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"id": 181354,
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"speaker_name": "Mr. Mungatana",
"speaker_title": "The Assistant Minister for Medical Services",
"speaker": {
"id": 185,
"legal_name": "Danson Buya Mungatana",
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"content": " Mr. Deputy Speaker, Sir, let me take this opportunity to congratulate the Minister for Industrialization for moving this Bill at this point in time in the House. When each Minister takes responsibility, they should leave a mark in the position in which they are serving. I want to recognise that this Bill will leave a mark and change the way we do business in this country. For a very long time, we have had musicians in particular who have been badly affected by counterfeits. These are people who have waited for that talent to start and then copy their music. They face difficulties as they invent their music and then somebody sits somewhere in River Road or some other corner and counterfeits the hard work of our performing artists. The result has been there for everyone to see. While in other countries, you can speak of musicians who are well paid because of the work that they do in producing the music that entertains us, the same cannot be said of Kenyan musicians today. In the past, this country never took a very active role in looking at this vice because it was regarded as a profession of people who were not keeping on the right line. People were supposed to be lawyers, doctors and teachers. In fact, when your son or daughter expressed interest in music, they were regarded like they were going in the wrong direction. So, what then happened is that the attitude developed and even the law to protect that profession has not been on the table for a very long time. Mr. Deputy Speaker, Sir, I stand here to very strongly second this Bill on behalf of this Minister and say that it is time that we had a Bill of this nature. We have had industrialists in this country who have invested in this country. They have taken loans which have accrued high interest October 30, 2008 PARLIAMENTARY DEBATES 3189 rates. They have manufactured alkaline batteries, biro pens and petroleum jelly. Then some people who know that there is no law covering this kind of pilfering have perfected the art of \"white collar thieving\" so that batteries are purchased by local consumers who believe they are genuine. When you use them in your torch for a day or two, they do not function. You purchase biro pens and after a little usage they do not work. The same thing applies to petroleum jelly. It is used so much on our babies for those of us who are still in that process of bringing them up. Cases have been recorded of skin that has been messed up because of using fake petroleum jelly. Mr. Deputy Speaker, Sir, this activity of counterfeiting has been so much in the countryside especially in border districts. A lot of goods have been coming into this country from Somalia. For those of us who are not very far from that area, like Lamu and Garissa, you will see some of these goods coming into this country. You will find electronic goods coming to this country given a certain name. People believe that when they are purchasing them, they are purchasing the genuine thing. However, upon purchase and taking those things to your house, they turn out to be counterfeit. Mr. Deputy Speaker, Sir, I want to congratulate the Minister and very strongly support this law. I would urge the House to very strongly support this law. Mr. Deputy Speaker, Sir, having said this, it is important for us to note that there was a very strong reservation from the Non-Governmental Organisation (NGO) world and other stakeholders. They raised the issue that the definition of counterfeit as provided for in this Bill that we want to legislate into law, was going to affect, in particular the production of Anti-retrovirals in this country and therefore, affect those of us who are HIV positive. I want to confirm that I was also was very concerned. I was reached by the people who are affected within our Ministry. Right now, the country is supporting about 230,000 people on Anti-retrovirals. Mr. Deputy Speaker, Sir, these people depend heavily on generic drugs. This is because they are cheaper and more accessible than the onces manufactured under licence. The concern was not only on the Anti-retrovirals but also other things. I am very glad to hear from the Minister himself while moving this Bill that instead of him pulling it out all together as was being suggested, he has undertaken to make a special amendment at the Committee Stage of the Bill to cover generic drugs. This is in keeping with the requirements of the World Health Organization (WHO). These people were saying that we should withdraw this Bill and redraft it afresh. This is a beautiful thing. I want to say that this is what we want to see amongst Members of the Executive. I thank him very much for that. Mr. Deputy Speaker, Sir, I also support the formation of the agency and in fact, the functions that have been proposed. However, there is need for us to improve on the clause that deals with the board of the agency. We need to think together. When this Bill comes to the Committee Stage, I believe there will be amendments from this House. Already, the members of the board are too many. If you have a rough count, you will see that they are 18 members. Those are too many even going by normal standards. When we have been legislating many of the laws, 18 is a bit on the higher