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Published online by Cambridge University Press: 25 October 2021
Traditional knowledge forms the fabric of indigenous communities’ social and economic life. Its attempted protection through intellectual property law has been dismal. There is now wide consensus that sui generis regimes should be employed for this purpose, and that customary laws are conceivable as an integral part of such protection. This article finds that the expressed legislative intent to protect traditional knowledge through customary law in Kenya is ill-fated. Sustained inclusive subordination of the latter will obstruct any meaningful efforts to protect the former. This finding is reached by an examination of the historical application of African customary law in personal law regimes that have it as the defining legal regimen. This history is one of subtle subordination, and such subtlety remains embedded even in Kenya's law on traditional knowledge. The unpleasant effects of this phenomenon as observed in personal law regimes are likely to recur for traditional knowledge.
LLB (Strathmore), LLM Intellectual Property (Strathmore), Advocate of the High Court of Kenya, Adjunct Teaching Fellow, Strathmore University Law School, Nairobi.
1 Traditional knowledge, for instance, is usually protected within the organizing framework of intellectual property systems. The World Intellectual Property Organization (WIPO) is engaged in capacity building and normative work on traditional knowledge at an international level. See World Intellectual Property Organisation “Traditional knowledge”, available at: <https://www.wipo.int/tk/en/> (last accessed 25 May 2020).
2 For a human rights context, see art 20, Organization of African Unity, African Charter on Human and Peoples’ Rights, 27 June 1981, CAB/LEG/67/3. See also, generally, United Nations General Assembly, United Nations Declaration on the Rights of Indigenous Peoples, A/RES/61/295.
3 In this article, the term “traditional knowledge” will also be employed to represent “traditional cultural expressions”, as there is, according to the author, no major difference producing a fundamental doctrinal division between the two for the immediate purposes.
4 J Mugabe Intellectual Property Protection and Indigenous Knowledge: An Exploration in International Policy Discourse (1999, African Centre for Technology Studies) at 2.
5 Ibid. Indigenous people are identified mainly by virtue of cultural distinctiveness and prior territorial occupancy relative to a more recently-arrived population. Local peoples, on the other hand, are identified by virtual of habitual residence in a certain region, usually as a group.
6 Id at 3.
7 See UNESCO, “Adaptive knowledge for variability and change”, available at: <http://www.unesco.org/new/fileadmin/MULTIMEDIA/HQ/SC/pdf/LINKS_ex_10.pdf > (last accessed 25 May 2020).
8 R Okediji “Traditional knowledge and the public domain” (2018), CIGI Papers no 176 Centre for International Governance Innovation.
9 Ocran, M “The clash of legal cultures: The treatment of indigenous law in colonial and post-colonial Africa” (2006) Akron Law ReviewGoogle Scholar at 467–68.
10 Halsbury's Laws of England, vol 10 at 318.
11 Ibid.
12 A Allott New Essays in African Law (1970, Butterworths) at 157.
13 See Sackey, E and Kasilo, O “Intellectual property approaches to the protection of traditional knowledge in the African region” (2010) The African Health Monitor – Special Issue: African Traditional MedicineGoogle Scholar at 89.
14 Ibid.
15 See M Eiland Patenting Traditional Medicine MIPLC (2009, Nomos Verlagsgesellschaft mbH), at 34–36.
16 Ibid.
17 Ibid. Eiland notes that the only regime that has meaningfully achieved such integration is China, meaning that patent protection of traditional knowledge may not be a blueprint that works for all societies.
18 For a detailed analysis of several misappropriation claims, see Eiland, Patenting Traditional Medicine, above at note 15; Amusan, L, “Politics of biopiracy: An adventure into hoodia/xhobia patenting in Southern Africa” (2017) 14/1 African Journal of Traditional, Complementary and Alternative MedicinesGoogle ScholarPubMed; and Feris, L “Protecting traditional knowledge in Africa: Considering African approaches” (2004) 4 African Human Rights Law JournalGoogle Scholar; Roht-Arriaza, N “Of seeds and shamans: The appropriation of the scientific and technical knowledge of indigenous and local communities” (1996) 17/4 Michigan Journal of International Law 919Google Scholar.
19 Annex 1C, 1869 UNTS 299, 33 ILM 1197 (1994).
20 See Sackey and Kasilo “Intellectual property approaches” (2010), above at note 13 at 89.
21 Janewa, O “A sui generis regime for traditional knowledge: The cultural divide in intellectual property law” (2013) 15/1 Marquette Intellectual Property Law Review 147Google Scholar at 154.
