‘AFRICA’S GIFT TO THE WORLD’

In the early 1960s, Eli Lilly, a major pharmaceutical firm, was permitted to market vincristine and vinblastine in the United States. These patented drugs are used to treat childhood leukaemia and Hodgkins disease. They have earned the company around $100 million a year since then. The source for this powerful and profitable treatment was the rosy periwinkle, a flower growing wild in Madagascar. Traditional healers there used it to treat diabetes. In the 1950s they shared their knowledge with ethnobotanists who fed the discovery into Lilly’s massive research laboratories. But none of the profits has been shared with the healers or their community. Ironically this kind of contribution has been called ‘Africa’s Gift to the World’.

In the mid-2000s a few cases of attempted misappropriation of iconic East African culture were highlighted in the Kenyan media. One was an attempt by a UK-based company to register a trademark in the UK for the word ‘KIKOY’, which would have restricted its importation into the UK by other companies from Kenya, affected the market for specialist traditional woven cloth. Although this particular registration failed, it would be technically possible in the UK where the term ‘kikoi’ is not generally used as a description of the cloth. This case raised awareness of the importance (and difficulty) of protecting Kenyan cultural expressions abroad, and highlights the fact that Kenyan traditions are often shared regionally.

NATIONAL RESOURCES

Historically it was presumed that the physical, intellectual and cultural wealth of countries in Africa were part of ‘the common heritage of mankind’, available for exploitation by any incomer. International law has moved away from this position in recent decades, however. The 1992 Convention on Biological Diversity recognizes the sovereign right of states over their own resources, providing they protect practices needed to sustain biodiversity. It obliges them to sets up systems for obtaining the prior informed consent of local communities. The Convention has been implemented in Kenya, but it is largely focused on the extraction of material resources: for example, the enzyme removed from Lake Bogoria by UK scientists fifteen ago and licensed to Proctor and Gamble for use as a fading agent in their detergent powder ‘Tide’. It does not directly address threats to cultural resources like that in the Madagascar case and the kikoi.

COMMUNITY RIGHTS

Kenya’s Traditional Knowledge and Cultural Expressions Act 2016 seeks to fill this gap by enabling communities to control the use of culturally significant and economically valuable knowledge and expressions. It does this by creating a new form of intellectual property right (IPR), held by community itself. The Act meets a Parliament’s constitutional obligation on to pass legislation ensuring that ‘communities receive royalties for the use of their cultures and cultural heritage’ (Article 11(3(a)). It puts Kenya at the forefront of states in the global south protecting national resources and the interests of local communities. This movement is most active at the World Intellectual Property Organization (WIPO) in Geneva, which is currently debating a treaty to protect traditional knowledge (TK) and traditional cultural expressions (TCEs). WIPO has encouraged countries to take the initiative nationally as Kenya and Zambia have recently done.

Intellectual property rights are useful in two ways. Positively: empowering communities to charge outside companies a fee for permission to commercialize the knowledge or cultural expression. Defensively: stopping others from obtaining IPRs which would exclude members of the community from benefitting from its own heritage unless they were licensed to do so. Why is a new type of right needed? Standard IPRs, like patents and copyright, are based on the idea of individual invention or artistic creativity. But TK and TCEs are collectively produced and passed on from generation to generation. They are typical of the community, important to its identity and sense of history. Rights in TK and TCEs thus need to be collective, not individual. They also need to protect ‘moral’, not just economic, interests by insisting on correct attribution of their sources and culturally appropriate use.

The Act also sets up a system to ensure that the rights are effectively protected. Misuse of TK and TCEs is now a criminal offence. Communities are given the power to stop misuse by obtaining a court injunction forcing companies to pay over any profits where the commercialization of TK and TCEs has not been agreed in advance. Responsibility for operating the system lies with the county governments and ultimately the Attorney General, as well as the Kenya Copyright Board, which has championed the legislation and vigorously represented Kenya in the debates at WIPO.

CHALLENGES

Will the Act be effective? Much depends on the willingness and ability of different levels of government to work together and enforce community rights. Experience with developing and protecting community land rights under the 2010 Constitution has been mixed. Robust institutions focused on the objectives of the Act will be essential. Beyond this, we see four issues that will need to be addressed.

First, the Act defines ‘community’ very broadly as a group with any of the following attributes: shared ancestry, language, culture, community of interest, ecological or geographical space. Since communities may consist of millions of people stretching from remote rural areas to city suburbs, decision making about consent and benefit sharing may be difficult.

Second, the fact that TK and TCE are now potentially wealth generators for communities provides an incentive for leaders to seek exclusive control and to talk-up inter-ethnic competition, when in fact many of these resources are shared between groups. Disputes over ownership may be difficult to settle using customary law or other means, as the Act provides .

Third, there is a tension in the Act between local interests and those of the nation as a whole. Biodiversity and indigenous knowledge are important resources for Kenya’s economic development, as recognized in the Constitution (Article 11(2)(c)). Bodies such as the Kenya Medical Research Institute and the National Museums of Kenya have been doing impressive work on developing exportable products out of traditional knowledge. ‘Compulsory licensing’ provisions in the Act would allow the government to bypass the community in permitting commercialization where TK or TCEs are not being ‘sufficiently exploited’. While this power is constrained by checks and balances, it could allow the national interest to take priority and should be subject to fuller debate.

Fourth, TK and TCEs are often shared with communities in neighbouring countries. However, the Act does not make sufficient provision for cross-border cooperation mechanisms to assist in dispute resolution or management and enforcement of rights in transboundary or foreign TK and TCEs. This may increase conflict between countries and within transboundary communities, and reduce regional bargaining power in enforcing community rights over TK. The forthcoming national culture legislation may fill some of these gaps.

LEADING IN AFRICA

Kenya’s new Act represents a bold and forward-thinking effort to improve the livelihoods and protect the cultural heritage of communities in Kenya by preventing the misappropriation of their traditional knowledge and cultural expressions. There are many challenges to implementing the Act. In doing so Kenya will certainly provide much useful guidance to other countries seeking to achieve the same result within Africa and beyond.

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John Harrington is Professor of Global Health Law at Cardiff University, Wales, UK.

Dr Harriet Deacon, is Visiting Research Fellow at the Ferguson Centre for African and Asian Studies, The Open University, UK.