Why Access and Benefit Sharing Policy
and Legal Frameworks are Importantfor Africa
African Technology Policy Studies Network
Biotechnology Trust Africa

SPECIAL PAPER SERIES | No. 42
Joseph M. WekundahWhy Access and Benefit Sharing Policy andLegal Frameworks are Important for Africa

Joseph M. Wekundah

The African Technology Policy Studies Network (ATPS) is a multidisciplinary network of researchers, private sector actors andpolicy makers promoting the generation, dissemination, use andmastery of science, technology and innovation (ST&I) for African
development, environmental sustainability and global inclusion.
ATPS intends to achieve its mandate through research, capacity
building and training, science communication/dissemination andsensitization, participatory multi-stakeholder dialogue,knowledge brokerage, and policy advocacy.
Published by the African Technology Policy Studies Network
P O Box 10081, 00100 GPO Nairobi Kenya
2012

Published by the African Technology Policy Studies Network

ISBN: 978-9966-030-41-2

Table of Contents
Acknowledgement

4

List of Acronyms

5

Introduction

6

Background6

What are the Limitations for the Implementation

7of ABS Regimes in Africa?
What Opportunities & Support is Available for ABS

10

Regimes through International Treaties,
Conventions, etc.?
What is Access & Benefit Sharing?

11

Are ABS Regimes Important for Economic Development?

12

Why Local Mechanisms for Governing ABS is Weak

15

How to Strengthen Policies & Legal Frameworks for17

ABS in Target Countries
What is the Way Forward for African Countries in

20

Strengthening Policies & Legal Framework?
References

21

Why Access and Benefit Sharing Policy and Legal Frameworks are Important for Africa | 3

Acknowledgement
This paper was produced as part of the implementation of the ATPS phase VI
Strategic Plan, 2008-2012 funded by ATPS Donors including the Ministerie van
Buitenlandse Zaken (DGIS) the Netherlands, Rockefeller Foundation, OpenSociety Foundation, UNESCO, European Union, African Union, amongst others.
The authors hereby thank the ATPS for the financial and technical support during
the implementation of the Intellectual Property Program. The authors particularly
thank the Executive Director of the ATPS Prof. Kevin Urama for his visionary
leadership and all members of his team at the ATPS. We are also grateful to theProgramme Coordinators including Mr. Joseph Wekundah of the Biotechnology
Trust Africa, Dr. Maurice Bolo (ATPS), Dr. Nicholas Ozor (ATPS), Prof. Moni
Wekesa (Mount Kenya University) for their technical supports to the Programme.

4 | Why Access and Benefit Sharing Policy and Legal Frameworks are Important for Africa

List of Acronyms
ABS
ATPS
BTA
CBD
CBO
GDP
IP
IK
IPR
ITPGRFA
TK
WHO

Access and Benefit Sharing
African Technology Policy Studies Network
Biotechnology Trust Africa
Convention on Biological Diversity
Community Based Organizations
Gross Domestic ProductsIntellectual Property
Indigenous Knowledge
Intellectual Property Rights
International Treaty on Plant Genetic Resources for Foodand Agriculture
Traditional Knowledge
World Health Organization

Why Access and Benefit Sharing Policy and Legal Frameworks are Important for Africa | 5

Introduction
Based on the Intellectual Property (IP) Programme Desk Study it was noted that
there were limited policy and legal frameworks for Access and Benefit Sharing(ABS). Although most countries relied on Environmental Management Acts for
dealing with Access of genetic resources and its conservation, there were limited
efforts towards setting up clear policies and legal frameworks for dealing with
Access and Benefit Sharing. It is only Kenya and Uganda who have regulations
under the Environmental Management and Coordination Acts, however, theactual implementation of the regulations, is far from perfect.
Developing countries, especially in Africa are rich in biodiversity and yet out of theeight target countries for the IP programme, only Kenya and Uganda haveestablished regimes though the regimes and their implementation are weak.
This policy paper attempts to provide a background to ABS, limitation to develop
policy and legal frameworks, opportunities available through International
Treaties and Conventions, what ABS is, whether ABS regimes are important, why
local mechanisms for governing ABS are weak, how the mechanisms can be
improved, and the way forward.

