A draft Kenya anti-counterfeit Bill has been finalised and is recommending penalties of up to Ksh1.5 million ($19,480) for first offenders.

The Bill, drawn up at a Nairobi hotel last week, is jointly sponsored by the Ministry of Trade and Industry and USAid.

Besides the fine, the Bill is proposing a five-year jail term for first time offenders. 

Currently the penalties are a Ksh500,000 ($6,493) fine or two years imprisonment in default. 

The penalties will be harsher for repeat offenders and will include the destruction of impounded goods.

Sources at the meeting said that among contentious issues was the choice of the enforcement authority.

Ordinarily it would be Kenya Industrial Property Institute (KIPI) which deals with patent rights or the constituted Kenya Copyright Board but neither has the resources to immediately undertake the function.

"There is a general view that the Kenya Revenue Authority (KRA), whose role is to collect taxes is better placed to take the function as it is the only body with an existing infrastructure to assume the duty immediately," said the source.

Contacted for comment, Anil Kapila of Fox Theatres said that any meaningful enforcement cannot sidestep the Kenya Intellectual Property Institute and the Copyright Board and both should be empowered to perform their roles. 

He suggested that the board's shortcoming is the lack of autonomy and it ought to be fully de-linked from its current station at the Attorney General's Chambers for it to serve its mandate.

"There are several overlapping issues in the various aspects of counterfeit and copyright violations that can be handled by either of the offices, but some have peculiarities that cannot be handled within the general clauses of the counterfeit violations," said Mr Kapila.

The draft Bill comes three weeks after the East African Copyright Summit in Arusha recommended the harmonisation of quality standards and uniformity in pre-shipment inspection procedures as a step towards removing ambiguities in the definition of counterfeit goods. The meeting said that different quality standards on goods manufactured in the three countries posed a serious challenge to the eradication of counterfeit goods. 

The meeting was attended representatives of the quality control authorities in the three countries, led respectively by John Masila, managing director of Kenya Bureau of Standards, Charles Ekelege of Tanzania and Dr Terry Kahuma of the Uganda National Bureau of Standards.

The meeting also proposed that Customs checks in the three countries be extended to cover transit cargo to eradicate the possibility of counterfeit goods being shipped through any of the East African countries. 

"These measures ensure that illicit goods are detected and rejected at the points of entry," said Julius Kirima, a Kenyan Ministry of Trade official.

Previously, goods on transit were only checked at border points of their intended destination.

The EAC taskforce recommended to the East African Law Reform Commission – currently holding its sessions in Arusha – the creation of uniform legislation to deal with counterfeit goods in the three East African countries. 

"It also called for the creation of an EAC technical committee to advise on legislation and other aspects in the anti-counterfeit war.

The proposed laws make it possible to prosecute buyers as well as sellers of counterfeit goods, which cost the Kenyan economy Ksh20 billion ($260 million) in lost revenues and employment opportunities every year. 

Among the fake goods said to be in the black market in Kenya are drugs ($130 million), textiles ($6.5 million), tyres and tubes ($4 million) and soaps and detergents ($260,000). 

The laws are expected to be enacted by the end of the year and will be the first crucial step towards the East African countries' compliance with the World Trade Organisation's Trade Related Intellectual Property Rights (TRIPS).

Delegates at the Arusha meeting felt that even as the three countries prepare counterfeit laws, existing laws have clauses that could be enhanced for immediate application. 

"We thought that this would be a prudent stop-gap measure that can serve sufficiently even as we wait for the laws to be drawn and passed," said Mr Kirima.

In Tanzania, the country's Fair Trade Commission has identified a clause in its laws and enhanced it to give stiffer penalties for offenders.

However, Uganda lacks a clear legislation on counterfeits but delegates said that the country's business law of 1936, can also be enhanced to serve until a proper anti-counterfeit law is in place. 

But Ugandan delegates expressed enthusiasm towards having effective laws against counterfeits, but claimed that lack of manpower and funds may delay the process towards having a thorough law on counterfeits. Once in place, the laws will be incorporated into the East African Customs Union Management Act to fight counterfeit goods in the region.

The Arusha meeting has also led to better networking for the regional tax collecting bodies to share information on emerging trends in counterfeits that will serve as a strong deterrent to trade with fake goods.

The three countries have also agreed to organise nationwide awareness campaigns to sensitise the public on the issues of counterfeits. 

This will include workshops and seminars targeting all sections of the communities in the three countries. 

"We think that the war on counterfeits would be easier with a much more enlightened public," said Mr Kirima.
 
 

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