Counterfeit Goods & Illicit Trade

Kenya Association of Manufacturers (KAM) has been the leading Business membership Organization in East and Central Africa advocating against counterfeit products that are an ever increasing scourge eating into effective and profitable trading for all countries in this region today.

Our advocacy work started back in the year 2000 when manufacturers vocalised their loss of market share due to product imitations in the Kenyan market. These imitations (counterfeits) were not only infringing on their intellectual property rights (granted through trademarks and patents registration) but also eroding the reputation of their products and companies at large, which have been cultivated earnestly over time through continuous research and development.

KAM Champions Fight Against Counterfeits

KAM has since played a critical role in championing the fight against Counterfeits for local businesses. A joint internal approach was developed through formation of the first KAM Anti Counterfeit Subcommittee in which manufacturers united to lobby the Government to pay attention to the unfair competition emanating from the counterfeit products.

As a result KAM was instrumental in advocating for the enactment of the Anti-Counterfeit Act 2008. The process of enacting the counterfeit law had lapsed in our Parliament twice – in 2006 and 2007. Further KAM proposed the 1st Draft regulations to the Anti Counterfeit Act 2008 that was later adopted as the Regulations to the Act in 2010. More than 90% of the proposed regulations by KAM were adopted by the Ministry.

Subsequently, in June 2010, the Anti Counterfeit Agency was instituted and started its operations in Kenya. In 2013, KAM members started to record a myriad of enforcement hurdles faced by the Anti Counterfeit Agency. To address these, the Association proposed a number of interventions including; a proposal for a merger between the Intellectual Property Rights related agencies to address the interagency collaboration and a review of the Anti-counterfeit Act 2008 (Amendments to both the Anti Counterfeit Act 2008 and its regulations 2010) which is still pending to date.

KAM participated in various forums in 2011 and 2012 where interagency collaboration in the fight against counterfeits was recommended. The Association worked in collaboration with the Anti Counterfeit Agency and the Judicial Training Institute (JTI) to create awareness on the menace of counterfeits to judges and magistrates.

Lobbying at EAC Level on Counterfeits Problem

In 2009, KAM influenced the drafting of the first EAC Anti counterfeit Bill and Policy that the region considered as the most powerful tool, which if adopted in the region, will go a long way boosting the fight against counterfeits. This was done in partnership with other Business Membership Organizations within the region such as East Africa Business Council, Confederation of Tanzanian Industry (CTI) and Uganda Manufacturers Association (UMA).

In the same year, 2009, KAM provided regional leadership on this matter under the East and South African Business Membership Organizations (ESA BMOs). The ESA BMOs network carried out a joint survey on counterfeits and its impact in the region. As a result, both National and Regional policy interventions were agreed upon among the ESA BMO members.

KAM Partnership with the Judiciary Bears Fruit

The collaboration between the Judiciary and KAM begun in 2013 during the Kenya Magistrates and Judges Association Annual General Conference. Both parties arrived at a common understanding that Illicit trade poses a serious threat to Kenya’s economic development. It was resolved that in order to address this problem, an urgent and coordinated intervention was required by all relevant enforcement institutions and actors within the entire justice chain.

In 2014, the National Council on the Administration of Justice (NCAJ) which is under the Kenya Judiciary and KAM entered into partnership to provide a collaborative framework for the enforcement of all available laws that are meant to  combat illicit trade. This resulted in the development of the Enforcement Manual to Combat Illicit Trade in Kenya popularly known as the Illicit Trade Manual that was officially launched by the Hon. Chief Justice Dr. Willy Mutunga on March 25, 2015.

The practical approaches to curbing crime contained in this manual are expected to go a long way in increasing the knowledge, efficiency and success of those charged with the duty to administer the various legal instruments regulating illicit trade and bring justice to the economy.

The manual is a useful resource for investigators, courts and the general public. The manual is aimed at creating awareness of the problem and the existing mechanisms for reporting and handling cases when they occur. Perhaps, increased knowledge levels can reduce the misunderstanding that enables perpetrators of the illicit trade vice to continue to benefit unjustly by endangering communities and individuals, which is the greatest injustice to the Kenyan economy at large.

The manual is an invaluable one-stop reference on the legal framework on illicit trade in Kenya. By relating to international perspectives and conventions on illicit trade, the manual will broaden understanding of illicit trade and its negative impact on the global economy and trade.

In order for the Manual to be adopted in Kenya by all enforcement agencies and institutions, NCAJ and KAM came up with a strategy of conducting a series of regional trainings for all enforcement officers across the entire justice chain. In 2015, NCAJ/KAM conducted the awareness trainings in 6 major regions in this country that saw approximately 400 law enforcement officers undertake the training. This highly successful programme climaxed at a colourful closing ceremony held in Nairobi on November 19, 2015 graced by the Chief Registrar of the Judiciary who is also the Secretary to the National Council on the Administration of Justice (NCAJ), Mrs. Anne Amadi.

The Project also witnessed the development of a practitioner’s guide which is a simplified practitioner’s handbook on combating illicit trade. The Guide was developed with input from stakeholder interactions during the trainings. It is hoped that the Guide will provide an easy step-by-step approach to a practitioner on investigating and combating illicit trade incidences when they are faced with one.

KAM would like to sincerely thank the former Chief Justice, Hon. Willy Mutunga for his able leadership and support that contributed to these successful engagements.

There still remains a dire need to equip bodies and enforcement agencies/personnel with enough resources to combat these criminal activities which continue to find new and sophisticated ways to avoid detection.  Today we have less than 25 enforcement officers at ACA who are tasked with the heavy responsibility of carrying out market surveillance against counterfeits, carrying out raids and seizures as well as initiating investigations for purposes of prosecuting perpetrators of this vice. We call upon the Government to allocate additional resources to this and the public to be vigilant, as consumption of counterfeits not only defrauds them of their money but in many ways puts their lives in danger.

KAM to Scale up Fight Against Counterfeits

Going forward to further secure the future of Industry as well as the health and safety of the consumers, KAM has scaled up activities to curb the menace. Some of the areas that remain a priority to KAM include sensitization of stakeholders, in part, on the existing technologies on counterfeit detection as well as enhance collaborations in information sharing. In addition, through the EAC Manufacturers Network and other regional organizations, KAM intends to further the campaigns against counterfeits and strengthen the regional approaches that are in place in addition to initiating new ones.

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