Background
Prior to the commencement of the Convention on Biological Diversity (CBD) in
1992, access to genetic resources and associated traditional knowledge was free
for all mankind. Genetic resources and Traditional Knowledge (TK) were often
taken from communities and countries by organizations and individuals whomonopolized the benefits. But commercialization of genetic resources andassociated TK has existed for hundreds of years. In the 18th Century, European
colonial explorers traveled to different parts of the world seeking exotic plants.
They brought back decorative flowers, medicinal herbs and new types of food.
These expeditions were a one way transfer of knowledge with biological
explorers taking knowledge from local communities. There was little or no
exchange of knowledge and no offer of compensation for such communities.

6 | Why Access and Benefit Sharing Policy and Legal Frameworks are Important for Africa

During the later part of the 1900s a few countries developed legal provisions forABS. However, benefits were narrowly defined as tangible benefits (royalties) andbenefit sharing was largely carried out at the government level. Benefits did notreach traditional owners of the genetic resources and associated TK.
Communities and countries of origin were often not informed about the use of
their genetic resources and associated TK, limiting their bargaining power andpreventing them from sharing in benefits of their own resources.
On the above basis, there was growing concern over the monopolization of
benefits and this forced genetic-resource providers to restrict access to genetic
resources and associated TK, and the negotiation of an international regime toregulate access and benefit sharing - the Convention on Biological Diversity(CBD). The CBD integrates the objectives of conservation, sustainable use, andbenefit sharing. It balances the rights of resource-providing countries to share in
benefits with the rights of technology-rich countries to access biodiversity
resources in biodiversity rich countries. The CBD recognizes the importance of
the knowledge, practices and innovations of indigenous and local communities(Article 8(j)) and makes provision for prior informed consent to be obtained by any
public or private enterprise seeking access to biodiversity resources (Article 15).
The CBD is supported by the International Treaty on Plant Genetic Resources for
Food and Agriculture (ITPGRFA) which commenced in 2001. Today, genetic
resources are no longer considered the common heritage of mankind and cannot
be treated as freely accessible commodities.

What are the Limitations for the
Implementation of ABS Regimes
in Africa?
A number of countries, as providers of genetic resources, have taken legislative
measures to implement Article 15 of the CBD. Currently, 29 countries havenational legislations. The national legislations address a range of issues which
include: the granting of prior informed consent by competent national authorities;
mutually agreed terms and benefit sharing arrangements in access agreements;
and Intellectual Property Rights (IPR). Due to the legislation, a number ofcountries who use the genetic resources have put in place measures to support
Why Access and Benefit Sharing Policy and Legal Frameworks are Important for Africa | 7

compliance with prior informed consent of countries of origin of the genetic
resources and on mutually agreed terms e.g. countries such as Sweden and
Denmark insists that access and benefit sharing requirements must be met as a
pre-requisite for public funding of research and development projects.
Most national frameworks also require an access agreement; setting out mutuallyagreed terms for access and benefit sharing. Generally, access agreements haveto be approved by a competent national authority. However, the contract is to benegotiated between indigenous and local communities or any relevant
stakeholder and the applicant.
Most of the measures require that standard clauses are incorporated in thecontract e.g. geographical area where the genetic resources are to be accessed,
the quantity to be accessed, and the purpose of the access and duration of thecontract. Other measures consider IPR in the context of benefit sharing throughthe sharing of royalties (Costa Rica imposes 50%). A limited number of countries
such as Brazil, India, Denmark, Norway, Egypt and Costa Rica, include specificrequirements for the disclosure of origin of genetic resources and TK in the IPR
applications.
The developments of national measures have proven difficult for a number ofdeveloping countries especially in Africa due to lack of national capacity. Other
issues arise in the implementation of national and regional regimes on ABS; andthe solutions will be dependant on effective implications of national legislative
regimes, but also for the achievement of the objectives of the CBD in the field. The
limitations for ABS regimes include: monitoring of compliance; enforcement
problems; intellectual property rights; lack of and disparities in National legal
regimes.
(i) Monitoring of compliance
The problem here is at two levels. Although a number of legislative regimes haveestablished mechanisms for monitoring, inspections, and verification;
experience has demonstrated limited resource capacity of the Governments tomonitor all bio-prospecting activities within their national jurisdiction.
The second issue is whereby the genetic resources have left the country and they
only rely on reports imposed on users in order to track compliance with the terms
8 | Why Access and Benefit Sharing Policy and Legal Frameworks are Important for Africa

