Zimbabwe is on the threshold of creating a national law, based on the OAU's Model Law on biodiversity, to protect its biological resources and ensure their fair and sustainable use.
ZVOMUYA GWINDI is one of Zimbabwe's well-known traditional healers. He is also a leading member of the Zimbabwe National Traditional Healers Association (ZINATHA), the country's foremost association of traditional healers, established in 1980. With a membership of more than 50,000, it has access to and information about more than 500 different types of medicinal plants. Currently, ZINATHA and many other groups in Zimbabwe are actively promoting a draft legislative proposal that can protect the local community's intellectual property rights and the country's diverse biological wealth.
Through this endeavour, it has been established that there is an urgent need for a comprehensive piece of national legislation, a national statutory authority and a well-coordinated, single community-based institutional framework to regulate access to and ensure fair and equitable sharing of the benefits of biodiversity. Andrew Mushita, Director of Zimbabwe's Community Technology Development Trust, said that the process of regional and national consultations clearly recognised the use of customary laws, norms and practices in the management of biological resources. It called for a number of commitments from the government to provide resources to communities, to help them build their own local capacity and to protect their biological resources.
In fact, most of the member-states of the Southern African Development Community (SADC) are working towards establishing similar laws against many odds, which will protect their genetic resources. Countries of the region have been compellingly encouraged by the African Union's Model Law, which effectively captures various proposals for the protection of community resource rights. It consolidates agricultural biodiversity and protects farmers and plant breeders from the negative influence of biotechnology. It is felt that if the Organisation of African Unity (OAU) can come out with a "Model Law for the Protection of Rights of Local Communities, Farmers and Breeders, and for the Regulation of Access to Biological Resources" and if it could become a basis for national laws in African countries, it can be done elsewhere as well. Other regions too can thus challenge the interests of multinational companies and developed countries.
Zimbabwe, like many other African countries, has a long history of herbal healing. A large segment of the country's population relies on herbal medicine, as prescribed by their family herbal specialists or traditional healers. The role of traditional healers in rehabilitation and health service delivery has been recognised by the Government of Zimbabwe. ZINATHA is accorded high esteem in the region. The majority of its members work from their homesteads and provide health care to about 80 per cent of the population.
However, the country currently lacks a law to govern biodiversity and indigenous knowledge. Zimbabwe is a signatory to the international Convention on Biological Diversity (CBD) and is subject to international instruments such as the Agreement on Trade Related Intellectual Property Rights (TRIPS), the Global Plan of Action for the Conservation and Sustainable Utilisation of Plant Genetic Resources for Food and Agriculture (GPA) and the International Undertaking on Plant Genetic Resources for Food and Agriculture (IU). Nevertheless, it still has to put in place the vital patenting or sui generis legislation, which can protect it against `bio-piracy' by multinational companies or research organisations from the developed world. As of now, the country has only the Traditional Medical Practitioners Act, a revised edition of a 1996 Act, which established a traditional medical practitioners' council. However, the Act and the Council only deal with administrative issues such as the registration and regulation of practice of the traditional practitioners.
Zimbabwe's rich genetic diversity, its exploitation by highly developed biotechnology organisations from the North and the need to use and protect this diversity for local and national needs have constituted an area of concern in the recent past. Several alarming cases of unfair and unequal use of the country's genetic resources have been reported.
A case in point is the one involving the tree Swartzia Madagascariensis. In July 1999, a patent on a powerful fungicidal ingredient was granted to a research professor at the University of Lausanne in Switzerland. The patented invention relies on traditional Zimbabwean knowledge and uses for its manufacture the root of Swartzia Madagascariensis, which can be found throughout tropical Africa. In April 1997, an addendum to a material transfer and confidential agreement between the U.S. pharmaceutical company Phytera and the University of Lausanne was signed. In that the parties agreed to a royalty payment of 1.5 per cent of Phytera's net sales of the specific product. Neither the Zimbabwean government nor the traditional healers with knowledge of the fungicidal properties of the plant were informed prior to the Swiss University's prospecting of Zimbabwe's biological resources. No contract was signed among the traditional healers, the Government of Zimbabwe and the University of Lausanne, which were involved in the initial project. Nor were there any mutually agreed terms for a fair and equitable benefit-sharing mechanism.
