Kenya's High Court Rules Anti-Counterfeiting Law Is Unconstitutional Because It Threatens Access To Generic Drugs

from the ACTA,-TPP-take-note dept

Back in 2009, Techdirt wrote about an interesting challenge to a then-new law against counterfeits in Kenya, on the grounds that it might be used to stop perfectly legal generic variants of drugs being imported into the country. That matters, because around 90% of drugs used in Kenya are generics, which means that blocking them would have serious implications for healthcare in that country.

Michael Geist points out that two and half years later, the court has finally delivered its verdict, and it's a great result:

Kenya's High court ruled on Friday that lawmakers must review legislation that could threaten the import of generic drugs, allowing Kenyans to continue accessing affordable medicine.
The judge specifically noted the problem mentioned above:
"The act is vague and could undermine access to affordable generic medicines since the act had failed to clearly distinguish between counterfeit and generic medicines," Judge Mumbi Ngugi said in her ruling.
As a result, Kenyan lawmakers will have to amend the bill to distinguish clearly between counterfeit and generic drugs.

That's not only a huge win for the millions of Kenyans who depend upon generics for their treatment, but it also highlights a key problem for ACTA and TPP, which both seek to grant broad powers to border officials to seize medicines without distinguishing sufficiently between counterfeits and generics.

Here's what the international humanitarian aid organization Médecins Sans Frontières (MSF) has to say about ACTA and generics (pdf):

While it is claimed that ACTA will protect against falsified medicines by allowing countries and companies to take strong measures in trademark disputes, this may in fact impede access to genuine generic medicines.
Meanwhile, MSF comments on TPP as follows (pdf):
the U.S. is requesting that TPP countries grant customs officials the ex officio right to detain shipments of medicines at the border, even in transit, if the goods are suspected of being counterfeits or if they are considered “confusingly similar” to trademarked goods.
Other countries need to follow Kenya's lead and confirm that access to vital generic medicines is a right that cannot be over-ridden by purely commercial considerations. Among other things, that means throwing out ACTA, and re-drafting TPP's dangerously vague sections dealing with counterfeit drugs.

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Filed Under: acta, counterfeit, generic drugs, health care, kenya, tpp


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  1. identicon
    Anonymous Coward, 24 Apr 2012 @ 11:12pm

    The way to freedom and better healthcare is knowledge, the knowledge of how to manufacture those needed drugs should be at the hands of anyone who needs it.

    The way to any freedom at all is the freedom knowledge grants you. If you place your needs in the hands of others you become their servants, if you work for your own needs you become a free man.

    This is what patents try to stop, it tries to stop free man from being able to be work to better themselves. It was true a three hundred years ago and it is true now.

    People who want a better and secure future must trust knowledge to make that future a reality, nothing any other person can offer you is better than you yourself knowing how to help yourself.

    Learn to make the medicine you need, learn to grow your own food so you are not so dependent on others, learn to build the things you need and you have found the best safety net there is.

    Those companies must understand that they are not the only ones who can do something, if need it be people can just bypass them and ignore the law to secure their own health and well being.

    We need others to survive but we don't need parasitic companies that would sell us all out for a percentage, and we can't count on others to always do the right thing, they are not the ones who suffer and so they don't care.

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