and conditions of access. It is in this context that the idea of International
certificate of origin/source is considered. It ensures transparency and traceability
and provides guarantee that legal requirements in the country of origin have been
fulfilled.
(ii) Enforcement problem
Difficulties arise, with respect to enforcement, in cases of non-compliance withlegislative requirements in countries of origin or with contractual obligations. The
capacity of countries of origin to enforce their legal requirements will largely
depend on mechanisms for access to justice and the availability of administrativeand judicial remedies in foreign jurisdiction.
(iii) Intellectual Property Rights
IPRs have been at the center of incidents of unauthorized access to and unlawful
appropriation of genetic resources and related TK. A number of pioneeringcountries now require the disclosure of country of origin and/or evidence of priorinformed consent and mutually agreed terms in application for IPRs. Some ofthese requirements are contained in national patent law regimes, especially in
India and Egypt. Disclosure requirements would support ABS arrangements
move effectively in those cases where they are part of both national patent laws
and the International IPR regimes.
(iv) Lack of and disparities in National legal Regimes
Uneven development of ABS frameworks among countries party to the CBDcreates problems of implementation at two levels. Firstly, countries in the same
bio-geographic region, with deficiencies in their legislation; one or morecountries are likely to undermine the ABS objectives of other countries where thegenetic resources are trans-boundary. Harmonization of legislative requirements
within such regions is therefore a pre-requisite for effective national
implementation. Secondly, countries with users of genetic resources under theirjurisdictions will need to take appropriate legislative measures in order to support
ABS regimes of provider countries. Such measures could include disclosure
requirements in patent applications; access to justice, and administrative andjudicial remedies in cases of breach of legislative or contractual obligations.

Why Access and Benefit Sharing Policy and Legal Frameworks are Important for Africa | 9

What Opportunities & Support is
Available for ABS Regimes ThroughInternational Treaties Conventions,etc.?
Article 15 of CBD provides a framework for national governments to implement
ABS mechanisms to regulate and protect Traditional Knowledge and genetic
resources in order to facilitate access and ensure the fair and equitable sharing of
benefits. It re-affirms the sovereign rights of states over their natural resources. It
is the cornerstone of the work on access and benefit sharing. As a consequence,
the authority to determine access to genetic resources rests with the national
Governments and is subject to national legislation. It also establishes a number ofgeneral principles and obligations relating to access to genetic resources andbenefit sharing. The principles are:
> Parties have an obligation to create conditions to facilitate access to genetic
resources and shall not impose restrictions that run counter to the objectivesof the CBD.
> Access, where granted, shall be on mutually agreed terms.
> Access to genetic resources shall be subject to the prior informed consent of
the contracting party providing such resources.
> Scientific research on genetic resources provided by other contracting parties
shall be undertaken with the full participation of such parties and where
possible in the territory of such parties.
> Parties have an obligation to take legislative, administrative or policy measures
to ensure that fair and equitable sharing of the results of research anddevelopment and the benefits from the commercial and other utilization ofgenetic resources with the contracting party providing such resources.
> Such benefit sharing shall be on mutually agreed terms.
Secondly, Article 8(j) addresses the maintenance and promotion of traditional
bio-diversity related knowledge, innovations and practices. This issue is closely
related to access and benefit sharing and as such must be an integral part of any
international regime on ABS. Under Article 8(j) parties to the CBD undertook to:
10 | Why Access and Benefit Sharing Policy and Legal Frameworks are Important for Africa

