Implementing High Court Decision in P.A.O & 2 Others v. AG 2012 on Anti-Counterfeiting Law and Access to Affordable Medicines

By Paul Ogendi
In 2012, the Kenyan High Court issued a landmark judgment in favour of access to affordable medicines discussed on the IP Kenya blog here. In a bold manner, the decision further recommended a review of sections 2, 32, and 34 of the 2008 Kenyan Anti-Counterfeit Act. The process of reviewing the legislation began, at least publicly, sometimes in 2013 after a group of access to medicines actors began making inquiries about this process. The group made several visits to the Anti-Counterfeit Agency (ACA) and the Office of the Attorney General. The group later got hold of some proposed amendments to the legislation that had been compiled over the years by the ACA. It was clear from the draft in circulation that the decision by the High Court had not been sufficiently factored in.

In 2013, an expert group on access to medicines convened and the outcome of the meeting was a raft of proposals on how best to safeguard generic medicines in the legislation. These proposals were made publicly available for use by the ACA.
Unfortunately, the 2014 Kenya Gazette Supplement No 75 (National Assembly Bills No. 24), which contains the amendments that have now been signed into law did not include the proposals made by the expert group. In the amendments discussed on the IP Kenya blog here, the following adjustments were made. Section 2 is amended to delete extraterritorial application of intellectual property rights. Section 16 of the law is amended to establish the Intellectual Property and Enforcement Coordination Advisory Committee. Finally, section 34 empowers the ACA Executive Director to make orders, which have the same effect as High Court decrees or orders. Clearly, these amendments did not address the issue of access to medicines.
In the absence of appropriate amendments to safeguard access to medicines n the legislation, which options are available for access to medicines actors? This question should be answered sooner rather than later. If not, there would be nothing landmark about the P.A.O & 2 Others v AG decision.