Traditional knowledge misappropriation and cultural victimisation of indigenous communities: An African case study

Andrew Mutsiwa

University of Free State

Bloemfontein

South Africa

mutsiwaa@ufs.ac.za

Outline

•Conceptualisation

•Background;

• Legal Backdrop

• Tools for Traditional Knowledge misappropriation

•Victimological Implications

•Conclusion

Conceptualisation

• Traditional Knowledge

- Knowledge developed over time,

- Transmitted from one generation to the other,

- Embedded in customs, language, local practices and cultural heritage

- Dynamic and evolving with practicalities relating to environmental and external influences

• Traditional Knowledge misappropriation

- Patent based bio-piracy

- Non-patent based bio-piracy

- Misappropriation

• Intellectual Property

- Creations of the human mind, constituted by patents, trademarks, industrial designs, copyright.

Brief Historical Background Scramble for Africa (1885)

Violent dispossession and marginalization facilitated by institutionalised racism and structural violence;

Cultural Violence supported by the Christianity;

Suppression and marginalisation of traditional knowledge through Witchcraft suppression Legislation;

Linguistic imperialism – African languages are the repository of traditional knowledge that permits it to be transferred from one generation to the next.

Colonial Intellectual Property laws

Second Enclosure Movement on ‘knowledge commons’ (1980-present)

Legal Backdrop – The Goldilocks Phenomenon

• Convention on Bio-Diversity (1992)

• WTO TRIPS Agreement (1994)

• United Nations Protocol on the Rights of Indigenous People (2007)

• ARIPO Swakopmund Protocol (2010)

• The legal framework is an inherent paradox of globalizing jurisprudential diversity holistically.

Tools for Traditional Knowledge Misappropriation• Research and bioprospecting.

• Reward system on knowledge development and hegemony.

• Challenge is compounded by an institutional tendency to ‘look the other way’.

• ‘Terminator technologies’ (Winston et al, 2010)

Victimological Implications

• The implications are both direct and indirect depending on the circumstances:

- Direct impact can be quantified - Lost income from exports though in practice it is difficult to gauge

- Indirect implications are less obvious especially were there is poor cross cultural exchanges between those that have misappropriated the traditional knowledge and those groups that have provided it either willingly or unwillingly

Inequality

• Technological and institutionalchanges have contributed tonew inequalities andcompounded old ones.

• The inequality is moreprominent in light of thebedrock principle ininternational law that the rightto own property is fundamental.

• When the interests and assets ofa particular group are bydefinition not embraced withinthe protective mantle ofproperty, it prompts questions ofwhy and how the right toproperty has hindered the fulldevelopment of full-fledgedrights for the protection oftraditional knowledge (Bratspies,2007)

Over exploitation of in situ biological resources• Rise in demand for TK based products has contributed to extensive

environmental degradation and in some instances disappearance of biological resources

• Hoodia Cactus is listed in Appendix II of the Convention on International Trade in Endangered Species of Wild Flora and Fauna.

• It notes that ‘intensive’ bioprospecting for its commercial exploitation in South Africa, Namibia, Botswana and Zimbabwe has contributed to the destruction and fragmentation of the plant, which has an impact on species resilience and genetic diversity further threatening its existence.

Cultural and spiritual affronts.

• Cultural and spiritual affronts may include broad range of offences across diverse ethnic and cultural groups and may include disruption of values of nature embedded in folklore, religion, ideology, religion, ritual, custom and customary norms.

• In Zimbabwe, three (3) European researchers disappeared with no trace in Mount Inyangani after having collected sacred plants which they had initially been advised not collect (Chavunduka, 1999)

• Most traditional knowledge is linked to religious and spiritual beliefs.

• Africans are notoriously religious (Mbappe, 2013).

• When a transaction relating to traditional l knowledge occurs, a metaphysical transformation takes place that in turn may manifest into a spiritual or religious injury to the community, something that cannot be reconciled in legal terms.

Eco-Social Destruction• Most indigenous communities face the legitimate threats of the

invasion of modernism carrying with them the prospect of eco-social destruction (Winston, et al, 2010).

• The influence of modernisation impacts and the potential revenue resource has become attractive, have led to intense pressure and pressure to squeeze indigenous communities to extractive submission and it has marginalized its leadership.

• It should be noted that eco-social culture of indigenous populations have generated powerful heritatge and that their knowledge has etxtraordinary health and commercial value.

Eco-Social Destruction

• Compounded by the destruction of their ecosystems through over collection of biological resources and the ensuing calamities has contributed to the destruction of these communities.

• The mass dissemination of misappropriated TK has stripped indigenous communities of essential method of maintaining their livelihoods.

