Oloisuki – A tale of biopiracy in the Maasai Steppe, Tanzania

by Eliamani Laltaika

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Imprint Editor: Church Development Service (EED) Ulrich-von-Hassell-Str. 76 D-53123 Bonn Telephone: +49 (0)228 8101-0 E-Mail: eed@eed.de www.eed.de Author: Eliamani Laltaika Editing: Michael Frein, Stefan Tuschen Picture credits: Eliamani Laltaika (S. 5) Bonn, Mai 2011 REG.NO. DE-110-00028

Preface

In one way or the other, each case of biopiracy is unique. Yet, we argue that there is a more or less common pattern. In many cases we find indigenous peoples who have developed their traditional knowledge over the centuries and thus make use of the curative properties of plant genetic resources. However, there are also always people with certain knowledge in research and development of products merchandised by, inter alia, the food, cosmetic or pharmaceutical industry. Or people, who have, for whatever reasons, connections with professionals in the respective areas. As one might imagine, these are two worlds apart. For the indigenous peoples the knowledge of what happens in the industrialised, commercial sphere, where the money is made, is very limited.

This pattern is evident in the case regarding the Oloisuki tree. There are the Maasai, who are said to be the owners of Oloisuki and the holders of the associated traditional knowledge of the use of its curative properties. On the other hand there is a Swiss connection who is trying to exploit it – for its own sake or be it, in first or second instance, for the sake of the Maasai. In this context, the crucial point is: using Oloisuki is a case of biopiracy for the simple reason that the genetic resources of Oloisuki are being used by foreigners without Prior Informed Consent (PIC) or Mutually Agreed Terms (MAT) of the owners of the resource and the holders of the relevant traditional knowledge.

The litmus test is not how much money has been made but rather whether there is a “use” or not. And the term “use”, according to the Nagoya Protocol on Access and Benefit-sharing, is defined as “research and development”. As the tale of the Oloisuki tree shows, at least some research and development has taken place.

Very often, cases of biopiracy gain a broader attention in the public, when things are already done – or at least almost done. A big company, for example, has developed a product or a patent was granted, and now indigenous peoples and non-governmental organisations try to turn history back. In most cases this is an uphill battle. The outcomes of most of such battles show a considerable gap between the initial demands and the final results.

The Oloisuki tale, however, is different. It tells from the very beginning the story of how biopiracy can take place. Thus, the purpose of this report is twofold: one is making the case public and thereby contributing to the protection of Oloisuki and associated traditional knowledge from biopiracy by demonstrating that the watchdogs are already awake. Secondly, the report gives an idea on how biopiracy may occur – not in the Patent Offices and Approval Authorities in the North but in the villages of the affected people in the South.

Regarding the latter, it is a little bit like looking behind the curtain. We are much obliged to Mr. Eliamani Laltaika, a Maasai Lawyer, whose excellent and sophisticated work allowed for us to gain this insight.

Michael Frein

Contents

Introduction 3

At Loiborsoit 3

Access and Benefit-sharing in genetic resources in Tanzania: an international perspective 9

Conclusion 13

References 14

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Introduction

This is a report on social-legal issues surrounding bioprospecting on Oloisuki, a Maasai herbal plant, at Loiborsoit village, Simanjiro district in the Maasai Steppe, Tanzania. Its purpose was to find out “who is involved [in such prospection], in what capacity and whether or not Tanzania’s and international law related to Access and Benefit-sharing in genetic resources have been breached.”

To achieve this, a five days field trip to Loiborsoit was undertaken from in January 2011. Open ended and semi structured interviews were conducted with village leaders, NGO officials, Maasai women involved in harvesting Oloisuki as well as a Swiss national behind the project.

For convenience, the report is divided into three parts: part one narrates what transpired in the field trip, part two answers the question as to whether Tanzania’s and International law on Access and Benefit-sharing has been breached. Part three draws a conclusion and provides some recommendations.

At Loiborsoit

From Oloibor-Soit to Loiborsoit

The name Loiborsoit is a corrupted version of the Maasai words “Oloibor-Soit” (the place of white rocks). According to the locals, the new name was popularized by the British colonial officials who were unable to pronounce the original Maasai word.

