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Gichinga Ndirangu, HAI Africa

25 January 2012

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 determined.

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 respond.

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 right.

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