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A Critical Examination of the African Legal Framework for Indigenous Knowledge

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Indigenous or traditional knowledge (TK) systems are the springboard of authentic African innovation and creativity. Chidi Oguamanam provides a appraisal of the present traction around Indigenous knowledge.

Image courtesy of interviewee. July 23, 2024

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This video discusses the role of Africa in international negotiations regarding indigenous and traditional knowledge, particularly within the frameworks of development, intellectual property, and knowledge governance. It emphasizes Africa's stance as a defender of its traditional knowledge systems, suggesting a need to evaluate how effectively these ideas are integrated into local, regional, and national policies.

The study aims to analyze whether traditional knowledge is internalized in governance structures across the continent and critiques the colonial origins of categorizing knowledge systems as "indigenous." The argument posits that all knowledge systems should be viewed equally, focusing on their contributions to economic and socio-cultural contexts.

This video also critiques current African regional cooperation instruments, noting that they do not adequately elevate traditional knowledge as vital to economic growth and development. While references to these systems do exist, they tend to be peripheral rather than central to policy discussions.

Furthermore, the relationship between traditional knowledge and intellectual property rights is explored, highlighting a tension rooted in the historical dynamics of power and colonialism. The existing intellectual property framework, shaped by Western ideals, often fails to accommodate the communal nature of traditional knowledge, leading to difficulties in recognition and protection.

Finally, the need for Africa to adapt its strategies in light of emerging technologies and global knowledge frameworks is highlighted, advocating for the inclusion of African knowledge systems and values in future governance models, particularly as technology evolves and blurs traditional boundaries.

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X-TIMESTAMP-MAP:LOCAL=00:00:00.000,MPEGTS=900000

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When you look at the way policies are made,

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particularly in the governance of knowledge,

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what we have found over the time is there's a tendency

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for Africa to always be the defender of indigenous

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or traditional knowledge at international negotiations,

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particularly in relation to development,

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intellectual property and knowledge governance.

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And, it almost becomes like

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whenever there is a global, issue

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or policy making space,

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Africa will always literally have the patent

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over the issue of traditional or indigenous knowledge.

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And it seems ingrained in all of us as Africans,

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whether we are bureaucrats or academics

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and whatever sphere of work.

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And I pulled back to say,

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so much has been said about African traditional knowledge.

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And, it is important to pull back now

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and see to what extent we have actually internalized

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traditional knowledge as a significant factor endowment

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for our economic and sociocultural emancipation.

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So this provides the context

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and the aim of this study is to really try

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and understand whether

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what we do internationally is internalized regionally,

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nationally, and in the way the African constitutive

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framework for development

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and innovation operates right on the African continent.

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So this is really the background.

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And this study began to really look into critical literature

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and institutional governance, mechanisms

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and framework across Africa

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and through regional economic, commissions.

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To, to be able to answer this question, I want

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to make it clear that the whole idea

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of defining knowledge systems of a particular set of people

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as indigenous is actually a colonial

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creation is defined by power.

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So when you begin to a objectify, a objectify

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and knowledge system, you are literally saying

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that there is a knowledge system properly.

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So-called the rest is indigenous in a matter

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of ordering others knowledge systems.

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So this is important to us in, in this context.

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So when, and this is something we have accepted unwillingly

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as a pragmatic, usage.

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Otherwise knowledge is knowledge and is knowledge.

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But when you say indigenous knowledge systems

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or traditional knowledge systems, you are literally saying

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in reference to western knowledge systems

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or western science as it were.

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So this is a knowledge system

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that is no different from any other knowledge systems.

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It's designed essentially to capture

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the knowledge originating from local

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or traditional non-Western communities.

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And actually it is as a result of intellectual activity

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in industrial or traditional context, including

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so many other issues like know-how skills innovation,

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practices learning, and this knowledge is embodied in the

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traditional lifestyles of a community

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and is contained in different ways through their practices,

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through their social ordering and, and,

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and through their expressions, their spirituality,

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their arts, their art, their craft,

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and everything that defines a people

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and gives you an idea of their worldview, their ideology

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of sustainability and development.

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So, therefore what we have seen is

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that when we talk about,

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indigenous knowledge systems,

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we are talking about a systematized way

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of knowledge production, of social cohesion, of existence,

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of milestones in, in, in, in social,

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classification about gender

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and so many things, dancing, songs, music, art.