The Village lies approximately 1580 meters above sea level. It is boarded by Tarangire National Park in the west, Monduli district in the north east, and the vast Simanjiro plains – a part of the Maasai steppe – in the South. Due to this unique geographical location, Loiborsoit is often regarded as an important tourist retreat where wildlife roams freely in the village.

Loiborsoit is located approximately 100 km South of Arusha. The main means of transport are locally owned land rovers that shuttle between the village and Arusha about three times a week. The village is also close to Emboreet airstrip, a facility that has been serving medical needs of the locals through infrequent “flying doctors” for half a century. The main economic activities are pastoralism and small scale agriculture.

What is Oloisuki?

Oloisuki Zanthoxylum chalybeum also known in Kiswahili as “mjafari” is a yellow-backed tree (up to 12 metres tall) characterized with sharp princles (known in Kiswahili as “manundu-nundu”) and sharp thorns.

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Among the Maasai, Oloisuki is not just any other tree. According to Loiborsoit villagers, the plant has been used for medicinal purposes from time immemorial. Specifically, the barks are boiled to treat malaria, roots are grind and used to treat stomach-ache while dried flowers and seeds are taken frequently like tea to treat/prevent against fever. Boiled leaves of Oloisuki are also used by the Maasai herders to treat livestock with intestinal infection. According to Emanuel, an interviewee, “Oloisuki is one of the most useful plants in Maasailand. It is not dangerous and can be applied on a daily basis as a stimulant.”

Usefulness of Oloisuki for treating Malaria and Measles has been confirmed by scientists with the Muhimbili University of Health and Allied Sciences (Tanzania) and Makerere University Medical School (Uganda) respectively, among other institutions of high repute (Gessler et al 2006, Olila et al 2002).

The Coming of the Swiss

The coming of Europeans interested in Maasai traditional medicine in the 1990s changed the way Oloisuki is viewed by the locals at Loiborsoit. According to villagers, countless numbers of “researchers” many of whom Europeans have been coming to conduct studies on Maasai medicinal plants. The striking thing with “Oloisuki people” is that they “never went back” – figuratively meaning they kept coming back. One of them (later on identified as a Swiss national) went beyond the ordinary. He learnt the local language, dressed in Maasai clothes and “kept on coming” back to the village for more than ten years. As will be explained later, he is a botanist working with the government of Switzerland as a researcher.

In what can be viewed as the desire to go to an extra mile in the exploitation of Oloisuki, the new guests established a non governmental organization with a Maasai name “Enkaina-e-retoto” (helping hand) to “help all different groups of cultural ethnic groups… to fight hunger and poverty as well as helping the close by national park authority to guarantee the breathtaking animal and plant world of Tansania”.1

According to the locals, friendship was quickly forged between Enkaina-e-retoto on one hand and a young man called Lengai, a local of Loiborsoit randomly picked without any prior involvement with Oloisuki and a local NGO registered in Tanzania “Loiborsoit Integrated Rural Development Organization” popularly known by its acronym LIRDO on the other.

1 http://www.massailand.com/en/default.php?language=en

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LIRDO’s primary focus is to improve water availability in the village. However, its founder and executive director Mr. Thaddeus Orpiyai, also a local of Loiborsoit, is a trained agricultural extension officer and had told the team that he is interested in indigenous knowledge issues.

In what the locals describe as mysterious, friendship with Lengai intensified making the whole project a “one man show” as opposed to the original intention of community and civil society collaboration.

The Swiss decided to build a four bed room house with state of the art storage facilities at Mr. Lengai’s private residence also in Loiborsoit and not a public place. Both LIRDO officials and influential village members thought the move was not only un-procedural but also suspicious. Such “privatization” made it difficult for members of the community to know what exactly was happening in their village for more than ten years. The team was later informed that the Swiss have had a tendency of avoiding individuals that seem knowledgeable and instead preferred to mingle with half-literate and illiterate members of the community. Friendship with Lengai is suspected to be based on this contention.

After several years of research, including taking samples to Switzerland and sponsoring Lengai to attend several trade fares, (in Switzerland and Brazil) Enkaina-e-retoto announced that it was going to buy Oloisuki from local women. The number and exact trade fares could not be ascertained but Lengai admitted to have flown “several times” abroad and is the one who informed the team of his attending trade fairs.

