Southern Africa possesses a remarkable diversity of indigenous plants, coupled with rich cultural traditions on the use of plants for medicine.
Despite huge strides in provision of health care, many rural areas still do not have easy access to Western primary health care and veterinary services. Even where clinics and allopathic medicines are readily available, a large proportion of the population uses African Traditional Medicines together with, or in preference to, Western orthodox medicine.
Our rich and unique biodiversity
The concept of biodiversity encompasses the number and variety of organisms inhabiting a specified geographic region. Owing to its diverse range of climatic and topographic conditions, South Africa possesses a wealth of plant species. It is considered to have the richest temperate flora in the world, with a floristic diversity of about 24 000 species and intraspecific taxa in 368 families. With only 2.5% of the world’s land surface, it contains more than 10% of the world’s vascular plant flora.
South Africa has a flourishing diversity of cultures, with 11 official languages and a long history of medicinal plant use Studies of varying cultural practices, together with methods of traditional healing using the extensive array of available plants, are yielding valuable information to pharmaceutical and biotechnology researchers.
25% of all drugs derived from nature
Globally, natural products and their derivatives represent about 25% of all pharmaceutically produced drugs in clinical use. Plants were originally the major source of medicine, and there is currently a strong interest in natural medicines as a source of new remedies and bioactive compounds. This phenomenon is reflected in South Africa.
South Africa has contributed to worldwide medicines with natural teas and herbal remedies such as Cape Aloes (Aloe ferox), Rooibos (Aspalathus linearis), South African Pelargonium (Pelargonium sidoides), Buchu (Agathosma betulina), Sceletium (Sceletium tortuosum), Honeybush (Cyclopia intermedia), and Devil’s Claw (Harpagophytum procumbens), to name a few.
There are an estimated 220 000 indigenous traditional healers in South Africa. They are known by different names according to the different cultures, for example “inyanga” and “isangoma” (Zulu), “ixwele” and “amaquira” (Xhosa), “nqaka” (Sotho), “bossiedokter” and “kruiedokter” (Afrikaans).
There is often a basic general knowledge of medicinal plant use among the elderly members of the community.
A 2008 survey in Durban (KwaZulu-Natal) indicated that over 80% of the black population relies on both Western and traditional health care systems, and this figure is likely to be reflected country-wide. The market for medicinal plants is vast, and it has been estimated that 20 000 tonnes of plant material are traded in South Africa each year. Conservative estimates reveal that traditional healers and indigenous medicinal pant harvesters and traders comprise a major portion of a R4 billion informal economy.
The World Trade Organization (WTO) and the Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS) do not recognize collective (community) ownership rights of plants, based on culture.
Pharmaceuticals and biotech companies eager to exploit our natural resources
With South African indigenous plant use knowledge being a treasure trove of potential leads for new drug development, multi-billion dollar pharmaceutical and biotech companies are eager to exploit our natural resources so that they can identify, isolate and patent plant chemicals for the maximum return on investment to their shareholders.
Despite there being no internationally-accepted agreement or precedent on a legal mechanism for protecting and promoting indigenous (or traditional) medicine knowledge, the South African Department of Science and Technology (“DST”) is determined to introduce new legislation to roll out its Bio Economic Strategy Programme, which aims to unlock this potential.
To this end, the DST recently published a draft of the Protection, Promotion, Development and Management of Indigenous Knowledge Systems Bill (the “2016 IKS Bill) on 8 April 2016 (GG 39910).
The DST has worked at establishing systems and legislation for the protection of IK intellectual property since 2003, and has long envisaged a National Indigenous Knowledge Systems Office (“NIKSO”) to unlock lucrative investment deals with the drug and biotech sectors.
State could become ethno-pirate defeating purpose of legislation
Although the Bill’s stated aims are to establish a novel, community-based approach for the protection of indigenous knowledge and to curb unauthorised commercial exploitation of indigenous innovations without benefit-sharing with the communities who claim to have developed them, it is potentially the State itself, which will become the biggest exploiter [Ethno- Pirate] of all, thereby defeating the very purpose of the intended legislation.
