Reforming Kenya’s IP regime

5 mins read

Guest blog by Rachel Osendo

What were your expectations of IPP Online when you signed up?

Covid-19 pandemic had just hit. Everyone had gone into a panic. We were scared. We were afraid of the unknown. The Government was also confused. The different Cabinet Secretaries, Attorney General and Parliamentarians moved with speed to develop legislation to manage the crisis we were in.

My CEO appointed me to head the team to undertake pre-publication scrutiny on the proposed legislation that had been developed by the Cabinet Secretaries, Attorney General and Parliament. I developed imposter syndrome. I didn’t know what to look out for. I didn’t know what standards I needed to look out for. My stomach was knotting.

I needed help. I went online to undertake comparative analysis. This was not helpful because all over the world everyone was facing the unknown. As I was searching online, I came across a clip from the Building State Capabilities at HKS and then saw the advert for IPP.

I was sad that we would not have the physical meeting but all in all I was excited to proceed online.

I thought the class was going to be theoretical.

I expected to be in a highly competitive class because of the standards that have been set by HKS.

I expected to interact with a wide array of public policy professionals across the world

I thought I would get a harvard.edu email address

What were some key learnings from this course?

Iterative process and learning Authority, Acceptance and Ability. Change Space analysis.
Managing authorities.
Managing stakeholders. Managing the small p.

Perception, Process, People. Positive deviants.
Dealing with unknowns. Empathy.
Inquiry and Advocacy. Disappointment in small doses.

What implementation challenge are you working on?

Initially my implementation challenge was on reforming the Intellectual Property regime on the country.

I sit in a taskforce as the lead legislative drafter to develop the National Intellectual Property Bill. Kenya has not revised its commitment to fulfil its objectives under the 2010 Constitution on the protection and promotion Intellectual Property (IP). The legislative framework on IP is very archaic. The national infrastructure vested with the mandate to promote, protect and enforce intellectual property rights (IPRs) is disjointed, uncoordinated and faces grave capacity challenges. These institutions are not attracting and retaining multi- disciplinary staff and are not adequately resourced. Enforcement of IP rights has been dogged with corruption. The uptake of legal practice in IP is low and obscured. Litigation on IP issues is concentrated on trademarks only. Judicial officers in the courts and tribunals do not have adequate training in IP matters. Awareness and knowledge on value of IP is thin.

Together we developed the National Intellectual Property Bill which was approved by Cabinet and forwarded to the Attorney General for onward transmission to Parliament for debate. This meant that the mandate of the taskforce became very limited.

On the advice of the faculty at HKS, we were allowed to change our implementation challenge, which I did to reforming Intergovernmental relations (IGR) in Kenya. The intergovernmental relations space in Kenya is dominated by poor and weak governance within the intergovernmental relations institutional architecture and unclear, disjointed and non-specialized dispute resolution mechanisms between different levels of government.

What progress did you make or what insights did you have about your problem through this process? (please refer to your previous 14 assignments to help you with this part and also include your fishbone diagram and other relevant images)

In the past one month the progress on my implementation challenge had been hampered with by COVID-19 19 pandemic. Some of the Intergovernmental Relations Committee (IGRTC) staff contracted Covid-19 and they had to close their offices for fourteen days. Last week we finally managed to meet. I was invited to a meeting with the Chairperson and members of the board of IGRTC together with the CEO. They were giving me feedback on the Intergovernmental Relations (Amendment) Bill that we had prepared for them. We had an excellent meeting. I managed to receive their views and advised them accordingly and accommodated their interests. I forwarded the final bill on Wednesday last week and the following day the bill was presented to the Cabinet Secretary for Devolution.

I learnt that there are legal, policy, administrative, political, institutional cultural and other environmental issues or challenges that are affecting the performance of the institutions and mechanisms in the IGR space. Linkage is very important between institutions and players within any given space. When there is no linkage there is poor governance, no accountability and it interferes with flow of functions. I also learnt that there are institutions which may have a unique function of supporting both levels of government and as such they must be clothed with the powers to perform their mandate. I also learnt how vital stakeholder engagement is. When stakeholders’ interests are not taken care of it affects the progress of the assignment. Not all policy challenges are tackled through legislative solutions.

What motivated you and how might this approach change (or not change) the way you tackle problems in the future.

The iterative process fostered motivation in me because it is hinged on the progress principle. The iterative learning process focused on ‘progress’; how our work is moving ahead, gaining ground, yielding new insights and lessons, and helping society move towards solving crucial problems. The Progress Principle states that progress contributes to positive inner work life, which contributes to progress, creating an upward spiral of creativity, engagement, and performance.

We faced a few setbacks such as the fourteen-day break, we had but nonetheless the meeting I had last week was very fulfilling because the Board and I were on the same page on all the issues that needed reform.

How are you using or will you use what you have learned in this course?

I don’t even know where to begin.

This course has been the best decision I made in my life. It has given me insight into not just my professional life but even my individual life. This course has really made me introspect on relationships.

I am now very intentional on being empathetic.

This week I have been in a meeting with the Controller of Budget an independent constitutional office in Kenya which is tasked with the function of overseeing the implementation of budgets at national and county level.

The first standard that I set for the team is that we were in a safe psychological space. I told them that we would employ inquiry and advocacy to deconstruct our problem. I informed the team that we would engage in an iterative process going forward.

The head of delegation of the Controller of Budget over promised their authorizer on what they would achieve at the end of our week-long meeting. I advised her to be honest with the authorizer and disappoint the Authorizer in doses that she could manage.

I emphasized that public policy challenges constitute a lot of unknowns. We need to weigh our unknowns and strategize.

I also emphasized to the team the importance of teaming and that if we all don’t pull our weight then we will not prosper.

I also clarified to the team that norms and culture have impeded them from functioning at optimum as an independent constitutional office. The Office of the Controller of Budget has not developed a framework to perform their constitutional function because they fear the National Treasury.

Nowadays I have a to do list that I populate every Monday morning. It has enabled me to execute my assignments and tasks and makes me organized in my approach.

I could go on and on…but this course is the best thing that happened in my life.

Do you have any words of wisdom to share with fellow PDIA practitioners around the world?

PDIA will sort out all aspects of your life not just your professional life.

Anytime you face a challenge before, you construct the problem and then deconstruct the problem to identify the issues affecting your challenge. Weigh these issues and prioritize them noting which ones are low hanging fruits and which ones may be tackled later or which ones require more authority or ability or acceptance. Always identify who or what you need to reach your goal. Endeavour to understand your stakeholders.

This is a blog series written by the alumni of the Implementing Public Policy Executive Education Program at the Harvard Kennedy School. Participants successfully completed this 6-month online learning course in December 2020. These are their learning journey stories.

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