E-DRUG: Kenya Anti-Counterfeit Act, 2008 Section 34:
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Dear friends
In light of the recent Dutch seizures of generic medicines, we share with
you parts of Section 34 of Kenya's Anti-Counterfeit Act, 2008.
Last year, HAI Africa and its civil society partners in Kenya lobbied to get
Section 34 completely deleted from the Anti-Counterfeit Bill 2008, but were
unsuccessful. This remains one of the various problematic sections in
the final Act.
Section 34 continues through nine sub-sections. The powers of the Kenya
Revenue Authority and Anti‐Counterfeit Agency, as outlined in 34.(1) are
excessive and likely to be abused. We believe they are also contrary to
article 8.2 TRIPS. Section 34.(7) describes "wrongful seizure" in which the
threshold for compensation for wrongful seizure is very high.
<snip>...
34.(1) The owner of an IPR, who has valid grounds for suspecting that the
importation of counterfeit goods may take place, may apply to the
Commissioner in the prescribed manner to seize and detain all suspected
counterfeit goods which are-
(a) goods featuring, bearing, embodying or incorporating the subject matter
of that IPR or to which the subject matter of that right has been applied;
and
(b) imported into or enter Kenya during the period specified in the
application;
Provided that the period may not extend beyond the last day of the period
for which that IPR subsists.
(2) For purposes of sub-section (1), the applicant may furnish to the
Commissioner -
(a) a specimen of the goods to which the subject matter of his relevant IPR
relates;
(b) sufficient information and particulars as to -
(i) the subsistence and extent of that IPR; and
(ii) his title to that right.
(3) The Commissioner shall consider and deal with an application under
sub-section (1) within three working days and may grant the application if
satisfied on reasonable grounds that -
(a) the good claimed to be protected are *prima facie* protected goods;
(b) the IPR, the subject matter of which relates to the protected goods, *prima
facie* subsists; and
(c) the applicant *prima facie* is the owner of that IPR.
(4) When an application made under subsection (1) has been granted and
notice thereof given under subsection (5), the counterfeit goods of the type
with reference to which that application was made (hereafter called the
stipulated goods), or suspected on reasonable grounds to be stipulated
goods, and imported into or entering Kenya from time to time during the
period determined by the Commissioner, which maybe shorter than the period
applied for, may be seized and detained by the customs authorities in
accordance with the EAC Customs Management Act, 2005 subject to subsections
(6) and (7).
(5) The Commissioner shall, by notice in writing, inform the applicant
whether the application has been granted or not, and-
(a) if granted, state the period during which any stipulated goods being
imported into or entering Kenya will be made subject to seizure and become
subject to detention under subsection (4);
(b) if not granted, state the reasons for refusal to be granted.
..<snip>
The 2008 Act still needs a date to be set for its commencement. The civil
society is currently organizing to ensure the new Law will not undermine the
struggle for access to essential medicines.
info@haiafrica.org
www.haiafrica.org
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Health Action International (HAI) Africa
Christa Cepuch <christa@haiafrica.org>
HAI is an independent, global network working to increase access to
essential medicines and improve their rational use through research
excellence and evidence-based advocacy
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