By BITANGE NDEMO

Between July 30 and August 3, the Ministry of Trade held its second Trade Week and Exposition Conference under the theme Powering Kenya Big 4 Agenda through Trade.

On the third day, I participated as a panellist in a session titled Fighting Illicit Trade in Kenya – experiences from the Stakeholders.

While I agreed with most of the participants that harmful counterfeits should never be allowed by regulators, I disagreed on blanket condemnation of counterfeits that may hurt generics.

Such condemnation seeks to harmonise and strengthen the World Trade Organisation’s (WTO) intellectual property protection (IPP) regimes as part of the Trade Related Intellectual Property (TRIPs) Agreement between member nations.

Some academics, with Nagesh Kumar being a notable example, argue that TRIPs appears to undermine technological activity in the developing countries by choking the knowledge spillover from industrialised countries to developing countries.

Furthermore, the implementation of the provisions of the TRIPs Agreement threatens poor people’s access to, and affordability of, life-saving drugs by pushing up their prices.

This has been highlighted by the recent controversy regarding the availability of Aids drugs in South Africa.

In his paper, Intellectual Property Right, Technology and Economic Development Experiences of Asian Countries Kumar notes that the top 10 countries of the world account for as much as 84 per cent of global resources spent on R&D activity annually, control 94 per cent of technological output in terms of patents taken out in the US, and receive 91 per cent of technology of global cross-border royalties and technology licence fees.

He cautions that the concentration of these countries mostly in the North, has implications on strengthening the IPP regime and will further perpetuate their technological domination.

It must be noted that the rapid economic growth of East Asian Countries was due to their ability to imitate, absorb assimilate and replicate foreign innovations.

The soft intellectual property protection regime adopted by these countries during the time of duplicative imitation or reverse engineering played an important role in facilitating firm-level technological learning.

Many of the products that government seeks to protect locally have expired intellectual property. Making soap, for example, is not a science that can be overly protected by the State.

There are multiple recipes of making such products that are readily available online but new entrants face many barriers, including exorbitant regulatory fees. The Government, however, must ensure locally produced soaps are safe.

The government should spend more time seeking to negotiate changes to IPR as a strategy to build firm-level capabilities to manufacture some of the items under licence locally, encourage foreign direct investment inflows and technology transfers and, more importantly, invest in research and development to improve indigenous products to international standards.

The crackdown on chan’gaa, for example, is misplaced and is perhaps responsible for the increasing production of lethal variants of the drink.

If the Government focused on ensuring quality of the product, it will save the lives of those who die from contaminated liquor.

We can at least learn from the past especially in America where the menace of bootlegging was effectively dealt with using proper regulation of production and consumption of liquor.

After all, this is a drink our ancestors enjoyed socially without loss of life.

Virtually all products sold in our streets are counterfeits from the Asian sub-continent. It therefore makes no sense to be hard on local imitators.

We get it wrong always when we fight creative minds. Instead we should nurture them and help them observe established safety standards in manufacturing.

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