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So in in, in this context, we look at it as holistically

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the essence of how people have defined themselves,

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how they have lived, how they have interacted with nature.

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So you see there is a tendency to talk about traditional

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cultural expressions of folklore.

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So there we have expressive aspects

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of knowledge production in dance, in music,

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in creativity, in art.

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We also have the environmental component

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that talks about relationship

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with genetic resources in agriculture and health

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and in several ways.

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So the essence of this is that the, the contour,

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so the boundaries of traditional knowledge systems is not

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closed, it is dynamic, it is evolving.

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It is literally saying this is

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how a people produce knowledge for their own sustainability

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as a civilization.

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So this is really something that no text I know has defined.

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Some will define it enum, some would define it open-ended.

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Some would define it in terms of,

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classifying the expressive part of it,

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the non expressive part of it,

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the genetic resources part of it.

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So it is the complete amalgam of a people's model

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of knowledge production for their own survival.

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This is one of the major revelations of this study.

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Um, the major constitutive instruments

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of African regional corporation, would start with

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of course the African Union

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or the treaty establishing the African Union, which was

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before now the organization of African Unity

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and of course the African Economic Commission

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and more recently the African continental free trade area.

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We also have the charter of African Cultural re Renaissance,

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the new partnership for African development,

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the conventional conservation of nature

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and natural resources.

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I can go on and on.

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So what we have found is that this

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paradigm instruments actually do not

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put traditional knowledge as a strong pillar of African

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economic solidarity or cooperation or development.

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And what has happened is that they begin

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to really cast a big picture of how, of the vision

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of African development aspirations,

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but really do you see them use the word traditional

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knowledge or indigenous knowledge systems.

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But it all breaks down to secondary

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or ary instruments that actually try to begin

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to put some of those ideals in the basic text,

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in the basic constitutive instruments, into some degree

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of operationalization.

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So what we found is that traditional knowledge,

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indigenous knowledge, did not find what you call,

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a front stage traction in the language

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of these constitutive instruments,

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but they did not completely drop the ball.

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It begins to boil down to specific cities

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that when they talk about cultural corporation,

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talk about sports, talk about exchange of education,

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they talk about agriculture, they talk about irrigation,

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they talk about fisheries, they talk about

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so many other programs that really anate some of these,

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big picture issues that are captured in the language

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of these tive instruments.

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That is then when you begin to see some references,

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which I could consider not consistently or synergistically

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or deliberately for the most part,

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that there is always inevitable references

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to African traditional knowledge

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or indigenous knowledge system through some

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of these statuary instruments and so on.

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Regional economic frameworks, probably the ones

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that give us some degree of tangibility

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or something we can hold onto to say, okay,

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they may have actually taught about traditional knowledge.

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But then there are eight major

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recognized regional economic frameworks in Africa, beginning

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with the Southern African development community,

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the economic community for West African states,

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the East African community, the Union, Duma Arab,

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and of course the common market of Eastern

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and Southern Africa

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and ard, which is the community of Sahel Saharan states.

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We have also the economic community

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of central African states

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and the inner governmental authority on development

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of the eight countries of the Horn of Africa.

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Now these, these are really major regional economic,

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instruments that try to,

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give some vent to regional, festering of,

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the African Union mandate.

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Um, what they have done is also to set up a language

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that speaks about economic solidarity cooperation,

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improving the wellbeing of people in these regions through

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so many, frameworks for development.

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And they, they actually also like the constitutive

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instruments, of, African continental nature,

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which we spoke about, not long ago.

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These ones actually also did not really directly speak about

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traditional knowledge, but

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because the way they are constituted,

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they have commissions committees, they have subsidiary

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and statuary instruments that, ministers of states

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of these, regional bodies

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or constitutive countries within this regions tend

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to really take charge of.

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So in that category, consistent with the framework

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and the continental level, the regional economic,

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community or commission frameworks actually also

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have been able to really reference traditional knowledge

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through some of their policies, some

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of their subsidiary instruments

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and some of the, follow up,

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ministerial commitments in, in terms of policies.

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So those are actually still touchy

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or secondary referred to in even the regional economic.