The village leadership was asked to nominate 45 women considered to be poorest of the poor to benefit from such a project. In 2008 women harvested an unidentified amount of Oloisuki and Enkaina-e-retoto paid Tanzanian Shillings TSH 40,000 (about US $ 40) per kilogram. The team could not get information on the exact amount of Oloisuki bought that year but at least 300 kg was found in the store of the Swiss house labelled and ready to be exported. One year later, it was announced that a kilogram would be bought at TSH 50,000 but there was too little to be harvested due to too much rain that year. Apart from Maasai vendors in big cities such as Arusha, Mwanza and Dar-es-Salaam who sell Oloisuki among other herbs, the business is generally unknown and it is doubtful if the Swiss companies could obtain it elsewhere than Simanjiro.

Harvesting Oloisuki

Interview with Maasai women involved in harvesting Oloisuki revealed that the work was risky and tiring. Nevertheless the majority of women liked the job as it was the first time they ever receive money from what they have always considered to be a valueless and free resource. Before harvesting, women were instructed by LIRDO on behalf of Enkaina-e-retoto on hygienic issues including washing their hands, cutting nails and avoiding picking seeds that have fallen down.

In what seems to be a growing demand for Oloisuki, the women were asked to look for information on its availability anywhere in the country. They were informed that Enkaina-e-retoto was ready to take them to as far as Naberera (about 150km away) and set a tented camp to enable them harvest Oloisuki seeds. This however, was yet to be done by the time of writing this report. A special training was conducted by LIRDO on behalf of Enkaina-e-retoto on conservation of Oloisuki. Women were advised to protect forest resources and report any one who destroyed Oloisuki. Women interviewed could not hide their willingness to conserve the “wonder plant”.

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Imported Products from Switzerland

The team tried to find out from community members (and later on from “the horse’s mouth” i.e. the Swiss national) what products have so far been made from Oloisuki. According to the locals, a number of products have been imported from Switzerland for the past five years. These include medicinal products such as Oloisuki tablets and food stuffs particularly Oloisuki syrup. Other interviewed women reported to have seen toothpaste, soap and soft drinks all made from Oloisuki. Some of these products are sold at Enkaina-e-retoto store a special room in the “Swiss House” at Lengai’s residence in Loiborsoit for 1500 to 5000 Tanzanian Shillings samples of which were purchased by the team. The team was also informed of the presence of “Oloisuki lotion” selling at Tsh 20,000. A third party was immediately sent to buy the product but the shopkeeper suspected him of having been sent by the team whose presence in the village was too conspicuous to be ignored.

It is fair to say that not enough information was obtained on the products made from Oloisuki currently in the market in Europe. A visit to the store raised suspicion on the real purpose of the Oloisuki project. Lack of information on medicinal products on sale brings people to speculate about hidden clinical trials.

Village leaders

The team paid a visit to the local government leaders. Chairman of Loiborsoit Village Mr. Yohana Shinini kindly welcomed the team to his office on the 4th of January 2011. This was in spite of the hectic time he had of preparing for “high profile” visitors from the USA as well as the Regional and District Commissioners (Presidential appointees) the next day.

The chairman informed the team that he was aware of the presence of a European “Mzungu” in his village. He went on to explain that he has become a commoner in the village earning a Maasai nickname “Loomodiok” (cow dung smitten man) due to his unwavering interaction with the locals.

On Oloisuki, the Chairman admitted to have bought syrup made from Oloisuki and tablets made from another plant (labelled “vidonge vya uwemba”) for his sick relative. He admitted further to have had no previous knowledge on issues related to Access and Benefit-sharing in genetic resources and the like. Not even the need for researchers to show copies of their research permit before proceeding to the forests.

The Chairman commended the team for their concern and promised to work on any recommendations that the team comes up with in order to ensure a fair and equitable sharing of benefit arising from utilization of natural resources in his village. To him, meeting the team was an eye opener and wished he had more time.

Interview with the Swiss

On the 6th of January 2011 at 10 am, the team was seated at a comfortable room of the “Swiss House” at Lengai’s homestead waiting for the Swiss national to offer his part of the story. Several attempts had been made in the past four days to get such an opportunity but in vain. A few minutes later the much awaited conversation was ready to start.

