The petitioners moved to court seeking declarations that there fundamental rights under section 70 and 71 of the constitution had been infringed with the implementation of the Anti counterfeit Act, 2008. Aids Law Project was enjoined as an interested party, applied to have section 2,32 and 34 of the Counterfeit Act No. 13 of 2008 to be stayed pending the hearing and determination of the petition. Further there was an application filed to enjoin the anti counterfeit agency as the second respondent and the court grant conservatory orders staying section2,32and 34 of the act
The commencement of the Act brought into being the anti counterfeit agency, a body charged with enforcing the provisions of the Act. The petitioner and interested party were challenging sections 2,32 and 34 of the act which will deny the petitioners and other people infected with HIV the right to access affordable and essential drugs and medication infringe on their right to life and as a result, the enforcement of the Act would jeopardize the availability of generic drugs and medication and as result infringe on their right to life.
The respondent argued that the prayers sought by the petitioners were misconceived and lack merit he argued that section 2 does not seek to out law anti reteroviral drugs and sections 32 and 34 should be read together with section 58(2) of the industrial property act and if the orders where given they would defeat the mischief meant to be addressed by the act as it includes a whole range of goods. he further submitted that no prima facie case had been disclosed
In the ruling the learned judge ordered that the applicants had sufficiently demonstrated that the petition was not frivolous but it does disclose an arguable case with chances of success and conservatory orders were granted in the interim. section 2,32 and 34 of the Anti Counterfeit Act no.13 of 2008 as relates the importation of generic drugs and medications. also the anti counterfeit agency was restrained from enforcing section 2,32,34 of the anti counterfeit act as relates to importation of generic drugs and medication.
This means that generic drugs will continue to be imported pending the hearing and determination of the suit.