Wednesday, 30 June 2010

Kenya's proposed constitution gives IP a mention

"Proposed new Constitution to recognize IP rights", an article written for International Law Office by David Kimani (Njoroge Regeru & Company), explains that, this May, Kenya's Attorney General published the country's proposed Constitution which, if passed in a forthcoming referendum on 4 August 2010, will by Article 11.2c oblige the state to "promote the intellectual property rights of the people of Kenya". This provision is said to require the state to promote all forms of national and cultural expression, such as the arts, as well as ensuring that communities receive compensation or royalties for the use of their culture and cultural heritage.

The current Constitution protects persons against unlawful deprivation of property of any description, but Article 40.5 of the proposed Constitution goes further, by specifically providing that "the state shall support, promote and protect the intellectual property rights of the people of Kenya".

Afro Leo wonders what checks and balances, if any, may be lurking elsewhere in the proposed Constitution, to protect the interests of users, consumers and competitors of those who own and seek to exploit their intellectual property for gain. Can any readers advise him?

1 comment:

Enyinna Nwauche said...

Kenya will not be the only country to specifically protect the right to intellectual property if that can be said to be really what Article 11.2c approximates to. It is worth noting that an attempt to introduce that right into the Final Constitution of the Republic of South Africa 1996 was not approved by the Constitutional Court in the Certification judgment. That said, even if the said clause does not appear in the new constitution, the Kenyan State like all other States who protect unlwaful deprivation of property is obliged to protect intellectual property rights. The right to protect intellectual property like all other rights is not an absolute right. Apart from internal derogations in the public interest, other rights such as the right to freedom of expression; the right to health; the right to education and other rights limit the application of the right to intellectual property. These rights protect users consumers and
competitors.

If intellectual property rights (patents copyright design etc) are mainfestations of the right to intellectual property, it is easy to imagine that the right to intellectual property and it's manifestations can be balanced with oother human rights, a process which courts regularly engage in. The process is evident in the Constitutional Court's judgment in the celeberated Laugh It Off case.