Protection, Promotion, Development & Management of Indigenous Knowledge Bill: public hearings

Meeting report

Indigenous Knowledge Bill: Clauses described

Mr W September: Facilitator: Department of Science and Technology (DST), gave a clause-by-clause analysis of the Protection, Promotion, Development and Management of Indigenous Knowledge (IK) Bill.

Clause 1

It contains various definitions aligned with international agreements and protocols ratified or acceded to by South Africa.

Clause 2

It indicates that the Bill is applicable to all South Africans when dealing with the management of IK.

Clause 3

It deals with the goals as seen in the proposed legislation. The main objective of the Bill is to protect IK of indigenous communities from unauthorised use, misappropriation and misuse, and to regulate the fair and equitable distribution of benefits from its commercialisation. The Bill also makes provision for mechanisms in terms of accreditation and certification of IK practitioners.

Clause 4

It allows for the establishment of the National Indigenous Knowledge Systems Office (NIKSO) within the Department.

Clause 5

It specifies the duties, powers and functions of NIKSO.

Clause 6

It empowers the Minister to appoint a person with expertise and knowledge as the Head of NIKSO. The person would be responsible for the administration and general management of NIKSO.

Clause 7

It allows for the establishment of an advisory panel comprising representatives of relevant governmental departments, IK holders, industry and specialists in the discipline of practice of IK.

Clause 8

It speaks to the identification of the roles of members of the advisory panel, which is to advise NIKSO on strategic issues around IK and assist with the mobilisation of indigenous communities (ICs) for purposes of pursuing specific activities performed by NIKSO.

Clause 9

It provides for the subject matter under protection, within the meaning of Section 25 of the Constitution. In addition, the sub-clause provides for IK as property vested in the relevant IC.

Clause 10

It provides for duration of protection of the subject matter which would persist for as long as the eligibility criteria set out in Clause 11 were met.

Clause 11

It enumerates the eligibility criteria for the protection of IK, which has been handed down from generation to generation within an IC, has been developed within an IC and is linked with the socio-cultural identity of that IC.

Clause 12

It affirms that the custodianship of IK eligible for protection vests in the trustees of an IC, who holds the IK in trust on behalf of IC and is responsible for and accountable to the IC for the protection of their rights.

Clause 13

It provides for the ICs holding IK to have exclusive right to any benefits that arise from its commercialisation, to be acknowledged as its source, and limit any unauthorised use of the IK.

Clause 14

It outlines the purpose of the accreditation of assessors, and sets out an application process

Clause 15

It provides for persons wishing to register their qualifications as an IK practitioner and be so certified and recorded in the Register of Designations.

Clause 16

It provides for the Register of Designations, where persons other than the IC or an individual within the IC may access information.

Clause 17

It provides for the establishment of the Registration Office for IK.

Clause 18

It provides for the appointment of a suitably qualified person as the Curator of IK who would be responsible for the control of the Registration Office.

Clause 19

It provides for the creation and maintenance of a system of registration of IK by NKISO, and for the Minister to prescribe procedures and conditions for storage, access, transmission, management and security of the registered IK.

Clause 20

It provides for a trustee to apply to the Curator for the registration of IK. Under this sub-clause, the Curator may approve or deny the application subject to any conditions or limitations, or reject the application if it does not meet the criteria set out in Clause 11.

Clause 21

It mandates the Curator to make the Register available for inspection by the public. However, documents relating to the registration of IK may be made available only if the person seeking access enters into a prescribed non-disclosure agreement.

Clause 22

It provides for a certificate issued by the Curator, in respect of any record, was presumed evidence of the content thereof and action authorised therein, unless proven otherwise.

Clause 23

It provides for the Register to be a constructive notice in any proceedings relating to the rights registered in respect of IK.

Clause 24

It provides for an interested person applying to amend the Register in the prescribed manner, upon application and after granting the IC, an opportunity to make representations in response to the application to the Curator for the amendment of the Register.

Clause 25

It provides for the facilitation and coordination by NIKSO of all IK activities which relate to the commercial utilisation of IK products, services and processes.

Clause 26

It affords an opportunity for any persons seeking to use IK for commercial purposes to apply in the prescribed manner for a licence authorising the use of IK. The person is required to enter into a licence agreement with the trustee of the relevant IC for the use of that IK. In addition, the sub-clause provides for exceptions and limitations in relation to access to the IK, including acknowledgement by users of IK of the geographical location from which the indigenous resources originated.

Clause 27

It empowers the Minister to appoint members of the dispute resolution committee on an ad hoc basis, to resolve any dispute arising from this Bill.

