access to genetic resources in africaarchive.ias.unu.edu/resource_centre/abs in africa.pdf ·...
TRANSCRIPT
Access to GeneticResources in AfricaAnalysing ABS Policy Developmentin Four African Countries
Acknowledgements
This project was possible with the generous assistance of the Government of Ireland through the United Nations Environment Programme.
The Country Studies writers were – Botswana: Alfred Tsheboeng, Kulthoum Omari, and Nancy Kgnengwenyan; Ghana: George A. Sarpong, Edwin A. Gyasi, Emannuel M. Attua and Eric Okoree; Uganda: Apophia Atukunda, Charles Mugoya, and Ogwal Sabino Meri Francis; and Zambia: Excellent Hachileka, Davy Siame, and Gershom Chilukusha.
Coordinating national institutions included: Ministry of Environment, Wildlife and Tourism (Botswana); National Environment Management Authority (Uganda); Ministry of Environment and Science (Ghana); Ministry of Tourism, Environment and Natural Resources – Department of Environment, Natural Resources and Science (Zambia); IUCN Zambia; and Zambia Wildlife Authority.
The work of the country consultants was managed by Paul Chabeda of the Institute of Biodiversity & Biotechnology Initiatives and Services (IBBIS). The project was implemented through UNEP’s Division of Environmental Law and Conventions (DELC) with guidance from Margaret Oduk, Nehimiah Rotich and Elizabeth Mrema. The Country Studies were peer reviewed by: Anne Angwenyi, Mapue Gaolaolwe, Bakary Kante, Nancy Kgnengwenyan, Joseph Mbeva, Henry Aryamanya-Mugushia, Nancy Mungai, Jane Omari, Grace Thitai, Brendan Tobin, Alfred Tsheboeng, Eric Okoree, Ogwal Sabino Meri Francis, and Excellent Hachileka.
The report was compiled and edited by Wendy S. Elliott, United Nations University Institute of Advanced Studies (UNU-IAS). Additional support for the production of this report was provided by: Yuka Hayakawa, Tim Hirsch, Sam Johnston, David Mutekanga, Balakrishna Pisupati, Rachel Schutte and A. H. Zakri.
All the above mentioned individuals and institutions are sincerely appreciated and thanked for the different roles played and efforts undertaken in the preparation of the case studies and production of this publication.
The contents of this report do not necessarily reflect the official position of UN and its related organizations and bodies.
Cover photography by: Kolja RathenowCopyright © 2008 UNEP All Rights Reserved
Access to Genetic Resources in AfricaAnalysing Development of ABS Policies in Four African Countries
Foreword 1ListofAbbreviations 2ExecutiveSummary 41.Introduction 62.Methodology 83.MainFindingsofCountryReports 9 3.1 ABS Law and Policy 9 3.2 Institutions and Stakeholders in ABS Management 9 3.3 Access to Resources, Prior Informed Consent and Mutually Agreed Terms 10
3.4 Benefit Sharing 104.CountryStudies 16
4.1 Botswana 164.1.1 Introduction 164.1.2 Background 164.1.3 Institutional Stakeholders 164.1.4 Review of Existing Information on ABS Activities 184.1.5 Analysis of Legislation Affecting ABS 19
4.1.6 Gaps and Recommendations 24 4.2 Ghana 25
4.2.1 Introduction 254.2.2 Social, Economic and Environmental Aspects of ABS Provisions in Ghana 254.2.3 Gaps and Constraints 274.2.4 Analysis of Legislation 284.2.5 Gaps and Recommendations 34
4.3 Uganda 344.3.1 Introduction 344.3.2 Background 354.3.3 Methodology 354.3.4 Analysis of Legislation, Policies and Strategies 35 4.3.5 Institutional Arrangements for ABS 414.3.6 Biodiversity in Uganda and Tools for Conservation 434.3.7 Access to Uganda’s Genetic Resources and Associated Benefits 454.3.8 Analysis of Issues and Capacity Gaps 494.3.9 Recommendations for Uganda’s ABS Regime 53
4.4 Zambia 54 4.4.1 Introduction 54
4.4.2 Background 544.4.3 Methodology 554.4.4 Programmes with ABS Elements 554.4.5 Legislation and Sectoral Policies 614.4.6 Stakeholders and Institutional Capacity 634.4.7 Challenges 804.4.8 Recommendations for a Draft Action Plan 81
5.Challenges,TowardsanActionPlan,LessonsLearned,ProjectImpactsandConclusion 82 5.1 Challenges 82 5.2 Towards an ABS Action Plan 82 5.3 Lessons Learned 83 5.4 Project Impacts 85 5.5 Conclusion 85
Contents
ListofBoxesBox 1 Proposed CBD National Coordination Structure for Botswana 17Box 2 Uganda’s Access to Genetic Resources and Benefit Sharing Regulations (2005) 39Box 3 Estimated Values of Various Components of Biodiversity 46Box 4 Benefit Sharing Case-Study in Uganda 48Box 5 Communities’ Revenue Sharing Ratios in Zambia in Wildlife Management 63Box 6 ABS Stakeholders in Zambia 64
ListofAnnexesAnnex 1 Note Developed by IBBIS and UNEP to Support Country Consultants 87Annex 2 Questionnaire 1 Developed by IBBIS and UNEP to Assist National Consultants 88Annex 3 Questionnaire 2 Developed by IBBIS and UNEP to Assist Country Consultants 90Annex 4 Questionnaire 3 Developed by IBBIS and UNEP to Assist Country Consultants 127Annex 5 Terms of References Developed by IBBIS and UNEP for Country Consultants 139
1
The United Nations Environment Programme (UNEP) and United Nations University Institute of Advanced Studies (UNU-IAS) with the support of the Government of Ireland have carried out case studies on access to genetic resourc-es and benefit-sharing (ABS) arrangements in four African countries namely Botswana, Ghana, Uganda and Zambia. These studies exemplify the implementation of existing ABS arrangements and mechanisms in the context of the Bonn Guidelines adopted by the Conference of the Parties to the Convention on Biological Diversity at its sixth meet-ing, in April 2002.
