Kenya recognizes the value of its biodiversity and the traditional knowledge of the Kenyan people. The country has played a leading role in the African wildlife conservation movement and has successfully implemented many of the provisions of the Convention on Biological Diversity and the Cartagena Protocol on Biosafety.
Kenya has adopted a policy that promotes biotechnology and authorized access to Kenya’s genetic patrimony as ways of conserving the country’s biodiversity.
In 2006, Kenya approved a National Biotechnology Development Policy. At the time of passage, the government acknowledged the benefits that can result from biotechnology, including the reduction of poverty, increased food sustainability and diversification, and general biological and ecological conservation. The policy serves to promote research, development and use of biotechnology in the country. It sets forth principles governing safety procedures for research and development, technology transfer and the sale of resulting products. The policy also requires the prior approval of all biotechnology applications before being used in the country.
Biotechnology requires access to a country’s genetic resources and a clear understanding of what benefits will be given for such access.
To access Kenya’s genetic patrimony, interested parties must comply with the provisions of the Environmental Management and Co-ordination (Conservation of Biological Diversity and Resources, Access to Genetic Resources and Benefit Sharing) Regulations, 2006, including filing an application for access with National Environment Management Authority, indicating among other things, the resources of interest, the collection method, the intended use of the samples. Other requirements include prior informed consent from the interested parties, applicable government agencies and an approval of the scientific protocol from the National Council for Science and Technology.
The Regulations also provide examples of monetary and non-monetary benefit sharing, including: application fees; one-time payments; royalties; joint ownership of resulting products; transfer of technology; access for Kenya to international ex situ facilities and databases of genetic resources; and the transfer to Kenya of genetic resources to expand its National Gene Bank. Concrete examples of benefit sharing agreements reached between the Kenya, represented by the Kenya Wildlife Service and foreign companies for bioprospecting permits include royalties for specific time periods, capacity building, transfer of technology and co-ownership of resulting intellectual property.
Applications for access are published for public comment. If the Authority is satisfied that the activity to be carried out shall facilitate the sustainable management and utilization of genetic resources for the benefit of the people of Kenya, the application will be granted.
TransLegal has worked with clients in numerous countries on issues related to access and benefit sharing issues, biotechnology and genetically modified organisms. Contact us to discuss your questions about these matters.