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Duncan Kiboyye Okoth-Yogo and Samuel Gudu-Odundo ABSTRACT The paper is premised on the knowledge that plant varieties can be developed, by utilizing various genetic materials, which adjusts to varying environmental conditions. This is extremely useful for combating climate change, pollution, desertification, and protection of water resources. With an equitable benefit sharing arrangements, technological transference pertaining to genetic resources can be a harbinger of economic gains with supplementary benefits to environmental management. This study conducted to examine the effectiveness of Kenya’s legal system in addressing the conflicts and consensus in use of genetic resources contends that the existing laws are not a sufficient justice paradigm. The critical importance of guaranteeing universal access to, equitably sharing in the benefits from, and conservation of these resources are generally overshadowed by other issues in a country subjugated by quick-fix political and financial perspectives. An examination of government policy papers, environmental assessments, the entire legal positivism, including the constitution, statutes, common and equity, the decision of the judges, inter alia, reveal a profound casualness and abandon in protection of plant genetic resources. This paper therefore makes recommendations for proactive formulation of laws that would guarantee the availability of and universal access to genetic diversity which is critical to the ability to confront fundamental environmental challenges. Key Word: Plant Genetic Resources; Environmental Management; Law INTRODUCTION The need for an empiric impetus for formulation of pertinent legal options, even though plant genetic resources for sustainable development vista are shrouded in myriad controversies, has never been greater. Genetic resources refer to bio-properties, ‘ subcellular genetic sequences that direct the structure and characteristics of all living things,’ inherent in all biota. (Safrin, 2004), are an integral part of the biodiversity and have actual or potential value (Okoth-Yogo, 2007). Biodiversity refers to the different living organism from all sources including but not limited to terrestrial, marine and other aquatic ecosystems and the ecological complexes of which they are part; this includes variance within species, between species and of ecosystems (Art. 2, CBD, 1992) The issues of safety, ownership and benefit sharing and environmental management need to be ascertained and appropriate laws, policies and public discourses are nurtured. It is important that the national governments should actively support national efforts to save, coexist with and retrieve the rich patrimony of plant genetic resources. Backstopping such governmental endevours at protecting the rich patrimony is the existence of appropriate body of law that captures the essence of proprietary justice, environmental sanity and international cooperation.
Plant varieties can be developed, by utilizing various genetic materials, which adjusts to varying environmental conditions. This is extremely useful in combating climate change, pollution, desertification, and protection of water resources. They also contribute immensely to human health and food security. Genetic resources have been an integral part of the production of numerous health products such as drugs and food supplements, industrial products such as chemicals for clothing manufacturing among other things. With an equitable benefit sharing arrangements, technological transference pertaining to genetic resources can be a harbinger of numerous financial gains with attendant contribution to environmental management. Further to the foregoing, the profound nexus between genetic material and indigenous knowledge emanating from myriad traditions globally proffer an awesome and essential supply of resources for biodiversity conservation endevours and productive research. Indeed, proffering effective laws on the management of genetic resources can advance environmentalism in many profound ways. An estimated 40% of the world economy is based on biological products and processes, confirming that the contribution of biodiversity to our existence is inexplicable. 25% of the global biodiversity is to be found in Africa. Apart from the myriad of plant species of which 8,000 is to be found in Kenya while South Africa has 20,000 indigenous plant species, Africa is also blessed with an abundant species of animal and micro organisms and in large measure. Biodiversity supports agriculture, which is the main economic activity of Kenya, as in most African countries, accounting for about 30% of the GDP, and employing about 60% of the rural populace. It is also an integral part of the foundation for tourism in Kenya, accounting for 10 of the employment and ranking number two in order of economic importance. Tourism, for example, depends on wildlife resources. Further to the foregoing, biodiversity also plays a great role in the cultural evolution of many countries. These are indeed great impacts on the countries socio-economic matrix (Brown & Moran, 1996; p. 214) The Importance of plant genetic resources to health is also manifold. 50% of top selling pharmaceuticals “owe their origin to templates from nature” (O’Neill & Lewis, 1996). Of the new approved drugs between 1983 and 1994, 78% bacterial and 61% anti-cancer, were naturally derived or modeled on a natural product parent(.Cragg, et al., 1997) 57% of the top 150 brand drugs between January and September 1993 were derived or patterned from biodiversity. The GM technology, an integral part of the genetic resources paradigm further heralds a portent of hope in this regard. For example, scientists in Canada have cloned the human insulin gene and transferred it to plant that can now produce insulin in large quantities for diabetics while India GM banana expressing human hepatitis B surface antigen has been produced. GM technology is currently being used to produce sterile mosquitoes incapable of hosting plasmodium. Success has been reported for plasmodium that transmits malaria in rats and experiments are underway to use this avenue to control malaria in humans (Gudu-Odundo, 2007). Further the genetic basis of drug resistance, coming up with innovations that result in effectual vaccines and utilization of molecular markers in disease management has also benefited from the gene technology.1
The encouragement of the use of biodiversity based traditional knowledge for the management of HIV/aids is gaining credence and justified on the following grounds. 80% of all the infectious diseases are found in Africa, infant mortality standing at 10.3% compared to 0.8%for the developed world, 70% of all the 36 million of HIV/AIDS victims in the world, are in Africa. ( Ibid. p. 9). First, Modern HIV/AIDS are not only too expensive for an average Kenyan, where income per capita is still &100 per annum on the average, but also modern medics require an expensive infrastructure. Secondly, Belief that ARVS are cures are encouraging careless behavior. ARVS are also associated with side effects like liver toxity. Lastly, improper use can also lead to drug resistance. From the foregoing, it can be seen that the role of genetic resources in the control of HIV/AIDS is taking an interesting turn. ‘Despite the increasing availability of the anti retroviral drugs [ARVs] in Sub-Saharan Africa, the continents traditional healers and their plant medicines are playing an important role in the treatment of some of the most dreadful HIV/Aids related opportunistic infections and other ailments (Curtis 2007). A large proportion of Kenyans depend on plants for medicine. A survey conducted in Suba District, Uasin Gishu District and Malindi District shows that between 90% of the locale populace have used medicinal plants even though