The Protection of Traditional Knowledge and Cultural Expression Act, No. 33 of 2016 (“the Act”) provides the legal framework within which traditional knowledge (“TK”) and traditional cultural expressions (“TCEs”) are registered and protected from undue exploitation for the benefit of communities. This Act was prompted by the unique nature of the TK and TCEs which are collectively produced and held by communities. The Act also operationalizes the provisions of Articles 11, 40 and 69 (1) (c) of the Constitution of Kenya, 2010.
The implementation of the Act has however been slow as despite coming into force in 2016 little has been done in regard to the protection of the TK and TCEs rights. This is because the Act lacks clarity on which ministry is vested with the implementation mandate of the Act. The Act under section 2 defines “Cabinet secretary” as the Cabinet Secretary responsible for matters of intellectual property. This is quite ambiguous as there are several ministries responsible for intellectual property matters including the Ministry of Industrialisation and Enterprise Development, the Ministry of Agriculture and Irrigation, the Ministry of Sports and Heritage and the Office of the Attorney General and Department of Justice.
The Statute Law (miscellaneous amendments) Bill, 2018 (“the Bill”) which proposes to make amendments to various intellectual property oriented statutes attempts to cure this ambiguity by amending the definition of Cabinet Secretary above and substituting it with; ‘Cabinet Secretary for the time being responsible for matters relating to culture.’ The implication of this is that the implementation of the Act will now be under the Ministry of Sports and Heritage (“the Ministry”)
In order to operate effectively, the Ministry has several agencies which are either autonomous or semi-autonomous including: National Museums of Kenya, Kenya Film Commission, Kenya Film Classification Board, National Sports Academy, National Sports Fund, Sports Kenya, Kenya Cultural Centre and Kenya National Library Service. Due to the unique nature of the TK and TCEs none of these agencies seem to be suited to effectively implement the Act.
The Ministry will therefore be required to establish mechanisms of implementing and enforcing the Act since it cannot do so as currently constituted or within the framework it is operating in. This could be done by either establishing a new agency tasked with this responsibility or reconstituting and equipping one of the already existing agencies taking into account the nature of the TK and TCEs.
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