By Suleiman Mbatiah
NAIROBI, Feb 22 2011 (IPS)

Kenya’s flower exporters are cautiously optimistic that the prospects for their industry will improve during 2011 after disaster struck in the form of volcanic ash and adverse winter weather conditions in 2010. But prices will be lower as the global economic recession still weighs heavily on their primary market, the European Union.

Mercy Kagendo grades flowers at Kisima Farm in Timau in Kenya's Rift Valley. Credit: Suleiman Mbatiah/IPS

Kenya is globally the main exporter of cut flowers to the European market and the third largest exporter worldwide after the Netherlands and Columbia. The East African country is also the leading cut flower exporter among African developing countries. According to the Kenya Flower Council, 65 percent of exported flowers are sold through Dutch auctions, although direct sales are growing.

The council highlights that the industry has recorded strong growth in volume and value of cut flowers exported every year; 10,946 tons in 1988 compared to 86,480 tons in 2006 and 117,713 tons in 2009. The industry provides between 50,000 to 60,000 livelihoods directly and over 500,000 indirectly.

Statistics from the council show that the Kenyan flower industry suffered losses of 1.5 to two million dollars a day when 400-500 tons of cut flowers could not reach the market in 2010. Some 500 workers were laid off.

The industry has reportedly been optimistic that 2011 holds the potential for recovery. But Kenya Flower Council chief executive Jane Ngige is aware that the continuing economic woes in its key market could, just like the weather, affect the industry’s performance in 2011.

“When the ability of consumers to buy is curtailed, it certainly bruises the industry,” Ngige acknowledged. “Reduced returns will translate into loss of revenue and, of course, jobs. Hopefully this will not be the case.”

Demand for luxury goods such as flowers declined in Europe when the global economic and financial crisis first bit at the beginning of 2008, causing flower prices to immediately drop by between 15-30 percent.

Julius Riungu, farm manager at Timaflor, told IPS that the industry expects prices to drop further this year. The company has increased the acreage planted with flowers to counter the possible fall in prices.

The farm has a total workforce of 1,060 people, of whom 60 percent are men and 40 percent women. “If workers have to be sent home due to the recession, flowers could become bushes, worsening the situation,” he told IPS at the farm.

Timaflor trains its workers to form savings and credit cooperatives to save money.

Susan Makena joined the farm in Oct 2010 and is assigned to flower pruning. “I left the hotel industry for the flowers. The money earned has enabled me to help my extended family that is poor. I also use the cash to pay school fees for my children,” she said, adding that dismissal would mean “death” to her.

For Martin Dyer, general manager at Kisima Farm, the previous year’s calamities in the euro zone were a blessing, competitively. “We were lucky that we were able to take our flowers to Europe in time as we used other routes to get there. The prices had increased by then, due to the supply problems,” Dyer explained.

With his farm’s high quality, “big head” roses, he hopes to weather the continuing effects of the recession: “The small heads flood the market. Price- conscious customers should go for the best: the big heads.”

Not all workers are equally happy. Cecilia Wanjiku, who has four children, complained that the earnings at Kisima Farm are not enough to meet all her needs but she has no other option as work is scarce.

“Instead of being idle, I opted for casual work at the flower farms. Idleness leads to vices such as stealing to earn a living,” she told IPS during a lunch break at the farm. She and the other workers clock five to eight hours a day. Most women interviewed said they use their earnings to pay school fees and buy food.

Dyer is optimistic that no job cuts will be required at Kisima Farm.

Excerpt:

By Suleiman Mbatiah
NAIROBI, Nov 23 2010 (IPS)

Mary Kimani wishes her husband were still alive. Holding her one-year-old son in one hand and a hoe in the other, she recounts with bitterness how she and her children lost their livelihood to her husband’s family.

Lucy Wanjiku Macharia tends coffee bushes at her farm at Nyarugum-Nyeri in Central Kenya. Only five percent of women in Kenya own land. Credit: Suleiman Mbatiah/IPS

But only a few months after she buried her husband, her in-laws ejected her and her two children from the homestead. Today, even as she is haunted by the past, she works hard to keep hope glowing, working as a casual labourer on neighbourhood farms.

“I must move on. I have to feed my children, educate them and help them make a descent living,” she told IPS.