• TK is a defining cornerstone of the roots of cultural identity and social solidarity in an indigenous community.

• The !Xun language of an indigenous San group has three members who speak that language.

Exploitation• In addition, the human resources of indigenous communities have been exploited by

outside interests moved by economic gain and racial domination.

• Eco-Tourism is an example: The idea is to create an “Indigenous brand” that plays an important role in attracting tourists, creating revenue.

• In the white-dominated tourism industry, indigenous groups and white managers are entangled in a unique, southern African type of colonial paternalism named baasskap, which literally means “boss-ship”, dominance and authority (Sylvain, 2001).

• This phenomenon is representative of other cases like the Intu Afrika Lodge in Namibia in the mid-1990s, led workers to explain that labour conditions were just a duplication of those found during the colonial period (Garland & Gordon, 1999; Sylvain, 2002).

Exclusion from sale or export, usually through litigious pursuit competitors

• Currently the crop is under commercial cultivation by local indigenous associations San namely the Heiveld Co-operative and Wupperthat Tea Association for harvesting wild rooibos.

• Trademark registered in USPTO in 1994.

• Following this a company called Burke International acquired the trademark.

• The main victims of this were exporters (Indigenous Associations) of rooibos tea.

• The registration of the trademark became a barrier for the exportation of Rooibos tea to the US.

Exclusion from Product Development

• The ‘blight resistant rice case’ where a rice variety was extracted from Mali and transferred to the International Rice Research Institute.

• A patent was granted on the isolated gene Xa21 which is chiefly responsible for blight resistant.

• This rice was extracted from the Bela and Fulani people who were dependent on the crop for subsistence as well for some rituals and ceremonies.

• The exclusion of the Bela and Fulani people may be seen to have priotised the contribution of science over tradition in the development of this particular innovation.

• Same crop re-introduced to the communities with the idea that it will increase yields: “terminator technologies”

• -Another case relates to peanuts from Malawi. The University of Florida Agricultural Experimental Station applied for a US Plant Variety Protection for a peanut from Malawi under US PVP No 200000182.

• The peanut variety was name C-99R which was a cross breed from a peanut from Malawi and Brazil both collected in the 1950s.

• The Malawi variety bears important disease resistant characteristics present in C-99R and has captured 5.5.% of the peanut seed market in the US.

• This peanut was licensed to the Golden peanut company.

• The royalty structure only includes direct contributors to the development of the nut not the Malawian or Brazilian donors.

Human Rights Implications

Posey (2002) argues that

“indigenous and traditional

people have long been targets for

expropriation of their music, art,

crafts and images. Trade has

removed materials, ideas,

expressions of culture and even

human genes from their social

and spiritual contexts to convert

them into objects of

commoditization. This shows not

only disrespect for other cultures

but also violates basic human

rights”

• It should be noted that most indigenous group have suffered from:

- deprived self-determination,

- political exclusion,

- poverty, persecution,

- limitations or pressures on the practice of minority culture or language and

- the pursuit of subsistence and economic activities.

• In most instances they have been referred to as the inconvenient indigenous by their own governments i.e. the Basarwa Clan

• They have further been labelled as an impediment to modernization (Saugestad, 2001)

• -All these issues have impact on the maintenance of traditional knowledge , practices culture and identity

Key Insights• They are certain things victimology theory cannot and does not see.

(Cunneen & Rowe, 2015).

• As a result certain groups are left out by the victimology movement (Hall, 2013: 372-373).

• Peacock (2013) recommends that the study of victimology in Africa, needs to be located in a broader multifaceted historical context of colonialism, institutionalised racism, institutional and structural violence, abuse of power and conflict.

• Such an analysis generates the need to look closely and further explore the historical and political legacy together with its associated interlocking systems of oppression that lie behind victimisation (Shalhoub-Kevorkian & Braithwaite, 2010).

Conclusion

- As it stands today the act of traditional knowledge misapprorpaition andbiopiracy has continued to evade the categorical distinction in international anddomestic law (Winston, et al; 2010).

- As a result, despite the act being recognized as unjust, the absence of legalimprimatur to accompany this universally condemned practice has contributedto it being blind to the field of victimology which generally focusses of victims ofcrime.

- The possible efficacy or victimological coherence in the development of such atheory is dependant upon understanding the background of the problem, thegeneral and specific methods used by the biopirates and a clarification of thenature of the interests in question as misappropriated property.

• While the specific focus of this presentation is on particular indigenous groups in Africa, their experience is representative of various problems and threats faced by and the complex status and concerns characteristic of indigenous communities on a global basis

Tatenda/Thank you