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Intellectual Property Protection of African Traditional Medicine within the Legal Framework of the Right to Development

Document Cited authorities 1 Cited in Related
Vincent
Date01 August 2019
Pages426-445
Published date01 August 2019
DOI10.3366/ajicl.2019.0282
Author
INTRODUCTION

Prior to the introduction of modern medicine, traditional medicinal practices characterised by indigenous methods of healing dominated the medical and public health system, which rural and urban communities in Africa relied on in dealing with the various diseases that threatened their existence and survival.1 With the advent of colonialism, the public health system witnessed a dramatic change with the imposition of Western medicine as the only formally accepted public health standard in the whole of colonial Africa.2 African traditional medicinal practices were condemned outright as witchcraft or sorcery, systematically ostracised and banned from use.3 However, because of its correlation with the cultural value systems of the African peoples, the practice of traditional medicine survived many odds and today it is estimated that about seven per cent of household health budgets are spent on traditional medicines.4

Despite Western influences and attempts to eradicate the practice, the survival of traditional medicine can be explained not only by the fact that the peoples of Africa are largely unable to afford pharmaceutical or conventional medicine, but importantly because the use of traditional medicine constitutes an inseparable part of African culture that has existed from time immemorial. The World Health Organisation (WHO) defines traditional medicine as:

[T]he sum total of the knowledge, skills and practices based on the theories, beliefs and experiences indigenous to different cultures, whether explicable or not, used in the maintenance of health, as well as in the prevention, diagnosis, improvement or treatment of physical and mental illnesses.5

Drawing from this definition, African traditional medicine is explained to refer to the system of healthcare based on customary belief systems that have been accepted and practised over the centuries within African communities for the health needs of the local populations. Traditional healers and other practitioners of the art of traditional medicine generally charged little or no monetary reward or remuneration for the services they rendered. In most cases, they only received gifts from their patients in the form of food items such as tubers of yam, bush meat and palm oil among others.6

In Cameroon, for example, the advent of the economic crisis in late 1980s created a shift towards increased consumption of medicinal plants as an increasing practice in herbal medicine.7 The sustained use of or reliance on traditional medicine has become part of Africa's revered heritage and customs, which to say the least was undermined and considered primitive practice during the colonial era. Unlike conventional medical practitioners who are expected to restore their patients' physical health only, African traditional medicinal practices are designed to re-establish social and emotional equilibrium based on traditional value systems as well as community rules and relationships.8

Primary healthcare, especially within the framework of conventional medicine, is essentially based on practical, scientifically sound and socially acceptable methods and technology, which generally are made accessible to communities to ensure their full participation at a cost that is affordable.9 Given that traditional medicine embodies the knowledge, skills and practices that are informed by the belief systems that are indigenous to different cultures, our analysis in this article involves determining to what extent adequate protection could be secured to the benefit of the communities that engage in the practice of traditional medicine for their livelihood.

With the renewed impetus directed towards re-establishing African value systems against the iniquities of imperial domination, our central focus in this article is to demonstrate that the practice of traditional medicine is deeply rooted in African culture, which under the African human rights system is granted as a human right. In essence, the advancement of African culture and by implication African traditional medicine constitutes an integral aspect of the right to socio-economic and cultural development enshrined in the African Charter. Of interest in this regard is the question of securing intellectual property rights over African traditional medicine, which we posit is achievable within the legal framework of the right to development in Africa.

Making this determination requires, as we explain in section II, an analysis of the impact of cultural imperialism on traditional medicine in Africa. In accordance, we explain why it is of essence to ensure that the practice of traditional medicine acquires intellectual property protection as integral to the enjoyment of the common heritage of mankind, which the peoples of Africa are entitled to by law. We proceed in section III to explain the relevance of situating intellectual property protection of African traditional medicine as an essential component of the right to development. We posit that unlike other intellectual property regimes, which we argue are not sufficiently protective, the right development provides a sui generis framework within which intellectual property protection of African traditional medicine could be claimed as a means to secure redistributive justice. In conclusion, we reiterate the fact that states parties have an obligation under the African Charter to ensure the realisation of the right to development at the domestic level as a guarantee that traditional medicinal practices can effectively be protected.

 CULTURAL IMPERIALISM AND ITS IMPACT ON TRADITIONAL MEDICINE The Civilisation Mission

The civilisation mission, otherwise known as mission civilatrice, provided the basis, albeit maliciously, for the European invasion of the African continent, which they shredded into pieces of colonies in the 1880s, supposedly to fulfil a divine appointment to bring civilisation or enlightenment to the African peoples. Civilisation according to Wolf is explained to mean an evolutionary process marked by a systematic shift from ancient practices towards contemporary societies.10 Understood literally, the civilisation mission carried the connotation of a well-intentioned moral obligation to elevate the African continent and its peoples to acceptable standards of modernisation established by the Western world.

However, because ‘[p]erceptions influence attitudes which also influence behaviour, choices and actions’,11 the colonisation of Africa was actually premised on Western narratives. These narratives are driven by ethno-centric beliefs and a constructed imagery of Africa as a dark and backward continent, inhabited by barbaric and uncivilised people accustomed to primitive practices which ought to be de-emphasised and rooted out.12 Contrary to the understanding of civilisation as a progressive phenomenon anticipated to ameliorate a prevailing situation, the colonisation crusade perpetrated through brutal conquests and abusive exploitation could not disguise the underlying motives behind European imperialism, which aimed at decimating the African identity.

For the over three-quarters of a century that colonialism lasted, the civilisation mission not only failed to achieve its make-believe purpose, it brought about, as Tracey puts it, ‘deep-seated structural distortions’ in the lives of the African peoples.13 Apart from a few notable development gains recorded during the colonial period, the colonised peoples of Africa experienced a severe deterioration in living standards.14 Owing to the deep-seated motives that informed the colonial enterprise, the so-called civilisation mission became more of like imperial machinery to deconstruct African cultural value systems and customary modes of production.15

European imperial interest was kindled by hunger for the continent's wealth and resources, which led to the massive expropriation of native lands and the violation of indigenous property rights.16 The colonisation project was designed in a manner to ensure that corporate interests, characterised by profit maximisation and the accumulation of wealth, took precedence over human interests and the well-being of the African peoples.17 This caused the African peoples to lose track of their ‘traditional or cultural trajectories of development’.18 While the African peoples were made to see the practice of traditional medicine as superstitious, the colonisers commoditised and tagged the resources used for traditional diagnostics and healing as public goods with a market value. This placed the local populations at a disadvantage in terms of bargaining capacity.

History holds empirical evidence of the fact that great civilisations existed across Africa before the European invasion.19 With regard to the great African civilisations, we refer to the socio-economic and cultural achievements within the various communities that made up the African continent, which, Yankuzo notes, were advancing self-sufficiently in every aspect, including in the area of public health.20 Academic literature illustrates that a functional healthcare system dominated by the use of traditional medicine and indigenous healing practices that responded adequately to the health needs of the local populations existed prior to the advent of colonialism and the introduction of Western medicine.21

A central aspect of the pre-existing African civilisation includes, as we argue, the uncelebrated discoveries in the medicinal properties of local plants and herbs for which intellectual property right is lawfully supposed to be attributed to the African peoples. However, instead of capitalising on these discoveries for the advancement of African societies, colonialism, with its inherently paternalistic drive, rather became a constraining factor to the science of traditional medicine. The practice of traditional medicine prior to colonialism might have been rudimentary but of course did not, for any reason, necessitate...

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