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Uh, the relationship

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between traditional knowledge

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and intellectual property is some kind

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of relationship I would prefer to look at from

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probably three perspectives.

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One is historical, second is present,

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and the third will be the potential.

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Now intellectual property is

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the western capitalist ideological mechanism

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for protection of knowledge

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and for reward to knowledge production.

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And so it is framed from the neoliberal

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capitalist economic point of view.

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Whereof the individual is the center of innovation

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and creativity, not the community.

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And it is structured within very strict legal prisons.

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I can give you an example of patents.

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Something has to be new, novel,

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inventive in order to get patent.

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There are check boxes strictly applied,

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and then there is copyright that talks about fixation

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of expression and so on and so forth.

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And of course we have, trademarks and, designs

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and so many regimes of ip.

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So when you look at how intellectual property is structured,

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you could see that it speaks to a specific model of

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Knowledge production, the formal scientific model

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that is reconciliable with, western legal framework

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under the statutory regimes

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and sometimes under the common law

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of intellectual property rights.

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So in this box or in this, in this little space

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and narrowly construed indigenous knowledge

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or traditional knowledge that I have defined for you

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before will find it difficult

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to fit within intellectual property.

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Prisms example would be that if I was

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saying that I have a medicinal plant that is used

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to cure a particular disease from time immemorial used

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by my community or my clan or my nation.

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And it is something that the community treasures as part

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of their cultural heritage.

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And, we may not know from what or how it came into being

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because it's a, it is a knowledge system passed from

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generation to generation.

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But somebody could come

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and begin to break down that medicinal plant from the point

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of view of their molecular essence.

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And I isolate the active substance there

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and now begin to work in white coat laboratory in order

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to find a way to structure what we call a patent claim

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or write a patent specification that fits within the model

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of intellectual property or the patent system.

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Then they get a patent.

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But that does not naturally happen when you are pro

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practicing this kind of innovation from indigenous

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or communion knowledge framework.

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So the relationship, and I can give you more examples

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and copyright if I was to sing a folk song and dance it

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and express it in a communal ceremonial context,

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and it's passed on generation to generation,

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it can be poetry that is recited endlessly over time.

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And most of these cultures do not document this in a fixated

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form or in written forms

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and so on that will be comfortable to be called to, to

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to to have a copyright claim over it.

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If somebody comes and fixes it or gets a picture of it

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or texts and,

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and begins to put it in a place where it is tangible,

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they can get a copyright.

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But the civilization that has been using this song

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or these ceremonies, could not claim copyright.

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So intellectual property system

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and traditional knowledge has a fraught relationship

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because it's part of the colonial framework

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that defines a certain knowledge system as traditional,

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almost like presuming that is not innovative

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and that the origin of it is not known

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and it is in the public domain.

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Everybody can feast on it and then get rewarded

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and abandon those who prefer to create in community

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and in, so that is a fractured and a fraught

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and tense relationship.

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But then this is historically and that has been a problem,

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but presently there has been a lot of pressure to begin

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to open up intellectual property

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to accommodate knowledge production systems

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outside the strict prison of western scientific

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or industrial model,

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which the current intellectual property

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system is designed for.

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And so this is why traditional knowledge is being discussed

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in the context of intellectual property rights.

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And so going forward there are potentials to really begin

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to pressure the, so-called orthodoxy

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of the intellectual property system to open it up

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to new knowledge production systems

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that are captured in traditional knowledge to broaden it

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and make it inclusive.

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And we know that historically intellectual property has been

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recalibrated over time to respond to changing

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or changes in technology.

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For example, there was originally no intellectual property

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granted to to life forms,

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but with a boast of technology,

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somebody can genetically modify a, an animal

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and claim a patent over it.

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So we see that's a flexibility,

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an intellectual property system to evolve with technology.

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But unfortunately that flexibility has not been extended to,

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to traditional knowledge systems.

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And so this is really the kind

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of relationship intellectual property has

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with traditional knowledge.

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It is defined by power.

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It is defined historically by colonial assumptions

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that other people's knowledge production systems other than

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the western model does not actually equate to innovation.

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So this is a very tense conversation

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and the relationship between traditional knowledge

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and western intellectual property models.

