TRADITIONAL KNOWLEDGE PROTECTION LAW - A WELCOME DEVELOPMENT

In 2010, the Government of Botswana amended the Industrial Property Act, Chapter 68: 03 of the laws of Botswana, and introduced a chapter on the protection of traditional knowledge. The Act defines traditional knowledge as an idea, knowledge, practice, use or invention, written or unwritten which, may be associated to biological diversity, is a cultural, traditional, or spiritual belief or value of a group of people. The protection is available to individuals and communities who own and have registered their traditional knowledge with the Companies and Intellectual Property Authority ( CIPA). At the time of registration, an owner of traditional knowledge is free to keep some part of the traditional knowledge secret. A registered owner of traditional knowledge has the right to prevent third parties from making, using, stocking, offering for sale, selling, commercializing, importing or exporting the protected traditional knowledge.

The focus of this article is traditional medicine which can be understood to mean diverse health practices, knowledge and beliefs that incorporate plant, animal and/ or mineral based medicines, spiritual therapies, manual techniques, and exercises applied singularly or in combination to maintain well- being, as well as to treat, diagnose or prevent illness ( Masango 2020). Nasir ( 2011) defines medicinal plants as plants that have special properties or virtues that qualify them as articles of drugs and therapeutic agents and are used for medicinal purposes.

Official statistics may not be available, but it is evident that Botswana has citizens and communities who, over a long period of time, have developed and acquired knowledge about local medicinal plants. Men who sell raw and processed medicinal plants in 2 litre water bottles and powders packaged in small clear plastic sachets are a common sight along Botswana major roads such as Gaborone - Francistown ( A1), Kang - Ghanzi ( A2) and Serowe - Orapa road ( A14). The busiest spot being Dibete village along A1. These men are traditional medicine knowledge holders. If well sensitized and educated on the law and, how best to manage this form of intellectual property, they stand a better chance to benefit immensely from the enacted traditional knowledge law.

According to Masango ( 2020), modern medicine has its root in African traditional medicine. Africa has between 40,000 and 45,000 species of plants and 5,000 of these are used medicinally. Traditionally known medicinal plants formed the foundation for early pharmaceutical drugs. Using modern technology and pharmacological approaches, pharmaceutical companies discover active components of traditional medicine. The components are then replicated synthetically to produce patentable and highly profitable pharmaceutical drugs.

Initially, pharmaceutical companies rely on information, understandings, and interpretations of Africa’s traditional medicine shared by traditional medicine knowledge holders ( Masango, 2020). Two examples confirm this. The National Cancer Institute ( NCI) of the U. S. A. used information, understandings, and interpretations of the Maytenus buchananii plant from the Simba Hills of Kenya that was used by the Digo communities to treat cancerous conditions for many years. A French pharmaceutical company did the same regarding the exploitation of the bark of the prunus Africana tree which contains active biochemicals used for the treatment of prostate gland disorders. Pharmaceutical companies view Africa’s traditional medicines as a source of useful molecules for the manufacture of treatment drugs for diseases and injuries ( Masango 2020).

Hoodia can also be used as an example. It grows in the Kalahari Desert mainly in Botswana. It has been used by local San for generations to fight hunger and thirst during long hunting trips and famine. It has been studied and oxypregnane steroidal glycoside, code named P57AS3 ( P57; 83), was identified as the active constituent that supresses hunger and thirst. The compound was patented and in 2003 an agreement was reached between the San people and CSIR for the sharing of any royalties that might result from the sale of products derived from Hoodia. According to Cragg and Kingston ( 2010) the compound was licensed to the British company, Phytopharm, and was further sublicensed to Pfizer, and later to Unilever. No commercial product has been developed yet but profit sharing agreements were signed with the South African Hoodia Growers ( Pty) Ltd for sharing royalties.

The demand for medicinal plants is expected to increase exponentially as industries in the developed world are now more interested in natural products. Pharmaceutical companies perceive traditional medicinal plants as a source of new biochemical compounds for drug and chemical products development. Approximately 74% of the drugs in the world market today were discovered from a pool of traditional herbal medicine ( Masango, 2020). 80% of the black population south of Sahara still use traditional medicine to date ( Jäger & Staden, 2000). 20,000 tonnes of plant material are traded annually in South Africa including many medicinal plants imported from neighbouring countries.

According to Mudonhi and Nunu ( 2022), traditional medicine has the potential to boost the health and economies of Sub- Saharan countries. This can only happen if traditional knowledge holders register and acquire exclusive rights over the knowledge. However, registration alone is inadequate. Misappropriation of traditional knowledge will continue in the absence of in- depth knowledge, understanding, application of the law and enforcement of traditional knowledge rights by owners. African governments should recognize traditional medicine and establish functional structures and mechanisms for the protection and utilisation of traditional knowledge and traditional medicines. Traditional healers and other traditional knowledge right holders must establish associations to safeguard their interests, protect and commercialize their knowledge ( Masango, 2020). The associations should manage the interests of traditional knowledge owners, ensure execution and enforcement of binding agreements between traditional knowledge owners and third parties who obtain and commercially exploit traditional knowledge. Otherwise, western pharmaceutical companies will continue to profit from African medicinal plants without the consent of and without sharing accrued benefits with traditional knowledge holders/ owners as provided for in the new Industrial Property Act. Lack of these structures have led to the extinction of the medicinal plant moralala at Paje and surrounding areas.