the ranges vary from occasionally to frequently. This percentage is lower in the urban centers like Nairobi and Eldoret which percentages stand at 30% for the middle to upper-class brackets and 85% for the low income brackets. Plants together with myriad other organisms are natural biochemical factories and many human life enhancement products are reaped therefrom. Indeed the modern drug industry too is premised to a large extent on genetic resources. (Subramanian, 2006). It is estimated that more than 100 drugs in international commerce are derived from plants. For instance, the top 20 drugs sold, [with a market value of US$ 6 Billion in the US in 1988, two were taken directly from natural resources,3 were semi synthetic, 8 were synthetic with chemical structures modeled on natural compounds and seven had there pharmacological activity defined as a result of research on natural product (Ibid). Annual Sales in US $ bn Pharmaceuticals Botanical Medicines Agricultural Seed Commercial Sales of Seeds Ornamental Horticultural Produce Crop protection Products Biotech other than health and agriculture Personal Care and Cosmetic Products Rounded Total Source: Kate &Laird, 1999 Low 75 20 300+  16 0.6 60 2.8 500 High 150 40 450+  19 3 120 2.8 800
Plant genetic resources are the foundations of our forests which are important for their socioeconomic, environmental and aesthetic values. Wood from forests provides lumber, plywood, rail road ties, and shingles. Furniture, tool handles and many other products are made from out of wood (Maycock, 1990). Wood also serves as the chief fuel for cooking in Kenya, as in many other parts of the world. Forests also help in conserving and enriching the environment in many ways. Forests soaks large amount of rainfall. It therefore prevents the rapid runoff of water that can cause erosion and flooding. Rain is also filtered as it passes through the soil and becomes ground water. This ground water flows through the ground and provides clean, fresh source of water for streams, lakes and wells. Forest plants help renew the atmosphere, along with other green plants. They also make food and give off oxygen, and removes carbon dioxide from the air which wood otherwise effect greater climate change. Forests also provide a home for many plants and animals, which augments its aesthetic attraction, hence a harbinger for eco-tourism. It is imperative that Kenya should actively support national efforts to save and retrieve the rich patrimony of traditional seeds in this region, while actively pursuing the science of enhancing the capacity of the available genetic resources for more productivity and to assist in the discovery of innovative medicines and appropriate ecological foundations necessary for homegrown solutions to underdevelopment and sustainable development. PROBLEM CLAIM Kenya’s land holding system is steeped in “Historical injustices” which is a euphemism for colonial and post colonial disruption of communitarian hegemony, values and stability. Lands that were owned by various communities were taken away from them and those that were owned communally distributed to individual persons who never cared whether these were traditional conservancies or not. These have had negative impacts on traditional conservation. The lifestyles of different communities, epitomized by a relatively egalitarian and access system, were rudely alienated and in its place established alien systems (Yamano & Deininger, 2005; Shipton. 1998). The country is basically a conglomeration of different ethnic nationalities that were obligatorily brought together as part of pacification process. This was followed by skewed distributional and justice consequences after the change over to individual absolutism backed by national sovereignty over land ownership. At independence, the different communities really did not have a choice on some of these matters. Further to the foregoing, privatisation of genetic resources under the new intellectual property regimes compromises environmental management in many respects. The indigenous knowledge that has informed most of the traditional conservation methods is taken away through patenting and other exchange mechanisms under myriad IP regimes. This makes the indigenous communities to be reserved about freely exchanging their knowledge. It also takes away their freedom to engage freely at the international arena as it has been for many years. Safrin in her discourse on "Hyperownership" ‘describes in a word the present international legal landscape with respect to genetic material. At issue is who should own or control access to the subcellular genetic sequences that direct the structure and characteristics of all living things, or, in popular usage, nature's or God's blueprints for life. Traditionally, genetic material belonged to a global commons or open system. No one exclusively owned this material and countries freely shared it. In sharp contrast, today exclusive
ownership and restrictions on the sharing of genetic material are the international norm (Safrin, 2004).. The conflict over genetic material at the expense of the global common good is superfluous. Many countries, developed and developing are today bursting the limits of patent systems. While many developing countries are tightening the patent systems in such ways that might choke innovation, genetic materials and even life forms are increasingly becoming subjects of patents, especially in the developed countries and lead to an abuse of the free global exchange system that has been in place since time immemorial (ibid). By mid-2000, the U.S. Patent and Trademark Office (PTO) had issued over six thousand patents on full-length genes isolated from living organisms and were considering over twenty thousand gene-related patent applications. Second, in response to the privatization of genes through the patent system, developing countries--which house most of the world's wild or raw genetic material--are pushing the boundaries of sovereignty. They are asserting sovereign ownership or extensive national government control over a wide and increasing range of raw genetic material in their countries. Since 1993, approximately twelve nations have passed laws that greatly restrict access to raw genetic material within their borders. . At least thirty others are in the process of doing so (ibid). The inordinate application of genetically modified crops another issue that can compromise the place of genetic resources in environmental management. Controversies surrounding GM technologies generally focus on human and environmental safety, labeling and consumer choices, intellectual property rights, ethics, food security and environmental conservation, among other things. Kenya has just enacted a biosafety Act in readiness for these applications. Experimentations on Bt maize are seriously on going and may soon be applied under the new legal regime. However if they are to apply the terminator technology, which is relatively well mastered, they will undermine the sovereignty that various communities have not only jealously guarded, but also liberally shared. With or without a biosafety Act, it has been ascertained that ‘when GM crops are planted they contaminate other crops with transgenic material,’ spreading to the areas beyond the control limits (GRAIN, 2009a). Further, it is routinely becoming acceptable that there are flexible multiple links between genes and functioning of the cells and organisms. There is also the complex and powerful self regulating capacity of chromosomes, which leads them to expel, delete or silence genetic material which is not part of their normal make up (GRAIN, 2009b). Shulman opines that ‘mutations occur often in nature, and most of the time the genetic material itself triggers mechanisms that correct or delete these mutations resulting in stability of form and function’(Shulman,2008). Three major practical effects derive from this: multiple and unexpected side effects from genetic engineering; a very low rate of successful, stable expression of the engineered traits; and an overwhelming difficulty in genetic engineering traits that involves several genes(ibid). Notwithstanding the needs for sharing plant genetic resources, harnessing them under strict Intellectual property regimes has its unique challenges. The usefulness of these resources is known because certain communities have communed with them and harnessed various advantages to be derived from them. They have also liberally shared this knowledge with the rest of the world. Taking up these knowledge, protecting them under intellectual property