After a formal introduction, the Swiss was asked to kindly respond to ten questions prepared by the team and previously made available to him through LIRDO. He agreed to answer six

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and declined four (*)No. 4, 6, 7, 9) in the pretext that, inter alia, he was not the spokesperson of the Swiss companies (which companies he also declined to mention) that have invested in research and development expenses on Oloisuki and that he was not ready to reveal their secrets. This section summarizes the four hour talk in Kiswahili-a language spoken by the Swiss with absolute clarity.

Ten questions directed to the interviewee

1. Would you kindly introduce yourself?

2. What do you understand by intellectual property and biopiracy?

3. What criteria do you use to pay the women who harvest Oloisuki, for instance the 45,000 how much is that in Euros?

4. After ten years of research in Tanzania, what have you discovered? *

5. What has the Commission for Science and Technology (COSTECH) and other government institutions have to do with your research?

6. How much have you accomplished on research in Oloisuki including looking for markets in Europe? *

7. What is your long term plans regarding research and development and marketing of Oloisuki? *

8. What do you understand by indigenous knowledge systems?

9. What challenges have you encountered in exporting Oloisuki to Europe and bringing back processed syrups? *

10. There have been frequent visits of Europeans coming to this village and stay in this private residence some of them we are told are in conflicts with village authorities, what can you say about these what can you say about the relationship between these visitors, (village)government and Tanzania in general?

The respondent informed the team that he is a Swiss by nationality, trained in botany and currently working with the Swiss government as a researcher based in Zurich. He did not want to provide more information on his position or exact location of the government office in Zurich. He came to Tanzania for the first time in 1998. The interviewee denies to have conducted any research on Oloisuki in the country. This is in spite of being the founder of Enkaina-e-retoto and his rather obvious involvement in taking Oloisuki samples to Switzerland for several years. His argument is that the word research to him means more than spending holidays in a village of one’s choice. As the box bellow shows, the respondent is probably aware that Tanzania’s law on the need to obtain a research permit before conducting any research is clear and unequivocal. He is probably aware also of the consequences for non compliance with this law but still chose to hide under holiday gears while conducting research and exporting tangible and intangible resources of Tanzanians.

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Tanzanian law

105.(1) Any person intending to undertake any research in a forest reserve or in connection with any forest produce shall in addition to any permit or licence, if any, required to be obtained from any other person or organisation in order to be able to undertake such research, obtain a research permit from the Director.

(2) An application for a research permit to which this section applies shall be accompanied by a copy of the research Proposal and include

(a) the name, qualifications and designation of the person applying for the permit;

(b) the names, qualifications and designation of any persons whom will assist or Work With the person applying for

(c) the name, function and address of the institution or organisation, if any, with which the person applying for the permit is connected, either directly or indirectly and if a different Institution or organisation is funding in whole or in part the research, the name, address and function of that funding Institution or organisation;

(d) the purpose of the research and the use to which it shall be put, including any proposals for the Publication of the results of the research and any Proposed commercial exploitation of the research

(e) such Other matters as may be prescribed.

Source: The Forestry Act 2002

Asked whether he knows any thing about biopiracy, the “holiday maker” said it was the first time he heard of the term.

The interviewee refused to respond to questions on the current status of Oloisuki research in Switzerland, future plans to obtain IPR on Oloisuki products, challenges encountered in transporting genetic resources to Switzerland and marketing trends.

He revealed however that plans were underway to receive “certification” from the Institute for Marketecology (IMO) a renowned international agency for inspection, certification and quality assurance of eco-friendly products based in Weinfelden-Switzerland.

On such attempts, the director of LIRDO Mr. Thaddeus Orpiyai further informed the team that experts from the East African branch of IMO based in Nairobi were expected to arrive any time to familiarize themselves with the whole process of harvesting, packaging and transportation of Oloisuki.

A booklet entitled “Guidance Manual for Organic Collection of Wild Plants-March 2005 updated January 2009” published by the IMO was shown to the team.

The interviewee insisted that his project aims at alleviating poverty among the Maasai of Simanjiro and went on to plead with the consultant to remember that God would ask him to make an account of what he did to assist the poor . In short, what started as a confrontational, head-on talk changed course and became a lecture on morality and religion if not a whole sermon on the mountain. Ironically, the respondent had allegedly told one of the members of the team about a year back that he hates Europeans who bring religious “propaganda” to the Maasai trying to entice them to abandon their traditional practices.

