LEGAL AND REGULATORY REGIME
FOR ACCESS AND BENEFIT SHARING
IN KENYA
Presented By:
Anne N. Angwenyi
National Environment
Management Authority (Kenya)
RELEVANT PRIMARY LAWS
The Constitution of Kenya provides that all natural
resources and the benefits derived thereof belong to
the Government and people of Kenya.
All laws on the issue of access to and protection of
resources (intellectual property laws) are subject to
the provisions of the Constitution.
The Environmental Management and Co-ordination
Act (No. 8 of 1999) provides for the regulation of
biological resources and genetic resources for
ensuring sustainable management and protection of
the such resources.
ACCESS TO GENETIC RESOURCES
The relevant regulation is entitled:
 The Environmental Management and Co
ordination (Conservation of Biological
Diversity and Resources, Access to Genetic
Resources and Benefit Sharing) Regulations
The Regulations do not apply to:
(a) the exchange of genetic resources, their derivative
products, or the intangible components associated with
them, which are carried out by a local community of
Kenya among themselves and for their own consumption;
(b) access to genetic resources derived from plant breeders
as defined under the relevant laws relating to plant
breeding and plant varieties;
(c) human genetic resources; and
(d) approved research activities intended for educational
purposes within recognized Kenyan academic and
research institutions which are governed by relevant
intellectual property laws.
SCOPE
Access’ means obtaining, possessing and
using genetic resources, their derived products,
and where applicable, intangible components
for purposes of research, bio-prospecting,
conservation, industrial application or
commercial use.
RELEVANT DEFINITIONS
Commercial use’ means any collection and use of genetic
material for profit making;
Genetic material’ means any genetic material of plant,
animal, microbial or other origin containing functional units
of heredity;
‘Germplasm’ means genetic material capable of
propagation;‘
Genetic resources’ means genetic material of actual or
potential value;
‘Holotype’ means the single specimen chosen for
designation of a new species;
‘Intangible components’ means any information held by
persons that is associated with or regarding genetic
resources within the jurisdiction of Kenya;
BENEFIT SHARING
Monetary benefits may include but are not limited to:
(i)
Access fees/fee per sample collected or otherwise
acquired;
(ii)
Up-front payments;
(iii)
Milestone payments;
(iv)
Payments of royalties;
(v)
License fees in case of commercialisation;
(vi)
Special fees to be paid to trust funds supporting
conservation and sustainable use of biodiversity;
(vii)
Salaries and preferential terms where mutually agreed;
(viii)
Research funding;
(ix)
Joint ventures; and
(x)
Joint ownership of relevant intellectual property rights.
Non-Monetary benefits may include, but are
not limited to:
(i)
Sharing of research and development
results;
(ii)
Collaboration, cooperation and
contribution in scientific research and
development programmes, particularly
biotechnological research activities where
possible in Kenya;
(iii)
Participation in product development;
(iv)
Admittance to ex situ facilities of genetic
resources and to databases by
participating institutions;
(v)
Transfer to Kenya of genetic resources of
knowledge and technology under fair and most
favourable terms, including concessional and
preferential terms where agreed, in particular,
knowledge and technology that make use of genetic
resources, including biotechnology, or that are
relevant to the conservation and sustainable
utilization of biological diversity;
(vi)
Strengthening capacities for technology transfer to
Kenya;
(vii)
Institutional capacity building;
(viii)
Human and material resources to strengthen the
capacities for the administration and enforcement of
access regulations;
(ix)
Training related to genetic resources with the full
participation of Kenya and where possible in Kenya;
(x)
Access to scientific information relevant to
conservation and sustainable use of
biological diversity, including biological
inventories and taxanomic studies;
(xi)
Institutional and professional relationships
that can arise from access and benefit
sharing agreements and subsequent
collaborative activities; and
(xii)
Joint ownership of relevant intellectual
property rights.
GAPS
• No clear provision of how benefits are to be
distributed to local community (what is fair and
equitable?)
•Do the regulations cover biological resources as
well?
•No standard form/provisions of the contents of
PIC and MTA – this may cause confusion to
providers/owners and users as this is a new issue
for the country
STRENGTHS
• Participatory and consultative process that was
used to develop regulations
•Comprehensive framework to regulate genetic
resources and benefit sharing
•Harmonized both regional and international
(Bonn Guidelines) laws on ABS.
•Clear provision for mandatory PIC and MTA to
ensure that the providers/owners receive benefits.