Kenyan IP Reform Bill Withdrawn, Could Return In 2007

By Tove Iren S. Gerhardsen
Proposed changes to Kenya’s intellectual property rules, which could negatively impact the possibility to import cheaper medicines, were recently withdrawn at the last minute, according to local sources who did not rule out the proposal’s re-introduction in 2007.

The proposed changes to Kenya’s Industrial Property Act 2001 were included in the Statute Law (Miscellaneous Amendments) Bill 2006, on which a decision was postponed when the Kenyan Parliament went on recess in summer (IPW, Public Health, 9 August 2006).

A number of sources indicated that the bill would probably not be discussed until 2007, but on 7 December, the day the parliament went on recess for winter, it “was withdrawn last minute and was not debated,” a local source said. It is unclear why the bill, which also contained proposals in other areas, was withdrawn.

“What that means is that it will have to be re-published again next year,” the source said. “Since it is statute law (called the Miscellaneous Amendments bill) the minister in charge may choose to include the IP Act amendments that were contained in the bill that was withdrawn, or not.” This would depend on whether the interest group that “had wanted those amendments will still be pushing for them.”

But the source said that this very well might not be the case. “Let us wait and see if another bill is published. The new one may or may not contain the IP Act amendments.”

Another source opposing the changes said, “The rules say that the 2006 Miscellaneous Amendments Bill will have to be republished as a 2007 bill. Apparently the IP Act amendments will not be there, but we will monitor closely to make sure they are in fact deleted in the 2007 bill.”

The changes would make it more difficult to import cheaper off-patent medicines into Kenya without the consent of the patent holder, and would put restrictions on the government to issue compulsory licenses on patents to serve the public interest, according to a task force set up by the Ministry of Health to examine the proposal.

Percy Makombe, co-ordinator on trade and health at the Southern and Eastern African Trade Information and Negotiations Institute, told Intellectual Property Watch that if the changes were to be adopted, “Essentially, one foreign company would control the import, stocking and sale of any patented medicine in Kenya.” She noted that, “The opportunity by Kenyans to shop around the world for the most affordable medicines without fear of legal action by the patent holder or licensee would cease,” and the cost would increase.

Makombe said the changes would also have put restrictions on the government. “The government would be required to negotiate with a patent holder, even in cases when patent holders have abused their rights,” she said. “Government’s ability to address serious problems of medicines supply during emergencies would be unnecessarily limited.”

Who Was Behind the Proposed Changes?

The bill containing the changes was “presented to parliament for debate by the leader of “Government Business” in the Parliament of Kenya. At the time of its introduction, the leader of Government Business was the current vice-president of Kenya, Hon. Moody Awori. He has since been replaced by the minister for justice and constitutional affairs, Hon Martha Karua,” Peter Munyi of the International Centre of Insect Physiology and Ecology and a member of the task force, told Intellectual Property Watch. Karua has shown opposition to the proposed changes.

“The amendments would have had profound effects to the access [to medicines] issue,” Munyi said.

It was not possible at press time to get information on who exactly have been pushing for having the changes to the IP Act incorporated.

But a first attempt to change the act in 2002 was rejected by government, after “efforts by pharmaceutical companies to undermine it,” Makombe said. If the proposed changes back then would have been adopted, they would have “negatively redefined one of the Act’s most effective flexibilities, that of parallel importation,” she said. Makombe said that the proposals were rejected as “having gone against the interests of Kenyans.”

Ahmed Ogwell of the Ministry of Health told Intellectual Property Watch earlier this autumn that it is difficult to say who is in favour and who is against until the bill reaches the floor, but that “the intrigues are there.”

A local non-governmental source said that in 2001, when the act was adopted (passed into law in June 2001, came into force in May 2002), one of the law firms in Kenya requested the changes on behalf of a client. The source said that one of main clients of this law firm was an international pharmaceutical company.

“The IP Act incorporates both the necessary minimum standards and the allowable flexibilities of World Trade Organization Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS). Thus Kenya’s IP Act is considered fully TRIPS compliant,” Makombe said.

The proposed changes back then would have “negatively redefined one of the act’s most effective flexibilities, that of parallel importation,” she said.

Task Force Opposed Changes

It was easier to get information about who has opposed the bill. Munyi said that the bill had been opposed by some government departments, in particular the health ministry, which had set up the task force as a result. International organisations such as UNAIDS and non-governmental organisations dealing with access to medicines issues, including HAI Africa, ActionAids, Oxfam and People Living with HIV and AIDS, had also opposed it, he said.

The Kenyan Industrial Property Act came into force in May 2002 (IPW, Public Health, 9 August 2006). The Kenya Gazette entry on the proposed changes stated that the “Statute Law (Miscellaneous Amendments) Bill 2006 would seek to amend sections 6(a); 11(2)(a)(b); 58(2); 82 and delete sections 80 (1A), (1B) and (1C) of the Industrial Property Act 2001 (the IP Act),” according to another local source.

In August, local non-governmental organisations (NGOs) indicated, however, that the changes to the bill most likely had been defeated as they had not been supported by the task force. In addition, Karua, the Kenyan justice minister, said that the changes would neither be good for the government nor patients, an NGO source from Nairobi told Intellectual Property Watch.

During the autumn it was unclear when it would come up as the agenda of the Parliament is only prepared on a week-by-week basis, sources said. A non-governmental source said earlier this autumn that there were many bills pending in Kenya, including one on constitutional reform, and at the moment “nobody is prioritising” the IP bill.

Kenyan IP Office on Its Own

Separately, the Kenyan Industrial Property Institute (KIPI) is now operating on its own without the assistance of the World Intellectual Property Organization (WIPO) it received in the past, according to a Kenyan intellectual property official.

KIPI is a government department under the ministry of trade and industry, and it was set up as a result of the Industrial Property Act, it said. The institute says the act covers four areas: patents, utility models, industrial designs and techno-innovations.

Kenya is a member of African Regional Industrial Property Office, a regional organisation of 12 countries (Kenya, Zimbabwe, The Gambia, Ghana, Lesotho, Botswana, Somalia, Sudan, Tanzania, Uganda, Swaziland, Malawi and Zambia), the institute said. “Inventors wishing to protect their inventions in these countries may file one application in Kenya and designate any or all them.”

KIPI has also recently launched its new website, the official said.

Tove Iren S. Gerhardsen may be reached at tgerhardsen@ip-watch.ch.