Protection or Enthnopiracy?
a critical review of South Africa's indigenous knowledge bill
- In an exclusive revelation, uSpiked dissected the hidden shenanigans surrounding the proposed Protection, Development and Management of Indigenous Knowledge Systems Law
- On August 17, 2016, various inter-departmental groups trooped into Parliament to make presentations on the Bill to Parliamentary Committee on Science and Technology
- Officials representing the Department of Trade and Industry left for an impromptu sidebar in which, uSpiked can reveal, a directive from Director-General Lionel October not to support the bill in its present form was communicated. The officials had to quickly rework their presentation, which in the end did not quite endorse the proposed law
- DG October, we have learnt, feels that the Bill is defective and constitutionally troublesome in many fronts including its attempt to highjack matters pertaining to Intellectual Property, which is currently a domain of DTI’s CIPC, as well as duplication of some functions of other Departments
- As Anthony Rees, the chairman of TNHA writes in this article, the discourse is far from over. He calls for the scrapping of the Bill in favour of legislation that will transfer to the Traditional Healers Practitioners Council all research already conducted in ‘ethno-piracy’ schemes across South Africa
Southern Africa possesses a remarkable diversity of indigenous plants, coupled with rich cultural traditions on the use of plants for medicine. Despite huge strides in provision of health care, many rural areas still do not have easy access to Western primary health care and veterinary services. Even where clinics and allopathic medicines are readily available, a large proportion of the population uses African Traditional Medicines (ATH) together with, or in preference to, Western orthodox medicine.
The concept of biodiversity encompasses the number and variety of organisms inhabiting a specified geographic region.
Owing to its diverse range of climatic and topographic conditions, South Africa possesses a wealth of plant species. It is considered to have the richest temperate flora in the world, with a floristic diversity of about 24 000 species and intraspecific taxa in 368 families. With only 2.5% of the world’s land surface, it contains more than 10% of the world’s vascular plant flora.
South Africa has a flourishing diversity of cultures, with 11 official languages and a long history of medicinal plant use. Studies of varying cultural practices, together with methods of traditional healing using the extensive array of available plants, are yielding valuable information to pharmaceutical and biotechnology researchers.
African traditional medicine
Globally, natural products and their derivatives represent about 50% of all pharmaceutically produced drugs in clinical use. Plants were originally the major source of medicine, and there is currently a strong interest in natural medicines as a source of new remedies and bioactive compounds.
This phenomenon is reflected in South Africa. South Africa has contributed to worldwide medicines with natural teas and remedies such as Cape Aloes (Aloe ferox), Rooibos (Aspalathus linearis), South African Pelargonium (Pelargonium sidoides), Buchu (Agathosma betulina), Sceletium (Sceletium tortuosum), Honeybush (Cyclopia intermedia), and Devil’s Claw (Harpagophytum procumbens) to name a few.
There are an estimated 220 000 indigenous traditional healers in South Africa. They are known by different names according to the different cultures, for example “inyanga” and “isangoma” (Zulu), “ixwele” and “amaquira” (Xhosa), “nqaka” (Sotho), “bossiedokter” and “kruiedokter” (Afrikaans).
There is often a basic general knowledge of medicinal plant use among the elderly members of the community.
A 2008 survey in Durban (KwaZulu-Natal) indicated that over 80% of the black population relies on both Western and traditional health care systems, and this figure is likely to be reflected country-wide.
The market for medicinal plants is vast, and it has been estimated that 20 000 tonnes of plant material are traded in South Africa each year. Conservative estimates reveal that traditional healers and indigenous medicinal pant harvesters and traders comprise a major portion of a R4 billion informal economy.
Protecting indigenous knowledge – for whom exactly?
The World Trade Organization (WTO) and the Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS) do not recognise collective (community) ownership rights of plants, based on culture.
With South African indigenous plant use knowledge being a treasure trove of potential leads for new drug development, multi-billion dollar pharmaceutical and biotech companies are eager to exploit our natural resources so that they can identify, isolate and patent plant chemicals for the maximum return on investment to their shareholders.
Despite there being no internationally-accepted agreement or precedent on a legal mechanism for protecting and promoting indigenous (or traditional) medicine knowledge, the South African Department of Science and Technology (DST) is determined to introduce new legislation to roll out its Bio Economic Strategy Programme, which aims to unlock this potential.