OVERALL, the whole African region is losing huge benefits from its biodiversity, for lack of legal protection against bio-piracy. The second South-South Bio-piracy Summit, held in Johannesburg during the World Summit on Sustainable Development in 2002, came out very strongly on this issue. The fact sheet released at the summit gave information about hundreds of patents being filed on African plants by multinational companies. To name just a few: brazzeine, a protein 500 times sweeter than sugar, from a plant in Gabon; teff, the grain used in Ethiopia's flat `injera' bread; thaumatin, a natural sweetener from a plant in West Africa; the African soap berry and the Kunde Zulu cowpea; and genetic material from the West African cocoa plant.
The latest patent to make headlines in the region involves the Hoodia cactus from the Kalahari desert. For generations, the San people of South Africa ate pieces of the cactus to stave off hunger and thirst. Analysing the cactus, the parastatal Council for Scientific and Industrial Research (CSIR) in South Africa found the molecule that curbs appetite and sold the rights, worth billions of dollars, to the pharmaceutical company Pfizer to develop an anti-obesity drug. The San people complained and protested. After a long battle, in 2003, the CSIR agreed to share the eventual royalties, and it became a landmark case where indigenous communities staked their claim to the profits derived from their knowledge.
The OAU initiative to develop model legislation challenged the hegemony of developed countries and unleashed new political dynamics on the issue. The initiative began in 1997, when it embarked on a process to assist African countries in fulfilling their obligations to the Convention on Biological Diversity and the TRIPS Agreement of the World Trade Organisation (WTO). While the Convention mandates countries to regulate access to biodiversity and respect the rights of local communities, TRIPS requires all members to protect intellectual rights on plant varieties through patents or a sui generis system. The development of the model law has been a result of a synergy between several initiatives in various parts of Africa, in which lawyers, political activists, non-governmental organisations (NGOs), farmers' bodies, trade unions and government functionaries participated. Several African governments too extended their support to it. In 1998, the OAU heads of state endorsed the Model Law and decided that it would become the basis for all national laws on the matter across Africa. Since then, several African countries are courageously taking the path ahead, to draft a national law.
The World Intellectual Property Organisation (WIPO) and the Union for the Protection of New Plant Varieties (UPOV) have expressed their anger to the OAU. In a four-page submission to the OAU, the WIPO pointed out that the prohibition of patents on life forms in the Model Law went against TRIPS. As a central principle, the OAU Model Law holds that patents on life forms are immoral and go against the basic values of African citizens and should therefore be outlawed. The WIPO also rejected the principle of `inalienability' of community rights embedded in the Model Law. The OAU wants those who collect biological resources in Africa to affirm that they will not apply for patents over such materials or their derivatives. The WIPO is afraid that this would prevent bio-prospectors from securing exclusive monopolies on products made or extracted from the goods. The UPOV has suggested drastic changes in more than 30 articles of the Model Law to suit their standards. This prompted Ethiopia's Environmental Protection Authority, which played a central role in drafting the Model Law, to question UPOV's right to challenge the legislation.
At the WTO meeting in Seattle in 1999, the African group and the OAU took the lead in opposing the patenting of life and protecting community rights over their agricultural and biological heritage. They restated their known opposition to the patenting of life in WTO 2003 at Cancun and asked that community rights be protected under TRIPS as an intellectual property rights regime. The African Model Law, of course, inspires them. With this law, a region and its people are trying to keep their right to decide what to do with their agriculture as also other activities that use biological resources, their parts or components, and how to do it. Other regions like Asia can learn from this experience. The Barcelona-based Genetic Resource Action International (GRAIN) recently gave a call: "Those who have been behind the development of the OAU Model Law deserve our support. And those who are now trying to destroy it deserve our rejection."