regimes that lock out these same communities is tantamount to biopiracy that have robbed the genetic wealth of communities with negative consequences for conservation of biodiversity. Additionally, research and development institutions in Kenya are barely endowed with sufficient capacity to handle IP issues in exchange of genetic resources and in accessing proprietary technology, let alone the challenges posed by the potential risks of GMO’s. This is because they lack adequate human capacity needed for the IP management. Physical infrastructure is not in place to effectively provide means to handle risk management in GMOs, IP issues, and technology transfer agreements, among other things. Generally speaking, they do not have IP management policies in place to effectively address IP issues. There is also rampant lack of funds and skilled manpower for drafting patent applications. THE EVOLVING LEGAL AND INSTITUTIONAL MATRIX The discussions herein are founded on the assertion that the current sectoral approaches to proprietary questions in regard to plant genetic resources deny it the deserved hegemony and synergy it would have derived under an integrated management. The Legal and institutional framework as pertaining to plant genetic resources are managed under the National Environmental Management Authority [NEMA], Kenya Industrial Property Institute,[KIPI] National Council for Science and Technology [NCSC], National Museums of Kenya [NMK], Kenya Plant Health Inspectorate Services KEPHIS], Ministry of Agriculture, among others. A look at the management of Wildlife Resources matrix extend the institutional framework to other bodies such as the Kenya Rangeland Ecological Monitoring Unit [KREMU]2, Gene Bank of Kenya, National Museums of Kenya under the National Museums of Kenya under the Antiquities and Monuments Act, chapter 251 of the Laws . The Science and Technology Act has established the National Council for Science and Technology (NCST) is the reference point for all the issues related to genetic resources. It is also the constituting the constituting authority for the Kenya Agricultural Research Institute (KARI), Plant Quarantine Service (PQS) and National Gene Bank of Kenya (GBK) at Kenya Forestry Research Institute Authority f(KEFRI), among other research institutes. Its functions, broadly, encompass the establishing of the agenda and priorities for scientific and technological activities in Kenya in relation to the economic and social policies of the government and its international commitments. Further, these goes with ensuring the application of the results of the scientific activities to the development of agriculture, industry, and social welfare in Kenya., promoting public confidence in scientific expenditure and an atmosphere conducive to scientific activities, considering and advising generally on all scientific activities including the transfer of technology into agriculture and industry and scientific research and technology, among other things. The core functions of the KWS are to formulate policies regarding the conservation, management and utilization of all types of fauna not being domestic animals and flora, advise the government on establishment of national parks, national reserves and other protected wildlife sanctuaries and to manage national parks and national reserves among others as are stipulated under section 3 of the Wildlife [Conservation and Management] Act. These functions are subject to the provisions under the Environmental Management and Coordination Act, and of course the
It conducts inventory surveys and monitors changes in wildlife species and ecosystems. It also conducts land use studies and forest mapping, by use of geographic Information Systems to monitor ecological changes.
constitutional powers given to the other constitutional offices. Section 148 of EMCA provides that: Any written law, in force immediately before the coming into force of this Act, relating to the management of the environment shall have effect subject to modifications as may be necessary to give effect to this Act, and where the provisions of any such law conflict with any provision of this Act, the provision of this Act shall prevail. Be they as they may, the preparation and implementation of management plans for National Parks and National Reserves and the display of fauna and flora in their natural state for the protection of tourism and for the benefit and education of the inhabitants of Kenya is a responsibility that falls within KWS’ authority. It also provides wildlife conservation education and extension services to create public awareness and support for wildlife policies. Further, the sustenance of wildlife to meet conservation and management goals is in their hands, and so is the conduct and co-ordination of research activities in the field of wildlife conservation and management, identification of manpower requirements and recruitment of manpower at all levels for the service for wildlife conservation and management. Further because of the unique role of forestry, they are put under the direct management of another state corporation, the Kenya Forest Services [KFS]. As one of its objectives, it seeks to revamp the 120,000 ha industrial forest plantations, which are 8 percent of all the 1.4 million ha of gazetted forests. The other is to conserve the indigenous forests and another is to supply wood with sustainably managed plantations.3. Section 4 of the Forests Act establishes the service while section 5 stipulates its functions. From the efficient management of the Service, establishment of forests, and delineation of boundaries thereof, policy formulation, forestry management, fundraising, and control of activities therein, advancement of sustainable forest based industries, inter alia, the rationale of the KFS is securely entrenched. It is envisaged that the creation of the KFS will also negate or eradicate the negative sectoral conflicts that had hitherto existed between the Forest Department, local county councils and the National Museums of Kenya. The conflict is exemplified by the 1991 attempt by the KWS to take control of all the indigenous forest.4 Different times call for different solutions and sometimes when an issue comes up, creation of an institution to meet the current need is in order. But with time, different institution having similar agenda can engender ambiguity. It is on this note that the discussions on environmental, agricultural, wildlife and forestry, and intellectual property laws are not only discussed individually but also from the point of their convergence Provisions under EMCA An appreciation of EMCA as a framework legislation, and Kenyan environmental jurisprudence in its entirety is necessary before delving into specific statutory provisions for biodiversity. Environmental law in Kenya reveals clear objectives. These are primarily the protection of human health5, enhancement of economic efficiency and the sustainable development paradigms, advancement of individual rights, equitable access and benefit sharing from the utilisation of
Koech, 2007 Njogu, 2004: p. 226 5 EMCA, 1999; Section 3 of .
