Kenya’s Anti-Counterfeit Act: Intellectual Property and Constitutionalism Collide

In 2009, three HIV/AIDS patients petitioned the Constitutional Court to declare the Anti-Counterfeit Act illegal because it could deny them access to generic medicines. The move sought to have the 2008 Anti-Counterfeiting Act made unconstitutional on the grounds that it could rob them of their right to life.

The Constitutional Court is due to deliver a verdict on March 9, 2012. As one of the petitioners in this case explains:

“The court will rule on whether, the Kenya Anti-Counterfeit Act of 2008 which was enacted by the national parliament infringes on the right to access more affordable medicines especially for treatment of HIV and other public health challenges. Depending on the decision, it is widely expected that this case , the first legal challenge in Africa against a new push for anti-counterfeit legislation, could have significant implications on other countries preparing similar laws.”

Public health advocates have consistently argued that the Anti-Counterfeit Act’s definition of what constitutes a counterfeit product is too vague, and could be used to block the import and local manufacture of generic drugs. The Act is so broad that it could, for example, allow a pharmaceutical company to charge legitimately produced generics as counterfeits in Kenya even if its patent is not registered there, which is argued to be “against the whole principle of territorial application of IP rights”.

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