Grabbing the Roots

legalising biopiracy in South Africa

In the seemingly lawless frontier of bioresources, squabbles over who has the right to profit from indigenous knowledge and wealth have escalated. Image: GreenLITers

In Brief

  • After years of protracted negotiations on matters surrounding Convention on Biological Diversity, the 2010 meeting in Japan (COP10) produced an important document that recognised rights of people's indigenous knowledge, to the unhappiness of multinationals that had laid claims to such rights
  • The gains made at COP10 are however slowly being eroded by well-resourced multinationals set to dupe indigenous communities in developing countries to surrender their knowledge
  • Whether South Africa can escape the traps laid by moneyed multinationals to be counted among countries that have found means of protecting the rights of their citizens remains to be seen 
  • Are the laws already passed or being proposed really meant to protect these rights or just another scheme to hand precious knowledge to the groups that had fought any agreements since the June 5, 1992 signing of the UN Convention?
  • uSpiked Investigative Team looked into the matter and found fingerprints of big pharmaceutical and genetics companies quietly pushing the envelope to widen the loopholes 

When the Mail & Guardian first exposed the plot by big pharmaceuticals to restrict access to essential medicine, Health Minister Dr. Aaron Motsoaledi declared it “genocidal” and a “conspiracy of satanic magnitude”, which all South Africans must fight “to the last drop of their blood.” Unfortunately, the plot has since thickened and is proceeding unabated albeit in discreet ways.

Having found the health minister quite ‘unfriendly’, big pharma quickly made new friends at the Department of Science and Technology (DST). For several years, pharmaceutical companies felt threatened by the erroneous and baseless claim that 80% of South Africans regularly enlist the services of traditional healers (herbalists).

As demonstrated by AfricaCheck, this erroneous claim has been repeated so many times that it is now largely taken as a fact. The big pharmaceuticals and genetic companies who have been keen to access this perceived 'lucrative market’ set out to find means of wrestling the pie from the traditional healers. They however faced another barrier, the COP10 outcome.

Multinationals make huge profits from Africa's biodiversity

The most hailed accomplishment of COP10 was the adoption of the Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from the Utilization of Genetic Resources of the Convention on Biological Diversity, in line with the September 2007 UN Declaration on rights of indigenous people.

With the Protocol in place, the multinationals cannot unilaterally decide to claim ownership of indigenous knowledge as was attempted by a US multinational W.R. Grace, which claimed ownership of Neem (Azadirachta indica), a plant indigenous to India and that has been used there for centuries.

While the Nagoya Protocol may have given indigenous people of the world a fighting chance, the plot to suppress the users and practitioners of indigenous knowledge has been taken to another level.

In May 2015, we revealed how the proposed law on ‘Medicines and Related Substances’ was a scheme to draw the knowledge of traditional healers for profit and to suppress their very existence. The legislation would arguably deny South Africans access to natural healthcare in favour of allopathic medicine.

An American company briefly 'owned' India's famous Neem

There have been several other legislations focused on indigenous knowledge, including the Traditional Health Practitioners Act, which requires accreditation and registration of traditional health practitioners.

To get a clear picture, uSpiked Investigative Team assessed various the current proposed law, together with several related materials and resources and found some interesting [though worrying] nuggets of information. For instance, some multinationals and various grant agencies and Foundations have quietly been funding certain researchers to take traditional knowledge from indigenous people.

Our curiosity was perked by a letter sent recently to the Minister for Science and Technology, Naledi Pandor, by a group of researchers who have previously been the beneficiaries of shadowy funding scheme from special interest groups (through the department). In the letter, the researchers expressed their worry that they would lose funding if the DST implemented the Bio-economy Strategy, which they feel alienates them.

The quest by multinational companies (with endorsement of the DST) to acquire indigenous knowledge is outlined in the Bio-economy Strategy document that is now the source of anxiety among former beneficiaries of uncontrolled funding. Some of the enlisted corporations are Pfizer Inc., Novartis, Boeringer Ingelheim, The Biovac Institute , PATH & Strategic Innovation Partners.