natural resources, community stability and traditional values, evolvement of science and technology, advancement of international partnerships, national security and global cohesion.6 From the Brundtland commission to the United Nations Convention on Environment and Development of 1992 [UNCED], the issue of development that meets the needs of the present generations without endangering future requirements, for that is the definition of sustainable development, has gained enormous significance and the scholarship on its crystallisation continues to grow. Some scholars have also opined that biocentrism, the assertion that all biota are significant for their own sake, and the preservation of aesthetics and recreation are also imperative objectives of environmental law. EMCA is fundamentally Kenya’s domestication of the outcomes of a global wave which began at the end of the 1960s, culminating into the 1972 United Nations Conference on the Human environment and the United Nations Convention on Environment and Development of 1992 at Rio de Janeiro [UNCED].7 EMCA has today expanded the scope for public interest litigation, especially when it changed the law on locus standi, advanced the explosion of environmental justice discourse and granted more space for the communitarian approach over unmitigated free enterprise. Further to the foregoing, it has fertilized the sector based natural resources statutes and has provided for a framework law that deals with natural resources from their extraction to full recovery. It has brought together different lead agencies into an obligatory integrated national environmental management approach not only under NEMA’s leadership but also through the National Environmental Council NEC which groups all of them. 8 . NEMA in consultation with the relevant lead agencies are empowered to prescribe measures necessary to ensure the conservation of biological diversity in Kenya. (EMCA, 1999; Sec. 50). Apart from identification, preparation and maintaining an inventory of Kenya’s biodiversity, they also determine which components of biological diversity are endangered, rare or threatened with extinction and basically the threats and mitigations thereof. The law also empowers them to integrate the conservation and sustainable utilization ethic in relation to biological diversity in existing activities in the country, be they engendered by the government or private persons. From the specification of national plans, policies and programs protecting indigenous property rights and measuring the value of unexploited natural resources in terms of watershed protection, influences on climate, cultural and aesthetic value as well as actual and potential genetic value of Kenya’s biodiversity, the role of NEMA and the lead agencies is defined (EMCA, 1999; Sec. 50). The same legal and institutional framework extends to the provisions for in situ and ex situ conservation (EMCA, 1999, Secs 51-52). Provisions for in situ conservation include the prescription for compatible land use methods, the selection and management of protected areas so as to advance the conservation of the various terrestrial and aquatic ecosystems under the jurisdiction of Kenya, selection and management of buffer zones near protected areas, special arrangement for the protection of species, ecosystems and habitats threatened with extinction, and prohibiting and controlling the introduction of alien species into natural habitats. Guidelines
Ibid. EMCAs provision on conservation which includes biodiversity between sections 42-57, Part V of EMCA is basically derived from the 1992 United Nations Conventions for Biodiversity [CBD] 8 It has particularly provided under its section 148 that in case of any conflict before it and any other legislation in existence prior to its enactment on environmental management, EMCAs provisions shall prevail. It has also created an integrated framework under NEMA and the National Environmental Council [NEC] wherein belongs all the public institutions and sectors that deal with any component of the environment.
are issued in regard to Ex situ conservation of germplasm banks, botanical gardens, zoos or aquaria, and animal orphanages. The powers and duties include ensuring that species threatened with extinction which are conserved ex-situ are re-introduced into their native habitats and ecosystems where the threat to the species has been terminated or a viable population of the threatened species has been achieved. Integrating traditional knowledge for the conservation of biological diversity with mainstream scientific knowledge is part of the same arrangement. Pursaunt to Section 53 (1) of EMCA, NEMA, in consultation with the relevant lead agencies, has issued Access and Benefit Sharing Regulations of 2006 that provides guidelines and prescribe measures for the sustainable management and utilization of genetic resources of Kenya. The regulations specify appropriate arrangements for access to genetic resources of Kenya by non citizens of Kenya including the issue of licences and fees to be paid for that access, regulates the import or export of germplasm, the sharing of benefits derived from genetic resources of Kenya, biosafety measures necessary to regulate biotechnology, measures necessary to regulate the development, access to and transfer of biotechnology. Environmental assessments, which include strategic environmental assessments, environmental Impact assessments, Environmental Audits are also provided for plans, policies, programs and projects. Some of these are provided for under Schedule 2 of EMCA. These are, but not restricted those that are out of character with their surrounding, major changes in land use, urban developments, transportation projects, dams, rivers and water resources, aerial spraying, mining, including quarrying and open cast extractions, forestry related activities, agriculture, processing and manufacturing industries , electrical infrastructure, management of hydrocarbons including the storage of natural gas and combustible or explosive fuels, waste disposal, building of nuclear reactors and major developments in biotechnology including the introduction and testing of genetically modified organisms. Under the CBDs article 18, the convention requires parties to consider the need for modalities of a protocol setting out appropriate procedures including advanced informed agreement in the field of safe transfer, handling and use of any living modified organism resulting from biotechnology. These are in respect of any genetically modified organisms, which are likely to have adverse environmental impacts. Under the Convention on Biological Diversity [CBD] of which Kenya ascribe to, genetic resources are under the exclusive ownership of countries of their source and that acquiring them must have their formal agreement. Further to the foregoing advantages obtaining from their use must be jointly, and equally, derived in return. Be they as they may. CBD has not distinctly ascertained the question of ‘value added products of genetic resources which would clearly qualify for protection under the Conventional Intellectual property [IPR] regimes.’ Legislations on Agriculture Agriculture Act Chapter 318 of the laws of Kenya is the premier law on the management of the agricultural sector in the country. However, genetic resources pertaining to food security, an integral part of agriculture is not given an explicit reference. Section 100 of the Act empowers the Minister in charge to declare certain crops as essential crops which in his opinion are necessary for the food requirements of Kenya and for good land management. Party XIV, which