Kimani’s in-laws sold the house and land before giving the vehicle to a close relative. She had no right to the property. In Kenya, many women lose their rights to property after divorce or the death of a spouse. According to human rights experts, women’s socially sanctioned dependence on men leaves them vulnerable to “cultural traditions” that do not recognise women’s ownership of land and other property.

Men most often are willing to enforce such so-called customs, says Njoki Njehu, executive director of Daughters of Mumbi Global Resource Centre. The organisation is an independent, non-ethnic network bringing together people of diverse origins as well as “honouring women’s roles in anchoring family and community”.

“But it is not only men; some women who were themselves denied rights because of retrogressive practices uphold such practices to deny other women their rights,” Njehu told IPS. She explains that if a mother did not get land she will not champion her daughter or daughter-in-law’s cause in this regard.

Kimani appreciates that Kenya’s new constitution, promulgated in Aug 2010, represents gains for the women of Kenya. Section 40 of the Kenyan constitution promises the right to own property to “every person”, while section 60 ensures “equitable access to land” and “security of land rights” but without mentioning women or acknowledging their historical landlessness.

Njehu recalls the 2005 referendum: “Politicians mobilised communities to oppose the draft constitution as it would allow women to inherit land.”

Kimani is worried that men won’t enforce the constitution as it stands. “Customs and practices still hold women back. We are discriminated against in several areas that include land and property rights. The society positions men as the sole property owners,” Kimani points out.

The customary laws of some ethnic groups demand that land and other property that a woman acquires before or during the marriage belongs to her husband, who can sell it without her consent. “The key role of a woman is to take care of the property. Should your husband die, others stream in for inheritance. You can’t escape,” says 32-year old Grace Akinyi*.

Akinyi raises the issue of “wife inheritance” where widows are forced to marry again. It is still being practised, especially in western Kenya. According to her, should a woman decline to be inherited and she succeeds, she is often under constant pressure to sell the property at discounted prices.

She has been a victim of this practice. “A woman who owns land is still defined through her ties to men. Women are not recognised as owners in title deeds,” laments Akinyi.

According to international nongovernmental organisation (NGO) Human Rights Watch, customary laws in sub-Saharan Africa have greater influence than civil law when it comes to women’s property rights. And, acccording to a report entitled “The National Land Policy: Critical Gender Issues and Policy Statement”, only five percent of women in Kenya own land.

Hubbie Hussein, director of Womankind Kenya, women must be empowered as part of the effort to eradicate poverty as they produce 80 percent of food crops in sub-Saharan Africa but have no claim to land. Womankind Kenya is a local NGO based in North-Eastern Province, Kenya, with its head office in Garissa.

The predominantly Muslim zone has all manner of religious and cultural rules to limit women’s property ownership. Most residents are of Somali origin. “We often train women on what Islam provides for them with respect to property rights. Men have used religion as a tool to deprive women of their rights,” Hubbie told IPS in a telephonic interview.

Womankind Kenya uses religious texts, the constitution as well as international charters advocating for women’s rights to educate women on the ground. She adds that cases of discrimination against women are common but that affected women do not take any steps out of fear of being stigmatised.

“Girls never get an equal share of their parents’ property. It is a worrying trend here. Whenever a case arises, a council of men will sit to settle it and in the end rule in men’s favour,” Hubbie said.

Gender and human rights advocates believe that if women enjoyed equal property rights they could change the social landscape for the better.

*Name changed to avoid persecution.

Excerpt:

By Suleiman Mbatiah
NAIROBI, Oct 19 2010 (IPS)

Seventeen years ago it seemed like an impossible dream to provide thousands of low-income farmers with a way to borrow small amounts of money. But people working in the tea sector in the rural areas of central Kenya were determined to address farmers’ lack of access to credit. They started the Muramati Savings and Credit Cooperative Society.

Sistre Muthoni displays her farm produce at a market in Nairobi, Kenya. Many farmers in Kenya use credit services cooperatives. Credit: Suleiman Mbatiah/IPS

Most of Kenya’s population live in rural areas. Many are small-scale farmers battling with poor infrastructures, illiteracy, risky economic ventures and low profitability. SACCOs have grown in prominence in Kenya, filling the gap left by risk-averse banks.

SACCOs are democratic organisations owned, managed and governed by members. Money is pooled and members agree to make it available to each other at reasonable interest rates.

