An analysis of the protection of traditional medical knowledge from biopiracy: challenges and implications for indigenous knowledge in Uganda.

Abstract

The study examines the protection of Traditional Medicinal Knowledge (TMK) from biopiracy and its implications for indigenous knowledge (IK) in Uganda. It was motivated by concerns from policymakers, civil society, indigenous communities and academia about the risk of biopiracy and the denial of the indigenous communities the right to a share of benefits arising out of the knowledge they have held for centuries. The central argument of this thesis is that the legal protection of TMK from biopiracy in Uganda is inadequate and needs to be urgently addressed. As its objective, the study sets out to critically analyze the efficacy of the laws on the protection of TMK from biopiracy,evaluate them with the object of identifying an appropriate system of protection of TMK from biopiracy, the initiatives taken so far and systems applied in other jurisdictions to identify that which is applicable, and suggest solutions for an effective protection mechanism of TMK from biopiracy in Uganda. The study adopted the qualitative research approach using socio-legal and doctrinal research methodologies to bring out the social aspects of the protection of TMK from biopiracy while at the same time analyzing the law as is—thus permitting the synthesis of rules, principles, norms and values yet taking into consideration the social context. The study relied on the documentary review method and field data collected from key stakeholders concerned with the protection of TMK such as—elders drawn from some clans of Buganda, traditional healers, scholars from the academia, and those from key and incidental institutions concerned with TMK protection using the purposive sampling technique. The study inter alia found that various domestic legislations in Uganda have provisions related to the protection of TMK while a definition of traditional and complementary medicine concerning modern medicine and the control and regulation of the practice of traditional and complementary medicine is provided in the Traditional and Complementary Medicine Act 2019. Furthermore, the Sui Generis system of protection of TK appears to be appropriate for Uganda as it is flexible and could be designed to take the circumstances in the country into consideration. While exposing the limitations of the existing legal framework for the protection of TMK from biopiracy, the study makes the case that the domestic regulations are scattered in various laws and do not bring into effect the provisions of the international instruments based on the state sovereignty principle. The study concludes that protection of TMK from biopiracy exists in the traditional form of secrecy—which also risks the loss of such knowledge in the event of the death of the individual holder given that the knowledge is not documented. The present legal framework is deficient in the protection of TMK from biopiracy in Uganda, exposing TMK to biopiracy and denying the knowledge-holding communities a share of benefits for the knowledge they have held for generations. The study bears serious connotations for indigenous knowledge in Uganda as biopiracy could lead to infringement of the moral rights of the indigenous communities and the consequent loss of their identity. The study recommends that the GoU should: enact and/ or align domestic laws with the regional and international instruments dealing with TMK; ensure that indigenous communities share benefits accruing from their knowledge; meaningfully increase the involvement of the indigenous communities in matters concerned with the protection of TMK from biopiracy; institute an effective coordination mechanism to bring together the key players concerned with TMK in Uganda; urgently develop an appropriate system for the protection of TMK along the Sui Generis system; should establish a TMK repository system where TMK attributed to communities shall be maintained and exclude its appropriation unless the indigenous communities so authorize; in collaboration with civil society and Non-Governmental Organizations (NGOs) document the knowledge and feed it into a national database.