The Kenyan ABS Regulations- Implementation Experiences and ...

TITLE
The Kenyan ABS Regulations-
Implementation Experiences and
Challenges
PRESENTER
VERONICA KIMUTAI
vkimutai@yahoo.com
NATIONAL ENVIRONMENT MANAGEMENT AUTHORITY

1.0 The Environmental Management and Co-ordination ordination Act
(1999)
• The Environment Management and Co-ordination Act is Kenya’s framework
legislation coordinating all environmental management activities in the
country. As such, it constitutes the primary implementing legislation for the
Convention on Biological Diversity. A number of the provisions of the Act have
either direct or indirect potential impacts on the issue of access to genetic
resources.
• Section 42 (3) provides the Minister for Environment with broad powers to
issue orders, regulations or standards for the management of riverbanks,
lakeshores, wetlands and coastal zones.
• EMCA further elaborates the issue on genetic resources more explicitly
through Section 53, which mandates the National Environment Management
Authority (NEMA) to “issue guidelines and prescribe measures for the
sustainable management and utilisation of genetic resources of Kenya for the
benefit of the people of Kenya.” Accordingly, the provisions of any guidelines
issued or measures prescribed, shall include –

Cont.
a) appropriate arrangements for access to genetic resources of Kenya
including the issue of licenses and fees to be paid for that access;
measures for regulating the import or export of germplasm;
b) the sharing of benefits derived from genetic resources of Kenya; and,
c) any other matter that the Authority considers necessary for the better
management of the genetic resources of Kenya.
• Sub-section 50(f) of the Environment Management and Co-ordination
Act provides that any measure for the conservation of biological
diversity “shall . . . protect indigenous property rights of local
communities in respect of biological diversity
• Pursuant to these provisions, the NEMA has issued the relevant
regulations, namely the Environmental Management and Coordination
(Conservation on Biological Diversity and Resources,
Access to Genetic Resources and Benefit Sharing) Regulations 2006.

2.0 Environmental Management and Co-ordination
ordination
(Conservation on Biological Diversity and Resources,
Access to Genetic Resources and Benefit Sharing)
Regulations 2006
• The Environmental Management and Co-ordination (Conservation of
Biological Diversity and Resources, Access to Genetic Resources and
Benefit Sharing) Regulations 2006 Legal Notice 160 of 2006, presents the
most comprehensive attempt by the government to date to put in place a
regulatory framework for access to genetic resources and benefit sharing.
The Regulations are set out in five parts.
• Part I addresses preliminary issues, defines the key terms, sets out the
objectives of the regulations and sets the scope of application. Access is
defined “obtaining, possessing and using genetic resources conserved,
whether derived products, and, where applicable, intangible components,
for the purposes of research, bio-prospecting, conservation, industrial
application or commercial use.”

Cont.
• Part II of the Regulations provides for the conservation of biological diversity
through the requirement of an environmental impact assessment for
persons who engage in activities that may potentially have an adverse
impact on the environment, propose to introduce exotic species in Kenya or
unsustainable use of natural resources. Further this part provides for the
conservation of threatened species, the inventorying of biological diversity
by NEMA and relevant lead agencies, monitoring the status of biological
diversity in Kenya and protection of environmentally significant areas.

Cont.
• Part III of the Regulations lays out the institutional framework for the
management of genetic resources. It designates NEMA as the competent
authority for all matters relating to access to genetic resources. This part
also attempts to demarcate the responsibilities between NEMA and other
lead agencies such as the National Council for Science and Technology
which is mandated through the Science and Technology Act to issue
clearance for research undertaken in Kenya through a research permit.
Regulations 9-17 provides for the application of an access permit, the
requirement for prior informed consent of the government or local
community, the determination of such a permit, validity, terms and
conditions of the permit and the requirement for a register of all access
permits applies for and granted by NEMA. Further Regulation 18 specifically
provides that there shall be no transfer of genetic resources outside Kenya
without an access permit and Material Transfer Agreement (MTA).

Cont.
• Part IV of the Regulations, in particular provides for the principles that apply
for benefit sharing and sets out the generic benefits to be shared (monetary
and non-monetary) including the participation of Kenyan citizens and
institutions in any activities being conducted with the genetic resources, joint
ownership of patents, payment of access fees and royalties. Kenya being a
party to the Convention on Biological Diversity, the principles encapsulation
in this Convention as well as those in the Regulations on benefit sharing
constitutes the terms and condition for access. Benefit sharing agreements
(MTA) are therefore required to be negotiated prior to the approval of
application and the granting of permits to collect and obtain genetic
resources.
• Part V of the Regulations finally provides for the holding of information as
confidential on application by the applicant for a permit as may be
determined by NEMA in addition to penalties for contravention with the
Regulations.

Experience in implementing the ABS Regulations
Slow response in compliance to ABS regulations and is attributed to lack of
awareness
There has been three (3) inquiries
• Kenya Coffee Research Foundation-wild coffee in Kakamega Forest
• Individual-unspecified plant species in Taita Taveta
• pHD Kenyan student at Belgium University-two species of nitrogen fixing
bacteria

4.0 The Challenges in implementation and Enforcement
Issues under Access to Benefit Sharing
• The scope of the application of the regulations are not very clear e.g
Translocation of wild animals from one park to another, does it require access
permit The question is, what is actually regulated
• Regulations do not expressly cover traditional and indigenous knowledge of
the local communities hence it will be difficult for NEMA to safeguard this
knowledge
• Lack of operational tools mentioned in the regulations e.g MTA, MAT and PIC
• The process of acquiring the access permit is long and tedious.
– Requirements-PIC from Community or lead agency
– Research clearance from National Council for Science and Technology
– And it takes a maximum of sixty days before one gets a permit
The application/access permit fee is quite high and is prohibitive especially for students

Cont.
• Lack of capacity in the Biodiversity Section in terms of number of personnel
• Institutional memory/succession not entrenched in the MEAs systems
• Difficulty in enforcement of ABS regulations ( nature of biodiversity) and monitoring of pemitted
activities.
• Country providing access to genetic resources frequently faces difficulties in monitoring how the
resources are used once they leave the country’s jurisdiction and in enforcing compliance with ABS
rules and negotiated terms.
• Studies on experience from other countries e.g South and Central American countries indicate that
there is widespread frustration in seeking PIC, negotiating MATs and sharing of benefits associated
with the use of genetic resources and traditional knowledge due to lack of clear community
infrastructure and persons within the community who can negotiate for better terms. Most investors
also dread the PIC requirement due to economic costs. Identifying which community should give
consent is often problematic.

Cont.Challenges
• Institutional conflicts-mandates of some lead agencies overlap with those of
Authority and the agencies feel their tasks has been taken away.
• Lack of financial resources to create awareness on ABS regulations-Target
groups: lead agencies, research institutions, NEMA field officers, local
communities, administrators

6.0 Recommendations and Conclusion
• Continued and effective participation of Kenya in regional, and international
meetings relevant to ABS.
• There is need to build capacity and should include the ability to
– Assist communities, private land owners, other organs of the state in the
negotiation of access and benefit sharing agreements
– Analyze benefit-sharing agreements and understand the provisions they
contain
– Develop an understanding of opportunities and risks associated with bioprospecting
NEMA to develop ABS guidelines
• However, it must be noted that ABS system will only work in an environment of
well sensitized communities and policy makers. Hence NEMA should embark on
comprehensive sensitization exercise at a variety of levels i.e relevant public
institutions, research institutions, local communities etc.