> Respect, preserve and maintain the knowledge, innovations and practices ofindigenous and local communities embodying traditional lifestyles relevant forthe conservation and sustainable use of biological diversity.
> Promote their wider application with approval and involvement of the holdersof such knowledge, innovations and practices.
> Encourage the equitable sharing of the benefits arising from the utilization ofsuch knowledge, innovations and practices.
Like CBD, the International Treaty on Plant Genetic Resources for Food andAgriculture recognize the Sovereign right of countries to regulate access to their
genetic resources and associated TK.
Lastly, the Bonn Guidelines on ABS which were negotiated in 2001 and adopted
in May 2002. These are the only instruments on ABS developed under CBD for
implementation. The guidelines were intended to:> Provide governments and stakeholders with a transparent framework tofacilitate access to genetic resources and ensure fair and equitable sharing of
benefits.
> Provide guidance to parties in the development of access and benefit sharing
regimes.
> Inform the practices and approaches of stakeholders in ABS arrangements.
> Provide stakeholders' capacity building to guarantee effective negotiations
and implementation of ABS arrangements.
> Promote the adequate and effective transfer of appropriate technology toparties providing genetic resources.

What is Access & Benefit Sharing?
In this context, genetic resources refer to plants, animals and micro-organisms;
and access to genetic resources is the process of acquiring a particular genetic
resource from one country to the other. Specifically, access means obtaining,
possessing and using genetic resources, conserved, whether they are derived
products and, where applicable, intangible components for purposes ofresearch, bio-prospecting, conservation, industrial applications or commercial
use. Before, the genetic resources were free to all mankind, in which, they could
be collected at will from the country of origin to the user country. Currently, theWhy Access and Benefit Sharing Policy and Legal Frameworks are Important for Africa | 11

access is regulated, thanks to the CBD. However, the definition of Benefit Sharing
has been debated for long despite its prominence in law, medical ethics andpolitical philosophy. The straight forward linguistic definition for benefit sharing is
the action of giving a portion of advantages/profits to others. Advantages/profits
was chosen deliberately to capture the notion that benefit sharing relates tomonetary and non-monetary benefits. However, to capture the International legal
context, the following modification of linguistic definition seems more
appropriate: Benefit sharing is the action of giving a portion of advantages/profits
derived from the use of genetic resources or traditional knowledge to resource
providers.
In addition to the international guidelines, national laws, regional associations
have formulated model laws. For example, the African Union has developed amodel law to regulate access and benefit sharing for genetic resources and has
its own definition: Benefit sharing is the sharing of whatever accrues from the useof biological resources, community knowledge, technologies, innovations orpractices. This definition is an improvement on some of the national definitions ofsome countries. However, it fails in one important respect. It does not specify thattwo parties have to participate in a legal benefit sharing process. With who are thebenefits, of whatever accrues from the use of biological resources, to be shared?
This question remains unanswered in two ways. Firstly, we could demand forbenefits even if we were not in any way connected with the used resource.
Secondly, the definition seems to imply that all users of resources warrant benefit
sharing. However, the use of biological resource in the definition is much broader
than genetic resource. These definitions provide good templates for national
Governments to come up with their own definitions when developing acontractual agreement with the users of genetic resources.

