The Role of Customs in the Enforcement of Intellectual Property Rights in Kenya: a Case for the Efficient and Effective Compliance With Border Measures as Per Section 4 of Part Iii of the Trips Agreement

Abstract

The Kenya Revenue Authority (KRA) customs services department acknowledges that its primary function is to collect and account for import duty, VAT on imports and to collect other taxes on an agency basis. KRA's non revenue generating functions including the enforcement of Intellectual Property Rights (IPRs) in compliance with international obligations outlined in TRIPs are not given priority which translates into an increased risk of the proliferation of counterfeit goods in Kenya. The problem is further compounded by the fact that KRA is underfunded and this has an adverse effect on its operations as reflected in staff shortages, lack of adequate training of staff and lack of procurement and maintenance of information communication and telecommunications (ICT) systems which hampers the enforcement of IPRs This paper presents a study on the legislative and institutional framework governing the enforcement of IPRs through customs in Kenya and how the legislative and institutional framework can be reformed to enhance the current capacity of customs which is resource constrained to efficiently and effectively enforce IPRs in Kenya in compliance with the border measures outlined in TRIPs. This study has identified a number of issues that need to be addressed as a way of promoting the efficient and effective enforcement of IPRs through customs in Kenya including the clear delineation of roles between customs officials and officials of the Anti-counterfeit agency, legislative amendments to provide for a customs recordation system, resource allocation within KRA, greater regional integration and harmonization of Intellectual Property laws in the East African Community, ensuring that the laws provides for indemnity and security requirements that are not unreasonable and burdensome and clarifying the deminimis exception to avoid its abuse