Africa stands to lose huge benefits from its biodiversity for lack of legal protection against biopiracy, concluded the Second South-South Biopiracy Summit held last week in Johannesburg during the World Summit on Sustainable Development (WSSD).
"Legislation is required and it is required yesterday," said Nolwazi Gcaba, a South African patent and copyright attorney, referring to her country's legislative vacuum on this matter.
Biodiversity - the fifth thematic area of WSSD - is Africa's richest asset. The knowledge its people have developed over centuries on the properties of plants, seeds, algae and other biological resources is now coveted by scientists for medicinal, agricultural and other purposes.
Biopiracy is the theft of biological matter, like plants, seeds and genes. In the absence of laws regulating access to these resources, pharmaceutical, agrochemical and seed multinationals exploit Africa's biological wealth and obtain rights of intellectual ownership to the resources and knowledge of communities.
Multinationals make huge profits from African biodiversity but do not share these with the communities who discovered, kept and transmitted the knowledge, activists argue.
"They are stealing the loaf and sharing the crumbs," said Dr Tewolde Berhan Egziabher, a leading expert on the topic at the Institute for Sustainable Development in Ethiopia.
Thousands of patents on African plants have been filed. To name just a few: brazzeine, a protein 500 times sweeter than sugar from a plant in Gabon; teff, the grain used in Ethiopia's flat "injera" bread; thaumatin, a natural sweetener from a plant in West Africa; the African soap berry and the Kunde Zulu cowpea; genetic material from the west African cocoa plant.
Increasingly, developing countries are going to court over patents on their indigenous plants. India overturned American patents for basmati rice and wound-healing turmeric. Thailand is appealing a patent on jasmine rice.
The latest patent to make headlines involves the Hoodia cactus from the Kalahari desert. For centuries, the San people of Southern Africa ate pieces of the cactus to stave off hunger and thirst.
Analysing the cactus, the parastatal Council for Scientific and Industrial Research (CSIR) in South Africa found the molecule that curbs appetite and sold the rights to develop an anti-obesity drug to pharmaceutical company Pfizer. It could be worth billions of US dollars.
The San complained. Its council threatened a lawsuit. Earlier this year the CSIR agreed to share eventual royalties, and the Hoodia cactus became a landmark case whereby indigenous communities stake a claim on their knowledge and profits derived of it.
"Western medicine is protected. Wildlife is protected. But our knowledge isn't, like it's worth nothing," said T.J. Matiba, a Venda traditional healer, founder and president of South Africa's Council of Traditional Healers since 1985.
Paradoxically, the poorest people in the world live in the world's biodiversity hot spots. If they derive a benefit from their natural resources and indigenous knowledge, they would be keen to protect them. That approach, however, is in conflict with world trade rules.
The UN Convention on Biological Diversity, ratified by 183 countries and in force since 1993, recognises the sovereignty of states and communities over their genetic resources.
But the Trade Related Intellectual Property Rights agreement (TRIPS) of the World Trade Organisation (WTO) does not. Since 1995, WTO requires its member countries to comply with TRIPS.
This contradiction creates "schizophrenia between patent legislation and protection of indigenous knowledge," said Rachel Wynberg, a South African researcher on biodiversity now with the University of Strathclyde in the UK.
The root problem is that the existing system of intellectual property rights and patents does not accommodate non-western systems of knowledge ownership and access.
"It serves the interests of industrialised countries and fails indigenous communities and holders of traditional knowledge," said Tom Suchanandan, of South Africa's Human Sciences Research Council.
Under international law, an invention qualifies for patent protection only if it is new and involves an inventive step. This excludes traditional products, developed and handed down over generations. The system is rooted in the European industrial and scientific tradition. It views knowledge as a commodity owned by an individual or a company with the goal of trade.
Indigenous knowledge has a trans-generational, communal and cultural nature.
"There is no way in which the intellectual property system can protect indigenous knowledge," said Gcaba. "We can't hijack it. We must create a new system."
The first line of defence, said Tewolde, is for developing countries to freeze biopatents, or patents on living things, from seeds to plants to genes.
At the WTO meeting in Seattle in 1999, the African group took the lead in opposing the patenting of life and protecting community rights over their agricultural and biological heritage.
They are inspired by the African Model Law adopted by the former Organisation of African Unity. It protects the rights of farmers, breeders and local communities to their biological resources, traditional knowledge and technologies. Their collective rights prevail over individual or corporate monopoly interests. The patenting of life in any of its forms violates these rights.
Last but not least, the state should ensure that at least half of benefits derived from commercial use of biological resources are channeled back to the local community.
African countries must now debate this model law and pass their own.
"After centuries of unjust and unfair extraction of our resources that continues today, this is a step towards justice," said Tewolde.