[Ip-health] UNSR enjoined in Kenya Anti-Counterfeit Act court challenge

Christa Cepuch christa at haiafrica.org
Tue Jan 18 06:08:45 PST 2011

dear all,

Sharing some great news (media below) regarding the ongoing constitutional
court challenge in Kenya.  You may recall that three people living with HIV
(plus others who have since enjoined) are suing the government citing the
Kenya Anti-Counterfeit Act, 2008 threatens their right to health.  An
interim conservatory order granted in April 2010 prevents the
Anti-Counterfeit Agency from implementing the Act specifically with respect
to generic medicines, until the case is heard.  No date has yet been set for
the main hearing but it is anticipated it will be heard in 2011.

Having the UNSR for Health and Human Rights now enjoined in the case sends
an incredibly powerful message.  The petitioners and all allies supporting
this case are extremely grateful for his solidarity.
Christa Cepuch BScPhm
Health Action International (HAI) Africa

HAI is an independent, global network working to increase access to
essential medicines and improve their rational use through research
excellence and evidence-based advocacy

High Court enjoins UN in case against generic ARVs ban
By Evelyn Kwamboka

The United Nations has been enjoined in a case challenging the Government's
decision to ban generic drugs for HIV and Aids.

It claimed enforcement of the Anti-Counterfeit Act 2008 would endanger the
lives of the infected.

The High Court in Nairobi heard those affected would not access affordable
and essential drugs.

"The Special Rapporeur wishes to intervene as an interested party to support
the constitutional principles of access to essential medicines," advocate
Ombati Omwanza said yesterday. Justice Daniel Musinga allowed Mr Anand
Grover to represent the UN in the suit.

Generic drugs

The court had allowed importation of generic anti-retrovirals, pending the
hearing and determination of this case.

The interim order issued in April was aimed at saving the lives of those
living with the virus. The judge's interim order stopped the implementation
of three sections of the new Anti-Counterfeit Act.

The Act was enacted by Parliament in 2008 and President Kibaki assented to
it on December 24, same year. Its objective was to prohibit trade in
counterfeit goods. It was to take effect from July 7, 2009.

Omwanza told the court people using ARV drugs would be arbitrarily denied
access to affordable and essential medication necessary for their
fulfillment of the right to life as enshrined in the Constitution.

"The generic drugs for the treatment of HIV and Aids are available and
affordable compared to the branded version," he argued.

Attorney General Amos Wako said the Act was established to stop
multinationals from importing counterfeit drugs.

In an affidavit filed by an NGO's official Jacinta Nyachae, the cost of ARVs
will be high if the Act was enforced.


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