Traditional Knowledge and the Inclusive Subordination of African Customary Law in Kenya: Lessons from Personal Law

Abstract

AbstractTraditional knowledge forms the fabric of indigenous communities’ social and economic life. Its attempted protection through intellectual property law has been dismal. There is now wide consensus that sui generis regimes should be employed for this purpose, and that customary laws are conceivable as an integral part of such protection. This article finds that the expressed legislative intent to protect traditional knowledge through customary law in Kenya is ill-fated. Sustained inclusive subordination of the latter will obstruct any meaningful efforts to protect the former. This finding is reached by an examination of the historical application of African customary law in personal law regimes that have it as the defining legal regimen. This history is one of subtle subordination, and such subtlety remains embedded even in Kenya's law on traditional knowledge. The unpleasant effects of this phenomenon as observed in personal law regimes are likely to recur for traditional knowledge.