Through this Bill, our government is keen to exploit the demand for our indigenous plant resources by becoming a conduit for commercial product leads and technologies under its Bio-Economic Strategy Programme.
In order for new drug and biotech innovations to be profitable for decades to come, the industries manufacturing and marketing them require an innovative mechanism to circumvent the limitation of developing drugs and technologies from natural resources, which aren’t patentable in terms of international law.
Quazi-patent monopolisatiom scheme
This is where the South African government has come up with what is a quazi-patent ‘monopolisation’ scheme to commercially exploit these potentially lucrative innovations, by restricting their ownership to communal licence holders and the State itself, who will all receive benefit-sharing kickbacks.
The scheme appears simple and equitable at first glance. This we are being told, is how the scheme works:
1. Indigenous communities are required to lodge applications to licence their indigenous plant-based innovations (in this case, traditional medicines) within 12 months of the Act being coming into law with the National Indigenous Knowledge Systems Office (“NIKSO”). The licences are issued only after communities can demonstrate that the indigenous traditional usage applied for has been passed on from generation to generation, and within their community’s geographical region. Successful applications result in the issue of community IK licences which are valid for twenty years.
2. The NIKSO then acts as a business referral agency for pharmaceutical and biotechnology companies seeking new innovation leads (for pharmaceutical drugs, unique genes etc.) to commercially exploit.
3. The NIKSO connects these companies to the community IK licence holders, and ‘Exclusive Use Agreements’ are drawn up by the NIKSO between the parties. The agreements enforce benefit-sharing arrangements between to the companies and the community IK licence holders. Benefits could include a small percentage of profit made by companies on products sold with are derived from the community’s innovations, shares in the companies, or being granted exclusive contracts to grow and supply raw materials to these companies, thereby promoting job creation.
4. The companies entering into these agreements obtain exclusive rights to use the innovations and raw materials on offer, essentially creating a quazi-patent right to monopolise the products they may manufacture.
This all looks good on paper. Who would not want to support a National Project which aims to empower local communities and advance science and technology?
In May 1999, Anthony Rees, chairman of Traditional and Natural Health Alliance wrote a paper titled ‘Biodiversity and Intellectual Property Rights – Implications for Indigenous People of South Africa’, in which he highlighted how Big Pharma and government were plundering indigenous knowledge and genetic resources in South Africa. Publicly funded research institutions have been extremely busy behind the scenes preparing for the commercialization of plant-based medicines purified of cultural and social derivates. All major South African universities have botany or biochemistry departments that engage in bio-prospecting activities concerning traditional medicine; the same is true for large research institutions like the Medical Research Council (MRC) or the Council for Scientific and Industrial Research (CSIR). Almost all of them have never acknowledged the sources of their leads, extracted from rural communities.
One can be cautiously optimistic that natural justice was being served at last, and that our law-makers were serious about ridding our land of Ethno-Piracy. One could even have hoped that the dignity and time-honoured traditions of traditional healers and indigenous communities would be protected and rightfully restored.
Sadly this is not the case.
Bill will restrict 220,000 traditional healers from using common indigenous remedies
The IKS Bill will severely restrict over 220 000 traditional healers from using many common indigenous plant-based remedies which may be licenced for exclusive commercial exploitation by licence holders and their drug and biotech company partners.
The Bill mandates that all traditional healers in South Africa must register with the NIKSO as accredited ‘Indigenous Knowledge Practitioners’ and be vetted by IKS Agents who will determine their eligibility to register. There is no indication in the Bill who these Agents will be, what qualifies them to assess other healers, and what criteria will be used to determine if a healer is eligible to register or not. Any healers who wish to use IKS will have to be registered. Unlicensed Indigenous Knowledge Practitioners’ will be committing a criminal offence if they, for gain, dispense plants for uses which are licenced (monopolised) in terms of the Bill.
Interim Council to begin registering traditional healers
An Interim Council has been set up to begin registering traditional healers as Traditional Health Practitioners and to draft and gazette regulations to give effect to the Act, such as Scopes of Practice, Ethical Rules, etc. The Act confers the right of registered Traditional Health Practitioners to compound and dispense traditional medicines as defined in the Act.