“We wanted to offer lending services to farmers at minimal costs. We had no office to operate from but we used mobile cash points from where farmers were paid their money,” Ngaai explains. The vernacular word “muramati” symbolises stewardship, confidence, care and being “someone else’s keeper”.

A far cry from its humble beginnings in office space “borrowed” from someone, a capital base of 500 dollars and almost no staff, Muramati SACCO Society has managed to recruit over 70,000 members, mostly farmers, and is now moving into urban centres.

The east African country’s government has prioritised quasi-banking institutions in its ambitious plan called “Kenya Vision 2030”. The government regards such institutions as a tool to achieving the United Nations’ millennium development goals.

Lawrence Munyua from Murang’a District in central Kenya believes his success as a farmer hinged on Muramati’s support. He joined the society in 2008: “Muramati helped us out when most farmers in central Kenya were frustrated with poor payments in the tea sector. Hundreds had uprooted their stems for other food crops that they thought could work as substitutes,” Munyua told IPS.

With the society’s support, farmers diversified their farming methods. Many moved into dairy production and bought goats and cows. “Muramati at the same time educated farmers on basic savings methods”, says Munyua.

Munyua explains that farmers sometimes need credit quickly and that SACCOs are able to process applications fast. It should be noted, however, that new Muramati members can access only small loans in the first six months after joining.

Munyua enthuses that, “I managed to educate all my children; and to buy a piece of land and a vehicle with the loans”.

Tea farmer Mary Wangeci confirms that SACCOs transform poor people’s lives. “They listen to you when you present your problems to them,” she told IPS on the phone from her farm in Thika in central Kenya.

SACCOs are Kenya’s fastest growing financial services. According to the minister of cooperatives, Joseph Nyagah, they presently account for savings of about 2.2 billion dollars, which represents 32 percent of national savings.

Previously, many SACCOs in Kenya had collapsed due to financial mismanagement of funds and poor decision-making.

The Kenyan government passed a law in 2008 to ensure prudent financial services management at SACCOs. Earlier in 2010, the government put in place the SACCO regulatory authority. The 2008 act empowers this body to license and regulate operations of deposit-taking cooperative groups.

Tony Mwangi, Muramati managing director, told IPS that SACCOs have gained their market share despite stiff competition from existing financial institutions. “The financial position of SACCOs is on the ‘up’. They are able to lend an average of 12.3 million dollars annually to their members,” says Mwangi.

SACCOs are extending their range of services as mobile phone banking takes off. Muramati plans to give members basic education on using information and communication technologies, including using automated teller machines and banking on the internet and per short messages using mobile phones.

Excerpt:

By Suleiman Mbatiah
NAIROBI, Jul 30 2010 (IPS)

A major pharmaceutical company in Kenya alleges that special trade measures to make medicines available in poor countries create “loopholes” for counterfeit medicines to enter the market – a claim that health rights advocates refute.

Parallel importation of medicines creates loopholes for counterfeiters to bring counterfeit medicines into Kenya, alleged GlaxoSmithKline medical and regulatory affairs director in Kenya, Dr. William Mwatu, in an interview with IPS.

Mwatu said that unscrupulous profiteers use the legalisation of parallel importation of generic drugs to import counterfeits.

Kenya’s Industrial Property Act of 2001 allows parallel importation under Section 58 (2). Parallel importation involves the legitimate importation of non-pirated goods without the permission of the rights holder. It is allowed under the World Trade Organisation’s (WTO) Doha Declaration of 2001.

The main objective is to provide citizens in poor countries that cannot manufacture their own drugs with access to medicines that are of good quality, safety and efficacy while being affordable.

But Mwatu argued that, “provisions and existing guidelines on parallel importation offer counterfeiters channels to bring in counterfeits under the guise of generics to the Kenyan market”.

In response, Health Action International (HAI) – Africa pointed out that parallel importation has nothing to do with counterfeiting. Counterfeiting is willful, commercial-scale trademark infringement.

HAI – Africa is part of a global independent network working to promote access to essential medicines.

Parallel importation is one of the flexibilities allowed in the WTO’s Trade- Related Intellectual Property Rights (TRIPs) agreement which gives the Kenyan government the opportunity to “shop around the world” for the best price for a medicine in other countries where the medicine has already been marketed, explained Christa Cepuch, HAI-Africa programme director.

