Fellow Since 1999
Tika-Tikwe Bio Resources Trust
This description of Nancy Kgengwenyane's work was prepared when Nancy Kgengwenyane was elected to the Ashoka Fellowship in 1999.
Nancy is building a legal structure that allows indigenous groups to negotiate legal contracts on access to their biological resources and traditional knowledge. She is also raising citizens' awareness of the legal controversies surrounding resource and knowledge ownership. Ultimately, she is fighting to regulate the use of these assets and struggling to allow developing countries to reap some of the benefits of their natural resource wealth.
The New Idea
At present, most citizens of countries that have signed the Convention on Bio-Diversity (CBD) are not aware of the rights afforded by the convention and how these rights are contradicted by article 27(3)(b) and the World Trade Organisation's Trade Related Aspects of Intellectual Property Rights (TRIPs) agreement. Until citizens are aware of this perilously complex set of issues, there can be no local, democratic self-determination on these issues.Nancy is building grassroots support for legal reform and amendment of the WTO's policy, and drafting a new, alternative legal framework structured around the rights of indigenous Southern Africans. Nancy begins by providing local communities with legal advice, advocacy, and access to information relating to the biological diversity which they have nurtured for centuries. None of these services are currently available from any other source. Nancy also works directly with government officials and NGOs throughout Southern Africa to increase their general vigilance over the problems of resource and knowledge abuse.Working from above and below, Nancy is starting a movement in Southern Africa-the first of its kind-to challenge the industrialized world's definition of property and patent and evolve an alternative that suits the particularities of the developing world.
The legal regime proposed by the WTO recognizes inventions which meet the criteria of novelty, inventiveness, and industrial applicability. This system of rights has been criticized for denying property to all forms of knowledge and creativity that cannot be rationalized into privately owned patents, including rights to local and indigenous knowledge systems, practices, and innovations. The WTO code has raised the following general concerns:It does not allow for the full exercise of national sovereignty over bio-diversity because it obliges countries to enact intellectual property rights over plant varieties.It does not allow countries to seek a share of the benefits obtained from patented biological diversity as there is no provision requiring patentees to disclose the country of origin of any biological materials and associated knowledge. Therefore no claims can effectively be made from the countries of origin.Innovations in the public domain for local and domestic use are denied recognition resulting in adverse effects on the rights and opportunities for poverty elimination in developing countries. This may lead to unjustified patenting of traditional innovations and biological resources by foreign corporations.As the competition for biological resources between multinational corporations and communities in the South increases, competition for resources and associated knowledge between communities will also increase. This increasing competition will perpetuate existing trends: the developing world provides raw resources to be developed in industrial countries and sold back at a high price. This trend violates the need for sustainable resource use and perpetuates the systematic degradation of the environment. Genetic materials extracted from the developing world, altered in industrialized countries and then sold back to the developing world can be immensely destructive, not to mention expensive. Consider the example of agricultural products: seed genetically engineered to produce bumper harvests require the use of other chemicals to produce the harvest, do not seed themselves (and so new seeds have to be bought each year) and often destroy or adversely affect indigenous plant material. At present, the WTO allows indigenous populations no legal recourse when such destruction occurs.Foreign direct investment is important in all developing economies. Once the property protection system encouraged by the WTO becomes universally applicable and enforceable, corporations-particularly those dealing with seed crops and medicines-may relocate production to the home country and promote export products that incorporate protected innovations rather than to engage in foreign direct investment for the manufacture of products in or near attractive markets.By allowing corporations to collect royalties over seed sales and related processes, the private intellectual property rights system stimulates the corporate take-over of plant breeding and agricultural bio-diversity, which means relatively few actors supplying the market. Corporations are not in the business of genetic conservation as they rely on gene banks and tend to work with highly stabilized elite material with wide adaptation. These highly marketed varieties tend to replace more diverse traditional materials causing the diversity used by local farmers to decline and genetic erosion to ensue.Many of these problems can be illustrated in the following example: Devil's Claw is a root native to Botswana and Namibia that provides relief for a variety of medial problems, including arthritis and gout. The root has traditional uses with indigenous communities, and was located through these communities. It is now harvested by multi-national pharmaceutical companies who profit hugely without returning any of the profits to the native communities. On occasion, they pay locals a pittance to harvest the roots for them, and local communities do not know how to begin profiting substantially from their own resources. In some areas, the demand is so high that the root is over-harvested, leaving little for the traditional communities themselves.For Nancy, the most important problem is citizens' and governments' lack of information on these subjects. She believes that citizens directly affected by world trade policy should be in position to evaluate its strengths and weaknesses and asses some of the critical perspectives outlined above. Citizens of Southern Africa are not aware of the ramifications of the WTOs policies, nor are their governments equipped or motivated to investigate alternatives.