Clause 28

It provides for penalties and offences arising from the unauthorised use of IK for commercial purposes.

Clause 29

It sets out the process and the conditions for the protection of IK resources originating from foreign jurisdictions, and in instances where IK originates in one or more ICs in foreign jurisdictions.

Clause 30

It provides for multiple claims to IK. In this context, any remuneration payable under a benefit sharing agreement must be apportioned equally among the trustees.

Clause 31

It grants the Minister power to make regulations on any matter pertaining to the protection, promotion, development and management of IK and other incidental or ancillary matters.

Clause 32

It speaks to the relation of the Bill to relevant laws

Clause 33

It provides for compliance within 12 months from the effective date in relation to the continued use of IK, which is done prior to the coming into force of this Act

Clause 34

It provides for the short title and commencement.

Discussion

A Member of the ANC condemned the division and discrimination caused by the South African Constitution. South Africa had one of the most comprehensive Constitutions in the world, but there were specific areas that must be addressed in the Constitution so that no groups of people were excluded. A serious case of racism may arise if legislation was wrongfully implemented. He sought clarity on how government, leaders and professionals interpreted the constitution. He expressed concern about the ability of the Bill to address the upgrading, education, provision and maintenance of indigenous communities. Every stakeholder must ensure that the Bill accommodates every aspect of IK so that no one was marginalised when the Bill became an Act. Every element of the Bill must be critically examined so that those affected by the Bill can be protected. He urged the Committee to ensure that the language and terms used in the Bill must be clear enough and acceptable to everyone so that people would have appropriate understanding of its contents.

Khoi Chief Abraham Johnson sought clarity on how the Bill would impact on the youth.

Chief Ben Hout said that the indigenous people should be acknowledged, and they had the right to enjoy the benefits associated with their resources as well as their knowledge. The IC should be given preference when it comes to acquisition and access to land. They should not be required to register before they could enjoy such benefits.

Professor Sadulla Karjiker: Submission

Professor Sadulla Karjiker: Chair: Intellectual Property Law, Stellenbosch University, started by commending the initiative of the DST to legislate on IK, which was not an easy aspect to legislate on. He spoke of the Bill in relation to the Intellectual Property Law (IPL) that was passed in 2013. The legislation seeks to incorporate IK into IPL.

According to Professor Karjiker, the legislation had introduced considerable uncertainty and done enormous damage to IPL in South Africa. He said that the Amendment, if passed, had the potential to tarnish South Africa’s image on a global scale. He had canvassed for the repeal of the amendment in order to sustain the integrity and efficacy of IPL. Despite his criticism of certain aspects of the Bill proposed by DST, he urged the Committee to support the Bill, as it represented the best option to protect and promote IK for the time being.

He expressed concern about the effect of the Intellectual Property Law Amendment Act on South African youths. One lived in a global village, where innovative youths come up with ideas capable of re-imagining their traditions in the new age. Youths should be proud of re-imagining the traditional and cultural expressions of the communities and giving it a new interpretation which helps to express the dynamism of their culture. South Africa would be plying a lonely path if this piece of legislation was passed, as it would shut out South Africans from the rest of the world since it had no effect outside South Africa’s borders. This placed South Africans, especially the youths, at a disadvantage in relation to other parts of the world.

He stressed that the legislation should only target aspects of IK that had spiritual and religious significance that may constitute an offence to certain groups of people. Such aspects should be outlawed. He cautioned, however, that government bureaucracy should not be allowed to stifle innovation and creativity in South Africa. He also cautioned against the myopic nature of the legislation and encouraged South Africans to be proud of who they were. He advised Africans to place a premium on indigenous creativity and innovation as opposed to foreign designs. Children must be instructed to be proud of their African heritage. He reiterated that the importance of avoiding symbolisms with spiritual and cultural significance that could constitute offence. On the other hand, youths should be allowed to access and explore knowledge that was within the public domain.

Ms Shumi Pango (DST): Submission

Ms Shumi Pango, Deputy Director: DST, commended the submission by Professor Karjiker. She said the DST was one of the first entities in sub-Saharan Africa to legislate on protecting IK, which had not been protected prior to this time. She acknowledged the difficulty involved in this legislation due to the conflict of interests arising from different interest groups. People were cautious about the outcomes of the Bill. It was therefore important to engage the provinces and the communities by extension. Their inputs were needed so that no one was left out or marginalised when the Bill eventually became an Act. She acknowledged that the DST did not have answers to all the questions that bothered the individual communities.

