Traditional justice systems as sui generis frameworks for the protection of traditional ecological knowledge in Kenya
Kamau, Francis Kariuki
Traditional ecological knowledge (TEK) has huge ecological, cultural and socio-economic value to TEK holders, and the society in general. Due to its value, and a multiple of factors including biodiversity loss, biopiracy, cultural deterioration and disruption of traditional resource management systems, TEK is being lost at an alarming rate thus warranting its protection. The protection of TEK has principally been sought within the prevailing intellectual property (IP) regime, and at times within human rights and environmental law frameworks. However, the ideological, conceptual and epistemological foundations, and orientation of existing legal and IP frameworks, make them inapt in protecting the holistic nature of TEK. Moreover, these frameworks are not shaped by the concerns, beliefs, worldviews and customary laws and practices of TEK holders. It is for this reason that this thesis investigates the appropriateness of traditional justice systems (hereinafter ‘TJS’) as sui generis frameworks in the protection of TEK in Kenya. Using Laura Westra’s tripartite framework of cultural, ecological and self-determination integrity, the thesis shows that an appropriate regime for TEK protection must secure the cultural, ecological and self-determination rights of TEK holders. The thesis argues that the obligation to protect TEK ought to be placed on custodial institutions such as TJS, which takes into account the multiple values of TEK to its holders and the integral links they have with the knowledge. Additionally, the thesis argues that due to the role played by TJS in asserting TEK holders’ rights, regulating access to and use of TEK, designing bio-cultural protocols, granting free prior informed consent, TEK inventorying, gazettement, restoration of lost knowledge and ecosystems, a TJS approach can be used in striking a balance between protection and safeguarding measures, and thus bridge the current protection gap. Notwithstanding the inadequacies of the IP regime in protecting TEK, the thesis concludes that a TJS approach will work well in collaboration with the IP regime and not in isolation since there are components of TEK that can still be protected within the IP framework. Three case studies of TEK holding communities in Kenya, namely Meru, Mijikenda and Ogiek are used to assess the prospects and appropriateness of a TJS approach in protecting TEK. The findings show that TEK is holistic and entails spiritual, socio-cultural, technological and traditional management systems dimensions. Consequently, TEK has ecological, cultural, and economic value, and is integral to the clamor for the right to self-determination by TEK holders. Additionally, the findings show that TEK holders are custodians with responsibilities over TEK to the communities and ecosystems in which it is used, and its protection cannot simply be a matter of conferring IP-like rights to custodians. Notably, the communities under study have traditional structures that they use in protecting TEK. These structures proffer what the thesis describes as a TJS approach that provides a holistic, bottom-up orm of protection that dovetails with Westra’s tripartite framework in the protection of TEK.
A thesis submitted in partial fulfilment of the requirements for the degree of Doctor of Philosophy to the Faculty of Commerce, Law and Management University of the Witwatersrand, Johannesburg, 2019
Kamau, Francis Kariuki (2019) Traditional justice systems as sui generis framework for the protection of traditional ecological knowledge in Kenya, University of the Witwatersrand, Johannesburg, <http://hdl.handle.net/10539/29833>