The issues of access to genetic resources and the equita-ble sharing of benefits derived from their utilization have been and still remain the focus of major global forums on biodiversity conservation and its sustainable use. In this regard, the case studies bring out the perspective(s) of these countries on the issue and challenges they face when implementing the Bonn Guidelines.
It is evident that, although there is a wide range of mea-sures to conserve biological diversity, regulate access to biological resources, protect traditional (indigenous) knowledge and share benefits, gaps are apparent. It is therefore imperative that as the countries are address-ing the critical gaps and priority needs inherent in their ABS regimes/arrangements, they also lay some important foundations for the implementation of any future nation-al/ABS regimes in the context of the International Regime on ABS currently under negotiation by the CBD Ad-Hoc Working Group on ABS and to some great extent, also the relevant outcomes of the Ad Hoc Working Group on Ar-ticle 8( j) and Related Provisions.
The outcomes and lessons learnt from these case studies will assist countries to effectively contribute to the on-going CBD negotiations on the international regime on Access and benefit sharing.
Achim SteinerUN Under-Secretary General and UNEP Executive DirectorUnited Nations Environment ProgrammeMay 2008
As a sustainable development policy think-tank, the Unit-ed Nations University Institute of Advanced Studies has followed the issue of access to genetic resources and ben-efit- sharing (ABS) both at the national and international policy levels. The Institute has conducted capacity-build-ing on ABS law and policy, traditional knowledge (TK) and bioprospecting, and has produced several policy reports on issues ranging from User Measures for TK Protection, Bioprospecting in the Antarctic, Arctic and Deep-Seabed, Certificates of Origin and an ABS Pocket Guide. Recently we have produced bioprospecting partnership case stud-ies and are now facilitating an International Dialogue on the Commercial Use of Biodiversity. The Institute recog-nizes that the implementation of the third objective of the Convention on Biological Diversity is a growing con-cern for Parties. The reasons for slow national implemen-tation, as well as the divergence of views in the negotia-tion of an international ABS regime, are issues which this report seeks to inform.
The report takes a detailed look at the ABS climate of four developing countries – Botswana, Ghana, Uganda and Zambia – and presents the countries’ own views on na-tional implementation and ABS policy development. By providing such an analysis, it is hoped that the negotiators of the international ABS regime and ABS capacity build-ers will gain new awareness of national policy approaches and constraints. The countries themselves provide points for action, and since undertaking national consultations to produce the country studies, they have been active on building on the momentum generated by the exercise. For example, in July 2007, Uganda adopted ABS guidelines and by April 2008, all four countries had nominated a national focal point on ABS.
I hope that readers of this report will recognize that coun-tries are indeed undertaking national action on ABS, even though a final ABS policy may not be well defined as yet. Countries such as Botswana and Ghana are still organizing their environmental policies and considering how ABS may be a component of environmental management legisla-tion. However, through this project and other sub-regional initiatives, national stakeholders are clearer on the issues to be considered, the terminology, their role and possible contributions to the international negotiations and the potential benefits of a defined national ABS policy.
A. H. ZakriDirectorUnited Nations University Institute of Advanced StudiesYokohama, JapanMay 2008
Foreword
2
ABS Access to Genetic Resources and Benefit Sharing ABSCNA Competent National Authority on Access to Genetic
Resources and Benefit SharingABSNFP National Focal Point on Access to Genetic Resources
and Benefit SharingADCs Area Development CommitteesADMADE Administrative Management DesignARI Animal Research InstituteAWF African Wildlife FoundationBG Bonn GuidelinesBINP Bwindi Impenetrable National ParkBNARI Biotechnology and Nuclear Agriculture Research
InstituteBOCARI Botswana Chapter of the African RenaissanceCARE Cooperative for Assistance and Relief Everywhere, IncCBD Convention on Biological DiversityCBNRM Community Based Natural Resources ManagementCBO Community Based OrganizationCBU Copperbelt UniversityCBUD Centre for Biodiversity Utilization and DevelopmentCEAPs Community Environmental Action PlansCEMP Community Environmental Management ProgramCEPS Customs, Excise and Preventive Service CGIAR Consultative Group on International Agricultural
ResearchCHM Clearing House MechanismCITES Convention on International Trade in Endangered Species
of Wild Fauna and FloraCLUSA Cooperative League of the United StatesCOMESA Common Market for East and Southern Africa CONASA Community Based Natural Resources Management
and Sustainable AgricultureCOP Conference of the PartiesCPWCNH Convention for the Protection of World Cultural and
Natural HeritageCRBs Community Resource BoardsCRI Crops Research InstituteCRIG Cocoa Research Institute of GhanaCSIR Council for Scientific and Industrial ResearchCSRPM Centre for Scientific Research into Plant MedicineDEA Department of Environmental AffairsDEC Department of Environmental Conventions DoF Department of FisheriesDoWA Department of Water AffairsDWNP Department of Wildlife and National ParksEAC East African CommunityECAZ Environmental Conservation Association of ZambiaECZ Environmental Council of ZambiaEDIF Export Development and Investment FundEIA Environmental Impact AssessmentENRM Environment and Natural Resources Management
Program
ENRMD Environment and Natural Resources Management Department
