Protecting Traditional Health Knowledge in Kenya: The role of Customary Laws and Practices

Abstract

This report presents the findings of community level research on customary laws and practices for the protection of traditional health systems in Kenya. It also explores the protection of community rights over traditional knowledge and Collective Biocultural Heritage within Kenya’s policy and legislative framework. There is a new policy framework on traditional medicine and medicinal plants in Kenya; medicinal plants represent a sector with an established economic value, and related practices constitute part of a living culture among the Kenyan population. However, traditional health knowledge and healthcare is now facing significant threats. Given the lack of existing legal protection for the intellectual rights of traditional healers in Kenya, this study addressed the urgent need to develop a sui generis system for protecting the rights of communities over TK and related biological resources (BRs). The study aimed to contribute to the formulation of laws and policies for the protection of Traditional Knowledge and Collective Biocultural Heritage (CBCH) of indigenous people and local communities at national and international levels; especially noting that modern Intellectual Property Rights (IPR) may not be appropriate for protecting the distinct knowledge systems and needs of traditional knowledge holders. The study explored customary protection systems for TK and BRs, including traditional values, ownership rights, transmission modes, and access and benefit-sharing. It sought to inform the development of Prior Informed Consent (PIC) and benefit-sharing mechanisms for improved livelihoods; and strengthen customary resource management systems that sustain TK and biodiversity. It also examined existing national policy and legal frameworks with an impact on TK systems and the interplay between traditional protection systems and national policies. The study involved ethnic groups of extreme disparity in terms of socio-cultural background and geographical position to establish outmost similarities and differences for safe generalisation on the mid-way ethnic groups and to understand the range so it can be accommodated in national law. Two categories of ethnic groups including the Bantus represented by the Mijikenda and Nilotes represented by the Maasai were selected for this study. While the Mijikenda who are located adjacent to coastal forests have a comparatively diluted cultural system, the Maasai who live in the savanna grasslands of the rift valley region have a more intact cultural system. While the Mijikenda are largely sedentary agriculturalists, the Maasai are largely nomadic pastoralists. The following communities were involved: the Digo in Kwale County, the Chonyi and Giriama in Kilifi County, and Maasai in Kajiado County (171 respondents in total, including elders, healers, women and youth). Semi-structured interviews, open-ended discussions and focused group discussions were facilitated by researchers from the communities. In the past, a set of uncodified and unwritten laws have governed the sharing of knowledge and the collection of resources in community forest landscapes. The three key customary law principles of Andean Quechua communities - Reciprocity, Equilibrium and Duality - which promote equity and ecological sustainability, applied in the traditional management of biocultural resources among both the Mijikenda and the Maasai, including knowledge protection and benefit sharing. The forest resources, language, knowledge and culture formed an intertwined network that is interdependent. The knowledge was for a very long time verbally transmitted from generation to generation. It was communally owned and freely shared amongst communities, except for specialized healing knowledge which was protected through rules for transmission and sanctions, and held by clans or individual spiritual healers. The Maasai knowledge and resources were more openly shared, as a means of survival in harsh conditions, even with third parties. The Mijikenda knowledge was not shared with non-Mijikenda. In recent decades, a number of drivers of change have emerged which are threatening traditional knowledge, biological resources and culture, and which require mitigating actions to be taken. These threats include changes in governance from traditional to central governance, especially after independence, the spread of religions and modernisation. Analysis of policies and legislation reveal the development of frameworks that have for a long time systematically marginalized traditional knowledge and natural resource governance systems. While policies that previously sought to suppress traditional health knowledge have now given way to supportive policies, the centralization of forest governance under conservation laws has alienated the Mijikenda from forest resources.

Although previously, customary laws effectively conserved forest resources, with the transition to a central governance system, some of the sacred kaya forests have lost over 90 per cent of their vegetation due to encroachment by the local community. This is because the customary governance institutions and monitoring systems have broken down, while the resources are now viewed as belonging to the government. The marginalization of traditional institutions and culturally important forest resources are affecting the maintenance of traditional knowledge. In addition, land ownership has shifted from predominantly common to private ownership, and traditional healers have started practicing commercially for individual gain rather than community healthcare, charging higher prices. These trends are having an adverse impact on community livelihoods, particularly for the poor (the majority of whom are below the poverty line). While the elders are keen to bring back the customary governance institutions, the youth are not interested in the traditional systems. The study recommends that the previously effective community institutions such as the ngambi be legally recognized and given a proper mandate and powers to ensure the conservation and sustainable use of kaya forests. In addition, prior informed consent of traditional elders needs to be institutionalized from community to national level to ensure the participation of indigenous communities in decisions on the use of their knowledge and biocultural resources. Policy, legal and institutional mechanisms should be developed which recognize both collective and individual rights and benefit-sharing. Priority needs to be given to strengthening existing customary law systems which are vital to the maintenance of the knowledge, biodiversity and cultures concerned. Capacity building to add value to community knowledge and products is important to enhance economic benefits for communities and strengthen incentives for sustaining TK and biodiversity. This may also help to engage the youth.