In response to the question on the uniqueness of the Bill proposed by the DST, Ms Pango said that this Bill was different from others because it allowed for the creation of NIKSO. The Office was empowered to handle matters relating to IK that did not fall under the mandate of the DST, which was basically research and development. The Bill empowered the Curator to approve or deny the application for the registration of IK, subject to any conditions or limitations, or reject the application if it did not meet the criteria set out in Clause 11. The Bill also empowered the Minister to constitute an advisory panel, headed by a skilled person, who was responsible for the management and administration of NIKSO. The Bill spelt out the roles and the functions of NIKSO. The Office was empowered to deal with matters that constituted an offence. The Office would become operative only when the Bill became an Act. She spoke on the feasibility studies conducted in relation to the Bill and the involvement of the National Treasury (NT).

Regarding the question of how youths benefited from the Bill, Ms Pango said that the DST had introduced a community-centred initiative to learn how various communities would perceive the programme. She remarked that this was only a pilot project, and was not reflective of the perspective of the entire IC.

The DST also had another initiative currently managed by three universities -- the Universities of Limpopo, North West and Venda. The initiative seeks to incorporate IK into the mainstream of university curricula, and aims to encourage youths to get certification in IK.

According to Ms Pango, the apportionment of land and other resources, either genetic or biological, did not come under the mandate of the DST. The Bill did not have anything to do with the allocation of resources, which could be handled only by the Department of Environmental Affairs. The DST was only interested in the level of knowledge of the practitioners. This also applied to the practice of IK. For instance, the Department of Health dealt with the know-how and regulation of any products that had a health significance.

On repealing the Intellectual Property Law Amendment Act, Ms Pango said the Minister of DST could not repeal a Bill that originated from another department. The Minister could only repeal Bills that originated from the DST.

She acknowledged the various conflicting interests relating to the Bill. It therefore meant that the Bill had a long way to go before it could become an Act. There must be a way to resolve the conflict between the conventional IP system and IK. She cautioned against the wrong incorporation of IK into the Intellectual Property Rights (IPR) in order to protect the current legislation on IP. The DST had come up with a viable alternative because it had no intention of interfering with IPR.

The first conflict that may arise from the incorporation of IK into IP related to novelty. According to Ms Pango, IK could not be considered novel as it was passed down from generation to generation. It could not be considered new, so it could not be incorporated into IPR, where novelty was an essential criterion.

South Africa was the third most culturally diverse nation in the world, but the cultural diversity had failed to translate into economic development. She urged ICs to be creative and innovative instead of relying on others to create wealth for them. It was important to acknowledge the source of any knowledge that had the potential to initiate development, and benefit sharing must be fair. There were different guidelines that governed benefit sharing, as it may be in the form of corporate social responsibility like building schools, roads and hospitals, amongst others. It was important that the beneficiaries gave back to the communities from which they profited.

About the universality of the Bill, Ms Pango said South Africa was the first country in sub-Saharan Africa that aimed to protect and promote IK. Although Kenya had passed its IK Act, it did not take into account the tradition and cultural expressions, as well as the genetic resources. The IK Bill dealing with traditional and cultural expressions as well as genetic resources, was still being debated at the World Intellectual Property Organisation (WIPO). There was no International consensus yet on this issue because it had the potential to change the status-quo, which would be to the disadvantage of the main culprits that had benefited for a long period of time. This was why there was a lot of pressure to limit the relevance of the Bill to South Africa. Fortunately, the Nagoya Protocol provided for the registration of access to resources. The DST aimed to use the IK Bill as a support base for the Nagoya Protocol, which protects resources that have IK significance.

Discussion

Mr Tauriq Jenkins, High Commissioner: Goringhaicona Traditional Council, acknowledged the Bill as a post-colonial restitution of cultural management. He brought several contentious issues to the attention of the House. Chapter 4, Section 11a to c of the Bill, spoke to eligibility criteria for protection. According to this portion, the protection of IK contemplated in section 9 applied to IK which had been passed from generation to generation within an IC, had been developed within the IC, and was associated with the cultural and social identity of that IC. This was a deeply divisive Bill for a community that was just arising out of ethnocide, and was beginning to re-imagine its history. Most of these communities had been destroyed and collapsed for hundreds of years.

He stressed that some of the IK might have been lost due to gaps that had occurred between successive generations. It was important for ICs to utilize the Nagoya Protocol to protect their intangible knowledge and history. Everyone affected should work together to ensure mutual benefits when cultures were shared. The IC must protect their culture from those who were in custody of their relics. He lamented that the majority of the relics had not been extradited or returned home. When it came to the ownership and vestige of the heritage shared by ICs, the ICs must ensure the protection and promotion of their interests when dealing with post-colonialism and foreign policies.