EPA Environmental Protection AgencyEPC Export Promotion CouncilEPPCA Environmental Protection and Pollution Control ActESP Environmental Support ProgrammeFAO Food and Agriculture OrganizationFD Forestry DepartmentFoRIG Forestry Research Institute of GhanaFRMP Forest Resource Management ProjectFSP Forestry Support ProgrammeGAEC Ghana Atomic Energy CommissionGEF Global Environment FacilityGIPC Ghana Investment Promotion CentreGMA Game Management AreaGMO Genetically Modified OrganismGoG Government of GhanaGoU Government of UgandaGRZ Government of the Republic of ZambiaGWD Ghana Wildlife DepartmentGWS Ghana Wildlife SocietyHPI Heifer Project InternationalIASInvasive Alien SpeciesIBBIS Institute of Biodiversity & Biotechnology Initiatives and
ServicesIGAD Intergovernmental Authority on DevelopmentIK Indigenous KnowledgeIKS Indigenous Knowledge SystemsIPGRI International Plant Genetic Resources Institute
(Biodiversity International)IPPC International Plant Protection ConventionIPR Intellectual Property RightsIRDCs Integrated Resource Development CommitteesIRNR Institute of Renewable Natural ResourcesITPGR International Treaty on Plant Genetic ResourcesIUCN International Union for Nature ConservationIUCN-ROSAWorld Conservation Union Regional Office for
Southern AfricaIZC Inter-Zonal Management CommitteeJFM Joint Forest ManagementJPOI Johannesburg Plan of ImplementationKBI Kagera Basin InitiativeKCS Kalahari Conservation SocietyKNUST Kwame Nkrumah University of Science and TechnologyLDCs Least Developed CountriesLIRDP Luangwa Integrated Resource Development Project MAAIF Ministry of Agriculture, Animal Industry and FisheriesMAT Mutually Agreed TermsMEAs Multilateral Environmental AgreementsMENR Ministry of Environment and Natural ResourcesMES Ministry of Environment and ScienceMFEPMinistry of Finance and Economic Planning
List of Abbreviations
3
MGNP Mgahinga Gorilla National ParkMLGRD Ministry of Local Government and Rural DevelopmentMLF Ministry of Lands and ForestryMLFM Ministry of Lands, Forestry and MinesMoE Ministry of EducationMoFA Ministry of Food and AgricultureMoH Ministry of HealthMoJ Ministry of JusticeMoL Ministry of LandsMoLG&H Ministry of Local Government and HousingMoM Ministry of Mines MoTIPSI Ministry of Trade, Industry and Presidential Special
Initiative MOU memorandum of understandingMoWE Ministry of Water and EnvironmentMSTVT Ministry of Science, Technology and Vocational TrainingMTENR Ministry of Tourism, Environment and Natural
ResourcesMTI Ministry of Trade and IndustryMUIENR Makerere University Institute of Environment and
Natural ResourcesMUST Mbarara University of Science and TechnologyNAMPAADD National Master Plan for Arable Agriculture and
Dairy DevelopmentNAP National Action Plan on DesertificationNARO National Agricultural Research OrganizationNARP National Agricultural Research Programme NBI Nile Basin InitiativeNBSAP National Biodiversity Strategy and Action PlanNCA National Competent AuthorityNCS National Conservation StrategyNDPC National Development Planning CommissionNEAP National Environmental Action PlanNEMA National Environmental Management AgencyNESC National Environmental Steering CommitteeNFA National Forest AuthorityNFO National Focal PointNISIR National Institute for Scientific and Industrial ResearchNHCC National Heritage Conservation CommissionNGO Non-Governmental OganizationNPGRP National Plant Genetic Resources ProgrammeNPWS National Parks and Wildlife ServicesNRDC Natural Resources Development CollegeNRM Natural Resources ManagementNSC National Steering CommitteeNSTC National Science & Technological CouncilOASL Office of the Administrator of Stool LandsOAU Organization of African UnityOIE Office Internationale des EpizootiesOPRI Oil Palm Research InstitutePAs Protected AreasPCT Patent Cooperation TreatyPEAP Poverty Eradication Action PlanPFAP Provincial Forestry Action ProgrammePGRs Plant Genetic Resources
PIC Prior Informed ConsentPlantGRRI Plant Genetic Resources Research Institute PLEC People, Land Management and Ecosystem ConservationPMA Plan for Modernisation of AgriculturePOPs Persistent Organic PollutantPRSP Poverty Reduction Strategy PaperPTB Perm culture Trust of BotswanaPVP Plant Variety ProtectionRAF Resource Allocation FrameworkRCCs Regional Coordinating CouncilsRDE Royal Danish EmbassySABSP Southern Africa Biodiversity Support ProgrammeSADC Southern Africa Development CommunitySEA Special Environmental AssistanceSLAMU South Luangwa Area Management UnitSPS Sanitary and Phytosanitary MeasuresSPGRC SADC Plant Genetic Resources CentreSTCs Specialised Technical CommitteesTBT Technical Barriers to TradeTHETA Traditional and Modern Health Practitioners Together
against AIDS and other DiseasesTK Traditional KnowledgeTL Thusano LefatsheTORs Terms of ReferenceTRIPS Trade-Related Aspects of Intellectual Property RightsUNCCD United Nations Convention to Combat DesertificationUNCST Uganda National Council for Science and TechnologyUNDP United Nations Development ProgrammeUNEP United Nations Environment ProgrammeUNFCCC United Nations Framework Convention on Climate
ChangeUNU-IASUnited Nations University Institute of Advanced
StudiesUNZA University of ZambiaUPOV Union for the Protection of Plant VarietiesUWA Uganda Wildlife AuthorityVAGS Village Area GroupsVMCs Village Management CommitteesVPRD Veldt Products Research and DevelopmentWECSZ Wildlife Environmental Conservation Society of ZambiaWIPO World Intellectual Property OrganizationWRC Water Resources CommissionWTO World Trade OrganizationWWF World Wildlife FundZAFCOM Zambia Forestry CommissionZARI Zambia Agricultural Research InstituteZAWA Zambia Wildlife AuthorityZFAP Zambia Forestry Action PlanZFC Zambia Forestry CollegeZMCs Zone Management CommitteesZNFU Zambia National Farmers Union
4
This report seeks to answer the following questions:
What policies, legislation and legal capacity exist or are proposed for the countries of Botswana, Ghana, Uganda and Zambia to deal with access to genetic re-sources and the sharing of their benefits (ABS)?
Which institutions in these countries are engaged in the management and implementation of ABS activi-ties? What are the administrative arrangements for ABS management, and what are the major gaps and constraints?
What projects with ABS components are being imple-mented in the countries?
Who are the major ABS stakeholders?
Based on the identified needs and gaps, what actions can be undertaken to clarify, develop and implement ABS measures in each country?