“Once a medicine is on the market in a country, its patent holders’ rights are what is known as ‘exhausted’, which means they cannot be enforced again and again in other markets,” Cepuch told IPS.

GSK regional head John Musunga told IPS earlier this year that Kenyans’ exposure to fake medicines cause health complications while reducing the profit margins of patent holders.

He also blamed parallel importation as “leading to the importation of counterfeits rather than legitimate drugs”.

Mwatu explained to IPS that parallel importation should be regulated to ensure that there is no space for counterfeiters to take advantage of. His company is not opposed to parallel importation but wants to see rules fully enforced.

In September 2006 the Pharmacy and Poisons Board, together with the pharmaceutical industry, developed guidelines for the parallel importation of medicines into Kenya.

Under the guidelines, a parallel-imported medicine must have the same formulation, meet the same quality standards and have the same proprietary name as the medicine already available and registered in Kenya, according to Mwatu.

He added that parallel importers should register drugs with the Pharmacy and Poisons Board and bear the liability, in the event of any. The importer should at the same time provide the price at which the parallel imported medicine will be sold in Kenya and the drug’s shelf-life.

“The guidelines should be operationalised. We want to know who imports what and where. Transparency is all we need,” Mwatu added.

Pharmaceutical companies argue that policymakers were lenient with counterfeiters in the Industrial Property Act as it contains no specific provisions for the control of illegal trade and counterfeits and does not address the lack in numbers and competence of personnel at points of entry.

Cepuch said in response that parallel importation is clearly governed under Kenya’s Industrial Property Act of 2001 and its objectives are obvious and rooted in public health. “Parallel importation is used solely to advance public health interests, as opposed to commercial interests,” Cepuch added.

According to HAI Africa, medicines that are parallel imported are not exempt from the regulatory processes of the Pharmacy and Poisons Board and as such, any medicine which is parallel imported will be scrutinised and regulated to ensure it meets quality, safety and efficacy standards set out by the regulatory authority.

Excerpt:

By Suleiman Mbatiah
NAIROBI, Jul 22 2010 (IPS)

Kenya’s Constitutional Court is due to set a date on Jul 22 for a hearing on the application against the Anti-Counterfeit Act of 2008, of which clauses pertaining to medicines have been suspended pending the court’s decision on whether the law violates the right to health and life.

Three people living with HIV and AIDS applied in July 2008 for the act to be suspended as it threatens the importation or manufacturing of affordable and life-saving generic antiretrovirals, thus denying Kenyans their constitutional right to health and life.

In April 2010, Justice Roselyn Wendoh appreciated that the petitioners would suffer irreparable damage if their plight were not addressed. In her ruling, Justice Wendoh issued a conservatory order on the application of the law to medicines until a verdict is delivered in the case.

Parties enjoined in the case are supposed to file written submissions for the main constitutional application before Jul 22.

Jacinta Nyachae, executive director of the Aids Law Project, told IPS that the law contravenes sections of the Industrial Property Act of 2001, including section 58 (2) providing for parallel importation and section 80 on government use.

Parallel importation is when a product that is not counterfeit is imported from another country without the patent holder’s consent. The AIDS Law Project is a non-governmental organisation defending access to adequate healthcare and treatment for people living with HIV and AIDS. It is one of the parties to the case.

Section 58 (2) waives patent rights pertaining to some products on the market in Kenya or in any other country or imported into Kenya.

“This provision facilitates, among other things, access to affordable medicines by all,” Nyachae said. Section 80 on government use allows the government or its agents to exploit a patent in the public interest.

With the Industrial Property Act of 2001, Kenya used the flexibilities afforded least developed countries in the Doha Declaration of 2001 with regards the Trade-Related Aspects of Intellectual Property (TRIPs) agreement.

Health rights activists argue that developed countries are trying to force TRIPs-plus agendas (intellectual property rights protection that goes beyond TRIPs) regarding medicines on developing countries in favour of IP rights holders, of which the majority are multinational companies from the North.

Activists argue that the Anti-Counterfeit Act of 2008 fails to acknowledge and to specifically exempt generic medicines from the definition of counterfeits.

Moreover, TRIPs identifies intellectual property (IP) rights as “territorial rights”. IP on medicines would only be protected in the territory where it is registered. However, the Anti-Counterfeit Act of 2008 upholds IP rights registered in countries outside Kenya.