22 Presented in April 1998, to the then Organization for African Unity (OAU) (now the African Union (AU)), through its Scientific, Technical and Research Commission, which initiated a Draft Model Legislation on Community Rights and Access to Biological Resources. The Draft Model Legislation was sponsored by the government of Ethiopia at the 34th Summit of Heads of State and Government in June/July 1998, where it was decided that governments of member states should formally adopt the Model Law. This initiative represents an attempt to provide an ideal legal framework for member states to develop their own policies, laws and regulations on access to bio-resources.
23 See, for instance, Feris “Protecting traditional knowledge in Africa”, above at note 18 at 919; Tobin, B “Redefining perspectives in the search for protection of traditional knowledge: A case study from Peru” (2001) 10/1 RECIELGoogle Scholar; and Muller, M “Protecting shared and widely distributed traditional knowledge: Issues, challenges and options” (2013) International Centre for Trade and Sustainable DevelopmentGoogle Scholar, among many others.
24 Muller “Protecting shared and widely distributed traditional knowledge”, above at note 23 at 19.
25 N Stoianoff “A governance framework for indigenous ecological knowledge protection and use”, in R Levy et al (eds) New Directions for Law in Australia: Essays in Contemporary Law Reform (2017, ANU Press) at 236.
26 Ibid.
27 Kariuki, F “Notion of ‘ownership’ in IP: Protection of traditional ecological knowledge vis-à-vis Protection of Traditional Knowledge and Cultural Expressions Act, 2016 of Kenya” (2019) 24 Journal of Intellectual Property Rights 89Google Scholar at 94.
28 Mugabe Intellectual Property Protection and Indigenous Knowledge, above at note 4 at 8. Nonetheless, there exist various reasoned attempts to draw more parallels than are usual between the two regimes. See, for instance, Eiland Patenting Traditional Medicine, above at note 15. The fundamental incompatibility of the two systems, however, is rather plain.
29 Mugabe Intellectual Property Protection and Indigenous Knowledge, above at note 4 at 8.
30 Ibid.
31 See, for instance, Feris “Protecting traditional knowledge in Africa”, above at note 18; Roht-Arriaza “Of seeds and shamans”, above at note 18; Tobin “Redefining perspectives in the search for protection of traditional knowledge”, above at note 23; and Muller, “Protecting shared and widely distributed traditional knowledge”, above at note 23, among many others.
32 Constitution of Kenya, 2010, art 260.
33 Id, art 11(1).
34 Id, art 2(4).
35 Id, art 159(3).
36 Judicature Act, cap 8, Laws of Kenya (2016 revised ed).
37 Judicature Act, cap 8, Laws of Kenya, (2016 revised ed), sec 3(1). The Judicature Act provides for statutes of general application received in Kenya up until 12 August 1897. These laws remain applicable notwithstanding their position in the common law jurisdictions from which they are received.
38 Judicature Act, cap 8, Laws of Kenya, (2016 revised ed), sec 3(2).
39 This phrase was first encountered in the work of Sylvia Kang'ara, describing the legal technique through which African customary law was formally accepted but its application heavily qualified. See Kang'ara, S “Beyond bed and bread: The making of the African state through marriage law reform – constitutive and transformative influences of Anglo-American legal thought” (2012) 9 Hastings Law & Poverty Law Journal 353Google Scholar at 362.
40 M Ouma “The policy context for a commons approach to traditional knowledge in Kenya” in De Beer et al Innovation and Intellectual Property: Collaborative Dynamics in Africa (2014, UCT Press) 132 at 134.
41 Protection of Traditional Knowledge and Cultural Expressions Act, no 33 of 2016.
42 These references are evident in, among others, the definition of “holders” (sec 2), “owners” (sec 2), the formalities relating to registration of traditional knowledge (sec 7), as well as in the protection criteria for traditional knowledge (sec 14).
43 In particular, these are arts 11, 40 and 69(1)(c) of the Constitution.
44 Protection of Traditional Knowledge and Cultural Expressions Act, no 33 of 2016, sec 2.
45 This connotes the carefully orchestrated reformulation of the nature of legal rights and legal relations of a state's subjects by the state using its legal machinery in pursuit of its ends. Such ends have, in the case of personal law systems in Kenya, been noted as the progressive alignment of African society with the ideals of market capitalism, a liberal constitutional democracy and, reluctantly in some cases, legal pluralism. See generally, Kang'ara “Beyond bed and bread”, above at note 39.
46 Ibid.
47 Magistrates’ Courts Act no 26 of 2015, sec 7. The position was identical to that of the repealed Act.
48 The list constitutes:
(a) Land held under customary tenure;
(b) Marriage, divorce, maintenance or dowry;
(c) Seduction or pregnancy of an unmarried woman or girl;
(d) Enticement of, or adultery with, a married person;
(e) Matters affecting status, and in particular the status of widows and children including guardianship, custody, adoption and legitimacy; and
(f) Intestate succession and administration of intestate estates, so far as they are not governed by any written law.
