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Namibia: Bill on Access to Biological and Genetic Resources and Associated Traditional Knowledge

(June 1, 2017) In April 2017, the Namibian National Assembly reportedly passed the Access to Biological and Genetic Resources and Associated Traditional Knowledge Bill and sent it to the other chamber of Parliament, the National Council, for review.  (Absalom Shigwedha, NA Passes Bill on Use of Genetic Resources, NAMIBIAN (May 11, 2017).)  If the bill is confirmed by the National Council in its current form, the Namibian Constitution requires that it be forwarded to the country’s president for assent in order to become enacted law.  (The Constitution of the Republic of Namibia (1990), § 56, World Intellectual Property Organization website.)

Application and Objectives

The proposed legislation applies to biological and genetic resources as found in or outside of their natural habitat, the derivatives of such resources, associated traditional knowledge, and benefits arising from their use, including commercial use.  (Access to Biological and Genetic Resources and Associated Traditional Knowledge Bill, 2017, § 3, Namibia Parliament website.)  Under the proposed legislation, the term biological resources includes “organisms or parts thereof, populations, or any other biotic component of ecosystems with actual or potential use or value for humanity.”  (Id. § 1.)  A genetic resource is “any material of plant, animal, microbial or other origin containing or derived from functional units of heredity and which has actual or potential value which may be found in in situ or ex situ conditions under the control of the State.”  (Id.)

The proposed legislation has various objectives.  One such objective is ensuring the recognition and protection of the rights of local communities over their genetic resources and associated traditional knowledge, the latter being defined as “the accumulated individual or collective knowledge, practices, innovations or technologies associated with biological and genetic resources which is created or developed over generations by local communities, vital for conservation, sustainable utilisation of biological and genetic resources and of socioeconomic value.”  (Id. §§  1 & 2(b).)  Another key objective is “to develop and promote appropriate mechanisms for a fair and equitable sharing of benefits arising from the use of genetic resources and associated traditional knowledge.”  (Id. § 2(d).)  A third key objective is the provision of “arrangements and procedures including measures for accessing biological or genetic resources of Namibia and associated traditional knowledge, their products and derivatives … .”  (Id. § 2(c).)

Rights of the State and Local Communities

If adopted in its current form, the proposed legislation would vest various rights relating to biological or genetic resources in the state.  It states:

(1) Subject to any right conferred by or under this Act, any right in relation to the access to or prospecting for, and the collection and sale or disposal of, and the exercise of control over any biological or genetic resource vests in the State despite –

(a) any right of ownership of any local communities, person or group in relation to any land in, on or under which any such biological or genetic resource is found; and

(b) any associated traditional knowledge which any local communities, person or group may have with regard to the biological or genetic resource in question.  (Id. § 5.)

Under the legislation, rights relating to the traditional knowledge and technologies associated with biological and genetic resources would be reserved for “the particular local community which holds and applies such knowledge for the sustainable conservation of the genetic resource.”  (Id. § 5(2).)  However, such rights would be subject to the regulatory powers of the state and the responsibility of the state to ensure the “fair and equitable sharing of the benefits of the utilisation of genetic resources and associated traditional knowledge.”  (Id. § 5(3).)

Subject to the above-listed restrictions, the proposed legislation would accord local communities the following rights over biological and genetic resources and associated traditional knowledge:

(a) the right to collectively share the benefits arising from the utilisation of biological and genetic resources and associated traditional knowledge;

(b) the right to protect their biological and genetic resources and associated traditional knowledge as traditional custodians and users, and in terms of customary law and practices;

(c) the inalienable right to use their biological and genetic resources and associated traditional knowledge in the course of sustaining their livelihood systems, conservation and sustainable use of biological diversity.  (Id. § 12.)

Protection of Community Intellectual Property Rights

The legislation would recognize and protect community intellectual property rights over genetic resources and associated traditional knowledge.  It states that the “State must recognise and protect the community intellectual property rights as they are enshrined and protected under the norms, practices and customary law found in, and recognised by, the concerned local communities, whether such law is written or not.”  (Id. § 13(1).)  It further states that “[a]n item of traditional knowledge must be identified, interpreted and ascertained in accordance with customary practices and law, whether such law is written or not.”  (Id. § 13(2).)  The fact that a piece of traditional knowledge is not registered does not mean that it is unprotected as community intellectual property.  (Id. § 13(3).)

Benefit Sharing

The legislation provides that the right holders are entitled to a “fair and equitable share of benefits from access and utilisation of biological and genetic resources and associated traditional knowledge.”  (Id. § 10(1).) The benefits may be monetary or non-monetary in nature; the former include upfront payments, royalties, and  licensing fees, whereas the latter may take many other forms, including the sharing of research results, collaboration in scientific research, development of capacities for technology transfer, employment opportunities, and infrastructure and technology support.  (Id. § 10(2).)

Violations and Penalties

The legislation criminalizes violation of its provisions.  For instance, it makes it a crime to access biological or genetic resources and associated traditional knowledge without first obtaining a proper permit or to fail to comply with conditions stipulated in a permit issued under its provisions.  (Id. § 14(1).)  Also, it is an offense to export biological or genetic resources or associated traditional knowledge in violation of the provisions of the proposed legislation.  (Id.)  A person convicted on any of these charges is subject to a fine and/or a prison term not exceeding ten years.  (Id.)  In addition to imposing such penalties, the court may order the forfeiture of any or all items in any form used in the commission of the crime.  (Id. § 15.)