To this end, the DST published a draft of the Protection, Promotion, Development and Management of Indigenous Knowledge Systems Bill (the “2016 IKS Bill) on 8 April 2016 (GG 39910).
The DST has worked at establishing systems and legislation for the protection of Indingenous Knowledge (IK) intellectual property since 2003, and has long envisaged a National Indigenous Knowledge Systems Office (NIKSO) to unlock lucrative investment deals with the drug and biotech sectors.
Although the Bill’s stated aims are to establish a novel, community-based approach for the protection of indigenous knowledge and to curb unauthorised commercial exploitation of indigenous innovations without benefit-sharing with the communities who claim to have developed them, it is potentially the State itself which will become the biggest exploiter of all, thereby defeating the very purpose of the intended legislation.
Through this Bill our government is keen to exploit the demand for our indigenous plant resources by becoming a conduit for commercial product leads and technologies under its Bio-Economic Strategy Programme.
In order for new drug and biotech innovations to become profitable, for decades to come, the industries manufacturing and marketing them require an innovative mechanism to circumvent the limitation of developing drugs and technologies from natural resources, which aren’t patentable in terms of international law.
This is where the South African government has come up with what is a quasi-patent ‘monopolisation’ scheme to commercially exploit these potentially lucrative innovations, by restricting their ownership to communal licence holders and the State itself, who will all receive benefit-sharing kickbacks.
The scheme appears simple and equitable at first glance. This, we are being told, is how this scheme works.
(1) Indigenous communities are required to lodge applications to licence their indigenous plant-based innovations (in this case, traditional medicines) within 12 months of the Act being coming into law with the National Indigenous Knowledge Systems Office (NIKSO). The licences are issued only after communities can demonstrate that the indigenous traditional usage applied for has been passed on from generation to generation, and within their community’s geographical region. Successful applications result in the issue of community IK licences which are valid for twenty years.
(2) NIKSO then acts as a business referral agency for pharmaceutical and biotechnology companies seeking new innovation leads (for pharmaceutical drugs, unique genes etc.) to commercially exploit.
(3) NIKSO connects these companies to the community IK licence holders, and ‘Exclusive Use Agreements’ are drawn up by NIKSO between the parties. The agreements enforce benefit-sharing arrangements between to the companies and the community IK licence holders. Benefits could include a small percentage of profit made by companies on products sold with are derived from the community’s innovation/s, shares in the companies, or being granted exclusive contracts to grow and supply raw materials to these companies, thereby promoting job creation.
(4) The companies entering into these agreements obtain exclusive rights to use the innovations and raw materials on offer, essentially creating a quasi-patent right to monopolise the products they may manufacture.
This all looks good on paper. Who would not want to support a National Project that aims to empower local communities and advance science and technology?
In May 1999 I wrote a paper titled ‘Biodiversity and Intellectual Property Rights - Implications for Indigenous People of South Africa’, in which I highlighted how Big Pharma and government were plundering indigenous knowledge and genetic resources in South Africa. Publicly funded research institutions have been extremely busy behind the scenes preparing for the commercialization of plant-based medicines purified of cultural and social derivates. All major South African universities have botany or biochemistry departments that engage in bio-prospecting activities concerning traditional medicine; the same is true for large research institutions like the Medical Research Council (MRC) or the Council for Scientific and Industrial Research (CSIR). Almost all of them have never acknowledged the sources of their leads, extracted from rural communities.
When I first heard about this new Bill being drafted I was cautiously optimistic that natural justice was being served at last, and that our law-makers were serious about ridding our land of Ethno-Piracy. I had hoped that the dignity and time-honoured traditions of traditional healers and indigenous communities would be protected and rightfully restored.
Sadly this is not the case.
What is bio-prospecting and ethno-piracy?
Ethno-piracy is the commercial development of naturally occurring biological materials (ethnobiological); such as plant substances or genetic cell lines, by a technologically advanced country or commercial industry, without fair compensation to the peoples or nations in whose territory the materials were originally discovered.
Bi0-prospecting is one form of ethnopiracy which includes the collecting and testing plants and the collecting of indigenous knowledge from traditional healers and traditional communities to help in discovering and exploiting genetic or biochemical resources with the primarily economic purposes of producing new drugs, crops, industrial products, etc.
Government may become ethno-pirate #1 under this Act
The IKS Bill, if passed into law in its currently from, will not protect indigenous knowledge vested in traditional healers and indigenous communities as much as it will create a multi-billion Rand franchise for State institutions to commercialise and monopolise indigenous plants usage in partnership with the pharmaceutical and biotechnology industries.