Dr Koreen Langeneldt, a representative of a pharmaceutical company, expressed surprise that the full set of legislation passed by the Department of Environmental Affairs in 2004, especially the Environmental Management Act, had not been considered in the Bill proposed by the DST. Also, a set of regulations had been promulgated by the DEA in 2008, which covered most of the matters addressed by the DST Bill.

He was concerned that the DEA regulation of 2008, which dealt with bio-prospecting of indigenous and biological resources as well as benefit sharing, was being neglected. According to Dr Langeneldt, there were benefit sharing agreements in the Western Cape between companies and relevant communities. Among other things, the communities had received payments from the Minister of Environmental Affairs. He was concerned that the departments were not working together as far as legislation was concerned. His company was in the process of acquiring land for business and signing relevant agreements. He urged the House to consider the DST Bill as a complement to previous legislation by the Department of Trade and Industry (DTI) and the DEA.  The departments must work together in order to ensure an effective system.

Ms Kim Essen, High Commissioner: Goringhaicona Traditional Council, acknowledged the importance of passing IK from generation to generation. However, she expressed concern about those whose ancestors had not bequeathed the IK to them. In her opinion, those who did not belong to an IC could not dictate how indigenous people managed their affairs. She expressed doubt about the ability and readiness of a specialised office to protect the interests of ICs. She expressed concern about the provision for penalties in the Bill, as well as Section 41 of the 1996 constitution.

Mr George Magogo said indigenous people should be recognised and acknowledged as the source of IK. He stressed that the indigenous people were masters as far as IK was concerned. He felt the Bill was not going to work if matters like land and compensation were not considered. The whole benefits should not go to foreigners. The indigenous must be recognised and acknowledged appropriately.

Reverend Gregg Fick, Indigenous First Nation Advocacy South Africa (IFNASA) sought clarity on the identity of the first indigenous people (IP) of Southern Africa. He lamented the inability of the Bill to recognise the first IP of Southern Africa, who he referred to as the Khoe-Sans. The South African Constitution also did not recognise the Khoe-Sans as the first IP of Southern Africa.

He said the right to life and culture, recognition of knowledge and right to self-determination were embodiments of self-government, which was recognised in international law. This was needed for the survival of a community of people. He stressed that the first IP of Southern Africa must be actively involved in decision-making that had a direct impact on their lives. In his opinion, the Bill must first recognise the first indigenous people of Southern Africa before any meaningful engagement with the ICs can occur. The ICs must be given the right to self-determination, which empowered them to decide on their future.

He said the Bill had failed because the free and prior-informed consent of the IP was not respected. The free and prior informed consent were basic rights of every South African citizen. Apart from the call to recognise and acknowledge the IP of South Africa, it was important that they had the ability to influence decisions that affected their lives. He spoke of the marginalisation of the IP and the plights of those around the Cape Flats, through poverty and genocide. He lamented that the IP had lost so much of their IK because it had been stolen from them. The Bill failed to address the illegality and injustice that the IP had suffered. The culprits who robbed IP of IK should be held accountable. The IP could not forget what had been stolen from them.

The Bill must address the rights of IP to their lands and resources, because the protection and promotion of IK could not be divorced from their rights to land resources. The right to access of land was vital to their economic survival and self-determination. It also affected the ability of IP to practice their culture and traditional ways of life. The Bill lacked the ability to protect the IP in terms of the distinction they possessed, and so it worked against the interest of ICs. The ICs wanted a Bill that empowered their rulers and leaders to take charge of their socio-cultural, economic and political affairs. The ICs did not want structures that would diminish their interests. The IP must be involved in the identification and selection of those who lead, and they must be actively involved in decision-making. According to the Rev Fick, the meeting was a failure because it excluded the majority of the ICs, in terms of location, from participation.

He referred to the statement made by a Deputy Minister in 2016 regarding the first IP and their rights. He asserted that the Deputy Minister had said that the Constitution could not recognise the first IP of Southern Africa due to consequences such as compensation, the return of land and access to wealth for the IP. He considered such a statement unconstitutional, unfair and unjust.

A business representative lamented the lack of coordination among the various government departments and the inconsistency in terms used. He pointed to the non-continuity of the legislation earlier promulgated by the DEA, which made it difficult for companies to operate due to lack of permits. Companies should be made to understand the specific requirements so that business could be done and benefits shared with the ICs. He urged that matters related the management and regulation of IK be transferred from the DEA to the DST.