deals with development of certain crops in Section 190 reiterates Section 100 while requiring due consultation of the Central Agricultural Board. However, in exercise of this power most crops declared were exotic food crops. Section 191 provides that the Minister shall set up an Authority to promote special crops. Section 107 makes it an offence to fail to comply with a production order of essential crops. This placed mandatory production orders upon farmers, which discourages the production of indigenous foods. Subsequently these provisions were used to promote the production of export crops with the exception of maize. This encouraged a shift in production by farmers who minimized, or did away with altogether, their output of traditional food plants. They encouraged the lack of interest in maintaining indigenous knowledge pertaining to genetic resources which for many years have assured supply of plants crucial for food security and medicinal purposes. Section 169 provides that the Settlement Fund Trustees may out of the Agricultural Settlement Fund expend money for carrying on agricultural business. However, in the presence of state designated crops as special crops whose production could be made mandatory money is more likely to be expended towards the production of the said special crops. These provisions have fueled conflict between commercial export agriculture and traditional self-sufficient food crop farming. Plant Protection Act, Chapter 324 of the Laws of Kenya, deals with prevention and control or spread of pests or diseases in plants. The minister concerned may order, prohibit, or regulate the importation or exportation of any plants, soil and of any animals or insects likely to infect any plant with pest or diseases. The minister may authorize inspection before importation or exportation of any plant. He may also authorize disinfecting or treatment of any plant, and the immediate destruction without compensation any infected plant intended for importation or exportation. Further, he has powers under the act to prohibit importation of plants or classes of plants at specific ports or places of entry and also control the movement of plants or classes of plants likely to be infected with any pest or disease into or within any specified area. Section 8(1) empowers the Minister in-charge to order, prohibit, restrict, or regulate importation and exploitation of any plants likely to inject other plants with disease. This represents a precautionary approach to prevent the spread of contagious plant diseases likely to affect the nation’s food security and export quality. Section 8 prohibits land occupiers from permitting the growth of volunteer maize or any rations of sorghum in specified areas Section 7(2) prescribes penalty for willful introduction of pests or disease to be guilty of an offence, liable to a fine not exceeding 2000/= or six months imprisonment. The act should have granted more administrative powers to the minister and to the courts to deal with the issues arising from the biotechnology related uncertain science vide the precautionary principle that is today an integral part of environmental jurisprudence in the country. Part 1 of the Crop Production and Livestock Act. Chapter 321 of the Laws of Kenya, the quintessence of the Britains gulag’s obnoxious laws aimed at pacifying the locals, outlines African produce to include; legumes, sorghum, wheat, onions, potatoes, rice, fresh vegetable, simsim, bulbrush millet, finger millet and fresh fruit. Part II deals with matters of improvement. It however maintains some outdated provisions that should be repealed. In Section 6 for example, the sale of African produce must be purchased from an African except between 6 a.m and 6p.m. the sale of groundnuts could not be made before the date set forth by the Minister. African produce was not to be transported to any region where part II applies unless inspected. These measures injected undue bureaucracy into the marketing of African produce thereby
limiting it. The time frames stipulated for sales also limited the production and marketability of African produce. This was despite the need to utilize a range of plant resources to avoid overlain on single varieties. S.3 provides that nothing shall prevent the purchase, sale, or exchange of African produce without inspection as between Africans for their own consumption at customary African markets. This regulation had the effect of dissuading them marketing of produce beyond African markets. This indirectly dictated the market available. In the absence of inspection quality standards lowered which in turn affected sale attempts beyond the African market. Section 15 discouraged the purchase of African produce due to its bureaucratic requirements. It required every purchaser to keep books of accounts in English numerals, submit report of African produce returns, if transported by rail a copy of railway waybills to the District Commissioner. At the enactment of these provisions there were few educated Africans few could keep the required books a fact that dissuaded the production of African produce. Seeds And Plant Varieties Act, Chapter 326 of the Laws of Kenya governs the Plant Breeders Rights (PBRs), which protects new plant varieties, and is administered by the Kenya Plant and Health Inspectorate Service (KEPHIS) under the Ministry of Agriculture.. The Act prohibits, restricts and regulates the importation and exportation of any plants and the soils, packages, coverings or rapping’s thereof and of any articles or class of articles whether of a nature similar to plants or not. Importation of plants and seeds is also controlled.Dating back to 1972and revised in 1977 and 1991, the Act is based on the UPOV convention of 1978. It came into effect in 1997. The act does not envisage the challenges faced in the proper legal and policy developments pertaining to plant genetic resources, not to mention the issue of genetic manipulation where there is an apparent lacuna. Genetic resources as exemplified through the GMOs, is not mentioned. GM foods are produced from genetically modified organisms that have had their genome altered through genetic engineering. The process of producing them involves taking the DNA, modifying it in laboratories and then inserting it into another organism’s genome to produce useful traits or phenotypes. Scientists want to transfer desirable qualities from one organism to another. It is feared that the introduced gene does not only come with desired traits but also might also bring the undesired ones. It is also feared that there is a serious danger if genetically engineered viruses are used as vehicles in the generation of GM plants and animals. They could portent new viruses and dangerous new diseases (Nation, 2007). Management of Wildlife and Forest Resources Wildlife is an integral part of biodiversity and the protection of the resources thereof, often referred to as the wildlife conservation is defined as ‘the wise management of the natural environments for the protection and benefit of plants and animals’. Wildlife and the natural areas they inhabit have had a profound impact on people since our earliest history as species.9 Rogers succinctly puts it that the ‘human relationship to wildlife touches the deepest wellsprings of human emotion and behaviour…and forges the best thinking about human ethics and morality.’10In Kenya, Wildlife management, which essentially depends on gazettement of the habitat areas other than those under private management, for the protection of flora and fauna, has seen the creation of ‘21 National Parks and 4 marine Parks, 23 National reserves and five National Marine Sanctuaries’.11These are habitats to a variety of biota protected for their social,
Berry & Dennison, 2000 Roger , 1994;. p. 9.9 11 Okidi & Kameri-Mbote ,200I; p 11
economic, medicinal values, science and technology and biocentric values. Be them as they may, they are under pressure from myriad sources such as the disruption of their habitats and unmitigated extraction.12 Human being, their activities and the natural phenomena have been instrumental for the increasing danger to the decrease in wildlife population, and sometimes their extinction, thus creating the need for conservation. For conservation to be effective, proper legal framework has to be in place to check on activities, which impact negatively on wildlife. These are, but not limited to, hunting, clearing of forests and wetlands, draining of swamps and rivers to clear way for settlements, agriculture and industries and human pollution of the environment. In conservation parlance, the scarce resources are in three categories. First there are the endangered species, which are facing threats of extinction and require direct and concerted human intervention. Secondly, there are the threatened species, which are generally abundant in some areas while facing serious threats elsewhere. The last category is that of the rare species which simply have small populations not necessarily due to threats from human activities. The Wildlife Conservation and Management Act13 consolidates and amend the law relating to the protection, conservation and management of wildlife in Kenya and for purposes connected there with and incidental thereto. The preamble of the Act provides that it is desirable that the present powers relating to the management and conservation of wildlife in Kenya should be amalgamated and placed in a consolidated service of the government. Part Two of the Wildlife Conservation and Management Section 3. (1) establishes a state Corporation, the Kenya Wildlife Service [KWS] which is a uniformed and disciplined service. The prime objective of the KWS is to ensure that wildlife is managed and conserved so as to yield to the nation in general and to individual areas in particular, optimum returns in terms of cultural, aesthetic and scientific gains as well as such economic gains. It is also envisaged that full account should be taken of the varied forms of land use and the inter-relationship between wildlife conservation and management and other forms of land use.
