By Suleiman Mbatiah
NAIROBI, Jun 14 (IPS) – Much of the initiative behind the adoption of Kenya’s controversial anti-counterfeit law came from multinational pharmaceutical companies using their membership of a local manufacturers’ association to push the legislation.
Kenya’s Anti-Counterfeit Act of 2008, aimed at stemming the supply of counterfeits, has caused widespread concern as it may lead to law enforcement agencies stopping legitimate generic medicines at the country’s borders. The law’s application to medicines was suspended in April 2010 pending a court challenge brought by health rights activists.
Pharmaceutical companies called on other sectors represented in the Kenya Association of Manufacturers (KAM) a few years ago to support their initiative against counterfeits. The companies presented proposals on anti-counterfeit legislation to KAM’s other members, KAM’s executive officer for policy research and advocacy unit Joseph Wairiuko, told IPS.
KAM serves as an umbrella organisation with over 600 members drawn from different manufacturing sectors.
In 2008, the pharmaceutical companies set up KAM’s anti-counterfeit committee and came up with a sector position paper for submission to parliament, said Wairiuko, who also served on the committee. According to him, the pharmaceuticals lobbied parliamentarians heavily – to such an extent that he was of the opinion that "no one could block it".
The pharmaceutical companies which were involved included GlaxoSmithKline (GSK), AstraZeneca, Sanofi-aventis, Roche and Norvatis. The drug manufacturers met the parliamentary committee that was tasked with the bill.
KAM’s legislative proposal centred on the loopholes in existing laws on customs and trade that allowed continued trade of counterfeit products. This made the passage of the bill urgent, according to Wairiuko. The proposal also questioned the problem of "weak vigilance at points of entry" into Kenya.
Regarding generic drugs, Wairiuko told IPS that "generic drugs are not counterfeits but can be easily counterfeited" because counterfeiters target fast-moving, cheap products such as generics. Generics present an "easy path" for counterfeiters looking for potential markets, he said.
Wairiuko told IPS that while counterfeit trade is affecting every economic sector detrimentally, the legislative proposals by the pharmaceutical industry elicited most attention from parliamentarians.
He explained the speed with which the bill was passed in 2008 as being due to KAM "acting very fast to meet our objectives" and "by calling for the parliamentary process to be sped up".
KAM also succeeded in making "the government aware that (without the law) the pharmaceutical industry was bound to lose a lot through counterfeit trade. We pushed when the government seemed reluctant," Wairiuko added.
He noted that the legislation will encourage research and development of products as drugs manufacturers will be able to plough back their profits into the business. The act will "greatly enhance" innovation and intellectual property rights, he added.
GSK managing director John Musunga confirmed in an interview with IPS that his company, along with other multinational pharmaceuticals, pushed the bill at every stage of the drafting process by providing "key expertise".
He added that counterfeit trade has not only edged out legitimate manufacturers from the market but also barred manufacturers from investing in pharmaceutical industries since the profit margins are too low. "Without intellectual property rights protection, the whole process (of medicines marketing) goes to waste," Musunga noted.
Intellectual property rights expert Sisule Musungu told IPS that KAM has access to Kenya’s President Mwai Kibaki and Prime Minister Raila Odinga. "If KAM tells them about the problem, it is taken as a problem of the Kenyan manufacturers but in fact it is not; the same with the East African Business Council, another entity that is playing a role in the spate of anti-counterfeit initiatives in East Africa.
"They are seen by the leaders as entities that represent East African industries but these associations have wider memberships which include multinationals. These multinationals are using those entities that would seem to be representing national and regional interests to actually push the (anti-counterfeit) agenda, as opposed to them directly approaching governments.
"It seems to be working fairly well for them," Musungu concluded.
Christa Cepuch, director of programmes at Health Action International Africa (HAI Africa), commented that, "there is clearly no public health focus in these anti-counterfeit efforts, regardless of any public health claims they may make". HAI Africa is a network of individuals and organisations that promote health as a human right.
She pointed out that the public health issues at stake are access, quality, safety and efficacy of medicines. "Enforcing intellectual property rights will never ensure quality of medicines. Quality and intellectual property are two distinct issues" as intellectual property is about ownership rather than quality.
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