The report provides a detailed view of the national policy climate relating to ABS in the four countries, based on re-search carried out by consultants in co-operation with na-tional agencies, using questionnaires and workshops. The country reports were subjected to peer-review and subse-quent editing, and can be read in full below.
The major conclusions can be summarized as follows:
Policies
The four countries each have extensive policies relating to natural resource management, conservation, agriculture and fisheries. However, in only one of the countries, Ugan-da, is access to genetic resources and benefit sharing, as promulgated by the Convention on Biological Diversity (CBD), a focus of these policies. Uganda adopted ABS regu-lations in 2005, then developed supporting guidelines in 2007. Some countries have considered adapting model legislation drawn up by the African Union for implement-ing national policy on ABS, while others are considering in-cluding ABS elements within emerging national environ-mental acts or policies. The countries welcome regional agreements on this issue, and find tools such as regional databases useful for supporting and guiding the design of national information clearing houses.
Poverty alleviation, food security, human security and rev-enue generation are key issues which countries see as the desired objectives of any national ABS policy.
The decentralized nature of decision-making on natural resource issues affects the development and implementa-tion of policies in this area. Bodies such as district assem-blies, community resource boards, fisheries management committees and village area groups are often involved in sharing benefits from wildlife and fisheries manage-ment. Some countries propose these arrangements as a possible basis for developing benefit-sharing policies for genetic resources.
Access and Prior Informed Consent
In Ghana, Botswana and Zambia, legislation relating to conservation and use of natural resources does not include the key elements of Prior Informed Consent (PIC) to deal with access to genetic resources: mechanisms for consult-ing with stakeholders, providing legal certainty and clarity, and a clear application process. In Uganda, however, there is a technical committee within the national environmen-tal management agency which can be used to evaluate ABS proposals. Foreign collectors must submit a written request and receive approval from this committee before entering the country and undertaking collections.
Procedures for accessing wildlife and national parks are much clearer. In Zambia, for example, general consent is sought in wildlife management on issues such as annual quotas for various types of use, in effect a type of PIC. For fisheries, the government gazette and newspapers pro-vide a general form of PIC on licenses issued to the private sector and community groups. Generally, communities in Zambia are consulted during the process of awarding fish-ing and wildlife concessions - however, this is not a legal requirement.
Benefit Sharing
In all the countries, benefit-sharing is a feature of wildlife and fisheries management. Benefits are in most cases monetary for communities, through local community and district boards. In Uganda, for example, national parks share benefits with local people through community con-servation and collaborative forest management. The ben-efits include revenue sharing, use of park resources such as medicinal plants, and support for community develop-ment projects. In Zambia, sharing of benefits from wildlife is usually not part of the Mutually Agreed Terms (MAT) in the agreements with users, but is rather included in a sep-arate process in agreements with communities. There are monetary benefits from revenues and license fees, a few joint ventures, and non-monetary benefits through educa-tion and training projects.
Challenges
The challenges faced by the four countries include:
Raising awareness of ABS principles;
Maintaining institutional capacity;
Linking ABS and poverty alleviation;
Building national technological capacities;
Addressing the lack of ABS policy and increasing ca-pacity to implement existing policies;
Engaging local and indigenous communities; and
Monitoring and enforcement of ABS agreements in user and provider countries.
Executive Summary
5
Towards an Action Plan
The countries recognize the need for further national ac-tion on implementing the Convention on Biological Diver-sity, in harmony with other biodiversity-related multilater-al, sub-regional and regional environmental agreements. To implement the CBD’s third objective, some points for action highlighted by the countries are to:
Promote a broader understanding and appreciation of ABS principles;
Establish and strengthen national institutional frame-works;
Identify and strengthen cooperation with and dia-logue between ABS stakeholders;
Provide capacity-building for human resources devel-opment;
Promote and invest in research and development for both South-South and North-South joint ventures within and between provider and user countries; and
Effectively participate in the Convention on Biological Diversity’s process on the negotiation of an interna-tional ABS regime.
Lessons
Several lessons for the participating countries, and for others in the region, emerged from the project, including that:
Stakeholder identification and participation is essen-tial as a basis for any ABS policy development, and to understand the true ABS climate of a country;
Formal national legislative and administrative meas-ures are important for clarity and establishment of mandates;
Private sector engagement brings business perspec-tives and practicalities to ABS policy design and imple-mentation;
Valuation of components of the genetic resources of biodiversity would encourage conservation and sus-tainable use;
Trained and knowledgeable personnel – researchers, natural resource managers and community leaders – with awareness of the ABS process and principles are important in both development and implementation of ABS policies;
National Biodiversity Strategies and Action Plans (NBSAPs) which incorporate sustainable use, facilita-tion of access to genetic resources and the links with conservation and poverty alleviation, help to promote the concept of ABS early in biodiversity management planning, and allow later development of ABS policies to progress more smoothly; and
Predictable financial allocation and project support stabilizes ABS policy development and implementa-tion, awareness-raising and training.
Project Impacts
Impacts from the project itself include:
Activities at the national level catalyzed multi-stake-holder dialogues and raised awareness of the princi-ples of access to genetic resources and benefit shar-ing, and of the Bonn Guidelines;
Awareness and profile of the roles of ABS National Fo-cal Points and Competent Authorities and their nomi-nation were enhanced in the countries under study;
The project launched inventories of projects and pro-grammes with ABS elements, information which now lies with the national clearing houses;
The NBSAPs and other action plans underwent some review to identify their relevance to ABS manage-ment;
The analysis of administrative and policy arrange-ments helped the countries to identify where there were institutional overlaps, and in which institutions ABS may be couched; and
Through their involvement in the project, the four countries recognized the need for national action, as well as involvement in the negotiation of an interna-tional regime on access and benefit-sharing.