Nancy's goal is to establish within Botswana an organization that provides expertise and lobbying clout on legal and policy issues in the areas of trade, biological diversity, and intellectual property rights systems. The organization will aim to accomplish the following:To ensure civil society awareness and participation in influencing the Government's position at international negotiations, to be forcefully representative of communities' interests.To provide legal services and empowerment to communities so as to challenge Government policy and law that is detrimental to local communities and national interests. Protection of indigenous rights will provide incentives for conservation of bio-diversity, and will reduce dependency on imported goods.To provide Government with necessary human resources and capacity to deal with these new and complex issues. In view of the fact that the WTO Agreement is to be under review every two years, the organization will be necessary to keep Government prepared. The lack of co-ordination, preparedness and adequate grasp of the implications of the WTO's policy exhibited by most African countries is indicative of the huge gap in human resources, capacity, availability of relevant knowledge and information, and general interest on part of governments. This in turn translates into total ignorance by communities as to the nature of agreements signed by their governments and the possible grave consequences for biological diversity, food security, and general livelihood. Nancy's idea is to use the review of the WTO policy to adjust it to the needs of developing countries and reconcile it with the CBD to the benefit of communities who provide the world with bio-diversity.To influence governments to provide adequate legislation to protect biological diversity and encourage its sustainable use, legislation in the areas of biotechnology to safeguard human health, and legislation to minimize adverse socio-economic consequences from biotechnology and the patenting of life forms as required by the WTO.Nancy's organization will connect at the national level with the National Conservation Strategy Agency (NCSA), which is a government department charged with coordinating environmental issues with and among government departments; local NGOs and community-based organizations; local research institutions such as the National Institute of Research, Okavango Research Trust, the University of Botswana and the Rural Industry Innovation Center. She will also connect with regional leaders and NGOs to share experiences and influence regional harmonization of legislation and common regional positions at international forums.Nancy has already established important linkages within the country, region and beyond in the attempt to fight for equity and environmental justice. As a member of the National Bio-diversity Authority of Botswana, she is able to work directly with several government departments and help keep them informed. She sits on the Technical Committee of the Kalahari Conservation Society, which provides advice to environmental officers. Membership to this committee provides her with the opportunity to introduce these issues and advocate them to a broader network of people dealing with environmental protection and local community rights. She has also been invited to participate in setting up the Business and Environment Forum, which will provide an opportunity to work closely with leading industries and influence decisions affecting biological diversity and local communities. At the grassroots level, she has cultivated good relations with traditional elders in the northwest where the famous Okavango Delta is found.At the regional level, within SADC, she has established ties with Namibia and will be reviewing their Biotrade/Biosafety Legislation and Access to Genetic Resources legislation. Her network extends to Zambia, Zimbabwe and South Africa, and she has accepted an invitation to serve on the committee organizing the Southern African Regional Workshop on Indigenous Knowledge Systems to be held in November 1999, working closely with Dr. Wally Serote who currently is responsible for indigenous knowledge systems in South Africa. Nancy also works with the African Renaissance Committee and Biowatch in South Africa.Using her very close ties with the SADC Plant Genetic Resources Centre for Sustainable Development, Nancy has been asked to draft the model legislation for the entire SADC region. This draft legislation will be presented to the OAU Council of Ministers meeting and the African Ambassadors to Geneva as a common African position on the protection of communal intellectual property rights. She will continue to cultivate her strong relationship with SADC/SPGRC, as this forum is important for SADC plant genetic resources and has the potential of providing an important regional link for harmonisation of legislation and common positions for effective negotiations. Outside the SADC region, Nancy has established ties with Ethiopia and Uganda.Finally, her very close links with the GAIA Foundation in London, GRAIN in Spain, Third World Network in Malaysia, and a Group of Latin American Lawyers dealing with indigenous and community rights in Latin America have enabled her to contemplate working at a global level. This network provides expertise in different areas and valuable information for her field.
Nancy's parents were divorced when she was six months old. She was raised by her father, a passionate Pan Africanist, who imbued in her the enormous privilege of being an African. She was also taught that that privilege carried responsibilities. She was nurtured in the belief that she had a responsibility to use both her mind and her hands. The school she attended encouraged this belief and the headmistress, a strong feminist, and the deputy headmaster had an enormous influence on her. It was a school for white Zimbabwean children with few black students. On completion of her secondary school education, Nancy went to the University of Botswana. She wanted to study medicine but her math grade did not meet the standard required to gain entrance into the medical faculty. She the decided to read law. In her fourth year, she had to write a research paper on the marital and legal implications of abortion. She visited many villages and as a result of talking to villagers became aware of the distance between academic law and the reality of peoples' lives on the ground.This realization fuelled her passion for public interest issues, in particular the rights of women and children. She was instrumental in starting childline and raising the awareness of the rights of children in Botswana.After graduation, she went to work in the Attorney General's office and was sent to New York to work in the Bostwana Mission there. During this period, she met environmental activists and got "hooked" on environmental issues. She turned from criminal law and started a one-person campaign in the AG's office on environmental issues. As a result of her passion, persistence, and competence, all matters relating to environmental issues were referred to her. Her passion helped her develop many networks and she worked many extra hours doing volunteer work.In Botswana, the work on bio-diversity and trade has not had a desirably strong impact because of the limitations of time, potential conflict of interests, freedom to challenge Government and freedom to lobby NGOs, CBOs and communities to take these issues seriously. She now feels that she must start an organization rather than continue her solo crusade, and she sees this move as an important next step in the development of her work. She resigned from her position in the AG's office as of 1 June to enable her to devote her full time attention to environmental community legal issues.