[Ip-health] Health activists welcome Kenyan High Court judgment on anti-counterfeit law

Joanna Keenan-Siciliano joanna.l.keenan at gmail.com
Mon Apr 23 03:21:02 PDT 2012

Medecins Sans Frontieres, Health Action International (HAI) Africa and
Kenya Ethical and Legal Issues Network on HIV and AIDS (KELIN) issued the
below statement on Friday in response to the decision by the Kenyan High
Court that found the Kenya Anti-Counterfei Act did not properly distinguish
generic medicines and counterfeit medicines.

Statement below; Reuters article on the story bottom.

*Press Statement*

*For immediate release *

April 20, 2012

*Health activists welcome High Court judgment on anti-counterfeit law*

After three years of waiting, health activists today welcomed a decision by
the High court that the Kenya Anti-Counterfeit Act 2008 was vague and could
undermine access to affordable generic medicines. High Court Judge Mumbi
Ngugi, found that the Act had failed to clearly distinguish between
counterfeit and generic medicines.

Justice Mumbi’s ruling affirmed a conservatory order issued on April 23,
2010 by Justice Roseline Wendoh which stopped the government from
implementing the Anti-Counterfeit Act with respect to generic medicines
until the case was determined.

“The court has correctly interpreted the Constitution and guaranteed the
right to health. This ruling speaks against any ambiguity that serves to
undermine access to generic medicines and puts the lives of people before
profit”, said Patricia Asero, one of the three petitioners.

The High court ruling means that parliament will now have to review the Act
and amend sections that confuse generic medicines with counterfeits and
remove ambiguities that may result in arbitrary seizures of generic
medicines under the guise of fighting counterfeits. Health activists have
vowed to press for those changes to protect access to generic medicines.

“This was a poorly drafted law from the outset that must be urgently
reviewed to avoid threatening public health programmes such as the national
treatment programme on HIV which is predominantly dependent on access to
generic anti-retrovirals”, warned Jacinta Nyachae, executive director, AIDS
Law Project.

The activists also predict this will set a positive precedent for the
entire East Africa region as other countries in this region and the East
African Community are considering anti-counterfeiting laws that may
threaten generics.

“Kenya is leading the way in protecting access to medicines and public
health and we are watching the actions of the East Africa Community member
states to see if they follow suit,” she added.


REUTERS/Noor Khamis
Kenyan court ruling upholds access to generic drugs
Fri Apr 20, 2012 4:24pm GMT

NAIROBI (Reuters) - Kenya's High court ruled on Friday that lawmakers must
review legislation that could threaten the import of generic drugs,
allowing Kenyans to continue accessing affordable medicine.

Three people living with HIV filed a lawsuit in 2009 that said Kenya's
Anti-Counterfeit Bill of 2008 was unconstitutional because it threatened
access to life-saving generic medicine by confusing generic and fake

Health activists had argued the definition of counterfeit medicines was too
broad and if passed, the legislation could threaten the importation of
generic drugs.

Generic medicines constitute the lion's share of medicines used in Kenya,
and have enabled poor people in the developing country to get the necessary
treatment for various ailments.

A previous court order issued before Friday's ruling had blocked the act
from coming into force, and Friday ruling means lawmakers will now have to
amend the bill to clearly distinguish between generic and counterfeit drugs.

"The act is vague and could undermine access to affordable generic
medicines since the act had failed to clearly distinguish between
counterfeit and generic medicines," Judge Mumbi Ngugi said in her ruling.

Kenya has 1.5 million people living with HIV out of a population of about
40 million people and a little over 500,000 of those infected with the
virus have access to anti retro viral medication, the vast majority of
which is classified as generic.

"This ruling speaks against any ambiguity that serves to undermine access
to generic medicines and puts the lives of people before profit," Patricia
Asero, one of the three petitioners, said in a statement issued by Medecins
Sans Frontieres.

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