The Bio-Economy Strategy seems well-intentioned, but when examined jointly with the recently published ‘Protection, Promotion, Development and Management of Indigenous Knowledge Systems Bill, it would appear as if Minister Motsoaledi’s “satanic’ and ‘genocidal’ cry fell on deaf ears. 

There are a few questionable aspects of the bill. But before we tackle those, we must question the norm by various government departments of publishing and implementing regulations before considering appropriate laws. One example is the proposed Medicine and Related Substances law (informally known as Bill 6). The regulations pertaining to medicines and related substances (mainly traditional medicines) were already being implemented before the bill was even drafted.

Going, going, gone... it seems the only way to use our old-age knowledge is to buy it from rich companies

Our investigations unearthed records showing that various regulations related to indigenous knowledge were already being implemented way before the drafting of the Protection, Promotion, Development and Management of Indigenous Knowledge Systems Bill, which is currently before parliament. And the hands pulling the strings are evident.

When the health minister rubbished the scheme prepared by a Washington-based group that would have suppressed access to essential medicine and facilitated biopiracy, the lobbyists secretly turned to the Department of Science & Technology (DST). To find Big pharma’s footprints in the DST, one would have to peruse the department’s annual report.

In the 2014/2015 Annual Financial Report, under ‘Transfer Payments’ the scheme is left exposed. The department reportedly spent R3.79 million in what it called “Implementation of Indigenous Knowledge Initiatives”. The report did not identify or provide details about these initiatives. There is also the mention of R300 million from the European Union for ‘Sector Budget Support’ spanning three years.

Recorded under the ‘Sector Budget Support’ are undisclosed expenditures on ‘Development of herbal and botanical products’ and ‘Traditional Health Practitioners’, among other allottees. Of the reported 250,000 traditional health practitioners in South Africa [if that figure is correct - editor], how many of them benefited from the funds and into which specific projects/programmes were the funds injected?

The answer to these questions could be partly gleaned from the above-mentioned letter to Minister Pandor, which has been provided to us by a confidential source at the department.

Six individuals representing six organisations signed the letter. Leading the group were Phephsile Maseko (Traditional Healers Organisation), Prof. Luke Chimuka (Technology Transfer Coordinator, University of Witwatersrand Johannesburg), Matshidiso Moroka (Nutraceuticals Coordinator at CSIR), Dr. Motlalepula Gilbert Matsabisa (Africa Traditional Medicine & Health Beverages Coordinator at University of Free State), Prof. Namrita Lall (Cosmeceutical Coordinator, University of Pretoria) and Thobeka Kentane-Mekwa (NUPATHPSA).

South Africa has many traditional healers who don’t necessarily form part of Maseko’s Traditional Healers Organisation. So, to whom exactly were the DST funds itemised ‘Traditional Healers Practitioners’ disbursed, and did the beneficiaries include other associations of healers outside the Traditional Healers Organisation? No one seems willing to provide us with detailed information on who got how much and for what.

Some people have called the proposed law and the accompanying regulations ‘biopiracy of indigenous knowledge'.

According to Brian Damonse aka Ras-Kora of Cape Bush Doctors, department officials spearheading the proposed legislation spent under ten minutes with a selected group of traditional leaders/healers (including Ras-Kora). Ras-Kora says the officials left after realising the leaders had a problem with the definition of the term ‘Indigenous Community’ in the proposed bill.

Brian Ras-Khora of the Cape Bush Doctors

The Bill defines ‘Indigenous Community’ as “any recognisable community of people developing from, or historically settled in, a geographical area or areas located within the borders of the Republic characterised by social, cultural and economic conditions which distinguishes them from other sections of the national community, and who identify themselves and are recognized by other groups as a distinct collective.”

Several groups would rightly feel left out of this definition. As to date, groups like the Khoisan are still fighting for constitutional recognition despite their rich heritage.

uSpiked’s team revisited a media statement by the DST in June 2013 announcing the signing of an agreement on bioprospecting platform for indigenous knowledge systems. The current bill was at then far from the drafting phases.

Soon after the announcement, researchers were beating the path to the doors of rural communities to extract knowledge and mainly under (true or false) pretenses. They were promising [unspecified] royalties and shared benefits if the identified community leaders agreed to sign up.