General Conclusions
Overall, for most of the countries to derive benefits from an ABS policy, South-South collaboration is needed with neighbouring countries with varying degrees of tech-nology and research capability. In some of the countries, research has been mainly funded by the public sector. In order to derive increasing benefits from research and biotechnology, partnerships with and investment from the private sector are essential. For policy-makers and ABS management institutions in the countries, the challenge is to design a system that is agile and transparent, and that balances the goals of conservation and poverty alle-viation with the needs and operation style of the research and business communities. Countries are keen on taking national action, even though the negotiation of an inter-national regime on ABS may well overtake national policy development and implementation in most developing countries. The negotiations can and do provide impetus for national awareness and action. This report presents a detailed view of national ABS climates, which can in turn inform the international negotiations and foster national implementation of the objectives of the Convention on Biological Diversity.
6
1. Introduction
The entry into force of the Convention on Biological Diver-sity (CBD) in 1994 brought global recognition of the sov-ereign rights of countries over their biological resources. National and global action has since focused mainly on conservation and, as the 2010 target approaches, reduc-ing the rates of biodiversity loss.1 The third objective of the Convention, the fair and equitable sharing of the benefits arising from access to and use of genetic resources, com-monly known as Access and Benefit-Sharing (ABS), has proven to be difficult to achieve through implementation at national and international levels.2
At the international level, an Ad Hoc Open-Ended Work-ing Group on ABS, set up by the fifth meeting of the Con-ference of Parties to the CBD (COP-5) in 2000, drafted a document which subsequently became known as the Bonn Guidelines.3 They were adopted at COP-6 in 2002. The guidelines are voluntary, and seek to assist and guide governments and stakeholders in their development of an ABS strategy – including administrative, policy and legisla-tive measures. They also provide guidance on negotiating ABS agreements, and the process of facilitating access and benefit-sharing.
Also in 2002, at the World Summit on Sustainable Devel-opment, the Johannesburg Plan of Implementation4 en-couraged the implementation of the Bonn Guidelines, and the negotiation of an international regime to promote and safeguard the fair and equitable sharing of benefits from the use of genetic resources. In 2004 at COP-7, the Ad Hoc Working Group was mandated to consider the na-ture, scope and elements of such an international regime. 5 Subsequently in 2006, parties to the CBD established the year 2010 as the deadline for completing negotiations on an ABS regime – the issue and the activities of the Work-ing Group have therefore received increasing focus in the period leading up to COP-9 (2008) and COP-10 (2010).
The negotiations on an international ABS regime are at-tempting to bridge contrasting views on the issue - at one end, some countries are calling for a legally-binding agree-ment, while at the other, governments argue for prioritiza-tion and support of national actions.
Article 15 of the Convention, in recognition of the sovereign rights of States over their natural resources, notes that na-
1 In Decision VI/26, the Conference of the Parties (COP) to the Convention on Biological Diversity adopted a Strategic Plan in which parties committed to achieve by 2010 a signif-icant reduction of the current rate of biodiversity loss at the global, regional and national level, as a contribution to poverty alleviation and to the benefit of all life on Earth. At the World Summit on Sustainable Development in 2002, and at the United Nations General Assembly in 2005, the 2010 Biodiversity Target was subsequently endorsed. 2 The third objective of the CBD calls for “fair and equitable sharing of the benefits aris-ing out of the utilization of genetic resources, including by appropriate access to genetic resources and by appropriate transfer of relevant technologies, taking into account all rights over those resources and to technologies, and by appropriate funding”. A frame-work for the implementation of this objective is set out in Article 15.3 Guidelines on Access to Genetic Resources and Fair and Equitable Sharing of the Benefits Arising out of their Utilization, available online at http://www.cbd.int/doc/publi-cations/cbd-bonn-gdls-en.pdf4 JPOI, chapter IV paragraph 44.5 CBD COP Decision VII/19
tional governments through domestic legislation exercise authority over access to genetic resources. However, of 190 parties to the Convention, only 60 have adopted or are adopting ABS measures.6 The proposed answers as to why there has been so little national action include:
1. Lack of a clear understanding of the legal issues relat-ing to the scope of an ABS regime and definition of its terms;7
2. The complexity of the issue as it touches on different genetic resources used by different activities for differ-ent purposes in different sectors; and
3. Lack of human and institutional capacity, and the ab-sence of adequate infrastructure in developing coun-tries.8
The issues which often require clarity amongst stakehold-ers and local communities stem from the main ABS provi-sions from the Convention – contained in Articles 15, 16, and 19. Article 8( j) is also of relevance, as it addresses genetic resources with associated traditional knowledge, and ABS. The articles outline the obligations of parties classified as users and providers of genetic resources. Parties should implement measures to facilitate access to their genetic resources for environmentally-sound uses.9 These are es-tablished though national legislation, policies and admin-istrative measures. Article 15, paragraph 5, specifies that access shall be subject to prior informed consent (PIC) of the contracting parties providing such resources. Access and PIC shall be granted on the basis of mutually agreed terms (MAT) between user and provider. Parties also have an obligation to ensure the fair and equitable sharing of benefits arising from utilization of genetic resources.
The key issues to be understood by stakeholders and parties for implementation of the third objective of the CBD are:
1. Facilitation of access;
2. Mutually Agreed Terms (MAT) and Prior Informed Con-sent (PIC);
3. Implementation of national measures; and
4. Fair and equitable sharing of benefits.10
Additional issues include:
1. Participation of providers (especially developing coun-tries) in biotechnology research and development; and
2. Access to results and benefits from biotechnologies and products based on the party’s genetic resources.
6 Valerie Normand (2008). “In context: the third objective of the convention” in Busi-ness.2010, Vol.3, Issue 1 January 2008. 3. A newsletter of business and biodiversity by the Secretariat of the Convention on Biological Diversity.7 CISDL (2005). 3rd Edition – Overview of national and regional implementation of ABS measures.8 Valerie Normand (2008) op cit.9 Article 15, paragraph 210 Simple definitions and explanations of these issues and terms have been provided in UNU-IAS, 2007 Pocket Guide on Access to Genetic Resources, and Bioprospecting.
