[Ip-health] HAI Africa: Kenya court set to deliver ruling on anti-counterfeit law

Christa Cepuch christa at haiafrica.org
Wed Jan 25 04:11:00 PST 2012

*Kenya court set to deliver ruling on anti-counterfeit law*

*Gichinga Ndirangu, HAI Africa

After almost three years of waiting since three petitioners living with HIV
filed a constitutional petition challenging the implementation of a law on
anti-counterfeiting, the Kenyan High court is due to deliver a verdict on
March 9.

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.

On April 23, 2010 Kenyan High Court Judge Roseline Wendoh issued a
conservatory order stopping the government from implementing the
Anti-Counterfeit Act with respect to medicines until the case heard and

The three petitioners in the case have argued that the Kenyan law should be
declared unconstitutional on the grounds that it infringes on their right
to health by giving a broad definition and interpretation on what
constitutes counterfeit medicines in a manner that affects access to more
affordable generic medicines.

On January 24, 2012 the lawyers representing the petitioners and interested
parties made oral submissions to the trial judge to which the
Attorney-General, as legal representative of the government, was invited to

The petitioners argued that the government was obliged to secure the right
to treatment of all persons living with HIV which required unfettered
access to medicines. The Kenyan law contained ambiguities, which if
misinterpreted or abused would be detrimental to the government’s ongoing
efforts to ensure access to essential medicines for all Kenyans.

The court was invited to address these ambiguities to safeguard any
discrimination against more affordable generic medicines. It was argued
that the definition of ‘counterfeiting’ could easily be misinterpreted,
with a devastating impact on generic medicines which form the backbone of
Kenya’s public health programmes.

The power of seizure conferred on the police could be abused to affect
imports of generic medicines because there were no clear guidelines to
safeguard the rights of importers and patients. This would result in
derogation from constitutional rights and freedoms regarding unfettered
access to treatment. The court was invited to take cognizance of seizures
of generic medicines by customs officials in various transit points like
Holland in the recent past.

“This is not an academic petition; the risk is real,” warned Steve Luseno,
lead counsel for the three petitioners.

Mr Omwanza, representing the interested parties, warned that the Kenyan law
went beyond the country’s obligations under the Agreement on Trade-related
Aspects of Intellectual Property Rights (TRIPS) by seeking
extra-territorial enforcement of Intellectual Property Rights not
recognised under Kenyan law.

The UN Special Rapporteur on Health and Human Rights, Anand Grover, invited
the court to consider that access to medicines is key to the progressive
realisation of the right to health and that the Kenyan law undermined this

In his response, the Attorney-General contested that the Act limited or
threatened access to generic medicines. The AG argued that generic
medicines were distinct from counterfeit medicines and argued the need to
check on counterfeits because of the risk to health. It was argued that the
Kenyan Act was necessary to regulate counterfeit medicines.

The High Court is set to make a ruling on March 9. If declared
unconstitutional, the Kenyan parliament will be expected to review the Act
to safeguard the right to access treatment and address the ambiguity over
counterfeit and generic medicines.

*Gichinga Ndirangu is Regional Coordinator, HAI Africa*

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