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Interim Conclusion

The five days’ field trip revealed a bioprospecting project involving Oloisuki pioneered by an individual of Swiss nationality. It has also been established that village authorities have little, if any understanding of the nature and future implications of the project. Hints were also obtained on commercial exploitation of Oloisuki as evidenced by, among other things, an empty jar/plastic container used to sell what is branded as “Massai Syrup” collected by the team at Lengai’s residence.

The next section takes a closer look at the legal provisions related to ABS with the intention of finding out whether or not this particular project contravenes Tanzania’s and international laws on ABS.

Access and Benefit-sharing in genetic resources in Tanzania: an international perspective

Introduction

Genetic resources are defined by the CBD as ‘means any material of plant, animal, microbial or other origin containing functional units of heredity’ that must be of "actual or potential value" (CBD, 1993: Article 2). The CBD puts genetic resources in a larger box of “biological resources” which includes ‘genetic resources, organisms or parts thereof, populations or any other biotic component of ecosystems with actual or potential use or value for humanity” (CBD 1993: Article 2). The phrase “actual or potential” presupposes that economic value of certain genetic resources may not have become familiar at the time of collection.

Genetic resources have also been described as ‘building blocks’ and ‘God’s blue print for life’ (Moore and Tymowski, 2005). They play a significant role in the agriculture, bio-industries, and medicine, as well as the global economy notably modern biotechnology industry (Dutfield 2000). In law, genetic resources are said to posses a ‘double legal nature’ due to the fact that “as phenotypes i.e. individual plants and animals, they traditionally constitute private (tangible) goods; as genotypes, i.e. information embodied in the genetic constitution of micro-organism, plant or plant species, they apriori conforms to the definition of public good” (Straus 2000:144)

Genetic resources are often linked with TK of local and indigenous communities. In Tanzania, the Maasai are among a few ethnic groups endowed with a rich system of TK related to medicine, food preservation, biodiversity conservation and even whether forecast. (Laltaika 2009)

The Concept of Access and Benefit-sharing

Access and Benefit-sharing refers toward the regulated access to genetic resources and associated traditional knowledge and fair and equitable sharing of the benefits arising out of their utilization. The concept is provided for by Articles 15 of the CBD and it implements the Convention’s third main objective, namely ‘the fair and equitable sharing of the benefit arising out of the utilization of genetic resources’ (Young 2006). In general terms, this is a legal

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relationship between the biodiversity rich South and the technologically advanced North for use of genetic resources for research in pharmaceutical and agricultural fields (Young 2004, Juma 1989). According to the CBD Access and Benefit-Sharing Agreements must be based on Prior Informed Consent and Mutually Agreed Terms.

The Nagoya Protocol

In October 2010 more than 100 countries parties to the CBD adopted the Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilization to the Convention on Biological Diversity (Nagoya Protocol).

Although by the time of writing this report the Protocol was yet to come into force, the following provisions are considered important and illustrative in this particular case.

Article 12 - Compliance with domestic legislation or regulatory requirements on Access and Benefit-Sharing

1. Each Party shall take appropriate, effective and proportionate legislative, administrative or policy measures to provide that genetic resources utilized within its jurisdiction have been accessed in accordance with prior informed consent and that mutually agreed terms have been established, as required by the domestic access and benefit-sharing legislation or regulatory requirements of the other Party.

2. Parties shall take appropriate, effective and proportionate measures to address situations of non-compliance with measures adopted in accordance with paragraph 1.

3. Parties shall, as far as possible and as appropriate, cooperate in cases of alleged violation of domestic access and benefit-sharing legislation or regulatory requirements referred to in paragraph 1.

The above provisions could be helpful in seeking cooperation and assistance from the Swiss government.

The Legal Regime in Tanzania

Tanzania is a biodiversity rich country. Its eastern arc mountain and the coastal forests are one of the 25 identified global biodiversity “hotspots” (Kideghesho and Hassan, 2003) that is, geographical locations where high levels of species richness, endemism and threat coincide (Leveque and Mounolou 2003). In spite of this richness, ABS is yet to be sufficiently developed and adequately implemented in the country. (Laltaika 2009)

The same applies to traditional knowledge. The country has not taken any meaningful steps to protect traditional knowledge of the local and indigenous communities. In fact it has been doing the opposite as evidenced by frequent eviction of communities from their ancestral lands contrary to international law and changing paradigms in biodiversity conservation worldwide. (Laltaika 2009, Laltaika 2006)

The most relevant law related to ABS at the moment is the Forestry Act 2002 which declares sovereignty of biological resources to the government of Tanzania.