Forestry ‘refers to the science of establishing, tending and protecting forest and tree resources, and includes the processing and use of forest and tree products.’ 14 As we have seen hereinbefore, it is an integral part of the wildlife vista. ‘Forests provide homes for a wide variety of wildlife and wild life management involves maintaining a balance between the fauna population and the supply of food, water and shelter. However, they are so important not only in Kenya, but also to the entire globe because of their unique importance. The forest Act 15 is enacted in cognizance of the fact that this is one of the most important aspects of wildlife management, hence environmental management, and impacts on climate and vice versa,16 is useful source of genetic resources, is a source of biomass which proffers about 70% of Kenya’s energy requirement and proffers products like timber. The vegetation of forest ecosystems account for 80% of carbon above ground and the soils beneath forests captures 40% of soil carbon.’17 Consequently, forests
ibid Chapter 376 of the Laws of Kenya 14 Section 2 of the Forests Act of 2005, Law ofKenya.
Forest Act, Chapter 385 of the Laws of Kenya. [The 2005 Edition]
Jepma,1998; p. 40 17 Melilo, et al,1990
are a critical building block of climate changes in their functions as both a carbon source, due to deforestation and degrading of forests, and a carbon sink vide reforestation, afforestation and improved development caused by carbon dioxide fertilization. Forests also impact on climatic settings significantly at the continental level as a result of the combined impact on ground temperatures, evapo-transpiration, surface roughness, albedo, cloud formation and precipitation.18No wonder forestry is under a separate management in Kenya where the Forests Act has created the Kenya Forests Service. The Act provides for creation of customary rights, state forests, local authority forests, private and farm forestry and community participation, among others important stipulations. A major departure from the previous forestry laws is the provision for community participation under Part IV. Members of a forest community are allowed to form forest associations under the Societies Act and the said association can be granted permission by the director of forestry to participate in the conservation and management of state forests or the local authority forests. Some of the benefits that may accrue from such recognition are the user rights such as collection of medicinal herbs, honey, timber or wood fuel, grass, grazing, eco-tourism and recreational activities, among other things.19 Convergence with Intellectual Property Rights That there is a convergence between the effective environmental management and intellectual property rights can not be gain said. There has been a strong opposition to the grant of proprietary rights for genetic resources hinged on the understanding that ownership is only granted for human creations or inventions, exemplifying novelty or distinctiveness and not things found in nature (Subramanian, 2006). However, things found in nature can be modified and that raises issues of ownership again. Whereas the Industrial Property Act, Chapter 509 of the Laws of Kenya, provides for patenting of micro-organisms, microbiological processes and the self replication material, mainly the DNAs and the RNAs, therefore an integral part of the protection of biodiversity, EMCA provides for the protection of biodiversity from a holistic perspective. EMCA also provides for issues of genetic resources, which involves transfers and genetic modifications, which not only affect the intellectual property rights but can also have negative impacts on the environment. Fair and equitable sharing of benefits arising out of the utilization of genetic resources is a primary objective of the CBD. As much as the CBD recognizes the place of the National Sovereignty over the biodiversity, it has mysteriously failed to recognize the proprietary rights of the indigenous people. This even the EMCA has failed to clearly stipulate even though it has provided for the recognition of the indigenous rights over their knowledge. The national access and benefit sharing legislation under CBD as an effort to ratify the Food and Agricultural Organisation (FAO) International Treaty on Plant Genetic Resources for Food and Agriculture (ITPGRFA) is the Environment Management and Coordination Act, 1999. This is provided for under Section 53 of EMCA. It provides for among other issues, appropriate arrangements for access to genetic resources (including landraces) of Kenya by non-citizens, trade in germplasm, sharing of benefits, biosafety measures in biotechnology and regulation for
Hendrson-Selers et al, 1988; p. 40 Sections 45-49, Forestry Act.
