Community-based access and benefit-sharing platform and its role in biodiversity, culture and intellectual property rights

Abstract

The world is experiencing a paradigm shift towards new technical uses of genetic resources (GR), which is likely to have a significant impact on communities across the world. These new technologies comprise genome sequencing, gene editing, computational biology, nanotechnology among others, yet the technological innovation driving this shift is occurring only among a few elite, high-tech innovation actors, high-end universities, companies and research institutions. Kenya is a member of the World Trade Organizations (WTO) Agreement on Trade-Related Aspects of Intellectual Property Rights–TRIPS and party to the Convention on Biological Diversity (CBD) and its Cartagena and Nagoya Protocols. This survey interrogated constitutional provisions concerning Biodiversity, Culture and Intellectual (BCI) property rights, with a view of promoting community-based Access and Benefit-Sharing (ABS) platform. It highlights provisions of Articles 11, 40.5 and 69 of the constitution and interrogates the Protection of Traditional Knowledge and Cultural Expressions Act of 2016 that aims at ensuring compliance with these constitutional provision and aims at building trust between users and providers of traditional knowledge, associated GR and traditional cultural expressions and creating a sui generis mechanism for the protection of traditional knowledge and cultural expressions. In this survey, GR are defined as microorganisms, plants and animal materials, including indigenous seeds, genetic plant varieties and traditional animal breeds.