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Forestry Act

69. (1) All biological resources and their intangible products, whether naturally occurring or naturalised within forests including genetic resources belongs to the government in accordance with Article 27 of the Constitution and shall be conserved and utilised for the people of Tanzania in accordance with the provisions of this Act and any other written law on biological resources.

(2) The transfer of any biological resources, their derivative products or intangible components from forest shall not operate so as to extinguish the sovereignty of Tanzania over those resources.

(3) Without prejudice to the provisions in subsection (1), the right to determine and regulate access to genetic resources is vested in the Government and may be exercised by the competent authority in consultation with relevant organisations in accordance with the provisions of this Act or any other written law on biological resources.

Source: The Forestry Act 2002

The concept “to extinguish the sovereignty of Tanzania over those resources” as provided in 69 (3) above refers toward issuance of Intellectual Property Rights, particularly patents. Recognizing the increasing number of patents based on “pseudo-inventions” or biopiracy, developing countries have increasingly demanded that international patent law be amended to provide for mandatory disclosure of origin (DOO) of genetic resources and associated traditional knowledge.

The government of Switzerland responded to this “wind of change” by amending its Patent Law in 2007.

Article 49a

For inventions based on genetic resources or traditional knowledge the patent application must contain information concerning the source:

a) of the genetic resource to which the inventor or the applicant had access, when the invention is based directly on that resource;

b) of the traditional knowledge of indigenous or local communities related to the genetic resources to which the inventor or applicant had access, when the invention is based directly on that knowledge. If the source is not known to either the inventor or the applicant, the applicant must confirm this in writing.”

Although no information has been obtained so far with regards to issuance of patents based on Oloisuki, it is submitted that both Tanzania’s and international law on Access and Benefit-sharing have been breached by the Swiss researchers. As already provided in part one, there are attempts to plead ignorance of the law, desire to alleviate poverty among the Maasai and even religious uprightness.

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Bioprospecting versus biopiracy

Bioprospecting is the "search for useful biological materials in micro-organisms, plants, fungi, animals and humans." (Polski, 2005: 543) As it is the case with tangible properties, unauthorized access to genetic resources for the purposes of prospecting passes the test of misappropriation or theft. In the words of one indigenous activist William Kivuyo, “no one can go to botanical gardens in Europe and start plucking flowers without permission”

Progress in lobbying and advocacy for a just system of bioprospecting and regulation of genetic resources led to the introduction of a new term “biopiracy.” Biopiracy can be described as illegal and unethical bioprospecting. According to Dutfield

“Biopiracy has emerged as a term to describe the ways that corporations from the developed world claim ownership of, free ride on, or otherwise take unfair advantage of, the genetic resources and traditional knowledge and technologies of developing countries.” (Dutfield 2004:1)

An act that can be referred to as “biopiracy” if it involves any or a combination of the following:

a) Unauthorised acquisition of biological resources

b) The unauthorised use of traditional knowledge TK associated with genetic resources for profit

c) Obtaining intellectual property rights especially patent for an “invention” based on traditional knowledge. (Laltaika 2009)

It is submitted that this particular case passes the test of biopiracy due to the fact the Swiss national involved operates as tourist without any authorization to conduct research in Tanzania. The Swiss national admitted never to have sought a research permit from the Tanzania Commission for Science and Technology (COSTECH) a government agency in charge of issuance of such permits. By the time of writing this report there were no any written down contracts for Prior Informed Consent, Mutually Agreed Terms and the sharing of benefits arising from utilization of Oloisuki. The Swiss interviewee told the team that these terms are totally new to him.

Maasai Customary Law

As provided above, one of the principles of the CBD is state sovereignty to natural resources. Accordingly, article 15.1 provides that the authority to determine access to genetic resources rests with the national governments and is subject to national legislation. It goes without saying however that neither international conventions nor municipal laws enacted by parliament can be considered effective unless they recognize respects and promote the use of customary laws of local and indigenous communities.