49 Allott New Essays in African Law, above at note 12 at 158.
50 Ambani, J and Ahaya, O “The wretched African traditionalists in Kenya: The challenges and prospects of customary law in the new constitutional era” (2015) 1/1 Strathmore Law JournalGoogle Scholar at 53.
51 P Onyango African Customary Law: An Introduction (2013, Law Africa) at 44.
52 Ibid.
53 See Ambani and Ahaya “The wretched African traditionalists in Kenya”, above at note 50 at 49.
54 Ibid.
55 Allott New Essays in African Law, above at note 12 at 162.
56 (1938) 1 TLR (R) 403.
57 Allott New Essays in African Law, above at note 12 at 164.
58 Recognition of African customary law forms may be divided into various historical “phases”. These are: (i) the era of mass invalidation; (ii) the era of presumptive validity; (iii) the era of legal dualism; and (iv) the era of doctrinal staging. See Kang'ara “Beyond bed and bread”, above at note 39.
59 “Artificial” because the selective application of African customary law was only contingent upon its utility in facilitating the creation of a colonial state embodying the economic ideal of market capitalism.
60 Kang'ara “Beyond bed and bread”, above at note 39 at 365.
61 Id at 354.
62 E Cotran Casebook on Kenya Customary Law (1987, Nairobi University Press) at xi–xv.
63 Court of Review Case no 14 of 1965, ibid.
64 Cap 142, Laws of Kenya (Repealed).
65 The Court cited Moore vs Hewitt [1947] KB 832 and Lawrence vs Ingmire (1869) 33 JP 630. In the former case, there was evidence that over a long period, including the time of conception, the mother had associated with the alleged father, and there was no evidence that she had associated with any other man. In the latter case, admissions by the defendant in cross-examination that he had had connection with the mother at times considerably previous to the date at which the child must have been begotten, and also at times subsequent to the birth of the child, and that the mother had had goods from his shop without payment, were allowed to be sufficient corroboration.
66 Esther Karimi v Fabian Murugu (High Court of Kenya at Nairobi Civil Case no 745 of 1973).
67 Ibid.
68 In the relevant passage, the court reasoned thus:
“However, I am confronted here with a problem in law. First of all, did the defendant promise to marry the Plaintiff in church or in the civil registry? The plaintiff says that they intended to have a church wedding. But very early during her evidence in chief she said “He said if I became pregnant, we would get married.”
The type of marriage was then not spelled out, which leaves me in doubt as to whether when the promise was made to her, the parties contemplated a monogamous marriage.
Secondly, if what she says is true, and I have no doubt it is, then I must hold the promise null and void, since a promise of marriage made in consideration of the promise permitting the promisor to have carnal intercourse with her or him is [not] valid. I am satisfied that the plaintiff permitted the defendant to have sexual intercourse with her, because he promised to marry her if she became pregnant.”
69 Court of Appeal for East Africa, Civil Appeal no 13 of 1976.
70 The essentials of a valid marriage under Kikuyu law are: capacity, consent, ngurario (slaughter of a ram), ruracio (part dowry), and cohabitation.
71 See Cotran, Casebook on Kenya Customary Law, above at note 62 at 65.
72 The Marriage Act, no 4 of 2014 defines the term “cohabitation” but does not include the same alongside the recognized “types” of marriage.
73 JMK v DMK, Civil Appeal no 7 of 2013.
74 Marriage Act, no 4 of 2014, sec 6.
75 Ibid, sec 7.
76 See generally, WIPO, Customary Law, Traditional Knowledge and Intellectual Property: An Outline of the Issues (2013).
77 Adopted by the Diplomatic Conference of ARIPO at Swakopmund (Namibia) on 9 August 2010.
78 K Swiderska et al “Protecting community rights over traditional knowledge: Implications of customary laws and practices” (2009), available at: <https://pubs.iied.org/sites/default/files/pdfs/migrate/14591IIED.pdf> (last accessed 15 February 2021).
79 At the 34th Summit of Heads of State and Government in 1998, the initiative was sponsored by the Ethiopian government.
80 Onyango African Customary Law, above at note 51 at 5.
81 Ibid.
82 See World Intellectual Property Organisation “The protection of traditional knowledge: Draft articles”, available at: <http://www.wipo.int/edocs/mdocs/tk/en/wipo_grtkf_ic_21/wipo_grtkf_ic_21_ref_facilitators_text.pdf> (last accessed 30 March 2019). Part of the subject matter of the articles is to “ensure the [use] safeguarding of traditional knowledge on the basis of customary laws, protocols and community procedures [with] through prior informed consent and exchanges based on mutually agreed terms …”.