side. That is number one. Mr. Deputy Speaker, Sir, therefore, we need the Parliamentary Committee that is in charge of this Bill to help us by thinking together. When the Minister will be moving the amendments during the Committee Stage, we will want an input on that direction, particulary to reduce this number to a reasonable number. Secondly, Mr. Deputy Speaker, Sir, I would prefer that this board is not Government- heavy, the way it is. If you look at the membership of the board, right from \"a\" all the way to \"o\" which is about 16 appointees, they are either representatives of a director, chief executive of this or the Attorney-General or the director of this or the Commissioner of Customs or his representative or a Permanent Secretary or his representative. All these are Government appointees. There must 3190 PARLIAMENTARY DEBATES October 30, 2008 have been a reason they thought of bringing in so many Government appointees. However, I would want to persuade them that the industry that is really affected here includes the pharmaceutical industry and the artists and music industry. It would be important for these particular industries to be represented in the board of the agency. The pharmaceutical industry is the one that imports pharmaceutical into the country. It is, therefore, important for them to have representation through their associations. Mr. Deputy Speaker, Sir, the music industry is also one that heavily suffers from counterfeiting. It is important for them to have their representative in this board of agency. Mr. Deputy Speaker, Sir, the Pharmacy and Poisons Board looks at the standards of medicines that are brought into this country. So, it should have a clear representation in the board of the agency that deals with counterfeiting. Mr. Deputy Speaker, Sir, I believe that the security agencies in this country, in particular the National Security Intelligence Service (NSIS) that deals with tracking things and national security in general, must be represented in this board. This is because tracing counterfeited goods will definitely need some co-ordination from the security arms of this country. It is important for them to be part and parcel of the board that manages the agency. Mr. Deputy Speaker, Sir, we have been very clear when passing laws in this august House that it is important for us to be sensitive to the question of gender equality. There must be a clear provision that creates gender sensitivity within this board. Mr. Deputy Speaker, Sir, I have to state again that, it is clear that for most of the laws that we have been passing, it is an established principle that some aspect of regionalisation of the appointments to the boards that we create must be factored. I would suggest that amongst the three to be appointed, one of the criteria that must be added should be a consideration of the region where the person comes from, gender and youthfulness. Mr. Deputy Speaker, Sir, I would urge very strongly that those categories be involved in the formation of the board. There is another thing that is a matter of concern, but the Minister has captured it very well. Clause 15 and 16 of the proposed Anti-Counterfeit Bill has come out very clearly to protect those who feel that what they are doing is correct business and, probably, they are being arrested or their goods seized without fair or due procedure being followed. The Minister has made it very clear that there is going to be a due process to be followed. In the event that anybody's goods are seized unfairly and he is doing fair business - not counterfeit business - the provisions in Clause 15 and 16 have come out very strongly to provide for the payment of damages to any Kenyan who is genuinely involved in his work, and his work is affected unfairly by the inspectors who have been created. Mr. Deputy Speaker, Sir, I believe that the drafters, through the Minister, also thought very clearly about the burden of evidence which is in Clause 26. They have clearly set out the kind of levels of evidence which makes it easy for us to nail the people who have been stealing from our people who have invested in this country - honest businesses or inventions. It is very clear that when an inspector gives his statement in court or in any tribunal that has been set up, his statement to say that he found some goods at a certain place, date and time is already prima facie evidence. That is a beautiful invention, so that we do not have to take people. You have been found with counterfeit goods and then, you go there and say: \"Prove it.\" Now, the burden has shifted. That is good because then, we will be making life easy for the inspectors. We are sending a very clear message. This Parliament is sending a message that: We are tired of people in this country who steal from those who have invested and, thus, making a quick kill. That denies the real people who have invented something the money that they should be getting because of their inventions. So, on the whole, this is a beautiful piece of legislation. I have looked at it. I believe that this House should pass this legislation without much ado. The necessary amendments need to be October 30, 2008 PARLIAMENTARY DEBATES 3191 brought. I am sure the Minister, and his team which is in Parliament today, will propose appropriate amendments from all the debates that we shall have here. Our Parliament Committee Report will also enable us to have a good Bill. Otherwise, this is a good Bill that will help us to move in the right direction in this country. With those few remarks, I beg to second."
}