An Overview of the National & Regional Implementation of ABS in sub-Saharan Africa

1. An Overview of the National & Regional Implementation of ABS in sub-Saharan Africa Kathryn Garforth, Research Fellow Jorge Cabrera, Lead Counsel Isabel López Noriega, Research Fellow Gabriel R. Nemogá, Senior Research Fellow & Professor, Universidad Nacional de Colombia Kent Nnadozie, Lead Counsel Centre for International Sustainable Development Law www.cisdl.org

2. CISDL? • Legal Research Centre: Based at the McGill University Faculty of Law, Montreal, Canada. • Mission: To promote sustainable societies and the protection of ecosystems by advancing the understanding, development and implementation of international sustainable development law. • Biodiversity Law Programme: A team of developed and developing country scholars conducting research on access to genetic resources and benefit-sharing, and biosafety. Centre for International Sustainable Development Law:

3. Implementation of ABS Purposes of the study: • Provide up-to-date & succinct survey of ABS implementation around the world. • Create a document that is easy to update in future as events warrant.

4. Implementation of ABS Process: • Preliminary draft of study released during ABS WG-3 (February 2005). • Additional information & feedback gathered during WG meeting. • Second version published in April 2005. • Currently updating & expanding study to produce third edition for ABS WG-4.

5. Implementation of ABS Results • Study covers: • 16 countries from: • Latin America & Caribbean • Africa • Asia • Europe • South Pacific • North America • 3 regional measures in Andean Community, ASEAN & African Union • Regional discussions in EU & Nordic countries • Plus overview of some recent ABS capacity-building projects & tables with information on additional countries.

6. Implementation of ABS COP-V (2000), Decision V/26: Parties requested to designate national focal point (NFP) & competent national authority (CNA) on ABS for their country April 6, 2005: • 188 Parties to CBD, a total of 43 have an NFP, CNA or both (see Table 1 in study.) Less than 25%. • 9 sub-Saharan African countries have an NFP and/or a CAN • Still a way to go to implement this Decision.

7. Implementation of ABS Elements examined: • Relevant measures • National authorities • Subject matter of measure • Prior Informed Consent: agents involved & purposes • Mutually Agreed Terms on benefit-sharing • Compliance measures • Monitoring access & tracking genetic resources • Applications granted

8. Implementation of ABS South Africa • Measure: National Environmental Management: Biodiversity Act (2004). • Chapter 6 of Act on bioprospecting & ABS will only come into operation 1 January 2006. • National Authorities: • No NFP or CNA notified to CBD Secretariat • Issuing authority under Act is minister responsible for national environmental management • Previously, permitting authority divided among several national & provincial authorities • Subject matter: Indigenous biological resources. Excludes resources listed under ITPGRFA.

9. Implementation of ABS • Prior informed consent • Agents involved: issuing authority, stakeholders  person giving access to resources and/or indigenous communities. • Purposes: Research on indigenous biological resources for commercial or industrial exploitation • MAT on benefit-sharing • Person seeking access must sign benefit-sharing agreement with stakeholders in order to receive permit. • Agreement must be approved by Minister. • Act does not set specific benefit-sharing requirements.

10. Implementation of ABS • Compliance measures: Prison and/or fine • Monitoring & tracking: no provisions in Act • Applications granted: • None under new Act • Numerous under old system including: • Council for Scientific & Industrial Research & Phytopharm • CSIR and San • CSIR and Diversa • NBI and Kew • Strathclyde Institute • Rhodes University & Scripps Institute of Oceanography

11. Implementation of ABS Ethiopia • Proclamation to Provide for the Establishment of the Institute of Biodiversity Conservation and Research (1998) • Draft legislation in progress • Bioprospecting activities: Centre for Legumes in Mediterranean Agriculture, activities of Plant Genetic Resources Centre of Ethiopia

12. Implementation of ABS Kenya • Wildlife (Conservation and Management) Act (as amended 1999) • Environment Management and Coordination Act (1999) • Environmental Management and Coordination (Conservation of Biological Diversity and Resources, Access to Genetic Resources and Benefit-Sharing) Regulations (draft, 2005) • Bioprospecting activity includes: National Museums of Kenya & Kew; Diversa-ICIPE-KWS; Genencor.

