East African Community (EAC) member states should hasten the finalisation and enactment of the EAC Anti-Counterfeit Law in order to establish a regional framework to fight counterfeits, stakeholders have recommended.

This was raised at the end of the second regional anti-illicit trade conference in Nairobi, Kenya, recently which was organised by the East African Business Council (EABC), in partnership with the EAC Secretariat.

“Once done, there should be a framework through which the Community collaborates to combat illicit trade issues, similar to the EAC Standards Committee,” reads part of the recommended policies and action points.

Among others, the conference noted that Partner States without a regulatory framework to address illicit trade should complete on-going discussions on draft policies or legislations.

Meanwhile, Sunday Times has learnt that efforts to have such legislation finalised and enacted have dragged on for years, with the Council of Ministers largely blamed for the hold-up.

Patricia Hajabakiga, a member of East Africa Legislative Assembly (EALA) Committee on Communication, Trade and Investment (CTI), said the EAC Anti-Counterfeit Bill was still with the Council.

“It has been there for a long time. It is a big problem since the Customs Management Act cannot adequately deal with the magnitude of the problem. It was in the past tabled in the House but was withdrawn by the Council to make it more comprehensive,” the legislator said.

“The Assembly has reminded them [Council] several times,” Hajabakiga explained, recalling that the former withdrew the Bill during the second Assembly (2007-2012).

According to Rwanda’s ministry of EAC affairs, the matter was considered by the 16th Meeting of the sectoral council on legal and judicial affairs (SCLJA) in September 2014, in Arusha, Tanzania, which indicated that “the Bill ascribed some anti-counterfeiting functions” to the EAC Competition Authority which by then was not operational.

The SCLJA decided to reject the Bill and merged its contents with a section of the EAC Competition Act 2006.

“This means in effect that the Competition Act was amended. That’s what happened; the Meeting of legislative drafters prepared the EAC Competition (Amendment) Bill 2014 to incorporate Anti-Counterfeit matters,” reads an email from the ministry.

The ministry also says that in April 2015, the 31st meeting of the Council of Ministers considered this matter but “was sceptical” about the decision of the SCLJA.

“After consultations with EALA, it was noted that counterfeiting matters are linked to intellectual property protection and that was not the purpose of that particular chapter in the EAC Competition Act 2006.”

“Therefore, EALA suggested that counterfeiting was a serious issue that needed a stand-alone legislation to effectively combat it in the region. The Council took note of the above development.”

The EAC Secretariat and Partner States are listed as the responsible entities as per the Nairobi conference’s recommendations. Furthermore, June 2017 is the proposed timeframe for the task to be accomplished.

Regional ministers of justice are not members of the Council whose membership constitutes Ministers whose dockets are responsible for regional co-operation but, sooner or later, once Council has concluded its scrutiny of Bills, ministers of justice are informed so as to check legal aspects.

Thus, even though he was not aware of issues surrounding the delayed enacting of the legislation, Justice Minister Johnston Busingye told Sunday Times that such legislation would be a good thing for the region.

“I don’t know about this delay but I think it would be a good thing for the whole East African Community to agree on an Anti-Counterfeit Law that would be applicable across the region and put a stop to counterfeits,” Busingye said.

The Nairobi meeting is recommending that the judiciary in the region consider continuous capacity building, in terms of training and increased manpower to strengthen the ability of the judiciary to handle illicit trade cases.

“EAC Partner States should harmonise consequence management, both fines and jail terms, to curtail relocation of the vice to the more lenient States,” the conference noted.

Harmonise intellectual property laws

Furthermore, the Nairobi conference noted that by March next year, the EAC should harmonise Intellectual property (IPR) laws across Partner States to enable mutual recognition of IPR registered in any of the countries, and the EAC to be recognized as one IP territory for purposes of enforcement.

The private sector is, in so doing, required to carry out a study to establish the various IPR regimes across the EAC. The Kenya Association of Manufacturers (KAM) is already undertaking this study and EABC will team up with the former to take it forward.

When regional officials convened in Arusha for a meeting on the proliferation of anti-counterfeiting legislation, in March 2010, they concluded that the draft EAC anti-counterfeiting Policy and Bill go beyond the minimum requirements of the agreement on trade-related aspects of intellectual property rights (TRIPS) and provide for intellectual property rights enforcement beyond developmental interests.

The meeting observed that these documents fail to distinguish between various IPR infringements, contain overbroad and imprecise definitions and do not consider the impact of the foreseen measures on access to knowledge, agriculture and public health.

“The ambiguity and poor quality of the drafts evidently require revisions, but the more important question is whether the Policy and Bill are needed at all. The IP protection standards they aim to set are not adequate to the needs of the EAC countries, which are all LDCs, or developing countries,” the 2010 meeting concluded.

“If adopted, these documents will supersede national IP laws and will deprive the EAC states of their right to form flexible national policies that reflect the countries’ needs.” 

The Organization for Economic Co-operation and Development (OECD) estimates that EAC governments lose over US$ 500 million in tax revenues annually due to the influx of counterfeit and pirated products alone.