7
The Bonn Guidelines seek to be flexible and useful to stakeholders and governments in understanding these terms and incorporating them in their national legislation and policies. The Guidelines identify:
1. Steps in accessing genetic resources and benefit-sharing;
2. Basic requirements for Mutually Agreed Terms; and
3. The roles and responsibilities of providers and users.
The Guidelines also emphasize the usefulness of national mechanisms. The benefits of a national ABS regime, mech-anism or policy include:
1. Enhanced conservation efforts through targeted ac-cess and promotion of sustainable use of resources;
2. Recognition of ownership of resources and associated traditional knowledge;
3. Generated income to support conservation;
4. Creation of a clear structure for collaboration between providers and those who can provide added value;
5. Support of partnerships: private - public sector; com-munities - researchers; policy makers - NGOs;
6. Enhanced awareness of the resources, uses, value and occurrence;
7. Facilitation of capacity-building and benefits for rural development and poverty reduction.11
Despite what may be described as a present stalemate in international negotiations, it could be argued that the question of a global ABS regime will soon overtake nation-al actions, and will dominate the upcoming CBD meetings. However, national actions still require analysis, reflection and support. If they are ignored, any regime negotiated by 2010 may inadvertently become ineffective and unable to improve practical implementation of the third objective of the Convention.
This review of the ABS climate of Botswana, Ghana, Ugan-da and Zambia emerged from and agreement between the United Nations Environment Programme (UNEP) and the Government of Ireland, designed to support capacity building for biodiversity conservation in Africa. It is timely, as it seeks to widen attention again to national respon-sibility, achievement and constraints regarding ABS. The individual studies provide a detailed understanding of the legislative and administrative climates of the coun-tries. Uganda has developed ABS regulations, and other countries have analyzed their sectoral policies for ABS el-ements. However, in light of the Bonn Guidelines, none of these sectoral polices comprehensively addresses the CBD’s third objective.
Despite the passing of more than 15 years since the CBD was signed at the Rio Summit, the four countries continue to focus on other Convention objectives: conservation of biodiversity and sustainable use of its components, and the links to poverty reduction. Some countries such as Bot-
11 Ibid
swana are developing environmental management legis-lation, and are considering including ABS as an element of such regulations. Countries within wider sub-regional collaboration, such as the Southern Africa Development Community (SADC), and through national consultations, are considering how ABS can be linked to poverty allevia-tion, food security and human security. These objectives may impact the emergent shape of ABS policies at the na-tional level.
The country reports and their recommendations suggest that there may simply be a long learning and implemen-tation curve at the national level, due to ongoing ration-alization of environmental and resource management policies, and not necessarily an outright rejection of the significance of the third CBD objective. In fact, after the country studies were completed, the governments pro-posed their own way forward on this issue. These ranged from assessing the country’s climate for access to genetic resources and sharing of benefits, in the case of Botswana, Ghana and Zambia – to Uganda’s implementation of new national ABS regulations and guidelines. All four countries have sectoral policies that may be described as building blocks, which some have tried to use as they are, others may dismantle, and others still may combine to create a complete ABS structure.
This report proceeds with a description of the method-ology used in the project, followed by a summary of the main findings of the four country reports. The full indi-vidual reports follow, for Botswana, Ghana, Uganda and Zambia. The report concludes with the challenges, points for action, lessons learned and project impacts as defined by the consultants, and a short final conclusion.
8
The project entitled ‘Capacity Development for Access to Genetic Resources and the Fair and Equitable Sharing of the Benefits Arising from their Utilization in Africa’ was undertaken using the country studies approach.
The process was designed to answer the following questions:
What are the existing and proposed policies, legislation and the legal capacity- building needs as they relate to access to genetic resources and benefit-sharing?Which institutions are engaged in ABS management and implementation activities? What are the adminis-trative arrangements for ABS management and what are the major gaps and constraints?What projects with ABS components are being imple-mented in the country?Who are the major ABS stakeholders?
Based on identified needs and gaps, what actions can be undertaken to clarify, develop and implement ABS measures in the country?
The United Nations University Institute of Advanced Stud-ies and the United Nations Environment Programme (UNEP) contracted the Institute of Biodiversity & Bio-technology Initiatives and Services (IBBIS) to support the countries of Botswana, Ghana, Uganda and Zambia, over the period of 15 January 2005 to 30 September 2005.1 The project was extended to December 2005 with submission of revised reports in January 2006.
IBBIS activities with respect to the project included:
Assistance to UNEP’s Department of Environmental Conventions (DEC) to organize an initial meeting in Nairobi for participating countries (convened 1-2 Feb-ruary 2005);
Selection of national consultants for the case studies, and support to national processes including develop-ment of questionnaires and guidance for the national processes; and
Assistance to and participation in Final Peer Review Workshop in December 2005.
The consultative workshop 1-2 February 2005 was con-vened at the start of the project and identified the na-ture of the activities to be undertaken by the country consultants. The terms of reference and the use of the questionnaires were discussed and agreed on at the workshop. The workshop was attended by the identi-fied country consultants, lead national agencies, UNEP, UNU-IAS and IBBIS.
1 Initially the project targeted six countries (Botswana, Botswana, Ghana, Uganda and Zambia, Ethiopia and Kenya). Capacity constraints within Ethiopia and Kenya prevented their full participation in the project. IBBIS provides consultancy services and serves as a south-south and north-south network that assist countries to meet their obligations under biodiversity related Multilateral Environmental Agreement.
Three questionnaires designed by IBBIS and UNEP were adopted to assist national consultants in their consulta-tions and literature reviews. An information note also accompanied the questionnaires (Annex 1). The question-naires were based on the ABS provisions of the Conven-tion on Biological Diversity’s Bonn Guidelines. The ques-tionnaires also attempted to capture complementary measures undertaken within the countries (not necessar-ily based on the CBD or the Bonn Guidelines). The ques-tionnaires also looked at the countries’ implementation of other biodiversity-related conventions and regional ini-tiatives, as well as the issues of national focal points and stakeholders. Additionally, they allowed for various inven-tories to be conducted.
