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In Kenya, as in most of the rest of the developing world, the indigenous genetic resources of poor communities are being lost, because of the spread of industrial agriculture and the consequent marginalisation of small-scale food production, and they are being stolen by corporate-sponsored scientists and other plant collectors - the Biopirates - without adequate compensation.

This is because the Rights of communities, food producers and herbalists to these genetic resources, are not recognised. The questions are, therefore: In what way should these Rights be recognised, what controls of access to these resources should communities have and what monetary gain should they expect from allowing access to corporations which depend on these resources as raw material for their biotechnological and agricultural industries? Only with adequate recognition, protection and reward will these resources be conserved and appropriate compensation be granted to the communities. Central to this is the right to 'Prior Informed Consent', ensuring communities know what they are agreeing to.

In Kenya, who should benefit from these Rights? Should the state receive any benefits - what knowledge does the state have about the communities' genetic resources? Should the state have sovereignty over the resources (as agreed to in the Convention on Biological Diversity) or should it only be the communities - and which communities?

Would any benefits be distributed equitably from government, within the community and within the household? The recognition of the Rights to the knowledge embodied in genetic material for food and agriculture - the biodiversity of food species (Agricultural Biodiversity) - is an issue of fundamental importance to the people who developed this diversity - the smallholder farmers, pastoralists and artisanal fisherfolk of the world. But recognising these Rights means being prepared to negotiate access to these resources and the knowledge that is contained within them. It also means recognising that any financial rewards gained from the further commercial development of these resources should be shared with the originators - the communities who conserve, manage and continue to develop this biodiversity.

Without adequate recognition for their 'intellectual' contribution - their knowledge and skills - to the development and management of these resources, small-scale food producers will not be able continue this service to their peoples, the nation and the international community. They will cease to conserve the genetic resources which are the first link in the food chain and will no longer be able to safeguard this agricultural biodiversity which is so essential for food security. This is why the discussion of these Rights is such an important subject of significant local, national and international debate. Much is at stake - communities could gain significant recompense for their past and present efforts, as they regain control of their resources: Industrial food production and the biotechnological industry would have to pay much more for their genetic raw materials. The debate is most prominent with regard to plant genetic resources for food and agriculture - the issue of 'Farmers' Rights' - though there are emerging debates over the genetic resources of domestic livestock and fish.

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NGOs introduced Farmers' Rights in 1985 as a first response to the North's pressure to recognize Plant Breeders' Rights as an "agreed interpretation" to the FAO International Undertaking on Plant Genetic Resources (IU). After intense opposition from the North and passionate support from the South, Farmers' Rights were entrenched in the International Undertaking (IU) in 1991. Farmers' Rights were inserted, as well, in 1992 into Agenda 21 and in the Convention on Biological Diversity (CBD). FAO's Global Plan of Action for the Conservation and Sustainable Utilization of Plant Genetic Resources for Food and Agriculture, which was prepared by FAO as a result of Agenda 21's commitment to the conservation of agricultural biodiversity, also includes continued commitment to the implementation of Farmers' Rights, although in 'lower case'. Vía Campesina, the international network of 40 farmers' organisations, has made an impassioned plea to the Commission on Genetic Resources for Food and Agriculture for the recognition of Farmers' Rights.

The revised IU may become a legally-binding Protocol to the CBD. The Conference to the Parties to the Convention (COPs) are discussing agricultural biodiversity and they have invited FAO to develop the IU into what the COPs could recommend as a Protocol to the Convention. However, the traditional resource rights respected by communities throughout the world, many of which are the originators of these genetic resources, are being undervalued. This is because Plant Breeders' Rights - the 1991 version of the International Convention for the Protection of New Varieties of Plants (UPOV 91), and the Trade Related Intellectual Property Rights (TRIPs) agreement of the World Trade Organisation (WTO) - are becoming more important internationally, supported mainly by Northern governments and Industry.

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Patents are not the best instrument to protect the intellectual property in agricultural biodiversity - they were introduced to protect industrial inventions, not biological development. Through their provision of exclusive monopoly rights over an 'invention', they tend restrict innovation rather than promote it. They may also exclude benefits being derived by the farmers and indigenous people whose contributions have been essential to the development of the patented material. In addition patents may limit access to genetic resources including the right to be able to re-sow varieties harvested on the farm, if they contain patented material.

