Kenyan AIDS Patients Seek to Overturn Anti-Counterfeiting Law as Unconstitutional

 

Please read the press statement by the three applicants in the Counterfeit Case in Kenya.

• Statement 07 July 2009

The three of us are living with HIV and we are all on generic ARV
medicines.

We have decided to take the government to court over the Anti-Counterfeit Act.  Because we believe that it is not looking after the interests of PLWH including women and children.  The Anti-Counterfeit Act threatens our lives as it takes away our right to access to generic medicines.

Generic medicines are legitimate exact copies of their brand-name original. They are not counterfeits.  They should not be confused with counterfeits. The manufacturing of generic medicines is not a criminal offense. We can only afford generic medicines because they cost up to 90% less than the originals.

Counterfeits are frauds, made and sold by criminals who seek to deceive consumers.  By fighting this Law, we are not for counterfeits of course. We believe our government should combat counterfeiters and counterfeit goods, including medicines.  But NOT at the expense of our health and our right to life.

There is similar legislation in Europe.  Because of that legislation, there have been ongoing seizures of legitimate shipments of generic medicines in transit to developing countries - they were seized and called "counterfeits."  Those medicines were not counterfeits!  They were legitimate generic medicines, en route to treatment programs in Africa and South America.  Our Anti-Counterfeit Act could cause the same thing to happen here, due to its confusing language - legitimate shipments of good quality, more affordable generic medicines could be labeled as counterfeits and seized at the port of Mombasa or at the border in Busia!  This is absurd.

We find this Law even more absurd because it even recognizes intellectual property (like patents) from other countries.  This means that Kenyans would, by this Act, be required to comply with laws of other countries for which they are not citizens.  For example, tenofovir is not patented in Kenya.  However by this Act, the patent holder could actually stop its generic equivalent from entering into the Kenyan market!

We are the consumers of generic medicines.  We are not importers or manufacturers.  Those importers and manufacturers of generic medicines  are fearing this Act because they may be taken to jail for ostensibly importing  or manufacturing "counterfeits."

We have therefore instructed our lawyers to file a petition at the Constitutional Court on our behalf, citing that this Act goes against our  Right to Life as outlined in our Constitution.

Thank you for your support.

Patricia Asero Ochieng
Maureen Murenga
Joseph Munyi

 

Also read

• http://www.ip-watch.org/weblog/2009/07/07/kenyan-aids-patients-seek-to-overturn-anti-counterfeiting-law-as-unconstitutional/

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