Joint statement by MSF, HAI Africa & KELIN on the Kenya Anti-Counterfeit Act 2008 decision
Health activists welcome High Court judgment on anti-counterfeit law
20 April 2012 — 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.