Interagency framework needed to fight illegal trade

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BY BETTY MAINA

Justice delayed is justice denied, so goes the old adage. Nothing pains Intellectual Property (IP) rights holders more than justice not delivered properly and timely. It is both costly and harmful to businesses when the judiciary is the last resort.

Illicit trade has continued to spread its tentacles, choking local creativity, innovation and brands to the annual tune of US$500 million and this vice is mainly blossomed by the lucrativeness of the practice and corruption. Local manufacturers who own copyrights, patents and trademarks are being forced to bear this cost annually.

During a recent benchmarking trip to Uganda on the illicit trade manual, prosecutors there were quick to point out that a private sector person only gets involved in corruption only if he or she knows for sure that at the end, he will lose the case! In this scenario, he or she is forced to bribe his way out. For corruption not to gain a foothold, Inter-agency collaboration in the fight against illicit trade will be more effective. If other enforcement agencies such as Kenya Revenue Authority (KRA) and Kenya Bureau of Standards (KEBS), are part of the prosecution process, they can lay different counts or offences against the counterfeiters. This will increase the impact of any conviction leading to stiffer penalties or longer jail terms.

An important aspect of illicit trade is smuggling which occurs across national borders, so it is also imperative to bring together agencies all over the east African region for more effectiveness and also for the EAC partner states to come together and tackle the problem together as one force.

While some of these agencies already have the power to prosecute, there is also need for capacity building for the prosecutors so that they are well versed in the law against illegal trade. To this end, we are already working towards an illicit trade manual to guide prosecutors on this sensitive area and provide a legal framework which will enhance their power.

Scrutiny of the legal approach to infringements on IP rights shows the need to fuse criminal as well as civil elements into any illicit trade convictions for effective enforcement. Without punitive and compensatory penalties, interest in IP cases dwindles when all that is at stake is bringing to book the criminals.

Only by making illegality very expensive can we ensure that there is deterrence against the vice. IP holders need to be compensated for loss of time and money. In this regard, it is worthwhile considering to award 40 percent of the charge to the IP holder while 60 percent should be go to the exchequer and the implementing or enforcing agency. Such a set up if adopted will make sure that there is serious interest throughout the case process to the end.

IP related case processes should also be shortened in our courts. At the moment it can take years to conclude such cases and usually at the expense of the manufacturer, who sometimes is both the victim and the only witness. When such cases keep on being postponed due to various factors, then the costs accumulate.

The power to prosecute should not be centralized to a few people; otherwise corruption may have an open window. But if the law is made laws deterrent enough, a win-win situation will be arrived at.

The writer is the chief executive of Kenya Association of Manufacturers and can be reached on [email protected]

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