“This automatically makes generic drugs imported into or transiting through Kenya illegal if a patent exists anywhere in the world,” noted Christa Cepuch, programme director at Health Action International (HAI) Africa. HAI Africa is part of an independent global network that supports the right to health.

For the Eastern Africa Treatment Access Movement (EATAM) the April court ruling on generics set a precedent in the public interest and, more specifically, regarding the rights of people living with HIV, said Rose Kaberia, EATAM’s regional coordinator.

A favourable court ruling will keep the doors of treatment open for affordable drugs, Kaberia told IPS. EATAM works towards access to treatment for all.

She also thinks that it would demonstrate that public health rights are respected by the judicial system in Kenya. “It would be a great success for the common person who cannot afford branded drugs.”

However, a ruling in favour of the act would threaten and undermine the fundamental health rights of people living with HIV and the general public.

“This would therefore mean that the common person in Kenya has no voice and it would be tantamount to denying Kenyans one of their basic rights, namely to access affordable treatment,” Kaberia told IPS.

Cepuch is confident that the court will ultimately uphold the injunction barring the newly created anti-counterfeit agency from implementing the act regarding medicines.

“We hope the court will provide clear direction on how to protect public health and ensure access to medicines for all Kenyans vis-à-vis the widely acknowledged risks that this act poses,” Cepuch told IPS.

Excerpt:

By Suleiman Mbatiah
NAIROBI, Jul 1 2010 (IPS)

The agency tasked with implementing the Anti-Counterfeit Act of 2008 in Kenya is unaware of the Constitutional Court’s suspension of the law’s application to medicines. Moreover, a large multinational pharmaceutical company has offered to assist the agency in implementing the law with regards to medicines despite the court decision.

Sections of the Anti-Counterfeit Act that apply to medicines were suspended in April after three people living with HIV launched a court application against the law. The activists do not want the law to apply to medicines as it conflates counterfeit and generic medicines, which will deny them the right to affordable and life-saving generic antiretrovirals.

IPS ascertained that GlaxoSmithKline (GSK) has offered to sensitise officers at Kenya’s Anti-Counterfeit Agency (ACA) on identifying counterfeit medicines. The agency hosted induction courses for its officers during the course of June. The officers are charged with, among others, distinguishing between genuine and counterfeit products with a view to seizing counterfeits.

GSK’s medical and regulatory affairs director, Dr. William Mwatu, confirmed that his company communicated with the agency to indicate its willingness to assist. The officers undertook visits to affected industries from Jun 15-18 but could not visit the GSK facility at that time.

Gregory Munyao, the agency’s acting secretary, told IPS that officers may visit GSK in July. He added that pharmaceutical companies have great interest in public health and in protecting their own interests and therefore have to be included in the induction.

The Kenya Association of Manufacturers’ policy research and advocacy unit officer Joseph Wairiuko said that the pharmaceutical companies had to be involved in the training of officers as they are the experts.

“Manufacturers have a role to play in informing the public on how to identify a genuine product,” Wairiuko told IPS. “We are coming up with a database of all manufactured products to be pro-actively involved in the process,” he added. He at the same time accused the government of implementation delays.

Asked about the law’s implications for the agency’s operations with regards medicine, the agency appeared ignorant on the developments at the Constitutional Court.

“We are still in the process of setting up. I personally am not aware of the goings-on at the court about generics,” said Magdalene Munyao, the agency’s deputy director of enforcement and legal services.

Mwatu told IPS that GSK will not go against the court’s decision on the Anti-Counterfeit Act. He added that, “we are very much against counterfeits, not generics. We will educate the agency’s officers on this.”

He also said that, counterfeits “remain a threat and the agency must move swiftly to realise a positive impact.”

Gichinga Ndirangu, regional coordinator of Health Action International – Africa, told IPS that, “we are relieved that the recent court ruling means that the Anti-Counterfeit Agency cannot interfere with the importation and distribution of generic medicines for Kenyans.”

He cautioned that, “while the agency begins its work it must not be a stumbling block to access to medicines. This act threatens the flexibilities allowed to developing countries under the Trade-Related Aspects of Intellectual Property Rights (TRIPs) agreement of the World Trade Organisation that help increase access to more affordable generic medicines for people.”

Health Action International (HAI) – Africa is a global network of organisations and individuals promoting the right to health.

