Justice Mumbi Ngugi declared the Kenya Anti Counterfeit Act 2008 ‘vague’ since it has failed to clearly distinguish between counterfeit and generic medicines.
The judge has now directed the government to amend section 2, 32 and 34 of the Act which prohibits the use of generic medicines.
The judge made the order after three people living with HIV/AIDS moved to the court against the offending laws.
“The sections 2, 32 and 34 of the Act violate the complainant’s right to life and health as it severely limits access to drugs.
The ruling means that the government must amend the laws that confuse generic medicines with counterfeits and remove ambiguities that may result in arbitrary seizures of generic medicines under the guise of fighting counterfeits.
Kenyan health activists have welcomed the landmark ruling saying they will now be able to access cheap drugs.
“The court has correctly interpreted the Constitution and guaranteed the right to health. This ruling speaks against any ambiguity that serves to undermine access to generic medicines and puts the lives of people before profit,” said Patricia Asero, one of the three petitioners.
The petitioners Asero, Maureen Murenga and Joseph Munyi, had moved to court seeking to have the Anti-Counterfeit Act 2008 declared unconstitutional on the grounds that it infringes on their right to life by giving a broad definition and interpretation of what constitutes counterfeit medicines.
They argued that the Act threatened their access to generic medicines and right to life.
“This was a poorly drafted law from the outset that must be urgently reviewed to avoid threatening public health programmes such as the national treatment programme on HIV which is predominantly dependent on access to generic anti-retrovirals,” warned Jacinta Nyachae, executive director, AIDS Law Project.
The activists said the ruling sets a positive precedent for the entire East Africa region as most countries within the East African Community are considering anti-counterfeiting laws that may threaten generics.
“Kenya is leading the way in protecting access to medicines and public health and we are watching the actions of the East Africa Community member states to see if they follow suit,” she added.