To demonstrate how ambitious the Bio Economic Strategy of government is, one only has to look at a R1 billion funding proposal to build a South African Herbal Medicine and Science Institute in 2008, backed by the University of Cape Town, the University of Kwazulu-Natal, the Medical Research Council, the National Research Foundation and other foreign universities.
It was envisaged that this institute would research novel drug leads from intellectual knowledge previously obtained from traditional healers and indigenous communities without recognition.
In fact, most universities in South Africa are itching for this Bill to pass, so that they can unlock the research databases they have been quietly compiling and jealously guarding for decades.
Multinational drug companies and biotech companies are already lining up to partner with our bio-prospecting universities. Some big names in the multinational drug industry include Pfizer, Novartis, Boeringer Ingelheim etc. This Bill will position these state research institutions into poll position to conduct research on behalf the highest bidding drug companies and biotech firms, or through consortiums they will set up to manufacture and market these innovations themselves.
When the initial drafts for this Bill were released in February last year, Minister of Science and Technology Naledi Pandor broke the department’s silence on the scale of this Ehno-Piracy scheme.
“We envisage that by 2015/2016, all nine provinces will host a centre to facilitate the capturing, cataloguing, validation, preservation and dissemination of indigenous knowledge in participating communities.” Minister Pandor at UNISA - 27 Feb 2015
The negative impact on traditional healers
The IKS Bill will severely restrict over 220 000 traditional healers from using many common indigenous plant-based remedies which may be licenced for exclusive commercial exploitation by licence holders and their drug and biotech company partners.
The Bill mandates that all traditional healers in South Africa must register with the NIKSO as accredited ‘Indigenous Knowledge Practitioners’ and be vetted by IKS Agents who will determine their eligibility to register. There is no indication in the Bill who these Agents will be, what qualifies them to access other healers, and what criteria will be used to determine if a healer is eligible to register. Any healers who wish to use IKS will have to be registered. Unlicensed Indigenous Knowledge Practitioners’ will be committing a criminal offence if they, for gain, dispense plants for uses which are licenced (monopolised) in terms of the Bill.
Section 28(2) of the Bill states – “Any person who uses intellectual knowledge without authorisation shall be guilty of an offence and liable on conviction to imprisonment not exceeding 3 years or R30 000 fine, or both. “
Section 28(3) of the Bill states – “Any person who falsely professes to be a certified indigenous knowledge practitioner shall be guilty of an offence and liable on conviction to imprisonment not exceeding 3 years or R30 000 fine, or both. “
Traditional healers are required to register with the Traditional Health Practitioners Council of South Africa (“THPCSA”), in terms of the Traditional Health Practitioners Act (Act No. 22 of 2007).
An Interim Council has been set up to begin registering traditional healers as Traditional Health Practitioners and to draft and gazette regulations to give effect to the Act, such as Scopes of Practice, Ethical Rules, etc. The Act confers the right of registered Traditional Health Practitioners to compound and dispense traditional medicines as defined in the Act.
The IKS Bill is in conflict with the Traditional Health Practitioners Act, and undermines vested rights which traditional healers fought long and hard for since the dawn of democracy. There is no justifiable reason for this Bill to include Indigenous Knowledge Practitioners or place restrictions on the carrying out of their professions. The assessment of healer’s eligibly to practice traditional medicine and dispense African Traditional Medicines has been pre-qualified by application of the Traditional Health Practitioners Act.
We believe Traditional Healers should reject this Bill for ethical, cultural and moral reasons, not only to protect their right to practise freely and grow their professions as they see fit, but also to protect indigenous communities from the exploitation this Bill will bring. They should also identify those healers who are being co-opted into this scheme wilfully or through ignorance, and explain to them how they are being used as window dressing for this plunder.
It’s time to stop monopoly capital and end medical apartheid
The IKS Bill is a classic example of Health Minister Aaron Motsoaledi’s warning in 2014, when he expressed his grave concerns of “a conspiracy of satanic magnitude" in relation to intellectual property rights in our country. He called upon all South Africans to fight this plan "to the last drop of their blood".
