- Kenya celebrated Utamaduni Day last week after the government gazetted it as a public holiday last year.
- Article 11 of the Constitution gives communities the right to promote their cultural heritage.
- The Protection of Traditional Knowledge and Cultural Expressions Act gives elaborate statutory protection of cultural expressions.
Kenya celebrated Utamaduni Day last week after the government gazetted it as a public holiday last year.
Utamaduni Day aims to celebrate Kenya’s diverse culture, which has an increased role in the country’s socio-economic welfare. If properly managed, cultural rights and heritage can earn communities and the country additional revenue.
This is so, especially because cultural rights are now legally recognised as constitutional and statutory rights. Legislating cultural rights gives them some sort of legitimacy.
Article 11 of the Constitution gives communities the right to promote their cultural heritage.
Parliament has a role in ensuring that adequate laws are passed to ensure communities receive compensation from cultural exploitation.
Article 44 of the Constitution, on the other hand, states that people have a right to participate in a culture of their choice and also form cultural associations. Cultural rights are some of the constitutional rights that if enforced can strengthen community rights.
The Protection of Traditional Knowledge and Cultural Expressions Act gives elaborate statutory protection of cultural expressions including stories, poetry, dances, songs and others. An example of cultural heritage is Kenya’s natural sites.
Before statutory protection can be given the cultural item must meet the threshold set under the Act.
One of the determinants is that the expression must be transmitted generationally.
For example, some dances are associated with particular communities and form part of their identity.
Cultural expressions give the community some rights.
The community can prevent the reproduction, publication, performance, broadcasting, translation and fixation of the works under consideration.
Therefore, if communities secured cultural expressions they would be able to control the unauthorised usage of their works, including commercialisation. Cultural rights are crucial when commercialising strategies are undertaken.
The commercialisation of cultural rights can benefit local communities. They can earn extra revenue as communities. This would be crucial for the economic wellbeing of the community and development if well utilised.
The statutory rights can prevent commercial entities from unauthorised exploitation of the community’s rights.
A commercial entity cannot appropriate the cultural right of the community and pass it off as its own.
A commercial entity cannot get intellectual property rights over the community’s works. For example, it cannot re-do the traditional songs without authority. It cannot pass off cultural works as its own without authorisation.
The Act allows communities to assign and license the works provided that the agreement assigning or licensing the works is approved by various parties and supervision of the Cabinet secretary. Such agreement sets out the provisions on sharing of benefits, terms of assignment and compensation to be paid.
The provision allowing communities to assign or license their works is important for undertaking commercialisation.
For example, a community can license commercial entity rights to bulk produce artefacts for some time. The commercial entity would pay the community a license fee, probably a percentage of the revenue it makes.
The community still maintains control and ownership of cultural rights. This provision makes it possible for communities to earn income from their cultural expressions while at the same time maintaining ownership and control over them.
The statute has enforcement mechanisms in the event of any breaches. Communities can go to court and stop the unauthorised pilferage of their cultural expressions and they can also seek damages where the same have been breached.
Therefore, the counties ought to work closely with communities to ensure that their cultural expressions are protected. Further, the communities should enforce cultural expressions need enforcement.