access to and transfer of biotechnology. The law is, however, supplemented by the Science and Technology Act, 1977. Kenya has a national patent legislation in place, which is in compliance with TRIPs Articles 27.3(b). Under the Industrial Property Act, 2001, Kenya does not patent plant and animals including essentially biological processes. However, under Section 26, parts of plants or products of biotechnological processes can be patented. Further, micro-organisms and microbiological process are patentable so long as they are novel, involve an inventive step and are industrially applicable. By the use of biotechnology, the exploitation of endogenous and exogenous enzyme activities in food processing can be manipulated. This is mainly to cause fermentation in such foods such as cheese, bread, Soya sauce, and beverages like beer and wine. The Food, Drugs and the Chemical Substances Act, Chapter 254 of the Laws of Kenya, administered by the Ministry of Health ascertains that the Biosafety code is adhered to. All these are necessary to encourage research and development in novel micro-organisms that are necessary in genetic engineering to provide solutions to the country’s needs in food security, medicine and environmental conservation. Although the EMCA, 1999 attempts to merge requirements of CBD and those of the ITPGRFA, there are several issues which emerge. The basic objective of the ITPGRFA is the “conservation and sustainable use of plant genetic resources for food and agriculture and the fair and equitable sharing of the benefits arising out of their use, in harmony with the Convention of Biological Diversity, for sustainable agriculture and food security” (Article 1.1). However, the Multilateral System such as the ex-situ collections of the International Agriculture Research Centres of the Consultative Group on International Agricultural Research (CGIAR) and other international institutions cover a list of 35 crops and 29 genera of forages, which comprised most major food crops (eg rice, wheat, maize, potato and cassava). Access to the crops not listed could be covered by bilateral agreements under the CBD. Access to such as crops genetic material for non-commercial is facilitated free of charge. But after modification or innovative applications, such varieties are a subject of IPRs in order to stimulate research. Kenya chose to protect new plant varieties using a sui generis system as indicated under Article 27.3(b) of TRIPs Agreement. The Seeds and Plant Variety Act, Section 326 of the laws of Kenya, revised twice, in 1977 and 1991 and came into effect in 1997, is in conformity of The UPOV1991. The Act offers softer provisions to local farmers: Their rights herein include using their own seeds for re-planting or for exchange in the village communities according to their traditional custom. No scheme exists on protection of farmer varieties/landraces and traditional knowledge. Farmers are, however, free to grow or use a protected variety for non-commercial purposes, and use plants or parts of the protected variety for human consumption or other nonpropagating purposes, without constituting an infringement on PBR holder. Plant Breeders exemption under UPOV-78 is based on non-commercial uses which gives breeders room to exploit a protected variety for further research. Other issues which are not in UPOV-78 that require attention are protection of traditional knowledge upon which most breeders depend on development of their varieties. This is also considered important to environmental protection hence provided for in the EMCA. Perhaps
introduction of prior informed consent (PIC) would be an answer to these especially in biotechnological patent applications for the said legislations to afford greater protection. Under Part V of the Seeds and Plant Variety Act, extensive provisions to protect the proprietary rights of the plant breeders with regard to breeding and the discovery of new plant varieties of such species or groups as may be designated by the minister responsible for agriculture. Depending on the plant variety, the period over which the rights can be exercised under the act ranges up to 25 years. Under the TRIPS, countries are to provide for the protection of the plant varieties either by patents or an effective sui generis or by any combination thereof.It is on this note that it can be said Kenya has a legislation which conforms to the requirements under the TRIPS. Kenya opted for a sui generis legislation under TRIPs article 27.3(b). Kenya acceded to International Union for Protection of New Plant Varieties (UPOV) under the 1978 convention in May 1999. There is also an established Plant Variety Protection Office (PVPO) which serves primarily to implement Plant Breeders’ Rights in Kenya and to be the liaison office for UPOV. The mandate entails, maintaining an index of all crops for the purpose of Plant Breeders’ Rights and establishing and standardizing description of characters for varieties using the UPOV system. In addition, it entails the custodianship of Plant Breeders’ Rights register, and recommending appropriate Plant Breeders’ Rights regulations and standards. A variety qualifies for grant of Plant Breeders Rights if it is new, distinct, uniform, stable, and has a proposed denomination that is acceptable. Correspondingly, the detailed UPOV Technical Questionnaire that describes the characters of the new variety must accompany the application by the breeder. These will then be verified by the PVPO under the tests of Distinctness, Uniformity and Stability (DUS) of the candidate variety. The PVPO has an arrangement to purchase examination reports within the framework of cooperation in examination (DUS tests) from testing Authorities within UPOV member states and the Community Plant Variety Office (CPVO) for ornamental species. The PVPO in Kenya grants Plant Breeders’ Rights to all plant species except algae and bacteria and a scheme exists on the nature of rights granted for each species. To comply with article 8(j) of CBD, the government has enacted Environment Management and Coordination Act, 1999 that established National Environment Management Authority (NEMA) that deals with all issues pertaining to biodiversity conservation including farmer landraces. In the seven years of existence of PVP Service in Kenya, a total of 734 PBR applications have been received. CONCLUSION Under the IPR legal system, the first question is that of subject matter, whether it should include seed varieties, farming methods, rare species, folklore and traditional knowledge. The second issue is that of the persons to benefit from such Intellectual properties, whether an individual or indigenous communities. Third is the issue of how the rights are to be acquired. Lastly is the question of how to treat indigenous knowledge in genetic resources that are already in the public domain.
Farmers are used to free exchange of material in agriculture. For a long time, agricultural sector has not been subjected to commercialization under IPRs. The community knowledge is inherited from there past generation and therefore equitable sharing of the benefits would be very hard to implement. Further, most crop genetic resources presently in the Multilateral System were collected from various parts of the world and it would be hard to identify origin of the material. Secondly, the current diversity of crop varieties cannot allow one to trace their origin. Neem Tree, for example, originally found in India is spread all over the world. Coherent questions about benefit sharing and access to genetic resources under CBD are diverse and as localized through EMCA are abound. First, the traditional set up is such that knowledge is passed on from one generation to the other across territories. How will IPRs apply? Secondly, IPRs are granted to individuals or a group of individuals (as a firm) and recognizes, among other things, varieties that are novel. How will the law implement parameters such as prior informed consent and certificate or origin? Third, Who will benefit or claim IPRs on the crop genetic material in the CGIAR genetic material, for instance? Kenya is increasingly faced with dire food shortages. A case in point is the incessant perennial famine attributed to a combination of deep-seated poor leadership and natural adversities. Further to the foregoing, human existence and detrimental effects of human activities is also a factor, albeit seldom cited as an explanation for food shortages. These include, population pressure, monoculture, large-scale production of export crops at the expense of subsistence food crop production, introduction of foreign species that kill both the initiative for cultivation of traditional and other local food plants and also literally eliminating such crops, inequitable ownership of resources such as land amongst other things. The role that adequate legal provisions can play in changing the negative scenario can not be gainsaid. One of the controversies in the enunciation of more effective legal regimes is that of the risks associated with GMOs. The Biosafety Bill seeks to address this, however the issue of risk assessments and the application of the precautionary principles. Where there are threats of damage to the environment, whether serious or irreversible, lack of full scientific certainty is not to be used as a reason for postponing cost effective measures to prevent environmental degradation’.(EMCA, 1999; Section 2) The question today is, do EMCA’s provisions include risks that are not necessarily environmental? Are they covered under the precautionary principle as stipulated under the EMCA. The principle is not only to be used in deciding court cases, but also in the enunciation of policies, programs and plans and analyses of environmental assessments. The principle was first used in respect of environmental policies aimed at combating the problems of global warming, acid rain and maritime pollution. 20 During the Second International Conference on the Protection of the North SEA, in 1987, it was considered and reflected on. It was considered that the principle be applied, in order to protect the North Sea, even where a causal link using empirical evidence is not certain. Strong endorsement was thereafter forthcoming from the Rio Declaration on Environment and Development, the UN Convention on Climatic Change, and the 1992 OSPAR convention [Convention for the Protection of the Marine Environment of the North Atlantic. First used in Germany, it first received its entry in the international domain in 1985 through the Vienna Convention on Ozone Depleting Substances, which recognized the precautionary measures taken nationally and internationally.