A community leader condemned the decision of the DST to have the pilot project at the Universities of North-West, Limpopo and Venda. The Western Cape (WC) was the home of the IP, which meant that the DST had broken the trust of the IP. He lamented the variance that existed among the legislation promulgated by different government departments. He expressed concern that the current Bill contained a lot of uncertainties that the IP were not comfortable with. The IP were not ready to share their money, resources and knowledge with anyone else, because there was no basis for doing so. He condemned the failure of the Department to consult with the ICs before the Bill was drafted, and condemned the Bill itself in strong terms on behalf of the IP.

He cautioned that IK, in all its forms, should not be commercialised. He lamented that the IP, after being buried for about 100 years, were considered objects that could be exhumed and handled in a manner pleasing to the culprits. He cited instances where relics from ICs were dug up and sold at exorbitant prices in the open market. He also condemned the marginalisation of IP. To him, everything in South Africa was centred on the white and black races. He urged the Khoe-Sans and the blacks to reject the Bill. The Bill implied criminality to the IP. He spoke about the importance of restitution, particularly the restoration of lands to the ICs.

Mr C Randall, an educator and first coordinator of IKS in the WC, lamented the existence of loopholes in the Bill proposed by the DST. He said it was not possible to acknowledge a people if one did not know what they knew. It was impossible to document IK without appropriate recognition, definition and acknowledgment of ICs. He stressed that a community of people transcended those characterised by a group of practices. IK was a collective, but not an individual, heritage that could be isolated to the rulers. The chief and traditional rulers must be addressed in relation to the IP they ruled. Benefit sharing must precede documentation of IK. The Bill was myopic in that it only considered medicinal products, and it should also consider other aspects like food, fishes, constellation and tracking. He urged the different government departments to work together in order to harmonise the various legislations. He considered the Bill, as well as the establishment of NIKSO, as a wasted effort because the Bill failed to protect or promote IK or the rights of IP. The Bill did not consider IP in terms of benefit sharing.

Mr Anthony Williams, Executive Chairperson: Indigenous First Nation Advocacy South Africa (IFNASA), expressed concern about the timing and the location of the meeting, as the majority of the IP were unable to attend. The meeting was far removed from the IP of the WC, who the Committee sought to engage. He urged the IP to reject the Bill. The IP should not be a part of a Bill that worked against their interests. He sought clarity about the perspective of the Bill in terms of big companies that had benefited from the resources belonging to the ICs.

Ms Erica Wiersma, Personal Assistant to Paramount Chief Aran, Goringhaicona Khoi Khoin Indigenoue Traditional Council, said there should be an interim office, apart from NKISO, that could operate as an advisory body and specialised service delivery unit for the issuance of permits, certification, knowledge collection, benefit sharing and bio-prospecting, amongst others.

A traditional ruler condemned the failure of government to involve the IP when the Bill was drafted. He lamented the discrimination against witch doctors and the preference of conventional medicine over traditional practices. He urged government to consult with the right set of people before the Bill could be made an Act.

Prof Karjiker said the Bill was deeply contentious and divisive. He felt an extensive study should precede the Bill in order to have a repository of knowledge about IC and their knowledge. He cautioned that the relationship between big pharmaceutical companies and ICs should not be a zero-sum game that benefited only the big players. He urged the IC to take advantage of the current global demand for organic and natural products in order to improve their lot. He sought clarity on why the government of South Africa fought against the legalisation and commercialisation of cannabis. The use of cannabis had been legalised in some countries.

A paramount ruler decried the lack of access to education in ICs. He stressed the importance of protecting the IK and resources of ICs from external influences. In his words, “the Bill was not our Bill”. He encouraged government and other interest groups to acknowledge ICs and ensure equality in various aspects of the process. The ICs and other interest groups should work together for mutual benefits. He said it did not help to fight the ICs.

Mr C Kivedo (DA), a member of the Western Cape Legislature, acknowledged the potential of the Bill to arouse conflicting interests. He asked if the Bill conformed to the South Africa Constitution. He urged that people with local herbs with the potential to heal, must take their products through the necessary tests to verify their safety and efficacy. He urged the people of the WC to have effective and strategic communication that would lead to cooperation and development.

The Chairperson remarked that the meeting had been the fourth public hearing. The previous hearings had been held in other venues in the WC. He alluded to the fact that the Western Cape Legislature had included all the ICs all along. He assured the people that Members of the Parliament were their representatives, and were not lawyers. The Committee would review the Bill and ensure that it benefited all people and communities affected before it became an Act.

He commended the appropriate behaviour displayed by everyone in attendance.

The meeting was adjourned.