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!

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Anti-Counterfeit Agency Eats Humble Pie as Fake Appointment of Board Chairman Struck Down After Judicial Review

anti-counterfeit-agency-aca-chairman-polycarp-igathe-speaking-at-world-anti-counterfeit-day-wacd-2015-event-in-mombasa-kenya

“Whereas the President had the power to appoint the Chairman of the Anti-Counterfeit Agency, that appointment had to be in compliance with the Constitution and the relevant Legislation since, as I have stated herein above, the President in undertaking his executive functions does so on behalf of the people of the Republic of Kenya and has to bow to the will of Kenyans as expressed in their document delegating their sovereign powers to inter alia the executive, the Constitution. It is the Constitution which sets out the terms under which the delegated sovereign power is to be exercised and those to whom the power is delegated must adhere to it…” – Excerpt from the Judgment by Mr. Justice G.V. Odunga on December 16th 2015.

Towards the end of December 2015, the High Court, in one of its boldest judgments yet, struck down President Kenyatta’s appointment of Polycarp Igathe as Chairman of the Anti-Counterfeit Agency (ACA). Last month, the Cabinet Secretary for Industrialisation and Entreprise Development responded to the High Court judgment by (re-)appointing Igathe as ACA Chairman vide Gazette Notice No. 368 published on January 22nd 2016.

**Update (08/02/16): This blogger has been reliably informed that the above (re-)appointment of Igathe by the Cabinet Secretary has been challenged and an order of stay has been issued by the High Court. More details to follow.

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Quick Recap from the 39th Session of ARIPO Administrative Council and 15th Session of ARIPO Council of Ministers in Lusaka, Zambia

ARIPO Kahinda Otafiire Chair Council of Ministers Margaret Mwanakatwe Nov 2015 Lusaka Zambia

Hon Kahinda Otafiire (outgoing Chair Council of Ministers) handing over to the Incoming Chair Council of Ministers Hon Margaret Mwanakatwe – Lusaka, Zambia November 2015

Readers may know that last week the 39th and the 15th Sessions of the Administrative Council and Council of Ministers of African Regional Intellectual Property Organization (ARIPO) respectively, took place in Lusaka, Zambia.

Zambia’s Minister of Commerce Margaret Mwanakatwe opened the 39th Session which saw Patents and Companies Registration Agency (PACRA) Chief Executive Officer Anthony Bwembya take over as Chairperson of the ARIPO Administrative Council.

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