Are ABS Regimes Important for
Economic Development?
Genetic resources whether from plants, animals or micro-organisms, may be
used for various purposes, whether for basic research or commercialization of
products. Users of genetic resources may include research institutes;
Universities and Private Companies operating in various sectors, such as
pharmaceuticals, cosmetics, agriculture, horticulture and biotechnology.
12 | Why Access and Benefit Sharing Policy and Legal Frameworks are Important for Africa

Benefits derived from genetic resources may include: the result of research anddevelopment carried out on the genetic resources, the transfer of technologies
which make use of those resources, participation in biological research activities,
or monetary benefits arising from the commercialization of products based on thegenetic resources. Examples of monetary benefits could be the sharing of profits
from commercial products or royalties arising from patented products based on
genetic resources.
Plants that provide valuable economic value include medicinal plants or
traditional medicine. The World Health Organization (WHO) estimates that 80% of
the world population depends on traditional medicine. The world's trade in
medicine plants in the late 1980s was about US$500 million annually. In 1990,
medicinal plants earned US$ 43 billion globally. In 1996 Europe alone imported
26,500 tons of medicinal plants from Africa. It is however, not clear whether theproceeds from those plants were shared with the owners of the knowledge. The
only good example here is the case of the San Tribe from South Africa who soldtheir rights of ownership of the hoodia plant to a British Company for about US$
20 million. Whether this was the right way to go or have an agreement forcontinuously sharing profits from its profits is something to consider for the future.
Other medicinal plants such as the devils claw (used as analgesic antiinflammatory drug) is often exported for US$ 2 million on annual basis by Namibia
but the issue of the communities is not mentioned. Similarly, prunus africana is
cut and exported to Europe for boosting immunity and for the cure of prostatecancer. In 1994, Germany spent US$150 million on importing prunus africana.
Worldwide trade in prunus products fetches an estimated US$ 220 million. In
Kenya, the export of this plant is by individuals however, the people who havenurtured it are ignored.
Trade in Biopiracy indicates clearly the need for proper policy and legal
framework for Access and Benefit Sharing e.g. industrial enzymes from microbes
used for fading jeans are worth US$ 600 million annually and the communities
around Lake Bogoria are not able to access any profits since microbes werestolen due to lack of clear policies and legal frameworks. Similarly, diabetes drug
processed by microbes from Lake Ruiru is worth Euro 278 million. The
communities around the lake are hardly aware of what has transpired.

Why Access and Benefit Sharing Policy and Legal Frameworks are Important for Africa | 13

The wildlife and their conservation are under the Kenya Wildlife Services in Kenya
and similar arrangements are there in Tanzania. For a long time, benefits accruing
from Tourism were taken by the Government but due to the principal of benefit
sharing, communities around game parks are now considered for benefits
through the revenue that is generated.
Based on the above, a case study in Tanzania will illustrate the benefit and sharing
regimes for wildlife conservation. The Tanzania wildlife policy that was developed
through participatory approach and approved by the government in 1998
advocated the participation of local communities not only in the conservation of
wildlife resources but also in the sharing of benefits accrued. With regard tobenefit sharing, the policy adopts relative distribution of revenue and benefits tostakeholders whose relevant roles are considered in different categories of land,
the effort invested in conservation of the resources, and the institutional andmanagement costs.
The vision of the wildlife sector was: to promote the conservation of biologicaldiversity; administer, regulate and develop wildlife resources; involve all
stakeholders in the conservation of wildlife and sustainable utilization, as well as
in fair and equitable sharing of benefits; promote sustainable utilization of wildlife
resources; raise the contribution of the wildlife sector in the country's Gross
Domestic Product (GDP) from 2% to 5% in the next 20 years; and contribute topoverty alleviation and improvement of the quality of life of the people of
Tanzania.
On this basis, studies were carried out by experts on the proposed mechanisms
for benefit, revenue and cost sharing systems involving local communities,
district councils and the central Government. The study proposed a revenue
sharing arrangement among the main stakeholders. The following table shows
the revenue sharing arrangements proposed by the study.
Revenue to local communities was through Community Based Organizations(CBOs), formed for this purpose under the countries laws. The study proposed
the dividing of the wildlife reserves into several wildlife management areas tocapture local communities around them. The benefits in this case are in form ofrevenue and employment to the stakeholders.