Greyia flanaganii

In line with Nagoya Protocol, in a document under the Department of Environmental Affairs banner titled, ‘the Access and Benefit-Sharing (BABS) permitting for collaborative natural product development’, Thobeka Kentane-Mekwa (one of the signatories to the letter to Minister Pandor), documents how she signed a local chief for the intended benefit sharing of Greyia flanaganii.

The document recorded; “Greyia flanaganii is a rare endemic of Eastern Cape, where it is found on the grassy hillsides and among rocks on the steep slopes of the Kei River and its tributaries, the Toise and Kabusi Rivers.

“This information was given to Dr. Thobeka Kentane-Mekwa who forms part of the Bioprospecting Platform (BP).” But that information had already been documented by  Giles Mbambezeli, a horticulturist at Kirstenbosch Garden, in 2002. Mbambezeli stated “the tree is growing in several botanical gardens associated with universities and botanic gardens in South Africa.” Mbambezeli concluded: “In 1998 it was the Tree of the Year.” In fact the description of the location in the document is lifted from Mbambezeli’s brief.

Kentane-Mekwa erroneously identified 'Ndabakazi', a community in Eastern Cape Province, as the potential knowledge holder for Greyia flanaganii. [Ndabakazi is not a community but an area - editor] This lead proved useful to trainee Dr. Kentane-Mekwa though. In her document she referred to the Chief of Ndabakazi, Chief M.V. Luzipho. However, there is no ‘Chief of Ndabakazi’; instead, there is the AmaHlubi Tribal Authority whose chief and head is Mvuyiswa Luzipho.

How the Chief was recruited

The researcher with representatives from the Department of Science and Technology and University of Pretoria traveled to meet with the chief and various local leaders for introduction and immediate sign-up for a claimed ‘Benefits Sharing Agreement’. The document records, “Subsequent meeting being arranged for finalization of percentage royalty as no legal representatives were present.”

According to Mbambezeli’s 2002 publication, other two closely related species are found in Mpumalanga, Limpopo and KwaZulu-Natal. The bothersome question is, how does signing up a certain community exclusively enhances national cohesion?

The proposed law is more than just plants and herbs. The Bill describes ‘indigenous knowledge’ as; “knowledge which has been developed within an [contentious - editor] indigenous community and has been assimilated into the cultural make-up or essential character of that community, and include –

a)    Knowledge of a scientific or technical nature

b)    Knowledge of natural resources; and

c)     Indigenous cultural expressions

The third item is somewhat problematic and our team failed to understand how this would fit under the Department of Science and Technology. Cultural expressions, according to the Bill include:

a)    Phonetic or verbal expression [would this include the Xhosa clicks? – editor]

b)    Musical or sound expressions

c)     Expressions by action; and

d)    Action tangible expressions

The Isicathulo (gumboot) dance, which according to available information was conceived by black miners in South Africa, would most likely be claimed by families of miners [not recognised as an indigenous community by the Bill - editor]. This would present a tricky problem - the miners hailed from all over Southern Africa. Another example is the Umhlanga (the Reed Dance) that is known to be a Swazi and Zulu cultural event. Who is the rightful owner(s) in this case?

According to cultural historians we consulted, there is definitely very little interest in cultural knowledge. Clarity emerges, though, when one reads and compares the proposed law with the Bio-Economy Strategy document.

Jail time for illegal healers

The other contentious issue in the proposed legislation is the requirement for ‘registration of indigenous knowledge practitioners’. This would require mandatory registration of among others, traditional healers (herbalists).

The Department of Health’s own Traditional Health Practitioners’ Act of 2008 also requires registration of the healers (herbalists). Section 49(4) of the Act reads: “A person found guilty of an offence in terms of this Section is liable on conviction for a fine or to imprisonment for a period not exceeding 12 months or both a fine and such imprisonment.”

Section 28(3) of the proposed Department of Science and Technology law reads: “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 three years or to a fine of R30,000 or both.”

As things stand, the traditional health practitioners are being squeezed from all sides, while indigenous communities are left high and dry.