Tuesday, 13 December 2016

Looming Traditional Knowledge Bill

The bones have been thrown for the estimated 25 000 traditional healers in South Africa and the impending regulations could have significant implications for ancient cultural practices, as well as the healers themselves, who may be in the dark regarding the expectations on them.

The protection, Promotion, development and Management of Indigenous Knowledge systems Act was brought before parliament in April 2016. The proposed regulations for traditional healing practitioners in South Africa is not without a number of contentious issues, including to what extent traditional medicine practitioners should be regulated and precisely what “indigenous knowledge” entails.

Luyanda Frans, parliamentary liaison officer, said the bill was currently being processed by the National assembly and is likely to be finalized in March next year.


Andre Van der Merwe
Andre van der Merwe, of Kisch IP law firm, writing for www.golegal.co.za, questions the consultation process undertaken.

“The parties consulted to date are merely other State departments. No indigenous communities or their leaders have been consulted to date and in addition no regulatory impact assessment has been carried out to determine whether the benefits of the act will outweigh the costs of implementing it.”

Frans said the government was conducting public hearings but couldn’t confirm whether they had consulted with the various traditional healer organisations.

Conrad Tsiane, a traditional healer and chairman of the interim board working with the National assembly, said the local healers would be consulted and invited to participate. He said road shows in all the provinces, in conjunction with the department of health, would take place once a registrar had been appointed.

The World Health Organisation (WHO) estimates that around 80% of the population in Africa makes use of traditional medicine.

Van Der Merwe says generally, TK can be divided into three broad classes, namely: indigenous scientific or technical knowledge, works of an indigenous-cultural nature and miscellaneous works or know-how that are difficult to classify.

The defensive protection sought through the act is essentially to ensure that third parties do not gain illegitimate or unfounded IP rights as a result of TK.

Traditional (or indigenous) knowledge encompasses know-how resulting from a traditional context, including practices, skills and innovations, according to the World Intellectual Property Organisation (WIPO). It can also cover traditional cultural expressions, such as signs and symbols.

The WHO centre for Health development says African traditional medicine “is the sum total of all knowledge and practices, whether explicable or not, used in diagnosis, prevention and elimination of physical, mental or societal imbalance, and relying exclusively on practical experience and observation handed down from generation to generation, whether verbally or in writing.”

Dr Tsiane
A major bug-bear seems to be the definition of the forms of TK and how any act can successfully create protection for the various forms. But more pressing for Traditional medicine practitioners is the registration of knowledge. The transitional arrangements in the bill call for the recording of any TK knowledge that exists prior to the enactment to be registered within 12 months.

Van der Merwe says this is likely to place a huge burden on the indigenous communities to register TK within the time frame- the very communities the bill purports to “protect”.

Tsiane said it was very difficult to register TK and the idea was not to collect recipes of indigenous knowledge passed down over the years. But he admits it’s going to be tough getting all the practitioners to conform to the new regulations.

The proposed bill also provides for the establishment of a National Indigenous Knowledge Systems Office (NIKSO) and an advisory panel to support the office. Their function will include developing an effective regulatory framework and act as custodian for TK that cannot be specifically designated. 

Currently, TK is managed by the National Recordal System which currently endorses a closed access policy for TK and that which is not in the public domain requires authorized access. Patrick Gillfillan of UCT has also highlighted a concern that innovators could get around formal protections by adapting the knowledge.

Traditional practitioners are also obliged to register with NIKSO. Tsiane said the registration of traditional healers and their specific purview was a key outcome.

“The local healers organisations haven’t been regulated to date and the Act will help people to know who X and Y are in the context of the law. We must have rules, ethics and a code of conduct in the scope of our practice.”

He said the act talks about four categories of traditional practitioners and this would help align the industry.

According to Tsiane, the department of Health was legally obliged to be involved in the process. He said on December 13, 2016, the panel would select a registrar to oversee the forthcoming meetings. Afro Leo report

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