This Bill is an extension of the battle over Intellectual Property in which our government and imperialist forces have been waging for aver decade. On one hand Big Pharma has been vigorously resisting all efforts of our Government to reduce the prices of essential drugs by circumventing pharmaceutical patent rights, while on the other hand they engineer the capture of the Department of Science and Technology so they can legally and exclusively get their hands on our indigenous plant-based medicine resources to develop new drugs which could translate into tens of billions of dollars of profit for them.
This Bill will pave the way for the legal confiscation of traditional indigenous medicines from the hands of traditional healers, and place them in the hands of multi-national corporations. This Bill will tear the very fabric of traditional medicine and leave it threadbare.
The 30 million South Africans who use traditional medicines will have their choice in medicines greatly diminished, all in exchange for a few crumbs swept from industry’s high tables to indigenous community leaders.
The vacuum of traditional medicines lost will be filled with Western orthodox drugs and guaranteed dependency on them. Where the roots of indigenous plant medicines will be rooted out, drug manufacturing plants and branches will soon grow like weeds
Leads, leads, glorious leads
Leads provided by traditional healers and indigenous communities unlock the development of novel, patentable drugs for the pharmaceutical industry. The graphic below, published by Prof. Quinton Johnson, a leading South Africa bio-prospector demonstrates the massive cost savings to Big Pharma by reducing the time spent on looking for new patent drug molecules, and the major cost savings involved.
It is estimated that between the various State research facilities, they have already prepared over 300 monographs of indigenous plant medicines which will in all likelihood be licenced under this scheme, when the 12 months afforded to indigenous community’s to register their innovations expires. Most of these studies followed leads which came from their paid researchers immersing themselves in indigenous communities and prying out the guarded indigenous knowledge.
So many State sponsored Bio-Prospecting bodies have popped up in the last twenty years, including the TRAMED Project, the Multi-disciplinary University Traditional Health Initiative (MUTHI), the South African Traditional Medicines Research Group (SATMERG), the South African Herbal Science and Medicine Institute, the Centre for Innovation Partnership in Science Phytomedicines (TICIPS), The National Center for Complementary and Alternative Medicine (NCCAM) etc.
It is difficult to tell just how many indigenous plant medicines have been screened for leads or have had monographs prepared by all of these Bio-Prospecting units over the years. Some people in the know claim there are thousands of data entries validating traditional medicines being kept under lock and key. This is partly due to rivalry between the institutions over their jealously guarded research, and them possibly holding back these leads for licenced exploitation after the passing of this IKS Bill.
- If taxpayers have subsidised the activities of all these units, why have these institutions not published their research in the public domain so that genuine traditional healers and the public can make informed choices in choosing safe, effecting traditional medicines?
- Why is there no limitation in the Bill, restraining these units from registering their IKS discoveries which came into being before the Act is passed?
- Can these units identify all the traditional healers and indigenous communities who gave them these leads in their past and current databases?
- Why is there no obligation in the Bill to make these units identify their leads and enter usage agreements with these traditional healers and indigenous communities? They are after all the rightful beneficiaries for any future profit-sharing.
In terms of this Bill, NIKSO can technically awarded itself IKS licences and partner up with State research facilities or consortiums made up of clusters of these facilities to develop novel drugs and biotech products using IK they have been unscrupulously gathering from traditional healers and indigenous communities for the last fifty years without credit or reparation.
Section 12(1) of the Bill states –
‘In the event that, and for as long as, the holder of indigenous property cannot be identified and designated, NIKSO must act as custodian of that indigenous knowledge, and the ownership of it shall be deemed to vest in NIKSO, which shall have the rights and obligations of a trustee in respect of that indigenous knowledge’.
If, after twelve months after the passing of the this Bill into law, no traditional communities lodge applications for indigenous knowledge licences, NIKSO and its partner institutions will secure these rights to themselves, and can negotiate with drug companies and biotech companies directly.
Section 33 of the Bill states –
‘The indigenous knowledge holder wishing to register indigenous knowledge which existed prior to the commencement of this Act must register such indigenous knowledge in terms of the Act within 12 months from the date of commencement of this Act’
African Traditional Medicine has no pharmacopoeia (encyclopaedia of medicines), written by traditional healers or indigenous communities, unlike in other regions such as Asia, the Middle-East and Europe where indigenous plants and their traditional medicinal usage were recorded and effectively placed in the public domain.
Local Indigenous knowledge remains mostly secret, in abeyance with the belief that the knowledge of ancestors is sacred and not to be conferred to the community at large. Genuine traditional healers who practice strictly to custom, swear oaths not to share this knowledge to outsiders.
