Intellectual Property Protection of African Traditional Medicine within the Legal Framework of the Right to Development

Abstract

In this article, we examine the prospect of securing intellectual property protection of African traditional medicine within the legal framework of the right to development in Africa. We do so with the aim to advance the right to development as an imperative to improving living standards for the peoples of Africa. Our analysis involves determining to what extent adequate protection could be secured to the benefit of the communities that engage in the practice of traditional medicine as a livelihood. Despite the imposition of western medicine, which has dominated traditional medicine since the colonial era, the latter has survived and, as we argue, deserves protection for gainful purpose as part of the common heritage, which the peoples of Africa are entitled by law to benefit from. With the renewed impetus directed towards re-establishing African value systems against the iniquities of imperial domination, our central focus in this article is to demonstrate that the practice of traditional medicine is deeply rooted in African culture, which under the African human rights system is granted as a human right. In essence, the advancement of African culture constitutes an integral aspect of the right to socio-economic and cultural development enshrined in the African Charter. Unlike other intellectual property regimes, which we argue are not sufficiently protective, we posit that the right development provides a sui generis framework within which intellectual property protection of African traditional medicine could effectively be claimed as a measure to secure redistributive justice, which the peoples of Africa have been deprived of over the decades.

African Traditional Medicine: South African Perspective

“…A national indigenous knowledge system (IKS) policy was adopted in 2004, and a national office of IKS was established in 2006. The policy was developed as an overall framework to guide and coordinate the work of different government departments with regard to indigenous knowledge [73]. The Biodiversity Act 10 of 2004, known as 'the Biodiversity Act' , provides for the management and conservation of South Africa's biodiversity.…”