The newly adopted Nagoya Protocol pays particular attention to this important aspect of TK governance (see box bellow).

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Article 9 – Traditional Knowledge associated with Genetic Resources

1. In implementing their obligations under this Protocol, Parties shall in accordance with domestic law take into consideration indigenous and local communities’ customary laws, community protocols and procedures, as applicable, with respect to traditional knowledge associated with genetic resources.

2. Parties, with the effective participation of the indigenous and local communities concerned, shall establish mechanisms to inform potential users of traditional knowledge associated with genetic resources about their obligations, including measures as made available through the Access and Benefit-sharing Clearing-House for access to and fair and equitable sharing of benefits arising from the utilization of such knowledge.

Customary laws and protocols of the Maasai, for example, go deeper than “formal laws” in the management of traditional knowledge and associated genetic resources. While formal laws such as the Forestry Act contain substantive rules and procedures, customary law distinguishes between sacred and non sacred knowledge (Nagol 2009). The team was told at Loiborsoit that to avoid offending the community by commercializing sacred plants, researchers must seek not only government approval but also Maasai elders’ consent and direction. The team was informed further that Oloisuki is not a sacred plant but unregulated access to the same may lead one to trample upon sacred trees such as oreteti (a shrub used by the Maasai for worship)

It is submitted that any attempts to ensure equitable sharing of benefit arising from commercial utilization of Oloisuki should not sideline the Maasai and other traditional communities who are the custodians of its intangible value. It is expected that the government shall facilitate national and international programmes to ensure that they benefit from their traditional knowledge and efforts to conserve biodiversity. It is expected further that customary laws and protocols of the Maasai shall be researched upon and applied in this case.

Conclusion

This report has tried to unveil a hitherto unknown activity that is likely to deprive the Maasai and Tanzanians in general of their rights to traditional knowledge associated with Oloisuki. It has been established that the whole undertaking is in complete contravention with Tanzania’s and international law related to ABS.

In addition to the normal Intellectual Property Rights path, namely to prevent issuance of patents and other legal rights based on “inventions” emanating from Oloisuki, this study recommends concrete steps for transparent and mutually agreed terms for benefit sharing.

To any fair and compassionate person, the Maasai are too poor to be deprived of their only remaining endowments namely traditional knowledge and traditional cultural expressions. Taking steps to ensure benefits of Oloisuki proceed to Loiborsoit is therefore both a legal and moral issue. It is a legal issue because laws related to ABS have been breached and a moral issue as it involves stealing from the poor.

The Maasai are demanding a fair share of the benefits already obtained and to be made in the future from utilization of Oloisuki.

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References

Abdallah, R.K., Hamza, K.F.S. and Mwamakimbullah, R.J.L. 2007. Use of medicinal plants for maternal care in villages around Zaraninge Forest Reserve in Bagamoyo, Tanzania. Journal of the Tanzania Association of Foresters 11:180-191

Correa, C.M. 1994. Sovereign and Property Rights over Plant Genetic Resources, FAO Background Study Paper No. 2. Commission on Plant Genetic Resources - First Extraordinary Session, Rome, 7-11 November

Cottier, T. & Panizzon, M. 2004. Legal Perspectives on Traditional Knowledge: The Case for Intellectual Property Protection, Journal of International Economic Law, pp. 371-399.

Crucible Group. 1994. People, Plants and Patents: The Impact of Intellectual Property on Trade, Plant Biodiversity, and Rural Society. International Development Research Centre, Ottawa, Canada.

Dutfield, G. 2000. Intellectual Property Rights, Trade and Biodiversity. Earthscan Publications Ltd., U.K.

Dutfield, Graham (2004.) What is biopiracy? Paper presented at the International Expert Workshop on Access to Genetic Resources and Benefit Sharing, Identification of Outstanding ABS Issues: Access to GR and IPR Cuernavaca Mexico Oct 24-27 2004 available at http://www.canmexworkshop.com/documents/papers/I.3.pdf (Accessed on 6th January 2010)

Gessler, M. C. M. Tanner, J. Chollet, M. H. H. Nkunya, M. Heinrich “Tanzanian medicinal plants used traditionally for the treatment of malaria: In vivo antimalarial and in vitro cytotoxic activities” Phytotherapy Research Volume 9, Issue 7, 2006 available at http://onlinelibrary.wiley.com/doi/10.1002/ptr.2650090708/references accessed on 17th January 2011

Juma, Calestous. 1989. The Gene Hunters: Biotechnology and the Scramble for Seeds. Princeton University Press, Princeton NJ.

