Geographical Indication (GI) options for Ethiopian Coffee and Ghanaian Cocoa

Innovation & Intellectual Property
recognised, respected, preserved and protected from misuse, unlawful exploitation
and misappropriation, while at the same time access is encouraged for the
benefit of society. The Protocol limits the rights of access and exchange of TK to
the TK’s holders within the traditional context (Sect. 11). Article 8 of the Protocol
allows TK holders to generally conclude licensing agreements for use of their TK,
provided the agreements are in writing and approved by the competent national
authority. In addition, the Protocol obliges contracting states to ensure that appropriate
enforcement and dispute resolution mechanisms, sanctions and remedies
are available where there is breach of provisions relating to the protection of TK
(Sect. 23.1).
Kenyan national legal and policy framework
The Constitution of Kenya of 2010 provides a potentially strong framework for
the creation of enabling policies to ensure that benefits of TK accrue to ILCs,
and to promote access and preservation of TK for the sustainability of ILCs.
The Constitution is the supreme law of the Republic of Kenya and binds all
persons and all state organs (Art. 2(1)). The Constitution specifically defines
property to include IP (Art. 260). In addition, the Constitution recognises culture
as the foundation of the nation and as the cumulative civilisation of the
Kenyan people and state (Art. 11(1)). The Constitution provides the Kenyan
state with a duty to promote all forms of national cultural expression, to recognise
the role of indigenous technologies in development and to promote
the protection of IP rights (Art. 11(2)). In addition, the state has to support,
promote and protect the IP rights of the people of Kenya (Art. 40(5)). The
Constitution also provides for the sustainable management and use of natural
resources, and for protection of biodiversity and genetic resources (Art. 69(1)).
These provisions provide the potential framework for drafting laws that go
beyond protecting and preserving and, for example, make provision for the
creation of TK databases.
Kenya has no specific law on the protection of TK but there are several laws
that touch on the subject matter as it relates to copyright, biodiversity, genetic
resources, agriculture, forestry and wildlife. The main legal instruments for the
protection of IP in Kenya are the following:
● Anti-Counterfeit Act 13 of 2008.
● Copyright Act of 2001 (Cap. 130).
● Industrial Property Act of 2001 (Cap. 507).
● National Museums and Heritage Act 6 of 2006.
● Seeds and Plant Varieties Act of 1991 (as revised in 2012) (Cap. 326).
● Trade Marks Act of 1994 (Cap. 506).
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