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Biopiracy is the illegitimate appropriation or commercial exploitation of biological resources and associated traditional knowledge – often by pharmaceutical, cosmetic or agri-food firms.
While the privatisation of plants on the continent has been of growing concern over the past 25 years, frameworks and solutions are also emerging.
Africa’s traditional systems do not fit neatly into the dominant global structures, analysts say. “There is a cultural understanding issue. Many aspects of capitalism pertain to Western contexts – including the patent system and the concept of individual intellectual property. In the African context, collective property prevails,” Quentin Rukingama, a managing partner at JBQ Africa, tells The Africa Report.
Collective know-how and traditions are at stake. In 2002, the non-profit GRAIN organisation listed 24 patents for African resources held by private firms, with an overwhelming majority registered in the US (followed by the Netherlands, Denmark, Russia, France, Japan and Italy). None of the cases include a share in the profits for communities that developed uses for those African plants.
Categories and forms
Pharmaceutical traditions and products are the most at risk. This includes medicinal plants, such as yellow yam (West Africa), which was patented in the US for its diabetes treatment applications – but also extends to DNA, which can be extracted and/or altered for commercialisation.
Agriculture is another targeted area, as a more health-conscious demand in the global north is driving a superfood economy and encouraging firms to bioprospecting. “The majority of African countries do not have agricultural and food laws (including intellectual property), while 80% of the continent’s exports are agricultural products and represent a significant portion of our workforce,” says Tigist Gebrehiwot.
When it comes to traditional knowledge – especially Article 27 of the TRIPS agreement, states’ traditional knowledge is ineligible for patents or intellectual property because it is disclosed and public.”
She says “most African countries deposit their seeds and information in the UN’s Food and Agriculture Organisation gene bank in order to save them for the next generations. However, it is public access[ed] and doesn’t have a legal status, therefore, nobody can claim anything. Firms can slightly modify these seeds- through biotechnology or otherwise, patent them and sell them”.
The possibility to patent all forms of biodiversity coupled with the advancements in biotechnology are leading to calls for solid legal and institutional frameworks.
CBD vs TRIPS
The legal tools to protect against biopiracy are complex, varied and contradictory.
The Convention on Biological Diversity (CBD), which was ratified in 1993, “establishes sovereign national rights over biological resources and commits member countries to conserve them, develop them for sustainability, and share the benefits resulting from their use,” says Marie Yasmin Sanchez of Ateneo de Manila University’s School of Law. This tool is further supported by the Nagoya Protocol on Access and Benefit Sharing (2010) with regards to emerging biotechnologies.
However, the World Trade Organisation has had its own principles since 1995 with the Trade-Related Aspects of Intellectual Property Rights (TRIPS) agreement. “When it comes to traditional knowledge – especially Article 27 of the TRIPS agreement, states’ traditional knowledge is ineligible for patents or intellectual property because it is disclosed and public. But why do we have intellectual property laws in the WTO while we already have the World Intellectual Property Organisation (WIPO)?” says Tigist Gebrehiwot.
“In 1994, the intellectual property law being enacted by WIPO was opposed by African countries but was reformulated in the WTO regulations. African countries may join the WTO wanting trade partners, but it doesn’t mean the law is catering to their interests,” she says.
Arbitration and trade
Arbitration is an important tool for settling international disputes over intellectual property. “Countries with higher economic interests tend to apply this tool more frequently. It also has a higher cost that cannot be ignored. Arbitration courts were previously solely based in global economic centres such as London or New York. We are just beginning to see them based on the continent. There is one for example in francophone West Africa (OHADA), Kenya is also on its way. This might help African states to have a better understanding of and participation in these questions,” says JBQ Africa Rukingama.
In Kenya, the Kikoy (Masaï cloth) had been patented in Japan. Kenya was subsequently able to legally defend the collective property of its people.”
In 2001, Hoodia cactus, which is used for its thirst- and hunger-suppressing properties by the San in South Africa, was patented by the the South African Council for Scientific and Industrial Affairs (CSIR). The licensing rights of the active molecule in Hoodia was initially sold to Phytopharm (UK) and subsequently bought by Pfizer for $25m, excluding the community of origin from any compensation. After a long legal battle, a memorandum of understanding as the basis for benefit-sharing negotiations was signed in 2002 between the CSIR and representatives of the San community. A gesture that may be more symbolic than legally binding.
In 2004, Ethiopia’s teff flour was patented as an ‘invention’ in the Netherlands and in Germany. Teff is popular for its health benefits and lack of gluten. Following court cases over license fees, the patent was annulled in 2018 in the Netherlands and waived in 2019 in Germany. This goes to show the many loopholes and forms of biodiversity patenting.
“We can find hybrid solutions drawing from our historical and cultural baggage of collective property to counter an individualistic approach of intellectual property. In Kenya, the Kikoy (Masaï cloth) had been patented in Japan. Kenya was subsequently able to legally defend the collective property of its people. The more we trade, the more we will scrutinise what is being traded. Regulators are often slower than the actors to catch up to these realities. The African Continental Free Trade Area agreement might push for a better framework,” says Rukingama.
As new mechanisms in dealing with biopiracy emerge, countries also need to strategically represent their interests. “We need professionals who are not affiliated with any political situation. The continent is losing out because of […] lack of professionalism. When there are negotiations on biodiversity, most African states send their environment ministers, but we also need to involve agriculture ministers and people with the capacity to conduct legal negotiations,” says Tigist Gebrehiwot.
“The continent has many graduates but what we need are thinkers. Our communities don’t know their knowledge has a market and a value.[…]. We have a lot of untouched aspects with regards to intellectual property which can help the ACfTA boost the trade and growth of African economies,” she says.
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