Activists scored an indirect victory when officials from Kenya’s health ministry told the World Health Organisation’s assembly in Geneva in June that the anti-counterfeit legislation was pushed by the country’s ministry of industry which failed to consider its implications for public health.

Excerpt:

By Suleiman Mbatiah
NAIROBI, Jun 14 2010 (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.

Excerpt:

By Suleiman Mbatiah
NAIROBI, Apr 23 2010 (IPS)

The Constitutional Court in Kenya has barred the government from implementing the Anti-Counterfeit Act of 2008 as it applies to generic medicines until a verdict is delivered in a case filed by three people living with HIV.

Activists celebrate the ruling safeguarding generics outside the Constitutional Court in Nairobi. Credit: Suleiman Mbatiah/IPS

It was argued that the act endangers the petitioners’ lives as they will be arbitrarily denied access to affordable and essential generic medication. The act is also criticised as failing to uphold the provision on the right to life in section 70 and 71 of Kenya’s constitution.

According to the petitioners, the act confuses quality and intellectual property rights (IPR) issues, thereby defining legitimate generic drugs as counterfeits.

The area of IPRs, including patents, trademarks, copyright and data protection, is clearly distinct from quality control issues when related to medicines. The act in its current form confuses these issues in such a manner that it is difficult to distinguish one from the other. As such, generic medicines may be erroneously interpreted as counterfeits, argued the petitioners’ counsel, David Majanja.

Furthermore, the law contravenes sections of the Industrial Property Act of 2001, including section 58(2) providing for parallel importation and section 80 on government use, according to the AIDS Law Project, a non-governmental organisation defending access to adequate healthcare and treatment for people living with HIV and AIDS.

These sections have played an important role in the struggle to increase access to essential medicines in Kenya.

The World Trade Organisation’s Doha Declaration confirmed the Trade-Related Aspects of Intellectual Property Rights (TRIPS) agreement’s allowance of parallel importation to address public health problems. Parallel importation involves the importation of non-pirated goods without the permission of the copyright holder.

Section 80 on government use allows the government or its agents to exploit a patent in the public interest.

Delivering the ruling today (Apr 23), Justice Roselyn Wendoh said that the petitioners had an arguable case and if the orders the petitioners wanted addressed were not met, they would suffer irreparable damage. “The petitioners have met the threshold, (therefore) the court issues a conservatory order as far as generics are concerned,” she said.

The judge appreciated that the wording in the act was vague and would cause confusion between counterfeit and generic medicines. The judge looked at a number of provisions of the Intellectual Property Act and at international statutes on the right to life.

Justice Wendoh also noted that women and children would be the most affected if the act’s provisions regarding generic medicine came into force. Section 9 of the Children’s Act guarantees children the right to health.

The ruling suspends the Anti-Counterfeit Agency’s powers to interfere with the importation and distribution of generic medicines in Kenya. Generic medicines make up 90 percent of medicines consumed in Kenya.

Reacting to the victory, one of the petitioners, Patricia Asero, said that the judge understood the agony they would undergo if the act was implemented: “We are happy that people living with HIV and AIDS will now have access to drugs while we await the main ruling.”

Health Action International (HAI) Africa also welcomed the ruling. HAI Africa is a network of organisations and individuals involved in health and pharmaceutical issues that promote health as a fundamental human right.

“This ruling keeps the window of opportunity open for those in need of more affordable generic medicines. While the constitutional court case is yet to be fully determined, this ruling has reinforced people’s call that public interest and human rights must be carefully considered before enacting and implementing any law,” said Gichinga Ndirangu, regional coordinator at HAI Africa.

Rose Kaberia, coordinator of the International Treatment Preparedness Coalition in East Africa, said in a statement that the “ruling recognises the potential danger posed to public health by the anti-counterfeit legislation and is a significant step in the struggle for access to more affordable generic medicines for all Kenyans”.

The act will still be applicable to other goods, such as soaps, detergents, food products, alcoholic beverages and dry cell batteries. The Anti-Counterfeit Act 2008 does not distinguish medicines from other goods.

Medicines are essential and life-saving and should be distinguished from non-essential goods such as DVDs and batteries, said Christa Chepuch, programmes director at HAI Africa. It is not known when the case will be heard and determined in full. The Constitutional Court will provide hearing dates in due course.