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We have found a very important platform

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through this study to prepare us for

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the explosive nature of innovation that inevitably

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drag those who produce from the prism

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of traditional knowledge.

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As a lot of issues about data,

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agricultural knowledge practices are now defined in terms

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of their commercial consequence in relation to

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who controls data.

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And data is generated formally and informally,

17:31.255 --> 17:33.715
and there is a lot of things happening in the realm

17:33.715 --> 17:35.075
of artificial intelligence.

17:35.455 --> 17:39.795
And inevitably, the coalition of knowledge systems

17:40.625 --> 17:42.835
will make us to begin to redefine

17:43.735 --> 17:46.435
how everyone will benefit from knowledge systems.

17:47.175 --> 17:48.795
The intellectual property

17:48.825 --> 17:53.125
that was engineered in Europe beginning from Venice

17:54.095 --> 17:57.635
is no longer sustainable for a global knowledge system

17:58.225 --> 18:02.155
that is now completely taking every form

18:02.155 --> 18:06.715
of knowledge in its wake through technological conscription.

18:07.535 --> 18:09.795
The, the, the distinction between the formal

18:09.935 --> 18:12.075
and informal is melding away

18:12.075 --> 18:13.635
through artificial intelligence.

18:13.695 --> 18:17.715
So we have as a continent, that is to say Africa,

18:18.335 --> 18:22.675
to continuously begin now to redesign our strategy

18:23.095 --> 18:24.715
to participate in,

18:24.735 --> 18:27.595
in a global knowledge governance framework where

18:27.615 --> 18:29.035
of our knowledge systems

18:29.255 --> 18:32.275
and the values that are integral to those knowledge systems

18:32.785 --> 18:36.395
have to be completely represented in the new knowledge

18:36.395 --> 18:39.315
governance order, particularly that is animated

18:39.455 --> 18:40.875
by different kinds of technologies,

18:41.265 --> 18:44.675
including artificial intelligence and data governance.

00:00 - When you look at the way policies are made, particularly in the governance of knowledge, what we have found over the time is there's a tendency for Africa to always be the defender of indigenous or traditional knowledge at international negotiations, particularly in relation to development,

00:22 - intellectual property and knowledge governance. And, it almost becomes like whenever there is a global, issue or policy making space, Africa will always literally have the patent over the issue of traditional or indigenous knowledge. And it seems ingrained in all of us as Africans, whether we are bureaucrats or academics and whatever sphere of work. And I pulled back to say,

00:55 - so much has been said about African traditional knowledge. And, it is important to pull back now and see to what extent we have actually internalized traditional knowledge as a significant factor endowment for our economic and sociocultural emancipation. So this provides the context and the aim of this study is to really try and understand whether what we do internationally is internalized regionally, nationally, and in the way the African constitutive

01:30 - framework for development and innovation operates right on the African continent. So this is really the background. And this study began to really look into critical literature and institutional governance, mechanisms and framework across Africa and through regional economic, commissions. To, to be able to answer this question, I want to make it clear that the whole idea of defining knowledge systems of a particular set of people

02:01 - as indigenous is actually a colonial creation is defined by power. So when you begin to a objectify, a objectify and knowledge system, you are literally saying that there is a knowledge system properly. So-called the rest is indigenous in a matter of ordering others knowledge systems. So this is important to us in, in this context. So when, and this is something we have accepted unwillingly as a pragmatic, usage.

02:32 - Otherwise knowledge is knowledge and is knowledge. But when you say indigenous knowledge systems or traditional knowledge systems, you are literally saying in reference to western knowledge systems or western science as it were. So this is a knowledge system that is no different from any other knowledge systems. It's designed essentially to capture the knowledge originating from local or traditional non-Western communities.

03:06 - And actually it is as a result of intellectual activity in industrial or traditional context, including so many other issues like know-how skills innovation, practices learning, and this knowledge is embodied in the traditional lifestyles of a community and is contained in different ways through their practices, through their social ordering and, and, and through their expressions, their spirituality, their arts, their art, their craft, and everything that defines a people

03:40 - and gives you an idea of their worldview, their ideology of sustainability and development. So, therefore what we have seen is that when we talk about, indigenous knowledge systems, we are talking about a systematized way of knowledge production, of social cohesion, of existence, of milestones in, in, in, in social, classification about gender and so many things, dancing, songs, music, art.

