Writing for Intellectual Property Watch, Nicholas Wadhams ("Kenyan AIDS Patients Seek To Overturn Anti-Counterfeiting Law As Unconstitutional") follows up an earlier article on the delicate balance of interests in Kenya (see Afro-IP here) with a poignant account of the attempt being made by three Kenyan HIV/AIDS patients to petition the country’s Constitutional Court to declare the country's new anti-counterfeiting law 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 has been criticised because the broad definition of counterfeits is so vague that it could include generic drugs. According to the petitioners:
"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 offence. ”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".In Kenya generic drugs are up to 90 percent cheaper than their brand-name counterparts.
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 come into force but is expected to do so within weeks.