposals less than a year apart, there appears to be a growing call for the repeal or overhaul of the Copyright Act with specific concerns being raised about KECOBO’s Board structure, functions and role within the copyright and related rights system.

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2018 Proposed Amendments to The Industrial Property Act

2018 Amendments to Industrial Property Act Kenya KIPI

The Statute Law (Miscellaneous Amendments) Bill, 2018 seeks to make various, wide-ranging amendments to the existing intellectual property (IP) law-related statutes. The Bill contains proposed amendments to the following pieces of legislation: The Industrial Property Act, 2001 (No. 3 of 2001), The Copyright Act, 2001 (No. 12 of 2001), The Anti-Counterfeit Act, 2008 (No. 13 of 2008) and The Protection of Traditional Knowledge and Cultural Expressions Act, 2016 (No. 33 of 2016). The Memorandum of Objects and Reasons for the Bill is signed by Hon. Aden Duale, Leader of Majority in the National Assembly and it is dated 29 March 2018. This blogpost will focus on the proposed changes to The Industrial Property Act (IPA).

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High Court Strikes Down Appointment of Anti-Counterfeit Agency Board Chairman Twice in a Row

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This blogger has come across a recent High Court judgment in the case of Republic v Attorney General & 2 others Ex parte Tom Odoyo Oloo [2016] eKLR in which the appointment of the chairman of Anti-Counterfeit Agency (ACA) was challenged for being unconstitutional.  In the earlier case of Republic v. Attorney General & 3 Others Ex-Parte Tom Odoyo Oloo [2015] eKLR discussed on this blog here, the High Court struck down the appointment of Polycarp Igathe as ACA Chairman and less than one week later on 24th December 2015, the Cabinet Secretary responsible for ACA appointed Igathe as ACA Chairman to take effect from 17th April 2015, the effective date that was the subject of the Court’s orders in the 2015 case. According to the applicant in the present case, this re-appointment of Igathe was both illegal and unconstitutional.

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High Court Declares Appointment of Anti-Counterfeit Agency Inspectors Unconstitutional

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“In my view fresh appointments to the positions of inspectors must be open to the public and such positions must be advertised. It therefore does not matter whether the interested parties were handpicked by the Board or Mr Igathe [Former Chairman of ACA Board of Directors]. The era of handpicking persons and appointing them as public officers was in my view buried with the retired Constitution and has no place in the current constitutional dispensation.” – Odunga J at para. 39.

In a recent judgment in the case of Republic v Anti-Counterfeit Agency Ex parte Moses Maina Maturu [2016] eKLR, the High Court quashed Gazette Notice No. 9451 published on 24th December, 2015 appointing several individuals (enjoined in the suit as interested parties) as inspectors of Anti-Counterfeit Agency (ACA). According to ACA, the present suit was a scheme to paralyze its operations instigated by persons who have been behind several court cases, which ACA has been forced to defend thereby directing its resources away from the fight against counterfeiting.

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