Excerpt:

By Suleiman Mbatiah
NAIROBI, Mar 19 2010 (IPS)

Kenya’s Constitutional Court heard on Mar. 18 from counsel representing the government that the Anti-Counterfeit Act of 2008 does not threaten the importation or manufacturing of cheap generic medicines and therefore does not deny Kenyans their constitutional right to life.

Health rights activists protest outside the Constitutional Court in Nairobi. Credit: Suleiman Mbatiah/IPS

The petitioners are challenging sections two, 32 and 34 of the Anti-Counterfeit Act. The law fails to acknowledge and to specifically exempt generic medicines from the definition of counterfeits in accordance with the allowances in the Trade-Related Aspects of Intellectual Property (TRIPS) agreement, according to the petitioners.

Therefore, the definition is regarded as more onerous than TRIPS (known as “TRIPS-plus”) as it may prohibit the importation and manufacturing of generic drugs in Kenya. The act’s definition of counterfeit goods is regarded as too wide.

Counterfeiting is defined as, “(t)aking the following actions without the authority of the owner of any intellectual property right subsisting in Kenya or elsewhere in respect of protected goods, (such as) the manufacture, production, packaging, re‐packaging, labeling or making, whether in Kenya or elsewhere, of any goods whereby those protected goods are imitated in such manner and to such a degree that those other goods are identical or substantially similar copies of the protected goods”.

Section 34 of the act gives the Kenya Revenue Authority “excessive powers that may be abused” and may also violate the TRIPS agreement, according to the petitioners.

Arguing in defence, the senior state litigation counsel Peter Bosire said the petitioners do not have a case as they are misreading the act. He insisted that the act’s definition is clear and does not threaten the importation of generic medicines, as alleged by the petitioners and interested parties.

“Importation of drugs and the use of ARVs (anti-retroviral medicines) are not prohibited by the act… only mislabeling of medicines (is),” he said, adding that the act seeks to criminalise deliberate mislabeling of medicines.

Bosire further argued that neither the petitioner nor the interested parties has demonstrated that the government or its agencies are in breach of constitutional rights.

In his retort, the petitioners’ counsel, David Majanja, described the act as interfering with the constitutionally guaranteed right to life: “There’s much harm and damage to people living with HIV if the act is enforced as it will inhibit access to essential medicines.”

The enforcement and application of the act, particularly sections 2, 32 and 34, will endanger the petitioners’ right to life by arbitrarily denying them access to affordable and essential medication.

He added that the act also contravenes sections of the Industrial Property Act of 2001 that allows government to utilise parallel importation, as per multilateral agreement, in the interests of public health.

According to Christa Cepuch, Health Action International Africa programme director, “counterfeits should not be confused with generics. We are totally against the manufacture of counterfeits that is a threat to the health sector.”

Cepuch told IPS that the act hands excessive power to police and border officials who lack the necessary knowledge to distinguish counterfeit medicines from generic medicines.

Aids Law Project lawyer Omwanza Ombati argued that authorities might use loopholes in the law to erroneously interpret generics as counterfeits due to the ambiguities in the law. The Aids Law Project is a non-governmental organisation championing access to adequate healthcare and treatment for people living with HIV and AIDS.

“The wording in the law means that drugs imported under parallel procedures might be seized at border points or ports,” Ombati told IPS.

The Kenyan government has had research conducted that showed that consumption of contraband or counterfeit products causes local manufacturers to lose about 650 million dollars annually in sales.

Bosire argued that the court challenge could compromise the enactment of the law which covers a spectrum of products apart from medicines.

The ruling will be made on Apr 23.

Similar legislation has either been tabled or adopted in Zambia, Tanzania and Uganda and is also being considered at the level of the East African Community.

Excerpt:

By Suleiman Mbatiah
NAIROBI, Oct 30 2009 (IPS)

Despite the sweltering sun and with a heavy load on her back Mary Muthoni strides to the tea buying centre with joy and pride painted on her face. "This is a different year," she smiles, hurriedly greeting other women farmers at the centre. For them, the story is the same: blessings in times of calamity.

The Kenya Tea Development Agency (KTDA) has announced a major increase of 28 percent in farmers’ earnings. Kenya is the world's largest exporter of black tea. It produced 345 million kg in 2008.