14 | Why Access and Benefit Sharing Policy and Legal Frameworks are Important for Africa

Table 1: Proposed Revenue Sharing Arrangements
Opportunities

Local
communities

District
Councils

CentralGovernment(a) Tourist hunting· Hunting block fees
· Conservation fees
· Game fees

100%
100%
60%

0%
0%
10%

0%
0%
30%

(b) Resident hunting· Game fees

100%

0%

0%

70%

10%

20%

70%

10%

20%

(d) Bee keeping

This looks like a good arrangement however; it needs a comprehensive policy
and legal framework for proper coordination and implementation, whether this is
implemented as a document; it needs verification from the Tanzanian
Government.

Why Local Mechanisms for
Governing ABS is Weak
Out of the eight countries, Kenya is one of the countries with regulation on Accessand Benefit Sharing. The regulations under the Environmental Management andCoordination Act of 1999 were passed as a legal notice No. 160 of 2006. The
regulations cover aspects related to: Conservation of Biological Diversity(Environmental Impact Assessment License, conservation of threatened species,
inventory of biological diversity, monitoring of status and protection ofenvironmentally significant areas); Access to plant genetic resources (Accesspermit, notification of application, determination of application, form of accesspermit, communication of decision validity and renewal of access permit, terms
and conditions of an access permit, suspension, cancellation, etc. of accesspermit, Register of access permits and Material Transfer Agreement); and Benefit
Sharing (application of part, and benefit sharing). The coverage as indicated isnarrow and is not clear on fair and equitable sharing of Benefits.

Why Access and Benefit Sharing Policy and Legal Frameworks are Important for Africa | 15

During the brainstorming workshop held at Panafric Hotel in April 2007, theparticipants raised the following issues on the Kenyan ABS regulations: thedefinition of genetic resources was missing and it could imply that one would
need a permit to go for fruit shopping; secondly, the definition of prior informed
consent was missing. The regulation does not cover approved research activities
intended for educational purposes within recognized Kenyan academic andresearch institutions. But just in case the research is collaborative with foreign
institutions, how does the regulation ensure that researchers involved do not takegenetic resources out of the country on behalf of their collaborators; and finally, it
appeared as if no ground work was done to prevent movement of genetic
resources through various entry points; there was no mention of this in theregulation.
It was however acknowledged by the presenter from National Environmental
Management Authority that the coordination of stakeholders is difficult sinceeach stakeholder would like to see economic value to their institutions.
Furthermore, lack of participation of the stakeholders in the formulation of thepolicies was evident. The regulations furthermore exempt local communities inthe exchange of their genetic resources; however, there is no mention of benefit
sharing with stakeholders, especially the communities. This therefore aims at
generating resources for the Authority or the Government and should not even bereferred to as Access and Benefit Sharing regime.
The Kenya Regulations rules are for research on plants alone and this might berelated to the mandate of National Environmental Management Authority
whereas the Kenya Wildlife Services is focused on wild animals and this leaves
out medicinal plants and related TK, other animals and micro-organisms. As aresult, medicinal plants and micro-organisms that can generate revenue for theGovernment and Communities are not addressed by the regulations. This mightalso be linked to the non-protection of TK. The plants (germplasm) for research
could come up with patented products and yet the regulations do not indicate thesharing of royalties. This only applies to plants other than genetic resources forfood and agriculture as those are exempted. It also appears as if there is no link to
the IPR laws, and yet IPR regime is supposed to strengthen ABS in this era ofbiotechnology. In some countries, prior informed consent and mutually agreed
terms on access and benefit sharing are included in the IPR applications.

16 | Why Access and Benefit Sharing Policy and Legal Frameworks are Important for Africa

It is therefore evident that pieces of legislation exist on ABS for plants as indicatedabove, revenue sharing for wildlife conservation and none for medicine plants
and micro-organisms. This requires an analysis of the regulations with an aim tostrengthen them to ensure strong coordination which at the moment is lacking.

