Consent, Decision Making and Dispute Resolution of Traditional Knowledge and Cultural Expressions under “The Protection of Traditional Knowledge and Cultural Expressions Act” in Kenya

Abstract

Traditional Knowledge and Cultural Expressions are a sui generis form of Intellectual Property that vests in Indigenous communities. Through generations of livelihood and interaction with their environment, these communities discover, develop and maintain knowledge and express it as part of their cultural heritage. This enduring relationship with such patrimony is slowly gaining recognition internationally and consequently being protected by state laws against abuse and exploitation by third parties. This paper examines Kenya’s protection under ‘The Protection of Traditional Knowledge and Cultural Expressions Act’ and argues that the rules as to consent, decision making and dispute resolution, remain unclear and impracticable. This paper argues that these sections are bound to create an implementation difficulty in the Kenyan context. This paper also briefly considers other problematic sections of the Act that unavoidably affect the issues under discussion. In doing so, it assesses the practice and experience of more advanced jurisdictions in protecting their Indigenous knowledge and its forms of expression. This research briefly looks at the issue of intergenerational loss of knowledge that may need to be considered in the Kenya in the near future. Consequently, the study recommends amendments to the Act to clarify ambiguous sections. It also suggests that clear and concise rules or regulations of the implementation process ought to be crafted. Further, that awareness as to indigenous knowledge rights be conducted to allow for alternative solutions to the identified gaps in the Act such as creating institutional corporations and protection groups to actively implement the protection of the rights in question.