Protecting traditional knowledge in Kenya through African Customary Law: an analysis of inclusive subordination
Mwangi, Claude Kamau
MetadataShow full item record
Traditional knowledge as an intellectual resource has in recent decades gained increased legal recognition as a proprietary entitlement of indigenous and local communities. It forms the fabric of their social, economic and, sometimes, religious life. Human rights law and intellectual property law have variously constituted regimes for the protection of traditional knowledge as a traditional right, but they have both, arguably, done a suboptimal job. The basic reason for this failure has been the general incompatibility of traditional knowledge systems and conventional legal tools especially those under intellectual property law. Whilst it is recognised that there are many meaningful overlaps between conventional intellectual property forms and traditional knowledge, it goes without saying that there are significant departures made by the latter which would demand a more carefully calibrated scheme of protection. There is now wide consensus in literature that a unique (sui generis) regime of law should be employed to regulate traditional knowledge rights and to protect traditional knowledge. On this point, it is possible to locate customary laws as an integral cog in the wheel of such protection, going by the nature of creation, use and transmission of traditional knowledge, which is within a communal setting for transgenerational purposes. Adequate protection of traditional knowledge would thus require a robust scheme of customary law (and in the case of Kenya, African Customary Law) to form the normative and institutional foundation for protecting traditional knowledge. The history of application of African Customary Law in Kenya is fraught with a systemic legal technique whose effect is to subjugate African Customary Law even where it is the appropriate defining regimen. This trend is apparent from statutory instruments and, most explicitly, in judicial decisions. An analysis of the legal environment surrounding traditional knowledge in Kenya suggests that the expressed legislative intent to protect traditional knowledge through African Customary Law is likely to yield no positive results. Inclusive subordination of African Customary Law, as long as it remains a reality in the Kenyan legal system, will stand in the way of any efforts to meaningfully protect traditional knowledge.