A model law

THE Organisation of African Unity's (OAU) Model Law was developed as a direct response to the decision taken and the directive given by the OAU Council of Ministers in 1988. The principal objective was to "ensure the conservation, evaluation and sustainable use of biological resources, including agricultural genetic resources as well as associated indigenous knowledge, in order to improve their diversity as a means of sustaining the life support systems".

The core objectives of the Model Law can be found in the basic principles enunciated in the text.

Food security: Africa's access to food at all time for an active and healthy life is currently provided through small farmers who practise customary rain-fed farming of multiple cropping with farm-saved seeds and on-farm crop selection. For most communities, locally produced biological resources provide over 95 per cent of their requirement for survival. The argument and need for change may be logical and necessary, but such change must be appropriately planned and carefully implemented, consistent with local capacity to absorb it. Biological diversity is essential for sustainable food production and food security. Therefore, the loss of diversity could make the local environment more ecologically unstable, affect sustainable food production, local community control and access to genetic resources. The Model Law aims at promoting the conservation of local biodiversity-related technologies, innovations and practices, food security and community rights over biological resources and knowledge. It recognises farmers' rights as a counter balance to breeders' rights and thus ensures for farmers the right to save and exchange seeds and, where necessary, produce farmer-certified seed. The model legislation acknowledges seed security as the foundation for food security, in order to improve the region's long-term food and livelihood security.

Sovereign and inalienable rights: Both the Rio Declaration and the Convention on Biological Diversity (CBD) recognise the sovereign rights of state, responsibility to use sustainably their biological resources and the right of access to and equitable sharing of the benefits derivable from them. National legislation needs to define and guarantee the rights and responsibility of the communities over their biological heritage and related traditions. This guarantee is in consonance with the relevant Article of the CBD and the revised section of the FAO International Undertaking on Plant Genetic Resources (FAO-IU). It also protects local communities from the vagueness of Trade-Related Aspects of Intellectual Property Rights (TRIPS). The OAU Model Law is based on the principle that the knowledge, technologies and biological resources of local communities are a result of the tried and tested practices of past generations and they are held in trust by the present generation for future generations. The state has a responsibility to protect such rights.

Community rights: The United Nations (UN) has recognised community rights and recommended that states do so. It is in this respect that some countries are incorporating collective rights into their national legislation. The OAU Model Law includes a special section on community rights where the rights of local communities are recognised. These rights are particularly important to protect Africa's abundant multi-ethnic character, rich culture and biological heritage.

The importance of community knowledge and technology: The CBD recognises biodiversity as the basis of the livelihood of millions of people around the world. Damage to and erosion of biodiversity threaten the very life support system of all human beings and the phenomenon that provides the ingredients for food, medicine, shelter and comfort.

The TRIPS Agreement does not recognise the knowledge, technologies, innovations and practices of local communities as subjects for protection under IPRs. However, the CBD specifies that innovations and practices of local communities are essential for the conservation of biodiversity and should be so recognised and protected.

The Model Law provides OAU member-states with an opportunity to protect their biodiversity and the associated knowledge and technologies.

Participation in decision-making: The International Labour Organisation's (ILO) Convention 169, adopted on June 27, 1989, recognises the right of indigenous peoples to decide their own development priorities. Interpreted in the context of the local communities of Africa, the Model Law ensures the effective participation of affected communities in the regulation of access to and the sharing of benefits accruing from the utilisation of their biological resources, knowledge, technologies and practices.

Regulation of access to biological resources: The current trend towards privatisation, commercialisation, bio-prospecting and bio-trade promoted through TRIPS could erode the local livelihood systems based on biological resources. In the absence of appropriate regulation, local communities will forever be on the losing end. The Model Law provides for a system to regulate access, subject to prior informed consent of the state and the local community concerned. They include the requirements to be fulfilled when applying for access, the information to be provided by the applicant to the National Competent Authority, the procedure for granting access, the types of permits and so on. These conditions are consistent with those prescribed by the CBD and the Biosafety Protocol.

Prior informed consent: The CBD and the Protocol on Biosafety both require prior informed consent as a condition for granting access. Consequently, the Model Law required the prior informed consent of both the state and the local community before granting access to biological resources. It specifies provision for consultation with the communities concerned on applications being made for access. The responsibility to ensure appropriate consultation rests with the National Competent Authority.

Fair and equitable sharing of benefits: The Model Law recognises benefit-sharing as a right of local communities consistent with the basic tenets of the CBD. The Model Law stipulates that a specific percentage of any financial or non-financial benefit be shared with the local community. One of the proposed mechanisms for benefit-sharing is the establishment of a community gene fund. The fund shall be used to finance development projects in the local community.

The legislation is unique in terms of its enunciation and amplification of the African Common Position of "No Patents on Life Form". It acknowledges the pivotal role of women in the conservation of biological diversity and gender equality in decision-making.