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Proposed new Constitution to recognize IP rights - International Law Office

International Law Office

Intellectual Property - Kenya

Proposed new Constitution to recognize IP rights

June 28 2010


On May 6 2010 the attorney general published the proposed Constitution of Kenya.(1) If passed in the forthcoming referendum on August 4 2010, it will bring a new constitutional order to the country.

The proposed Constitution seeks, among other things, to promote and protect some of the rights hitherto not specifically provided for in the current constitution, including IP rights. Article 11.2c will oblige the state to "promote the intellectual property rights of the people of Kenya". This particular provision is provided for under the heading 'culture' and will require the state to promote all forms of national and cultural expression, such as the arts. The state will also be obliged to ensure that communities receive compensation or royalties for the use of their culture and cultural heritage.

This provision seeks to ensure that Kenyan communities are protected from exploitation and the loss of elements of their cultural heritage to the wider world. Examples of such loss include the patenting of the kiondo – a hand-woven bag made from sisal with leather trimmings, originating in Kenya and mostly associated with the Kamba and Kikuyu communities – by an unknown Japanese entity;(2) and the attempted registration of the word 'kikoi' as a trademark by a company in the United Kingdom.(3) A kikoi is a traditional cloth garment mainly found in East African countries such as Kenya and Tanzania and is used as a wrap by women. There is no specific ownership claim of the original weaving idea by any individual or community. In Kenya, for example, it is woven by different communities working under the auspices of micro, small and medium-sized enterprises.

Unlike the current Constitution, which has a general provision protecting persons against unlawful deprivation of property of any description, Article 40.5 of the proposed Constitution specifically provides that "the state shall support, promote and protect the intellectual property rights of the people of Kenya". Therefore, if the proposed constitution is passed during the referendum, it will be a welcome initiative among IP rights holders in Kenya.

For further information on this topic please contact David Kimani at Njoroge Regeru & Company by telephone (+254 20 271 8482), fax (+254 20 271 8485) or email (david@njorogeregeru.com).

Endnotes

(1) In accordance with Section 34 of the Constitution of Kenya Review Act 2008 (9/2008).

(2) "Kiondo idea theft: an intellectual property myth", Sylvance Anderson Sange, Principal Examiner, Kenya Industrial Property Institute.

(3) "Loss of kikoi to the UK: an intellectual property drama", Sylvance Anderson Sange, Principal Examiner, Kenya Industrial Property Institute.


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