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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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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