13. Implementation of ABS Malawi • Procedures and Guidelines for Access and Collection of Genetic Resources in Malawi (1996) • Informal bioprospecting activity; animal trade. The Seychelles • Access to Genetic Resources and Benefit-Sharing Bill (draft, 2005) • Contracts signed: coco de mer agreement with local company (2004); Vertura agreement (August 2005)

14. Implementation of ABS Uganda • National Environment Statute, 1995 (enabling legislation) • National Environment (Access to Genetic Resources & Benefit-Sharing) Regulations (2005) • Bioprospecting: Natural Chemotherapeutical Laboratories, Human Initiative 2000, Kato Aromatics as well as informal& undocumented bioprospecting

15. Implementation of ABS Also: • Tanzania: enabling provisions • Zambia: bioprospecting for botanical collections including via MOU between Missouri Botanical Gardens & Ministry of Agriculture Western Africa • Cameroon: prunus africana • Gambia: National Environment Management Act (1994) • Ghana: University of Ghana–Missouri Botanical Gardens– US National Cancer Institute • Guinea-Bissau: Draft Law Relating to Biodiversity & Hand Craft (2005)

16. Implementation of ABS Regionally OAU • Model Legislation for the Protection of the Rights of Local Communities, Farmers and Breeders, and for the Regulation of Access to Biological Resources (2000) • Used by countries like the Seychelles in developing national ABS measures. SADC • coordinated implementation of CBD among member countries, efforts to create regional strategy, Sui Generis Legislation Initiative on community rights, existing protocols on forests & fisheries. • Recognized need for harmonized sub-regional system on ABS

17. Implementation of ABS ABS Capacity-Building in Africa 1. ‘Laying the Foundations’ project (IDRC) • CISDL, SEAPRI, Gene Campaign, SPDA • Preliminary in-country research on ABS contracts • Mentorship of junior researchers 2. World Wildlife Fund - Support for National Measures to Regulate Access and Promote Benefit-Sharing (BMZ) • Cameroon, Colombia, South Pacific • Activities in Cameroon include: • Action Plan for Development of ABS legislation • Regional conference • Media (radio, leaflets)

18. Implementation of ABS ABS Capacity-Building in Africa 3. IUCN South Africa (GTZ) • Development of ABS provisions in legislation & regulations 4. Protecting Community Rights over Traditional Knowledge: Implications of Customary Laws & Practices (IDRC) • International Institute for Environment & Development with, inter alia, ICIPE • Planning workshop and country studies

19. Implementation of ABS ABS Capacity-Building in Africa 5. Genetic Resources Policy Initiative (IPGRI, IDRC, Rockefeller, BMZ, GTZ, CIDA, Netherlands Ministry of Foreign Affairs) • strengthening capacity to analyse national options • Pathfinder countries include Egypt, Ethiopia & Zambia; two sub-regions - East Africa, and West and Central Africa. • Process is multi-stakeholder, multi-disciplinary & multi-sectoral cooperation (‘3M’). • Activities include: • stakeholder consultations • Identifying gaps in demands for capacity and research versus existing options • Conducting on-the-ground training & research • Supporting mechanisms for 3M participation in policy analysis, design & governance.

20. Implementation of ABS Trends • Emerging set of common elements in ABS regimes (e.g. permitting authority, PIC requirements, negotiation of MAT.) • Evolution of scope of ABS measures (commercial vs. non-commercial activities) & continuing need to clarify legal meaning of some terms (e.g. genetic resources, biological resources) • Measures implementing both CBD & IT: South Africa, the Seychelles, El Salvador, Bhutan

21. Implementation of ABS Trends(cont.) • Continued lack of user measures although some progress is being made. • Increased awareness of ABS & fairly high level of activity by governments, especially in mega-diverse countries • Capacity-building efforts still fairly small. Quite a bit of bilateral donor support, relatively little multilateral donor support.

22. Implementation of ABS Contact: Kathryn Garforth, Research Fellow, Biodiversity, CISDL kgarforth@cisdl.org www.cisdl.org