Research suggests that trade-related aspects of intellectual property rights, when specifically applied to “traditional” or indigenous knowledge, genetic material and plant and animal life, have a detrimental effect on biodiversity. The 2001 Doha Declaration suggested that the TRIPS Council look at the “patent-ability or non patent-ability of plant and animal inventions, and the protection of plant varieties.”
The Namibian government has enlisted the help of rural and indigenous communities to help draft the nation‘s first bill on access to genetic resources and traditional knowledge. The bill is set to be finished by the end of the year so that Namibia can sign the Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising From Their Utilization, an international framework for equitable access to, and sharing of, genetic resources. As one of the main architects of the 2010 Nagoya Protocol, Namibia has been instrumental in defining and securing access and benefit sharing (ABS) rights for communities under the United Nations (UN) Convention on Biological Diversity.
This is particularly important in the arena of intellectual property rights – or more specifically the trade-related aspects of intellectual property rights (TRIPS). The World Trade Organization’s stated aim is to “strike a balance between the long term social objective of providing incentives for future inventions and creation, and the short-term objective of allowing people to use existing inventions and creations.” However, these TRIPs tend to favor the wealthier, more powerful party to the agreement, according them greater access and control over the resource than the country or community of origin has.
This bill would prevent the exploitation of indigenous natural resources like the “devil’s claw” (Harpagophytum sp.), a plant used by the San to treat arthritis and rheumatism, and “hoodia” (Hoodia gordonii), a plant used to suppress hunger. According to Pierre du Plessis, a genetic resources expert and the Namibian negotiator for the Nagoya Protocol, investors’ efforts to bring these plants to market have not contributed to the development of local communities.
In the past 12 years, nearly 70 million USD in investments have yielded no sustainable benefits to rural and indigenous communities, while at the same time some opportunists have made huge windfall profits in marketing hoodia products for weight loss drugs. Hoodia has been exploited by the pharmaceutical company Phytopharm. Use of hoodia as an active ingredient in weight loss drugs resulted in a 2001 campaign by the San people to reclaim their rights to the plant which culminated in a 2003 benefit-sharing agreement with South Africa’s Council for Scientific and Industrial Research (CSIR).
The agreement stated that the San would be entitled to 6 percent of the royalties received by CSIR. Three years later, a report on benefit-sharing in Africa showed the benefits to be “miniscule.” By late 2010, two firms (Pfizer and Unilever) working with Phytopharm abandoned development of a hoodia-based product due to adverse side effects (including heightened blood pressure). The Namibian government’s decision to use input from rural and indigenous peoples is a promising development in responsible governance over Africa’s natural resources.
If this bill is signed and ratified before the signing of the Nagoya Protocol, it will afford Namibia’s indigenous people some protection against multinational and international patents that lock up their natural resources.