Laltaika, Eliamani (2009) “Access and Benefit Sharing in Genetic Resources and the Law in Tanzania: Challenges, Opportunities and Perspectives” Paper Presented at the 7th Scientific Conference of the Tanzania Wildlife Research Institute TAWIRI held at the Corridor Springs Hotel Arusha- Tanzania 2nd to 4th December 2009

Laltaika, Eliamani (2006) “Community-based Natural Resource Management and the Law in Tanzania: A plea for Action” Paper Presented at the Second Symposium for Environmental Law Lecturers of African Universities (ASSELAU) held at the Imperial Beach resort Hotel, Entebbe Uganda 25th -28th September

Luoga, E.J. (1994). Indigenous knowledge and sustainable management of forest resources in Tanzania. In: R.E. Malimbwi and E.J. Luoga (Eds.). Information for sustainable natural resources of Eastern, Central and Southern Africa .Workshop proceedings, Arusha, Tanzania

Moore, G and Tymowski, W (2005): Explanatory guide to the International Treaty on Plant Genetic Resources for Food and Agriculture. World Conservation Union (IUCN), Gland (Switzerland)

Oloisuki | Report

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Msuya, T. S. and Kideghesho, J. R. (2009.) The Role of Traditional Management Practices in Enhancing Sustainable Use and Conservation of Medicinal Plants in West Usambara Mountains, Tanzania. Tropical Conservation Science Vol.2 (1):88-105.

D Olila, Olwa-Odyek, and J Opuda-Asiboc “Screening of extracts of Zanthoxylum chalybeum and Warburgia ugandensis for activity against measles virus (Swartz and Edmonston strains) in vitro” African Health Sciences Vol 2 No 1 April 2002 available at http://www.ncbi.nlm.nih.gov/pmc/articles/PMC2141561/pdf/AFHS0201-0002.pdf accessed on 17th January 2011

Polski, M (2005) "The institutional economics of biodiversity, biological materials and bioprospecting", Ecological Economics, 53, 543–557:

Nagol, Elias Moringe. (2009) “Is the sacred for sale? Tourism and Misappropriation of Traditional Cultural Expressions of the Maasai Paper Presented at the Workshop on Livestock Keepers’ Rights, Traditional Knowledge and Intellectual Property held at the Golden Rose Hotel, Arusha December 18th and 19th

Safrin, Sabrina 2004 “Hyper ownership in a Time of Biotechnological Promise: The International Conflict to Control the Building Blocks of Life” Rutgers Law School (Newark) Working Paper Series 15

Singhal, Shivani 2008 “Geographical indications and traditional knowledge” Journal of Intellectual Property law and PracticeVol.3 No. 11, 732

Straus, Joseph 2000 “Biodiversity and Intellectual Property” CASRIP Publication Series: Rethinking Int’l Intellectual Property No. 6, CBD 1992. Convention on Biological Diversity, 5 June 1992, U.N. Doc. ST/DPI/1307, 31 I.L.M. 818 (1992).

World Intellectual Property Organization. 2001. (a) The Role of Intellectual Property Rights in the Sharing of Benefits Arising from the Use of Biological Resources and Associated Traditional Knowledge. Selected Case Studies. WIPO, Geneva

World Intellectual Property Organization. 2001.(b) Progress Report on the Status of Traditional Knowledge as Prior Art. WIPO, Geneva, 1 July 2001.

Young, T. 2006. "An Implementation Perspective on International Law of Genetic Resources: Incentive, Consistency and Effective Operation," In: Yearbook of International Environmental Law, Oxford Press, Volume 15.

UNEP United Nations Environment Programme (UNEP) 2008 Access to Genetic Resources in Africa Analysing ABS Policy Development in Four African Countries Botswana, Ghana, Uganda and Zambia, United Nations University, Minato Mirai

Van Overwalle, Greer Trui (1999) “Patents Protection for Plants: A Comparison of American and European Approaches” 39 J.L & TECH 143