04:13 - So in in, in this context, we look at it as holistically the essence of how people have defined themselves, how they have lived, how they have interacted with nature. So you see there is a tendency to talk about traditional cultural expressions of folklore. So there we have expressive aspects of knowledge production in dance, in music, in creativity, in art. We also have the environmental component that talks about relationship

04:41 - with genetic resources in agriculture and health and in several ways. So the essence of this is that the, the contour, so the boundaries of traditional knowledge systems is not closed, it is dynamic, it is evolving. It is literally saying this is how a people produce knowledge for their own sustainability as a civilization. So this is really something that no text I know has defined. Some will define it enum, some would define it open-ended.

05:11 - Some would define it in terms of, classifying the expressive part of it, the non expressive part of it, the genetic resources part of it. So it is the complete amalgam of a people's model of knowledge production for their own survival. This is one of the major revelations of this study. the major constitutive instruments of African regional corporation, would start with of course the African Union

05:39 - or the treaty establishing the African Union, which was before now the organization of African Unity and of course the African Economic Commission and more recently the African continental free trade area. We also have the charter of African Cultural re Renaissance, the new partnership for African development, the conventional conservation of nature and natural resources. I can go on and on. So what we have found is that this

06:09 - paradigm instruments actually do not put traditional knowledge as a strong pillar of African economic solidarity or cooperation or development. And what has happened is that they begin to really cast a big picture of how, of the vision of African development aspirations, but really do you see them use the word traditional knowledge or indigenous knowledge systems. But it all breaks down to secondary or ary instruments that actually try to begin

06:47 - to put some of those ideals in the basic text, in the basic constitutive instruments, into some degree of operationalization. So what we found is that traditional knowledge, indigenous knowledge, did not find what you call, a front stage traction in the language of these constitutive instruments, but they did not completely drop the ball. It begins to boil down to specific cities that when they talk about cultural corporation,

07:18 - talk about sports, talk about exchange of education, they talk about agriculture, they talk about irrigation, they talk about fisheries, they talk about so many other programs that really anate some of these, big picture issues that are captured in the language of these tive instruments. That is then when you begin to see some references, which I could consider not consistently or synergistically or deliberately for the most part, that there is always inevitable references

07:51 - to African traditional knowledge or indigenous knowledge system through some of these statuary instruments and so on. Regional economic frameworks, probably the ones that give us some degree of tangibility or something we can hold onto to say, okay, they may have actually taught about traditional knowledge. But then there are eight major recognized regional economic frameworks in Africa, beginning with the Southern African development community,

08:22 - the economic community for West African states, the East African community, the Union, Duma Arab, and of course the common market of Eastern and Southern Africa and ard, which is the community of Sahel Saharan states. We have also the economic community of central African states and the inner governmental authority on development of the eight countries of the Horn of Africa. Now these, these are really major regional economic,

08:52 - instruments that try to, give some vent to regional, festering of, the African Union mandate. what they have done is also to set up a language that speaks about economic solidarity cooperation, improving the wellbeing of people in these regions through so many, frameworks for development. And they, they actually also like the constitutive instruments, of, African continental nature, which we spoke about, not long ago.

09:28 - These ones actually also did not really directly speak about traditional knowledge, but because the way they are constituted, they have commissions committees, they have subsidiary and statuary instruments that, ministers of states of these, regional bodies or constitutive countries within this regions tend to really take charge of. So in that category, consistent with the framework and the continental level, the regional economic,

09:59 - community or commission frameworks actually also have been able to really reference traditional knowledge through some of their policies, some of their subsidiary instruments and some of the, follow up, ministerial commitments in, in terms of policies. So those are actually still touchy or secondary referred to in even the regional economic. the relationship between traditional knowledge

10:32 - and intellectual property is some kind of relationship I would prefer to look at from probably three perspectives. One is historical, second is present, and the third will be the potential. Now intellectual property is the western capitalist ideological mechanism for protection of knowledge and for reward to knowledge production. And so it is framed from the neoliberal

11:09 - capitalist economic point of view. Whereof the individual is the center of innovation and creativity, not the community. And it is structured within very strict legal prisons. I can give you an example of patents. Something has to be new, novel, inventive in order to get patent. There are check boxes strictly applied, and then there is copyright that talks about fixation of expression and so on and so forth.