National consultants began their activities between July and August of 2005. National workshops for awareness-raising, information-gathering and reviews were conduct-ed in the countries as follows:
Botswana - 26 August 2005 Ghana - 12 September 2005 and 14 October 2005Uganda - 25 August 2005 and 22-23 September 2005Zambia - 17 October 2005
The country reports were first submitted to IBBIS and UNEP at the end of October 2005. A Peer Review Work-shop was then convened at UNEP in Nairobi 9-10 Decem-ber 2005. The workshop participants reviewed the country studies, in light of the terms of reference and objectives of the project and linked to the Initiative of the New Part-nership for Africa’s Development (NEPAD), and the NEPAD Environment Initiative Action Plan which seeks to improve Africa’s implementation of the objectives of the Conven-tion, including the relevant decisions of the Conference of the Parties with special emphasis on sustainable use and the fair and equitable sharing of benefits.2 The National Reports of Botswana, Ghana, Uganda and Zambia were presented, as was a presentation on Kenya’s ABS policies, and were peer-reviewed at the workshop. Participants shared their experiences with and insights into the chal-lenges and opportunities presented in the course of the application of the Bonn Guidelines on access and benefit sharing in the four participating countries.
The reports were preliminarily edited by UNU-IAS in Febru-ary 2008, and consultations were carried out with the re-port writers and country focal point offices. By April 2008 all countries provided updates to the reports. The updates are included in this report, which thus reflects the current status of ABS law and policy in the four countries.
2 The meeting was attended by participants from Botswana, Ghana, Kenya, Uganda and Zambia. Also participating were Mr. Brendan Tobin, United Nations University Institute of Advanced Studies (UNU-IAS) and Mr. Paul Chabeda of the Institute of Biodiversity and Biotechnology Initiatives and Services (IBBIS). UNEP participants included Mr. Bakary Kanté, Director of the Division of Environmental Conventions, Mr. Nehemiah Rotich, Senior Programme Officer, Regional Office for Africa and Dr. Margaret Oduk, Division of Environmental Conventions.
2. Methodology
9
Botswana, Ghana, Uganda and Zambia are all parties to the Convention on Biological Diversity. The individual country studies show that there are a wide range of existing meas-ures, both pre-dating and after ratifying the CBD, to con-serve biological diversity and share benefits from natural resources. The countries have extensive sectoral natural resource management, conservation, agriculture and fish-eries policies. However, access to genetic resources and benefit–sharing, as promulgated by the CBD, is not a focus of these policies except for the still-infant ABS regulations and guidelines developed by Uganda. Community boards, district assemblies and traditional authorities play a key role in resource management, especially in wildlife and fisheries management. Wildlife management in all coun-tries appears to have historically received wide attention in sectoral laws, and provides examples of the principles upon which a national ABS regime may be structured.
3.1 ABS Law and Policy
RegionalAgreements
The country reports recognize the utility of regional agree-ments, policies and tools which can support national ABS policies. Databases such as those of the SADC Plant Genetic Resources Centre and the International Plant Genetic Re-sources Institute (IPGRI – now Biodiversity International) are cited as examples for local ABS Clearing House Mechanism (CHM) development. Some of the countries are parties to the African Convention on the Conservation of Nature and Natural Resources (1968), and the Lusaka Agreement on Co-operative Enforcement Operations Directed at Illegal Trade in Wild Fauna and Flora (1994). Uganda (along with Kenya and Tanzania) is a member of the East African Community (EAC), which has developed an environment protocol and guidelines on Environmental Impact Assessments (EIAs), to guide the three countries in environment management. Uganda is also a member of other regional cooperation pro-grammes including the Nile Basin Initiative (NBI) and the Kagera Basin Initiative (KBI). The Intergovernmental Author-ity on Development (IGAD, 1986) and the Common Market for East and Southern Africa (COMESA, 1993) are other rel-evant regional agreements. The Southern Africa Biodiversity Support Programme (SABSP) is a regional programme, now involving the 14 members of the Southern Africa Develop-ment Community (SADC), including Zambia and Botswana, which now focuses on invasive alien species and ABS.1
In 2000, the Organization of African Unity (OAU) produced the African Model Legislation for the Protection of Rights of Local Communities, Farmers and Breeders and for Regula-tion of Access to Biological Resources – the African Model Law. Adoption and local adaptation of this model law is seen by some countries as one path by which to proceed with national implementation of the CBD’s third objective.
1 This 2000-2005 programme, funded by UNEP and the GEF, after review now focuses on invasive alien species and ABS. The member states of SADC are Angola, Botswana, the Democratic Republic of Congo, Lesotho, Madagascar, Malawi, Mauritius, Mozambique, Namibia, South Africa, Swaziland, United Republic of Tanzania, Zambia and Zimbabwe.
NationalLawandPolicy
Of the four countries, Uganda is the most advanced in de-velopment of a specific ABS policy. Uganda has developed ABS regulations - The National Environment (Access to Ge-netic Resources and Benefit Sharing) Regulations, within the framework of Chapter 153 of the National Environ-ment Act. The regulations were approved by Government in May 2005, and are now implemented.
Across the four countries, ABS has been taken into account in National Biodiversity Strategies and Action Plans to a varying extent.
The ABS-relevant policies of the countries have the fol-lowing objectives:
Poverty alleviation;
Sustainable development;
Conservation and sharing of revenue (especially from wildlife); and
Sustainable use of biodiversity.
The national reports provide detailed inventories of relevant national legislation, regional and global multilateral agree-ments to which the countries are party, as well as invento-ries of various on-going ABS arrangements. Most of the ABS-relevant policies and measures were fragmented, and are linked with government ministries and departments dealing with sectoral natural resource management.