Carbon sequestration which is useful for pollution abatement and the larger climate change phenomena, bio-fuels, biomass, wood industry, food security and the developments science and technology all depend on living plant genetic resources. Therefore, the laws pertaining to them should be strengthened to promote especially environmental justice. A gargantuan step would be made in the right direction if they were to be incorporated in the national constitution, laws pertaining to agriculture, silviculture, wildlife conservation and management and the procedures for implementation aptly captured.21A combination of traditional seeds and biotechnology as applied within an appropriate legal framework, linked to farming systems based on a rich agrobiodiversity and agro-ecological principles as well as local markets can successfully and sustainably feed populations.22 On GMOs, if policies for finding solutions for sustainable development, community stability, economic development, hunger and poverty in Kenya are based on authentic Kenyan needs, then care should be made so that embracing new initiatives will not engender sacrificing of the populace’ safety and that of the environment, even if the proponents of these programs are a harbinger of quick economic returns. All these initiatives are designed to pave way for controversial biotech research. It is incumbent upon such arguments and the sheer force of the arguments for the precautionary principle that the Kenyan should wake up to this reality and get proactive23 In terms of positive action, local communities, through proactive laws that provide for exchanges in the region through funding and support for regional networks should be enhanced. Such exchanges will build a healthy network of ideas and initiatives that can strengthen the conservation and farming communities of this region. Given that similar processes of privatization of seeds and knowledge are at work on all continents, and that appropriate responses to these threats can be generated through farmer exchanges on all five continents. It is recommended that international farmer exchanges on seed and food sovereignty be supported and organized on a regular basis. REFERENCES United Nations Convention on Biological Diversity, 1992 Akinyi-Oluoch Dorcas  Legal Protection for Traditional Food Plant Diversity in Kenya: Conflicts, Consensus and Lacunae. [LL.B Dissertation, Moi University, Eldoret Kenya] Brown Katrina and Moran Domonic , Valuing Biodiplomacy: The Scope and Limitations of Economic Analysis [ Published in Sanchez Vincent and Juma Carlestous eds. Biodiplomacy: Declaration of the Farmer Exchange on the Privatisation of Seeds, organized by the CNOP, BEDE and IIED. Preparatory process for the International Forum on Food Sovereignty of Nyeléni, Mali. Bamako, 21st February 2007. 22 Ibid 23 Ibid
Genetic Resources and International Relations:[Nairobi: Acts Press, African Center for Technology Studies, Kenya] p. 214 Cragg, et al., 1997 Curtis Abraham . It is time the West to Accept African Traditional Healers. Nairobi: [Daily Nation’s African Insight Column, Friday June 8, 2007.] Declaration of the Farmer Exchange on the Privatisation of Seeds, organized by the CNOP, BEDE and IIED. Preparatory process for the International Forum on Food Sovereignty of Nyeléni, Mali. Bamako, 21st February 2007. Environmental Management and Coordination Act of 1999, Law of Kenya [EMCA] GRAIN. 2009a. Fighting GMO Contamination around the World. Barcelona, Spain: Seedling: Biodiversity, Rights and livelihood, January issue. GRAIN. 2009b. The New Weapons of Genetic Engineering. Barcelona, Spain: Seedling: Biodiversity, Rights and Livelihood, January issue. Gudu S. O  From Genes to Genetically Modified Crops: The Future of Food Production; Human Health and Environmental Management In Africa. [Eldoret: Moi University Press, Moi University Inaugural Lecture Series No 1 of 2007]p. 13 Maycock paul  Forest. [In the World Book Encyclopedia, The World Book Inc.] Nation  Kenya Should Be Careful in Adopting the GM Foods. [Opinion in the Saturday Nation, October 20, 2007] p. 11 O’Neill & Lewis, 1996 Ojwang Jacton Boma,  The Constitutional Basis For Environmental Management [in the Juma Calestous and Juma Ojwang, edited, In Land We Trust: Environment, Private Property and Constitutional Change (Nairobi: Initiative Publishers)] Okoth-Yogo Kiboye. 2007. Indigenous knowledge in Genetic Resources: Legal and Policy Options for Kenya and Tanzania. [Unpublished] Safrin Sabrina  Hyper Ownership in a Time of Biotechnological Promise: the International Conflict to Control the Building Blocks of Life. American Journal of International Law October. Shulman Rachel.2008. New Gene Silencing Pathway found in Plants. American Association for the Advancement of Science: Eurekalert, 17 November, 2008 Subramanian Arvind  Proprietary Protection of Genetic Resources and Traditional Knowledge. [In Hoekman Benard et al, eds, Development, Trade and WTO: Washington DC The World Bank.]
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