Only those initiated into the healing professions obtain this knowledge by either apprenticeship, or through psychoactive plant induced trance states and dreams where ancestors indicate the remedies required.
African Traditional Medicine is exclusively an oral tradition. In recent decades, many healers have been hoodwinked or corrupted. They have sold out their ancestral law by accepting payments in cash and promises of great recognition and titles by orthodox medicine researchers (Ethno-Pirates) fishing for clues for new drug development. A few of them have been appointed as window-dressing by these institutions conducting novel drug development research, adding a veneer of cultural approval of these schemes.
The IKS Bill requires that in order for an indigenous community to lodge successful licence applications, Indigenous Knowledge Practitioners (healers) and Indigenous Communities must provide documentary evidence that they were the innovators of the technology born of indigenous knowledge. They must demonstrate that this practical knowledge has been passed on from generation, to generation.
Section 11 of the Bill, which details the ‘Eligibility Criteria for Protection’ states –
‘The protection of indigenous knowledge contemplated in Section 9 apply to indigenous knowledge which – (a) has been passed on from generation to generation, (b) has been developed within the indigenous community, and (c) is associated with the cultural make-up and social identity of that indigenous community’
- Without any written record demonstrating generational transfer of this knowledge, how will the NIKSO verify the authenticity of IKS claims?
I’m also particularly concerned that this provision seems to assume that indigenous knowledge is a stable and unchanging thing that can be identifiable across generations. The reality though is that when indigenous communities pass on knowledge about their local plants, animals, and environments the contours of that knowledge likely changes overtime.
Indigenous knowledge about a plant from one generation might look different when passed along to the next generation. Indigenous communities are continually experimenting and adapting their indigenous knowledge systems to the changing environmental, social, and political conditions around them.
The concern then, is that if expressions of IKS change from one generation to the next, they won't be eligible for protection under this Bill. It is unclear if Section 11 (a) as currently drafted attends to the dynamic and changing nature of IKS.
The fact that most traditional healers I have spoken to do not even know about this Bill leaves one wondering how the intended benefactors of this legislation will ever benefit as intended. Creating a cut-off period of just 12 months for indigenous communities to apply to NIKSO for licences, and for traditional healers to register with NIKSO will not be possible. The result is that very few applications will be lodged.
This short timeframe is highly prejudicial to indigenous communities and traditional healers, but very convenient for industry and academia already waiting to in line.
Sowing the seeds of cultural division
Many indigenous plants grow across indigenous community border lines and in many cases are used medicinally for the same heath conditions. This is coupled with the problem of ascertaining who the original developers of the IK were.
Although the Bill makes provision for more than one indigenous community to claim IKS ownership on a single innovation, refereeing disputes by NIKSO over ownership will be a major challenge, especially when claims are motivated by potential financial incentives and cultural pride.
This Bill has the potential to cause major friction between different indigenous communities.
The preamble of our Constitution opens with the paragraph “We, the people of South Africa, Recognise the injustices of our past; Honour those who suffered for justice and freedom in our land; Respect those who have worked to build and develop our country; and Believe that South Africa belongs to all who live in it, united in our diversity.”
Indigenous plants, used as medicine, food and shelter growing within our borders belong to all the people who live in this land. We, the people are the guardians of nature for our future generations. Our relationship with plants cannot be owned or restricted with a piece of paper and handed over to certain individuals or corporations to selfishly monopolise. The real indigenous plant knowledge custodians in South Africa are the 220 000 African traditional healers who have practiced their time-honoured calling ever since their San and Khoi ancestors first nurtured a relationship with the healing power of nature.
This Bill must be scrapped in its entirety, and a new piece of legislation gazetted which transfers ALL research already conducted in Ethno-Piracy schemes across South Africa to the Traditional Healers Practitioners Council, where knowledge on indigenous medicine plants can be catalogued and disseminated in the form of a living National Traditional Medicines Pharmacopeia. This will fulfil the Traditional Health Practitioners Act’s obligations to promote the safe and effective use of indigenous medicines in South Africa by all.
This knowledge base will ensure the sustainability of African Traditional Medicine in its original form, and the professions of the African Traditional Health Practitioners in South Africa. By restoring African Traditional Medicine to parity with other health professions, injustices of the past will be healed, and health true freedom will be achieved.Anthony Rees is the chairman of the Traditional and Natural Health Alliance