In what is a record year for small-scale tea farmers in the country, the average rate payable per kg of green leaf delivered to factories has increased significantly. "Last year, we could only go home with a total of 0.33 dollars per kilogram but today everyone is leaving with 0.47 dollars in most factories in the country," explains the overjoyed Muthoni.

Income from tea reached an unprecedented 332 million dollars for the 2008-2009 financial year, up from about 265 million dollars for the previous year.

"We are now able to pay our casual tea pickers and be left with something to feed and educate our children," Muthoni adds.

Previously, farmers got a negligible fraction of the overall income. After paying the tea pickers at 0.07 dollars per kg, the rest of the cash had to cover overhead costs like fertilisers, pruning, transport, weeding and other costs.

Of the 332 million dollars, about 106 million dollars has already been paid out to farmers. During this month the balance was to be paid out. In all, this represents a major increase over the 146 million dollars earned the previous year.

The second payment will be paid at an average rate of 0.33 dollars per kg of green leaf, as opposed to the 2007-2008 average rate of 0.19 dollars per kg of green leaf.

KTDA’s managing director, Lerionka Tiampati, says the record earnings by KTDA’s 500,000 small-scale farmers are the rewards of efficient factory processes; improved auction prices caused by high global demand that has been driven by the prolonged drought; and favourable exchange rates.

"As the drought persisted over the year, production fell by as much as 30 percent, helping to push up prices at the auction," Tiampati explains.

He adds that the reduced global production of green leaf tea saw demand for Kenyan tea surge at the auction and prices improve fractionally. Prices have increased by up to 30 percent in the last year.

While, on the one hand, the drought brought good tidings to farmers, on the other its severity soon became a cause of great concern as the drastic fall in volumes and persistence of the dry spell denied them an opportunity to take full advantage of the improved prices. "My harvest has gone down drastically," says a farmer. "I am almost delivering half of what I used to a few years ago although I am getting much more money than I used to."

The hot and dry weather conditions that prevailed in tea growing areas east of the Rift Valley led to reduced production. Tea output in the region dropped from 40 million kg, recorded in Jan last year, to 23.3 million kg.

However, according to Tiampati, despite the prolonged drought farmers were enjoying record earnings because the exchange rate had also been favourable to exporters, averaging Ksh76 to the US dollar.

Tea factories in the country have also had reasons to celebrate amid the drought pangs. Of all 60 factories under the KTDA management, 18 top performing factories have managed to attain an average net return to the farmers of 73 percent. According to Tiampati this has reflected an overall improvement in efficiency and cost management at the factory level.

Farmers in Kenya are paid in quantity of green leaf delivered. It takes on average four kg of green leaf to produce one kg of tea.

One year ago, farmers were uprooting their tea bushes citing low returns. Most of this happened in the tea farming areas of Othaya, Muthithi, Kirinyaga and and Murang’a in central Kenya. Experts in the agriculture sector argue that the current tea shortage in the market could also be attributed to this massive uprooting of tea bushes in key production areas.

Despite challenges, comparative country figures show that Kenya’s small-scale farmers are the highest paid in the world, at 0.47 per kg of green leaf in the year under review. Sri Lanka is at an 0.30 dollars, Nepal at 0.23 dollars, India at 0.20 dollars and Vietnam at 0.16 dollars.

Among other African producers, Rwanda pays its farmers at a rate of 0.15 dollars per kg, followed by Uganda at 0.11 dollars, Malawi at 0.10 dollars, Tanzania at 0.09 dollars and Burundi at 0.08 dollars. Tiampati outlines significant steps the agency has taken this year to diversify its operations, apart from tea processing and marketing, in order to face the challenges of a constantly changing market and to add value.

In June, a power purchasing agreement was signed with the Kenya Power and Lighting Company to enable Imenti Tea Factory, which it manages, to sell surplus power from its mini-hydro project to the national grid.

Farmers have for a long time requested KTDA to provide financial services to help them cope with the high cost of borrowing and the rising cost of farm inputs.

The profits from these initiatives, if any, will be paid out as dividends to the small-scale tea farmers, who own KTDA through their factories.

Farmers point out that the profits translate into better living standards and improved morale about their venture.

Operations in the factories have also been automated to further reduce costs and improve efficiency in tea processing. Continuous fermentation units (CFUs), a revolutionary addition to the tea processing chain, have been installed in virtually all factories across the country.

Excerpt: