Nairobi — Kenyans fighting for the right to have access to cheaper generic HIV medicines have won global attention, with the government conceding that it made a mistake in passing a law that could deny its people genuine drugs.

Last week, the two ministries of Health were reported in the Economic Times of India as having promised to redraft the offending clause in the Anti-Counterfeit Act, 2008, that threatens to outlaw generic drugs as counterfeits.

Unnamed ministry officials are said to have told the just ended annual World Health Organisation's assembly in Geneva that the anti-counterfeit law was pushed by the Ministry of Industry, which had no clue about the possible ramifications.

This is the second victory for HIV positive Kenyans in as many months. In April, the Constitutional Court 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 HIV positive people.

The petitioners have argued that the Act endangers their lives as they will be arbitrarily denied access to affordable and essential generic medication. Kenya has been under pressure from India, which is a major manufacturer of generic drugs and fears that the Anti-Counterfeit Act of 2008 is a threat to its pharmaceutical industry.

Once the law came into force in July, India's commerce department mounted an aggressive fight-back campaign, which involved writing to the Kenyan government pointing out the downside of the Act. According to the journal Lancet, India has since then been holding meetings with senior Kenyan bureaucrats to explain its position while also engaging the WHO and other international organs.

The issue of a more acceptable definition of counterfeit medical products to distinguish confusing them with genuine generics was a central theme at the WHO assembly in which Kenya was represented. "In response to the director-general's request for information on use of the term "counterfeit medicines", 55 member states and the European Commission have so far provided answers.

A preliminary summary was presented to the Geneva meeting on March 26, and further discussions are going on," says a statement from WHO. The meeting also discussed the seizure of generic drugs from India in transit to Africa and other developing countries.

India, having won this round at the international forum, says the Economic Times, plans to focus on Uganda, Nigeria, Zambia, and Malawi, who are planning similar anti-counterfeit legislation. Uganda has a draft Anti-Counterfeit Goods Bill and Tanzania, Rwanda, and Burundi are discussing these issues.

On Tuesday, officials at the Health Ministry said the issues were discussed but refused to be drawn into specifics, saying the matter was still in court. Delivering the Constitutional case in April, Lady Justice Roselyn Wendoh said: "The petitioners have met the threshold, (therefore) the court issues a conservatory order as far as generics are concerned."

The judge appreciated that the wording in the Act was vague and would cause confusion between counterfeit and generic medicines. The ruling suspended the Anti-Counterfeit Agency's powers to interfere with the importation and distribution of generic medicines, which make up 90 per cent of medicines consumed in Kenya. Reacting to the victory, one petitioner, Ms Patricia Asero, said the judge understood the agony those affected would undergo.

- Additional reports from Business Daily