How to Strengthen Policies & Legal
Frameworks for ABS in Target
Countries
Regulations concerning access to genetic resources and the sharing of benefits
associated with their use are of vital interest to the International community.
However, what kind of regime is most appropriate for different categories ofgenetic resources and for their different uses? In developing effective regulatory
regimes, it is important that practical considerations on how different types ofgenetic resources are conserved and used are considered.
International Treaty on Plant Genetic Resources for Food and Agriculture
highlights the importance of building an access and benefit sharing regime on anappreciation of the historical development and use of a particular category ofgenetic resources. Plant genetic resources for food and agriculture have been
spread widely around the world for thousands of years and countries areinterdependent upon them for food security. In this regard, and in general, theydiffer; for example the wild endemic species used for medicinal purposes.
In a similar manner, it is critically important to also consider the unique factors
concerning the historical development and patterns of exchange and use of farmanimal genetic resources. Various fora on the state of the world animal genetic
resources can provide information of how farm animal genetic resources can betaken into consideration in processes to develop national regulatory regimes
concerning access to genetic resources and benefit sharing.
Furthermore efforts are underway in a number of regions to develop policies
about the most appropriate access and benefit sharing regimes to serve as thefoundation of exchange for the materials.

Why Access and Benefit Sharing Policy and Legal Frameworks are Important for Africa | 17

The first step towards developing ABS laws is the development of a national
strategy for the conservation of the national biological diversity. The strategy
should help to define clearly the policy goal for access to genetic resources in thefollowing terms: Ensure that the social and economic benefits of the use ofgenetic material and products derived from biological diversity accrue to thestate. To achieve this government should hold a national inquiry into access togenetic resources. This involves comprehensive public consultations including
those with indigenous communities, environmental initiatives, industry, etc.
During this policy development, the government should consult widely; including
the Bonn Guidelines adopted in May 2002. Based on consultations, a common
framework to implement the Bonn Guidelines should be reached. It helps tocome up with a nationally consistent approach for access to and utilization ofgenetic and biochemical resources. The purpose of the Bonn Convention is toensure consistency of approach and legal clarity and certainty across thegovernment jurisdiction. The policy will guide the development of the legal
frameworks.
Depending on the different governments, the ABS regulations could be part ofEnvironmental Management Coordination Act as it is in Kenya and Uganda or
they could be under a new Act that can govern the Access and Benefit Sharing.
There are six objectives on access and benefits sharing that are consistent withboth the CBD and Bonn Guidelines. These are: (i) promoting the conservation of
biological resources, including the ecologically sustainable use of thosebiological resources; (ii) ensuring the equitable sharing of the benefits arisingfrom the use of biological resources; (iii) recognizing the special knowledge heldby indigenous people on biological resources; (iv) establishing an access regime
designed to provide certainty and minimize administrative costs for people
seeking access to biological resources; (v) seeking to ensure that the socioeconomic and environmental benefits arising from the use of biologicalresources accrue to the nation and (vi) contributing to a nationally consistent
approach to access biological resources. Objectives (i) and (ii) reflect the 3
objectives in Article 1 of CBD, while (iii) foreshadows the responsibility toindigenous and local communities under Articles 8(j) and 10(c) and objectives(iv) and (v) address article 15 of CBD.
The Kenyan ABS had only three objectives: Conservation of biological diversity;
18 | Why Access and Benefit Sharing Policy and Legal Frameworks are Important for Africa

