Personal Finance

Kenya plans legislative protection of its diverse, rich cultural heritage

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Kilifi County officials receive Mijikenda elders and youth after the “Mekatilili peace walk” to honour freedom fighter Mekatilili wa Menza. A community can sue people who exploit traditional knowledge without authority. PHOTO | FILE

Article 11 of the Constitution is a cultural provision that imposes on the state the obligation to promote culture, recognise the role of the indigenous technology as a means of national development and promote the intellectual property rights of Kenyans.

Accordingly, Parliament is supposed to enact legislation to ensure communities receive compensation for use of their cultures.

The Traditional Knowledge and Cultural expressions Bill is supposed to give effect to this constitutional provision. Kenya’s diverse cultures comprise about 42 tribes, each with its own unique traditions.

In the past, there has been a lot of plunder of Kenya’s cultural heritage due to lack of legislative framework. Hopefully, once the Bill is legalised there will be less plunder .

What are some of the Bill’s salient provisions?

The Bill’s purpose is to protect holders of traditional knowledge against any infringement of their rights, protect traditional knowledge against misuse and unlawful exploitation beyond their traditional content and also protect sustainable utilisation of traditional knowledge and ensure communities are compensated for use of their cultures.

Those are the main roles imposed on the State in regards to traditional knowledge though the Bill has listed several more obligations on the state in so far as traditional knowledge is concerned.

The Bill clarifies that any intellectual property that already exists before its legislation is exempted, such that a person who owns a copyright over something that may be a traditional knowledge is exempted.

For any work to qualify as a traditional knowledge, it must be generated in a traditional or intergenerational context. Furthermore, it has to be distinctively associated with a specific community and must also be integral to the cultural identity of such a group.

TK’s are not subjected to any formal registration processes as are other forms of I.P, save that the regulator shall maintain a database of all T.Ks in a traditional knowledge digital library.

Community

The beneficiaries of T.K shall be the local community and it is they who can authorise or deny exploitation to a third party.

The community can sue any other persons who exploit traditional knowledge without authority. The national government can also compulsorily acquire traditional knowledge for the benefit of the public where it is shown that the community is not exploiting traditional knowledge well.

The Bill has many more other provisions; however in my view if well implemented it will curtail plunder of cultural heritage, promote culture and also be a source of revenue.

Marginalised communities stand to hugely benefit from this law if passed. Most of them have a rich cultural heritage but due to lack of legislative framework they are not able to exploit their cultural resources for economic benefits.

However this law shall enable them be able to exploit their cultural heritage for economic benefit.

County governments in Kenya, especially in areas where there is a rich cultural heritage, should also watch this law and if possible look at ways of creating awareness of it once it is passed.

The law will not only promote culture and provide economic benefits to communities, but it will also go a long way in promoting domestic tourism and provide a means of preserving culture.

Ms Mputhia is the founder of C Mputhia Advocates. www.cmputhiadvocates.com. [email protected]