Will Kenya amend the Anti-counterfeit act?

Commerce Department of India has asked to Kenyan legislation to make changes in its anti-counterfeit law passed last year 24 July after a stiff dispute . The Kenyan legislation lays down that all generics will be treated as counterfeits and rejected in case a patent holder in a third country files a dispute. The medicines import from India to which are also contemplating passing similar legislations

The Indian pharmaceutical industry, which supplies nearly 15% of its total exports of more than Rs 30,000 crore annually to Africa. cipla (one of the largest exporter of drug in Africa ) has pointing out that if similar legislation was adopted by other African countries as Uganda, Nigeria and Tanzania under the influence of global MNCs then export of India’s drugs to African countries will be under threat and depriving the Kenyan population access to affordable generic medicines

In a Kenya Gazette Supplement No. 50 dated 24th July 2009, the Minister gave the directive for the Act to be operational from 7th July 2009 even though on 8th July 2009, three people living with HIV filed a petition with the Constitutional Court challenging the constitutionality of the Anti-Counterfeit Act.

The petitioners said that:

1. The Act confuses counterfeits and generic medicines through inaccurate and confounding language. By noting that generic medicines are legitimate exact copies of their brand-name original, the petitioners stated “Generics are not counterfeits and should not be confused with counterfeits.

2. The Act addresses the numerous sections which contain dangerous ambiguities; their mis-interpretation would be detrimental to the government’s ongoing efforts to ensure access to essential medicines for all Kenyans.

3. A clause in act was added which specifically mentions “medicines” it is still incomplete – for example, the clause does not include vaccines. The Anti-Counterfeit Act does not distinguish medicines from other goods. “Medicines are essential and life-saving and should be distinguished from non-essential goods such as DVDs and batteries,”

4. Pharmacy and Poisons Board (PPB) which is a drug regulatory authority under the pharmacy & poison act should be in charge of combating counterfeit medicines, not the Kenya Revenue Authority (KRA).

The coordinator of the Kenya Treatment Access Movement (KETAM) argued that the

1. Act contravenes sections of the Industrial Property Act, 2001 such as Section 58(2) (providing for parallel importation) and Section 80 (government use). These sections have played an important role in the struggle to increase access to essential medicines in Kenya

2. Section 34 on seizures of suspected counterfeits goods (including medicines) is too broad

source : Economic times