Critical analysis into the protection of traditional medical knowledge in Kenya : Lessons from India and Peru

Abstract

The practice of traditional medicine amongst communities has taken place from time immemorial. Such practices are so engrained to the culture and identity of the communities that lack of recognition and protection would be a great injustice to the communities. Traditional medicine have had such a great impact, especially in Africa. This is because, for a long time it was and, in some parts, remains to be the primary source of healthcare for many. Over recent years, there has been a shift towards the use of natural resources for the production of medicine by the western world. This has led to unlawful exploitation of indigenous communities’ traditional knowledge especially in third world countries. In response, there has been debate over how traditional medicine and traditional knowledge as a whole can be protected for the benefit of the local communities. Many have agreed that due to the dynamic nature of traditional knowledge there is need for a sui generis regime to efficiently protect these practices. Kenya is one of the countries that has taken the bold step of providing a sui generis legislation, The Protection of Traditional Knowledge and Cultural Expressions Act. This study seeks to critically analyse the new legislation to establish its efficiency in protecting traditional medical knowledge. Furthermore, it will provide recommendations for its improvement based on best practices adopted in other jurisdictions such as India and Peru.