11:39 - And of course we have, trademarks and, designs and so many regimes of ip. So when you look at how intellectual property is structured, you could see that it speaks to a specific model of Knowledge production, the formal scientific model that is reconciliable with, western legal framework under the statutory regimes and sometimes under the common law of intellectual property rights. So in this box or in this, in this little space

12:11 - and narrowly construed indigenous knowledge or traditional knowledge that I have defined for you before will find it difficult to fit within intellectual property. Prisms example would be that if I was saying that I have a medicinal plant that is used to cure a particular disease from time immemorial used by my community or my clan or my nation. And it is something that the community treasures as part of their cultural heritage.

12:47 - And, we may not know from what or how it came into being because it's a, it is a knowledge system passed from generation to generation. But somebody could come and begin to break down that medicinal plant from the point of view of their molecular essence. And I isolate the active substance there and now begin to work in white coat laboratory in order to find a way to structure what we call a patent claim or write a patent specification that fits within the model

13:24 - of intellectual property or the patent system. Then they get a patent. But that does not naturally happen when you are pro practicing this kind of innovation from indigenous or communion knowledge framework. So the relationship, and I can give you more examples and copyright if I was to sing a folk song and dance it and express it in a communal ceremonial context, and it's passed on generation to generation, it can be poetry that is recited endlessly over time.

14:01 - And most of these cultures do not document this in a fixated form or in written forms and so on that will be comfortable to be called to, to to to have a copyright claim over it. If somebody comes and fixes it or gets a picture of it or texts and, and begins to put it in a place where it is tangible, they can get a copyright. But the civilization that has been using this song or these ceremonies, could not claim copyright.

14:31 - So intellectual property system and traditional knowledge has a fraught relationship because it's part of the colonial framework that defines a certain knowledge system as traditional, almost like presuming that is not innovative and that the origin of it is not known and it is in the public domain. Everybody can feast on it and then get rewarded and abandon those who prefer to create in community and in, so that is a fractured and a fraught

15:05 - and tense relationship. But then this is historically and that has been a problem, but presently there has been a lot of pressure to begin to open up intellectual property to accommodate knowledge production systems outside the strict prison of western scientific or industrial model, which the current intellectual property system is designed for. And so this is why traditional knowledge is being discussed

15:34 - in the context of intellectual property rights. And so going forward there are potentials to really begin to pressure the, so-called orthodoxy of the intellectual property system to open it up to new knowledge production systems that are captured in traditional knowledge to broaden it and make it inclusive. And we know that historically intellectual property has been recalibrated over time to respond to changing or changes in technology.

16:04 - For example, there was originally no intellectual property granted to to life forms, but with a boast of technology, somebody can genetically modify a, an animal and claim a patent over it. So we see that's a flexibility, an intellectual property system to evolve with technology. But unfortunately that flexibility has not been extended to, to traditional knowledge systems. And so this is really the kind

16:32 - of relationship intellectual property has with traditional knowledge. It is defined by power. It is defined historically by colonial assumptions that other people's knowledge production systems other than the western model does not actually equate to innovation. So this is a very tense conversation and the relationship between traditional knowledge and western intellectual property models. We have found a very important platform

17:01 - through this study to prepare us for the explosive nature of innovation that inevitably drag those who produce from the prism of traditional knowledge. As a lot of issues about data, agricultural knowledge practices are now defined in terms of their commercial consequence in relation to who controls data. And data is generated formally and informally, and there is a lot of things happening in the realm

17:33 - of artificial intelligence. And inevitably, the coalition of knowledge systems will make us to begin to redefine how everyone will benefit from knowledge systems. The intellectual property that was engineered in Europe beginning from Venice is no longer sustainable for a global knowledge system that is now completely taking every form of knowledge in its wake through technological conscription. The, the, the distinction between the formal

18:09 - and informal is melding away through artificial intelligence. So we have as a continent, that is to say Africa, to continuously begin now to redesign our strategy to participate in, in a global knowledge governance framework where of our knowledge systems and the values that are integral to those knowledge systems have to be completely represented in the new knowledge governance order, particularly that is animated

18:39 - by different kinds of technologies, including artificial intelligence and data governance.

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