Kenyan AIDS Patients Seek To Overturn Anti-Counterfeiting Law As Unconstitutional

NAIROBI – Three HIV/AIDS patients in Kenya announced Tuesday they will petition the country’s Constitutional Court to declare a new anti-counterfeiting act illegal because it could deny them access to generic medicines. The move, which has the support of public health groups across the country, seeks to have the 2008 Anti-Counterfeiting Act made unconstitutional on the grounds that it could rob them of their right to life.

The anti-counterfeiting law, which is aimed at cracking down on the fake batteries, pens, drugs and cosmetics flooding into Kenya, has been criticised by the NGO community and importers of generic drugs because of the way it defines counterfeit products. They say its definition is so vague that it could include generic drugs. The act could also allow a pharmaceutical company to charge patent infringement in Kenya even if its patent is not registered there.

“Generic medicines are legitimate exact copies of their brand-name original. They are not counterfeits,” the three said in a statement read out at a news conference. “They should not be confused with counterfeits. The manufacturing of generic medicines is not a criminal offence.”

“We believe our government should combat counterfeiters and counterfeit goods, including medicines,” the statement said. “But not at the expense of our health and our right to life.”

The issue is of life-and-death importance in Kenya and much of the rest of Africa, where HIV/AIDS patients can usually only afford generic drugs, which are up to 90 percent cheaper than their brand-name counterparts. The international donors who fund some drug distribution, including the US President’s Emergency Plan for AIDS Relief and the Global Fund to Fight AIDS, Tuberculosis and Malaria, rely almost exclusively on generics manufacturers for their supply.

The Kenyan act has gained widespread attention abroad because it is being used as a partial template for similar anti-counterfeiting bills in Uganda, Tanzania and other African nations that have both been flooded with counterfeit goods and also have a high number of people who rely on generic HIV/AIDS drugs. The act also caused an uproar among generics manufacturers in India, who argue it could wipe out their business if an opponent of their products should try to exploit it.

Advocates of the new law, including the Kenya Association of Manufacturers and brand-name drug-maker GlaxoSmithKline, argue that its language is clear and they have no intention of trying to block the import of generic drugs. The act has not yet taken effect but is expected to do so within weeks.

That has not persuaded public health advocates in Kenya. They cite more than a dozen cases in recent months that saw generic drugs made in India and bound for South America and elsewhere in Africa impounded in European ports. Customs officials argued that the drugs violated European patent rights.

“As it applies right now, the seizures of drugs is very imminent,” said James Kamau, coordinator of the Kenya Treatment Action Network in Nairobi, who took part in the announcement Tuesday. “All the regulatory body has to decide … is just to imagine that they are counterfeits and they seize them.”

Delays at ports like the Kenyan city of Mombasa could be fatal because public health centres and clinics often face severe shortages of drugs.

Kamau and other advocates for generics claim that pharmaceutical companies are trying to use the Kenyan law and other draft laws similar to it elsewhere in Africa to quash the market in generics or to get their own generic drugs into people’s hands. Major pharmaceutical companies including GlaxoSmithKline deny those claims.

Joseph Munyi, one of the petitioners, said the group’s efforts were being funded in part by contributions from fellow HIV/AIDS patients in Kenya who fear they too will lose access to the medicines they rely on to survive.

The petitioners said they planned to file their appeal with the constitutional court on Wednesday. They said they were not opposed to the aims of the anti-counterfeiting act, and agree that counterfeits are “frauds, made and sold by criminals who seek to deceive consumers,” according to the statement.

“We need the government to fix the loopholes within the act so that our rights can be protected,” said Patricia Asero, another of the petitioners. “If that is done, then we will rest.”