Bioprospektion in der "Afrikanischen Renaissance": Von Muthi zum Recht über Intellektuelles Eigentum
Final Report Abstract
This final research report is primarily concerned with the second research phase of the project. Six and a half months of fieldwork were conducted overall, one month in Cape Town and five and a half months in Bushbuckridge Municipality, Limpopo and Mpumalanga Province, north-eastern South Africa. In the first research phase, we began with the assumption that pharmacologists and scientists working at the Indigenous Knowledge [Health] Systems (IKS) Lead Programme in Cape Town have become new legal and ethical experts in the field of bioprospecting, mediating between traditional healers/herbalists and indigenous communities on the one hand, and government bodies and multinational corporations on the other. Although this assumption was confirmed to some extent, we realized that the role of the IKS with regard lo the negotiation of access and benefit sharing (ABS) and intellectual property rights (IPR) is limited. Instead, the first research phase showed that it is NGOs that play a crucial role in ABS and IPR negotiations. They engage at the legal, political and community level by supporting indigenous people to protect biodiversity and evaluate their cultural heritage and values. In the second research phase, we focused on deepening our understanding of bioprospecting, ABS and IPR in South Africa by taking into account: a) environmentalist NGO approaches to communities, ABS and IPR; b) concepts of property and ownership among traditional healers; and c) customary laws and the 'traditional knowledge (TK) commons' as specific modes of knowledge protection in a traditional healers' community. This allowed us to draw conclusions on the initial idea that bioprospecting facilitates (or prohibits) what former president Thabo Mbeki has framed as the "African Renaissance" - the "second liberation struggle" for self-discovery, democratization and economic development - by taking a closer look at the legal and social practices and values attached to property and the corresponding newly arising forms of 'environmentality'. We looked at one specific NGO, Natural Justice, and one of its collaborating partners, the community of the Kukula Traditional Health Practitioners Association (Kukula Healers), with the following objectives: a) understanding the position of NGOs like Natural Justice in bioprospecting and their role as mediators between communities, the environment and legal/political structures; b) in-depth analysis of how a traditional healers' community distinguishes property and ownership of traditional knowledge(s) and medicinal plants and how these are embedded in social practices; and c) analysis of customary laws and sui generis knowledge protection tools like the 'TK commons' and the 'bio-cultural community protocol' (BCP) of a healers' community. Altogether, 30 semi-structured interviews and additional informal communications with members of the Kukula Healers and other relevant stakeholders in Cape Town (Natural Justice) and Bushbuckridge Municipality (local chief, Kruger to Canyon committee member, owner of cosmetic company) were conducted, as well as three focus group discussions with members of the Kukula Healers. In sum, three main research areas could be detected in accordance with the objectives. First, Natural Justice, an NGO of "lawyers for communities and the environment", initiated the process of developing a TK commons with the Kukula Healers. The TK commons eventually fed into the BCP of the healers' community. This process reflects on a new form of 'environmental governance' or 'environmentality' executed collaboratively by NGOs and indigenous communities, with Natural Justice acting as a mediator between legal frameworks such as the Nagoya Protocol on Access and Benefit Sharing (2010), indigenous communities, other stakeholders and the environment. The BCP, a legally not yet binding document, enables communities to self-determine their proprietary rights to their cultural heritage and custody over their knowledge, and allows for negotiations with potential bioprospectors. Even though the long-term effects are as yet unknown, the process of developing a BCP seems to bring about a vital contribution to the idea of the "African Renaissance", as it appears to strengthen indigenous communities' values and identity. Second, concepts of property in indigenous communities are bound to social relationships and the environment. The traditional knowledge (intangible property) of traditional healers is an assembled chain of multiple knowledge holders, from living healers to the ancestors of the past. Knowledge of healing techniques, methods or medicinal plants is transferred from the ancestors to the healer via dreams or 'evoked communication', or from a teaching healer to a thwasa (apprentice) during the healer's training (ukuthwasa). The transmission of knowledge is hierarchically structured and only approved within an imphande (healers' guild) or between individual healers in a trust relationship. The medicinal plants (tangible property) utilized by the healers grow both in restricted areas like nature reserves or on common land. Challenges in terms of accessing the medicinal plants crucial for their healing practice, modernization processes of society and accusations of witchcraft within their own communities threaten the healers, their healing practices and their traditional knowledge systems. Additionally, the knowledge system is not made to generate profit, bul to uphold an intrinsic knowledge system. Forced by theses challenges, the Kukula Healers reorganized their system of knowledge sharing into a TK commons - a democratic, allegedly non-hierarchical system of pooling and sharing knowledge - notably to respond to potential commodilization of their property in bioprospecting activities. These two systems of knowledge governance co-exist and reflect the flexible adaptation of indigenous communities to shifting societal and environmental conditions. Third, the protection of intellectual property (IP) is regulated by current (positivistic) intellectual property law, which only protects innovative, individually held knowledge applicable to the economic market. Indigenous knowledge, however, is mostly collectively held and can hardly comply with the requirements of IP law. Instead, indigenous knowledge is bound to intrinsic protection models executed as customary laws that connect and reconnect nature and culture in everyday interactions and practices. These customary laws and an assemblage of collectively owned knowledge were manifested in the written BCP, and a subsequent Code of Conduct formulated by the Kukula Healers. Both documents determine the relatedness of healing practices to the environment, patients and community. Disclosure of any shared knowledge to the public or third parties (such as companies) is a collective decision of the healers group. Understanding these customary laws might help to generate sui generis forms of knowledge protection adaptable to national or international IP law. • Tagesspiegel (10.7.2010): "Von Heilern und Heilpflanzen. Eine Veterinärmedizinerin und eine Ethnologin der Freien Universität forschen in Südafrika" (Nicole Körkel). fundiert, Freie Universität Berlin, Wissenschaftsmagazin (2012-1, Themenheft "Zukunft Erde"): "Heilen und Teilen" (Nicole Körkel). • Tagesthemen (21.5.2012): Bericht über Heilerwissen in Südafrika mit Britta Rutert (Ulli Neuhoff). • "Im Gespräch", RBB Kulturradio (08.07.2012, 20.00 Uhr), Eine einstündige Radio-Sendung über die Forschung von Britta Rutert (Katrin Heise).
Publications
- (2011): Bioprospecting in South Africa: Opportunities and Challenges in the Global Knowledge Economy? - A Field in the Becoming. In: CAS Working Papers No. 1-11, Center for Area Studies, Freie Universität Berlin
Rutert, Britta & Dilger, Hansjörg & Matsabisa, Gilbert M.
- (2012): Bioprospektion als „Markt der Möglichkeiten"? Von Hoffnung, Handlung und Realität im Post-Apartheid Südafrika. Curare Sonderheft, 35/3, pp. 229-239
Rutert, Britta
- (2013): Traditional Knowledge Commons Pools: The Story of the Kukula Traditional Health Practitioners of Bushbuckridge, South Africa. In: Kamau, E.C. and Winter, G.: (Hg.): Common Pools of Genetic Resources. Equality and Innovation in International Biodiversity Law. Routledge: New York, pp. 29-40
Cocchiaro, Gino & Rutert, Britta
- (2014). Considerations of a Legal "Trust" Model for the Kukula Healers' TK Commons in South Africa. In: De Beer, J. & Armstrong, C. & Oguananam, C. & Schonwetter, T. (Eds.). Innovation & Intellectual Property. Collaborative Dynamics in Africa. University of Cape Town Press: Cape Town, pp 151-171
Chocciaro, Gino & Lorenzen, Johan & Maister, Bernhard & Rutert, Britta