The IKS Bill is in conflict with the Traditional Health Practitioners Act, and undermines vested rights which traditional healers fought long and hard for since the dawn of democracy. There is no justifiable reason for this Bill to include Indigenous Knowledge Practitioners or place restrictions on the carrying out of their professions. The assessment of healer’s eligibly to practice traditional medicine and dispense African Traditional Medicines has been pre-qualified by application of the Traditional Health Practitioners Act.
We believer Traditional Healers should reject this Bill for ethical, cultural and moral reasons, not only to protect their right to practise freely and grow their professions as they see fit, but also to protect indigenous communities from the exploitation this Bill will bring. They should also identify those healers who are being co-opted into this scheme wilfully or through ignorance, and explain to them how they are being used as window dressing for this plunder.
Slash and burn
This Bill will pave the way for the legal confiscation of traditional indigenous medicines from the hands of traditional healers, and place them in the hands of multi-national corporations. This Bill will tear the very fabric of traditional medicine and leave it threadbare.
The 30 million South Africans who use traditional medicines will have their choice in medicines greatly diminished, all in exchange for a few crumbs swept from industry’s high tables to indigenous community leaders.
The vacuum of traditional medicines lost will be filled with Western orthodox drugs and guaranteed dependency on them. Where the roots of indigenous plant medicines will be rooted out, drug manufacturing plants and branches will soon grow like weeds.
Few add veneer of cultural approval
African Traditional Medicine is exclusively an oral tradition. In recent decades, many healers have been hoodwinked or corrupted. They have sold out their ancestral law by accepting payments in cash and promises of great recognition and titles by orthodox medicine researchers (Ethno-Pirates) fishing for clues for new drug development. A few of them have been appointed as window-dressing by these institutions conducting novel drug development research, adding a veneer of cultural approval of these schemes.
The IKS Bill requires that in order for an indigenous community to lodge successful licence applications, Indigenous Knowledge Practitioners (healers) and Indigenous Communities must provide documentary evidence that they were the innovators of the technology born of indigenous knowledge. They must demonstrate that this practical knowledge has been passed on from generation, to generation.
Section 11 of the Bill, which details the ‘Eligibility Criteria for Protection’ states –
‘The protection of indigenous knowledge contemplated in Section 9 apply to indigenous knowledge which – (a) has been passed on from generation to generation, (b) has been developed within the indigenous community, and (c) is associated with the cultural make-up and social identity of that indigenous community’.
Our relationship to plants cannot be owned or restricted
The preamble of our Constitution opens with the paragraph “We, the people of South Africa, Recognise the injustices of our past; Honour those who suffered for justice and freedom in our land; Respect those who have worked to build and develop our country; and Believe that South Africa belongs to all who live in it, united in our diversity.”
Indigenous plants, used as medicine, food and shelter growing within our borders, belong to all the people who live in this land. We, the people are the guardians of nature for our future generations. Our relationship with plants cannot be owned or restricted with a piece of paper and handed over to certain individuals or corporations to selfishly monopolise. The real indigenous plant knowledge custodians in South Africa are the 220 000 African traditional healers who have practiced their time-honoured calling ever since their San and Khoi ancestors first nurtured a relationship with the healing power of nature.
This Bill must be scrapped in its entirety, and a new piece of legislation gazetted which transfers ALL research already conducted in Ethno-Piracy schemes across South Africa to the Traditional Healers Practitioners Council, where knowledge on indigenous medicine plants can be catalogued and disseminated in the form of a living National Traditional Medicines Pharmacopeia. This will fulfil the Traditional Health Practitioners Act’s obligations to promote the safe and effective use of indigenous medicines in South Africa by all.
This knowledge base will ensure the sustainability of African Traditional Medicine in its original form, and the professions of the African Traditional Health Practitioners in South Africa. By restoring African Traditional Medicine to parity with other health professions, injustices of the past will be healed, and health true freedom will be achieved.