Owino Opondo
25 October 2008
opinion
Nairobi — Kenya is in the midst of hard times, and all sectors of the economy are balancing fickle books of accounts.
This is why I cast my lot with members of the Kenya Association of Manufacturers when they warned of the imminent collapse of their businesses due to unfair competition from cheaper but untested imported goods that have flooded the market.
Three things concern me here. The first is that most institutions tasked to test local and imported goods are either suffering from selective inertia or have collapsed altogether. Either way, it is unacceptable.
Secondly, you only have to visit small kiosks, open-air markets and retail stores to witness all forms of cheaper, sub-standard goods like detergents, toys, clothes and foods that have forced locally produced alternatives into warped price wars.
Finally, Kenya's high tax levels have made doing business here an uphill task. As usual, manufacturers pass that burden to consumers, resulting in prohibitive prices.
These three reasons explain why locally made goods are more expensive than their imported alternatives. And this is happening at a time when low and medium income earners are suffering the pain of runaway inflation.
Big commerce
In my view, the government left the consumer at the mercy of big commerce and the vagaries of the concomitant forces of demand and supply when it embraced the so-called free market economy over two decades ago. This arrangement, however, is in most parts of the world.
However, we must urgently find a way of delicately balancing benchmarks that enable local business to thrive through quality and fairly-priced goods.
For this, I toast the ministry of Industrialisation for publishing the Anti-Counterfeit Bill, 2008. Parliament will this week begin discussing the proposed law.
The Bill aims at prohibiting trade and all manner of dealings in counterfeit goods. This it seeks to achieve through the proposed Anti-Counterfeit Authority (ACA), with far reaching-powers to check the quality of goods and penalise producers of copy-cat and fake ones.
These are good intentions, for they would address a number of concerns rightfully raised by local manufacturers. This is only achievable if the suggested ACA does not suffer the influenza of shoddy performance like most existing similar entities.
To injure
However, the Bill contains some provisions that are likely going to injure - if not to throw into total confusion - the provision of essential medicines to the public.
I support the line of caution and free advice the House departmental committee on Health has so far got from the civil society groups, including the Health Action International Africa (HAI) and Kenya Treatment Access Movement (KETAM).
For example, the Bill does not distinguish medicines from other non-essential goods such as pens, shoes, cups, clothes and many others.
This is a definition lacuna likely to be exploited by big and influential multinational pharmaceutical companies to block manufacturing of cheaper, yet equally effective, generic medicines.
Big transnational pharmaceutical companies have for long peddled twisted wisdom to the effect that because they spend a lot of money on research before coming up with "original" medicines, they should be allowed to reap full benefits.
Twisted wisdom
Kenya is a member of the World Health Organisation (WHO), which roots for essential medicines with regard to public health relevance, based on efficacy, safety, and comparative cost-effectiveness.
Surely, you cannot make expensive drugs readily available to society's majority.
Studies show that a large number of low-income earners in Kenya quietly suffer - and indeed die - from treatable diseases in the privacy of their homes because they could not afford medicine. It is getting worse by the day.
The Anti-Counterfeit Bill, 2008 is also in conflict with provisions of the Industrial Property (IP) Act, 2001 on conditions under which patents can be breached by other parties.
The proposed law gives sweeping definitions of counterfeiting and suggests all-applying penalties without taking into account special circumstances under which patents could be exploited for public good such as when there is a disease outbreak.
The IP Act, among other things, allows the government or its authorised appointee to exploit a patent in the interest of the public regarding health, nutrition, national security, environment and development.
It is this section that allows third parties to import or manufacture patented items without permission from the patent holder as long as the minister gives notice of intention.
The benefits
Indeed, Kenyans began enjoying the benefits of cheaper life-prolonging drugs for HIV/Aids patients and other essential medicines in 2002 when the IP Act took effect.
Generics cost 20 to 80 per cent less than innovator brand equivalents.
And despite past government attempts to tinker with the IP Act in ways that betrayed official intention to deny the public access to affordable medicines, Parliament is yet to accept amendments to this law.
The Anti-Counterfeit Bill is an important and timely law, but MPs should exclude essential medicines from its provisions.
Owino Opondo is Nation's parliamentary editor.
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