The International Convention for the Protection of New Varieties of Plants (UPOV), which was set up to give crop plant breeders exclusive rights over the varieties they develop in the absence of legislation to allow the patenting of plant material, is also moving towards a patent-like regime. The UPOV 91 Revision prevents farmers from saving seed from one harvest to the next unless they pay royalties to the plant breeder.

Both patents and the UPOV 91 agreement disregard the traditional rights of indigenous and farming communities to their genetic resources and associated knowledge. In contrast, both the CBD and the IU call for a strengthening of these rights. But these rights will have to be fought for against the interests of Northern government delegations, which are susceptible to powerful industrial interests. Which side is Kenya on?

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Many indigenous people and local communities think that Farmers' Rights do not go far enough, and that any acceptable rights regime will need a wider coverage than existing options. A number of alternative rights regimes are emerging. The Working Group on Traditional Resource Rights (WGTRR) Programme, for instance, proposes the adoption of a bundle of rights, uniting existing international law, non-binding international agreements ('soft law') and existing practice - in order to protect community knowledge systems where the notion of individual 'property' is absurd. Genetic Resources Action International (GRAIN) proposes that an expanded form of Farmer's Rights, which GRAIN terms Communal Rights, could be developed. These will need to provide for 'effective' Intellectual Property protection, a requirement of both the WTO and the CBD.

The international NGO Community Biodiversity Development and Conservation programme (CBDC) has developed a Protocol for addressing these issues in which binding agreements are reached between research and development organizations and communities before any access to germplasm, or any use of knowledge derived from the community, can be made.

 Intellectual Property Rights regimes (IPRs) are being promoted in the WTO and the CBD. The General Agreement on Tariffs and Trade (GATT), the forerunner of the WTO requires that States "provide for the protection of plant varieties by patents or by an 'effective' sui generis system".

The CBD is less prescriptive but also stresses the importance of "adequate and effective protection of intellectual property rights", which some delegations interpret as patents or other strong form of IPR. As Norah Olembo, Director of the Kenya Industrial Property Office says, "This was based on the assumption that only the intellectual contributions of corporate sponsored scientists need protection and compensation. This has generated debate as to how the IPR will restrict transfer of technology from the industrial North to the unindustrialised South. ... The outcome of the debate notwithstanding, raw materials which the corporate sponsored scientists depend on ... is the biodiversity and genetic materials obtained in the South. It is natural to acknowledge and give IPR for the ownership of this biodiversity..." (emphasis added) The questions are: Why is it natural for the state to acknowledge IPRs on community resources and is it ethical or desirable for common and ancestral knowledge to be owned by any individual?

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 In Kenya there is a push from government to apply Patents, under the Industrial Property Act Cap 509 of 1989, to the intellectual property embodied in traditional herbal remedies. There is also an assertion of the 'weakness' of current Plant Breeders' Rights legislation, Plant Breeders and Varieties Act Cap 324, 1979, which grants protection in Kenya for 25 years to registered distinct, uniform and stable varieties. "Breeders could consider patent protection if their inventions involve microbiological processes" says Prof Olembo. This could herald the introduction of a regulation regarding patents on plant varieties or the adoption of UPOV 91. Either of these step could work against the interests of smallholder farmers. An effective sui generis system would be a more acceptable development (see above).

Kenya has, however, ratified the Convention on Biological Diversity, has adopted AGENDA 21, is a party to the Leipzig Global Plan of Action for the Conservation and Sustainable Utilization of Plant Genetic Resources for Food and Agriculture and to the Plan of Action of the World Food Summit, is a member of the FAO Commission on Genetic Resources for Food and Agriculture and is a member of the Conference of the Parties to the Convention on Biological Diversity. Kenya has implemented Environmental Protection laws and the gazetting of areas of land to be protected from cultivation. Within all these international and national instruments there are many references to the need to protect traditional smallholder production systems, local species and varieties and local knowledge.

The challenge is to ensure that any extension of Intellectual Property Rights systems, of Plant Breeders' Rights (eg UPOV 91), or of Patents do not further infringe the Rights of Kenyan small-scale food producers to the genetic resources needed for food production and health - an effective sui generis system would provide better protection. Equally, the challenge is to ensure that Kenya supports wholeheartedly the development, recognition and implementation of legally-enforceable 'Farmers' Rights' within the revised International Undertaking on Plant Genetic Resources, currently being negotiated in the FAO Commission on Plant Genetic Resources.  

This will require full and continuing consultation with farmers and their organisations. Only by so doing will the Intellectual Rights and the protection of Community Knowledge, which are fundamental to the conservation of agricultural biodiversity, be assured.

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