access to genetic resources; and benefit sharing. This appears narrow andwhether or not they address the implementation of the CBD as per theinternational obligations is in doubt.
The established ABS system should foster research and development on genetic
resources to produce economic outcomes that value biodiversity and contributeto its conservation. The system should be clear and practical with lowtransactions costs and high levels of transparency. It is intended to encourage
research and development; and protect the interests of indigenous and none
indigenous providers and users.
Anyone wishing to access local biological resources for purposes of researchand development on its genetic or biochemical make up taken from lands orwaters administered by the Government must apply for a permit from thecompetent National Authority. If access sought is for commercial purposes, thecompetent authority will approve the permit for commercial purpose if thecollection causes no environmental harm and the applicant has entered into abenefit sharing agreement. Access to non-commercial purposes does not
require a benefit sharing agreement only satisfaction that no environmental harmis done and that the permission for the collection has been given. Finally if anapplicant wishes to obtain genetic resources from indigenous owned land or use
any associated TK, then the applicant must go to the indigenous community andnegotiate a benefit sharing agreement with them. The competent authority is only
obliged to be satisfied that the conditions for prior informed consent and mutuallyagreed terms in a benefit sharing agreement with indigenous people have been
met. The communities under such conditions should be registered as CBOs or
Associations. All permits are entered into a public register and are free for viewing
with or without costs. It creates a fully transparent system of virtual certificates oforigin and legal provenance.
Therefore to strengthen policies and legal framework for ABS, each state needs
to focus more on sustainable use of its biodiversity and conservation, clear
benefit sharing agreements with all stakeholders, economic and social
development using a systematic process that fits with international obligations
but for the benefit of the people of the individual country.

Why Access and Benefit Sharing Policy and Legal Frameworks are Important for Africa | 19

What is the Way Forward for African
Countries in Strengthening Policies& Legal Framework?
Given that local communities have contributed to the nurturing of genetic
resources especially for food and agriculture for many years without due
recognition for compensation or benefit sharing, it is time African countries
through the CBD to strengthen their policies and legal frameworks to ensure thatthe national genetic resources are conserved and sustainably used for economic
development and poverty alleviation of their people.
The African states should borrow a leaf from the countries in South America, Far
East and come up with an Access and Benefit Sharing system that is geared
towards economic benefits from the biological biodiversity. African Governments
need focus on consultations and assessment of the existing provisions to be able
to amend or develop Acts or legal notices to ensure that the countries benefit
from the rich biodiversity available. The CBD has provided for the conservationand sustainable use of biodiversity and equitable sharing of benefits arising fromthe biological resources. It has further provided Bonn guidelines which are still
being improved to assist in the implementation of the international obligation.

20 | Why Access and Benefit Sharing Policy and Legal Frameworks are Important for Africa

References
ASEAN CENTRE FOR Biodiversity (2009) ASEAN Regional Workshop on Accessand Benefit Sharing of genetic resources and their uses.
D. Schroeder (2008). Benefit sharing: its time for a definition.
Geoffrey Burton (2009). Access and Benefit Sharing Law and Administration inAustralia.
Government of Kenya (2006). Legal notice No. 160 of the Environmental
Management and Coordination Act.
Government of Tanzania: Access and benefit sharing, project on wildlife
conservation. A report by the national team selected from various sectors andinstitutions.
http://www biodiversity international.org/scientific– Information/ themes/policy–
and– law/access – and _benefit sharing of 3/9/2001.
http:// icimod.orglabs of 3/9/2001, Background to ABS.
http:// www.cbd. Int/bonn. Shtmil of 3/9/2001, Bonn guidelines.
Ute, Feit, Mailiese Von den Driesch, Wolfram Lodin. Access and Benefit sharing ofgenetic resources. Report of an International Workshop in Bonn Germany held in
2005, 8-10th November.

Why Access and Benefit Sharing Policy and Legal Frameworks are Important for Africa | 21

The African Technology Policy Studies Network (ATPS) is a multidisciplinary network of researchers, private sector actors andpolicy makers promoting the generation, dissemination, use andmastery of science, technology and innovation (ST&I) for African
development, environmental sustainability and global inclusion.
ATPS intends to achieve its mandate through research, capacity
building and training, science communication/dissemination andsensitization, participatory multi-stakeholder dialogue,knowledge brokerage, and policy advocacy.

African Technology
Policy Studies Network
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Science, Technology and Innovation
for African Development

ISBN: 978-9966-030-41-2