83 See Katiba Institute “Traditional Knowledge and Cultural Expressions Act”, available at: <http://www.katibainstitute.org/traditional-knowledge-and-culture-expressions-act-2016/,> (last accessed 30 May 2019).
84 Ouma “The policy context for a commons approach to traditional knowledge in Kenya”, above at note 40 at 149. See also art 8(j), Convention on Biological Diversity, 1992.
85 Stoianoff “A governance framework for indigenous ecological knowledge protection and use”, above at note 25 at 240.
86 Sackey and Kasilo “Intellectual property approaches”, above at note 13 at 10.
87 Art 8 of the International Labour Organisation Convention 169 on Indigenous and Tribal Peoples in Independent Countries. See also the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), above at note 3. The UNDRIP is significant for, among other things, providing the free, prior, informed consent criterion for takings of resources involving indigenous peoples.
88 World Intellectual Property Organisation, “Background Brief no 7: Customary law and traditional knowledge”.
89 V Nzomo “The Protection of Traditional Knowledge and Cultural Expressions Bill (2015)” (December 2015), available at: < https://ipkenya.wordpress.com/2015/12/16/comments-on-the-protection-of-traditional-knowledge-and-traditional-cultural-expressions-bill-2015/ > (last accessed 25 March 2019).
90 Kariuki “Notion of ‘ownership’ in IP”, above at note 27 at 97. Sec 2 of the Act defines “owners” as local and traditional communities, and “recognized individuals or organizations within such communities in whom the custody or protection of traditional knowledge and cultural expressions are entrusted in accordance with the customary laws and practices of that community”. “Holders”, on the other hand, are defined as “recognized individuals or organizations within communities in whom the custody or protection of traditional knowledge and cultural expressions are entrusted in accordance with the customary laws and practices of that community”. The conceptual ambiguity between these terms, which are meant to be specific and distinctive, is plain to see.
91 Ibid.
92 The Protection of Traditional Knowledge and Traditional Cultural Expressions Bill, 2016, sec 9.
93 Adopted by the Diplomatic Conference of ARIPO at Swakopmund (Namibia) on 9 August 2010.
94 Sec 6, Swakopmund Protocol.
95 The Protection of Traditional Knowledge and Cultural Expressions Act, secs 19(2) and 21(4).
96 Id, secs 18, 20, 22 and 24.
97 Id, sec 28(1).
98 See generally, F Kariuki, S Ouma and R Ng'etich Property Law (2016, Strathmore University Press) at 47–50.
99 M Ouma “Lectures on traditional knowledge” (2019) on file with author.
100 The Protection of Traditional Knowledge and Traditional Cultural Expressions Act, 2016, sec 2.
101 See id, sec 6.
102 Id, sec 4.
103 Id, sec 5.
104 See Nzomo “The Protection of Traditional Knowledge and Traditional Cultural Expressions Bill (2015)”, above at note 90.
105 The Protection of Traditional Knowledge and Traditional Cultural Expressions Bill (2015) secs 2, 4, 5 and 7(7).
106 Id, sec 12(1). See also ARIPO Protocol, sec 12(1).
107 For further discussion on the “commons model”, see Ouma “The policy context for a commons approach to traditional knowledge in Kenya”, above at note 40 at 149.
108 Kongolo, T African Contributions in Shaping the Worldwide Intellectual Property System (2013, Ashgate Publishing)Google Scholar at 98.
109 See V Nzomo “Kenya's Protection of Traditional Knowledge and Cultural Expressions Act comes into force” (September 2016), available at: <https://ipkenya.wordpress.com/2016/09/23/kenyas-protection-of-traditional-knowledge-and-cultural-expressions-act-no-33-of-2016-comes-into-force/> (last accessed 20 January 2019).
110 Ibid.
111 Ibid.
112 Ibid.
113 Ibid.
114 WIPO, Customary Law, Traditional Knowledge and Intellectual Property: An Outline of the Issues (2013) at 13.
115 Id at 22.
116 United Nations Declaration on the Rights of Indigenous Peoples, above at note 3.
117 WIPO, Customary Law, Traditional Knowledge and Intellectual Property, above at note 114 at 14.
118 Customary laws will typically be linked to the specific social structures that apply and transmit law in a transgenerational sense.
119 WIPO, Customary Law, Traditional Knowledge and Intellectual Property, above at note 114 at 15.
120 Secs 37 and 38, Protection of Traditional Knowledge and Traditional Cultural Expressions Act, 2016.
121 Id, sec 40.
122 Republic Act no 8371.
123 Philippines Indigenous Peoples’ Rights Act, sec 32.
124 Id, sec 35.
125 Id, sec 65.
126 Law no 7788 of 1998, arts 82 to 84.
127 See WIPO, Customary Law, Traditional Knowledge and Intellectual Property, above at note 114 at 23.