By Dr. Kariuki Muigua, PhD (Leading Environmental Law Scholar, Policy Advisor, Natural Resources Lawyer and Dispute Resolution Expert from Kenya), Winner of Kenya’s ADR Practitioner of the Year 2021, ADR Publisher of the Year 2021 and CIArb (Kenya) Lifetime Achievement Award 2021*
The legal and institutional framework on traditional environmental knowledge exists at international level, constitutional level and legislative level. At the international level, there has been a growing recognition that traditional knowledge and customary sustainable use underpin indigenous peoples’ and local communities’ resilience to change including climate change, as well as contribute directly to biological and cultural diversity, and global sustainable development. In particular, Article 6 of the Convention on Biological Diversity provides that each Contracting Party should, in accordance with its particular conditions and capabilities: develop national strategies, plans or programmes for the conservation and sustainable use of biological diversity or adapt for this purpose existing strategies, plans or programmes which should reflect, inter alia, the measures set out in the Convention relevant to the Contracting Party concerned; and integrate, as far as possible and as appropriate, the conservation and sustainable use of biological diversity into relevant sectoral or cross-sectoral plans, programmes and policies (emphasis added).
The Convention on Biological Diversity recognizes the importance of indigenous and local communities to the conservation and sustainable use of biological diversity. The key provisions are to be found in Article 8(j) which requires that the traditional knowledge of indigenous and local communities be respected, preserved and maintained; that the use of such knowledge should be promoted for wider application with the approval and involvement of the holders of such knowledge; and that they should equitably share in the benefits which arise from the use of their knowledge. Article 10(c) of the Convention on Biological Diversity further provides that each Contracting Party shall, as far as possible and as appropriate protect and encourage customary use of biological resources in accordance with traditional cultural practices that are compatible with conservation or sustainable use requirements. This is the only international Convention that expressly recognises the role of traditional knowledge in environmental management and sustainable development agenda.
The United Nations Declaration on the Rights of Indigenous Peoples, provides that indigenous peoples have the right to maintain, control, protect and develop their cultural heritage, traditional knowledge and traditional cultural expressions, as well as the manifestations of their sciences, technologies and cultures, including human and genetic resources, seeds, medicines, knowledge of the properties of fauna and flora, oral traditions, literatures, designs, sports and traditional games and visual and performing arts. They also have the right to maintain, control, protect and develop their intellectual property over such cultural heritage, traditional knowledge, and traditional cultural expressions. In conjunction with indigenous peoples, States are obligated to take effective measures to recognize and protect the exercise of these rights.
The Food and Agriculture Organization of the United Nations (FAO) opines that the promotion and protection of traditional and local food and agricultural knowledge will require international, intercultural and interdisciplinary approaches, communication and cooperation. Coordination of indigenous and local communities’ sustainable use, conservation and management of food and agriculture within and across ecosystems, landscapes and seascapes will also require synergies that link food security, livelihood sustainability, poverty alleviation and food and agricultural productivity to rural development processes based on in and ex situ conservation of food and agricultural genetic resources. Traditional environmental knowledge from these communities thus becomes relevant in achieving the foregoing.
At the national level, article 11 of Constitution of Kenya provides that culture is the foundation of the nation and the cumulative civilization of the Kenyan people and nation. Specifically, it obligates the State to, inter alia, recognise the role of science and indigenous technologies in the development of the nation, and, recognise and protect the ownership of indigenous seeds and plant varieties, their genetic and diverse characteristics and their use by the communities of Kenya (emphasis added). Further, with respect to the environment, the State is obligated under Article 69 to protect and enhance intellectual property in, and indigenous knowledge of, biodiversity and the genetic resources of the communities. The State should not just protect the indigenous knowledge but should also actively promote the use of this knowledge for environmental protection and conservation for sustainable environment.
Notably, one of the national values and principles of governance as outlined under Article 10 of the Constitution is sustainable development. The principles of sustainable development as captured in section 3(5) of Environmental Management and Coordination Act (EMCA) include: the principle of public participation in the development of policies, plans and processes for the management of the environment; the cultural and social principle traditionally applied by any community in Kenya for the management of the environment or natural resources in so far as the same are relevant and are not repugnant to justice and morality or inconsistent with any written law (emphasis added); the principle of international co-operation in the management of environmental resources shared by two or more states; the principles of intergenerational and intragenerational equity; the polluter-pays principle; and the pre-cautionary principle. This is a clear indication of the central role that traditional environment knowledge should play in realisation of the sustainable development agenda.
The Protection of Traditional Knowledge and Traditional Cultural Expressions Act, 2016 (No. 33 of 2016) was enacted to provide a unified and comprehensive framework for the protection and promotion of traditional knowledge and traditional cultural expressions; and to give effect to Articles 11, 40(5) and 69 of the Constitution. One of the main purposes of the Act is to recognize the intrinsic value of traditional cultures and traditional cultural expressions, including their social, cultural, economic, intellectual, commercial and educational value. The Act defines “traditional knowledge” as any knowledge originating from an individual, local or traditional community that is the result of intellectual activity and insight in a traditional context, including know-how, skills, innovations, practices and learning, embodied in the traditional lifestyle of a community, or contained in the codified knowledge systems passed on from one generation to another and includes agricultural, environmental or medical knowledge, and knowledge associated with genetic resources or other components of biological diversity (emphasis added), and knowhow of traditional architecture, construction technologies, designs, marks and indications. While the enactment of this Act marked a milestone in recognition of traditional knowledge, there has been little in terms of evidence of its implementation especially in environmental management and governance matters.
*This article is an extract from the Article: Mainstreaming Traditional Ecological Knowledge in Kenya for Sustainable Development, (2020) Journal of Conflict Management and Sustainable Development Volume 4(1), p. 1. by Dr. Kariuki Muigua, PhD, Kenya’s ADR Practitioner of the Year 2021 (Nairobi Legal Awards), ADR Publisher of the Year 2021 and ADR Lifetime Achievement Award 2021 (CIArb Kenya). Dr. Kariuki Muigua is a foremost Environmental Law and Natural Resources Lawyer and Scholar, Sustainable Development Advocate and Conflict Management Expert in Kenya. Dr. Kariuki Muigua is a Senior Lecturer of Environmental Law and Dispute resolution at the University of Nairobi School of Law and The Center for Advanced Studies in Environmental Law and Policy (CASELAP). He has published numerous books and articles on Environmental Law, Environmental Justice Conflict Management, Alternative Dispute Resolution and Sustainable Development. Dr. Muigua is also a Chartered Arbitrator, an Accredited Mediator, the Africa Trustee of the Chartered Institute of Arbitrators and the Managing Partner of Kariuki Muigua & Co. Advocates. Dr. Muigua is recognized among the top 5 leading lawyers and dispute resolution experts in Kenya by the Chambers Global Guide 2022.
References
Muigua, K., “Mainstreaming Traditional Ecological Knowledge in Kenya for Sustainable Development,” (2020) Journal of Conflict Management and Sustainable Development Volume 4(1), p. 1.