Botswana
Botswana does not have specific legislation on access to genetic resources and benefit-sharing as provided for under the CBD and the Bonn Guidelines. However, there is sectoral legislation with components of and relevance to ABS. In Botswana, natural resources are managed by a statutory authority, usually a government department that would be responsible for administering sector-spe-cific legislation depending on the resource. The report for Botswana inventoried at least 19 pieces of legislation rel-evant to ABS issues, with six covering land. The rest are sectoral, addressing water and waste management, indus-try, public health, forestry, agriculture, fish protection and aquatic weeds. The Wildlife and National Parks Act and the Agricultural Resources Act, provide, to a reasonable ex-tent, the structures, processes and procedures for applica-tion to access resources (particularly wild flora and fauna within gazetted wildlife parks). These measures pre-date both the CBD and the Bonn Guidelines. Benefit-sharing is not addressed by the existing legislation. However, these two Acts can be the foundation for development of ABS legislation in Botswana. A Draft National Environment Act is undergoing review and consultation, and suggestions have been made to consider ABS as an additional Chapter in this Act, instead of creating an additional piece of legis-lation dealing specifically with the issue.
3. Main Findings of Country Reports
10
Ghana
There is no single Act for the implementation of the CBD in Ghana. More than 70 relevant pieces of legislation touching on the area of ABS have been compiled, under the broad headings of health-care, trade, biodiversity and International Property Rights. In addition, the National Constitution has provisions relevant to ABS, in Articles 11, 21, 36, 40 and 41. Furthermore, three specific commis-sions have been established to address certain aspects of biodiversity along sectoral lines, namely the Land Com-mission, the Forestry Commission and the Fisheries Com-mission. There is existing legislation which addresses benefit–sharing, and which may provide a formula for the specific requirements of ABS.
Uganda
The Uganda Report gives a detailed inventory of all mul-tilateral agreements of possible influence on ABS in the country. It articulates the policy, legal and institutional measures, observing that these are somewhat fragment-ed, and fall under the auspices of numerous ministries and agencies. Recognizing the shortcomings of its man-agement of this issue, Uganda has adopted new ABS measures, the Access to Genetic Resources and Benefit Sharing Regulations (2005). These regulations and asso-ciated guidelines also seek to address the emerging re-lated issues of intellectual property rights and biopiracy.2 Guidelines for Accessing Genetic Resources in Uganda were prepared in July 2007, with plans for the training of stakeholders in their use at the national and local levels, including local communities. Recently, the National Ag-ricultural Research Organization has prepared, through wide stakeholder consultations including national work-shops, a Draft National Policy on Plant Genetic Resources for Food and Agriculture.
Zambia
In Zambia, there are 32 pieces of legislation that have a bearing on environment and natural resources man-agement. In addition, Zambia has, over the past dec-ade, developed a number of sectoral policies with ele-ments of ABS in the wildlife, forestry, fisheries, water and environment sectors, as well as strategies to ad-dress emerging environmental challenges and to meet international obligations of some biodiversity-related Multilateral Environmental Agreements (MEAs). The strategies include the Zambia Forestry Action Plan, the National Biodiversity Strategy and Action Plan, the National Environmental Action Plan, and the National Action Plan on Desertification. Several initiatives have been implemented that directly or indirectly address the ABS objective of the CBD. However, this has been done sectorally, through various Community-Based Natural Resources Management Programmes, particu-larly in the wildlife and forestry sectors.
2 Uganda’s country report in Box 2 gives more details of the scope of the regulations.
3.2 Institutions and Stakeholders in ABS Management
The institutional arrangements in the four countries have the following characteristics:
Local communities play a key role in ABS as seen through Ghana’s District Assemblies, and Zambia’s Community Resource Boards, Fisheries Management Committees and Village Area Groups (VAGs);
The CBD Focal Point Agencies are the de facto Compe-tent National Authorities on ABS (ABS CNA) - however, all countries have recently appointed National Focal Points on ABS (ABS NFP). For example, Uganda has ap-pointed the natural resources management specialist within the National Environmental Agency (NEMA), the principal Government agency for the manage-ment of the environment within the Ministry of Wa-ter and Environment (MoWE), as its National ABS Fo-cal Point. It has also nominated an officer within the Uganda National Council for Science and Technology as the Competent National Authority for ABS;3
ABS management is diffused across several natural resource management agencies, mainly government agencies (in some cases including universities and re-search organizations);
Existing management structures for forestry, wildlife, game management and protected areas are the oper-ational ‘focal points’ for ABS. Examples of community benefit-sharing are found in these programmes;
Across the countries there is no overarching institu-tional and legislative framework for genetic resources management and benefit-sharing. In countries such as Zambia and Uganda, where the existing agencies with natural resource management responsibility im-plement elements of ABS management, there is limit-ed capacity to implement and monitor ABS measures effectively; and
An operational Clearing-House mechanism (CHM) for ABS information is absent in all countries. Although Uganda has designated its national focal point for the Clearing-House Mechanism (CHM) as NEMA, informa-tion management has yet to be consolidated.
Botswana
In Botswana, the Department of Environmental Affairs (DEA), in the Ministry of Environment, Wildlife and Tour-ism, is focal point for the CBD. The type of biological re-sources accessed and the purpose of access determines whether and which other institutions are involved in ABS management. For example, the Department of Wildlife and National Parks (DWNP) is primarily responsible for an-imal biological diversity as well as other resources found in wildlife management areas, national parks, private game reserves and other such designated conservation
3 A call was made by the Executive Secretary to the CBD for nomination of National Fo-cal Points on ABS (ABS NFP) and National Competent Authorities on ABS (ABS NCA). Countries responded with their nominations, and the list of ABS NFP as of 29 April 2008 is available at: http://www.cbd.int/doc/lists/nfp-abs.pdf. The list of ABS NCA as of 29 April 2008 is available at http://www.cbd.int/doc/lists/nfp-abs-cna.pdf - however, there are no ABS NCA listed for Botswana, Ghana, Uganda and Zambia.
11
areas. The Ministry of Agriculture is responsible for plant resources, agro-biodiversity including veldt products and medicinal plants on state and communal land. However loosely, the institutional framework does provide an ac-cess process, and in some cases specific procedures such as the requirement for permits. Even so, the key elements of Prior Informed Consent, mechanisms for consultation with relevant stakeholders, legal certainty and clarity and a clear application process for ABS are not covered by the current institutional framework. Key non-state actors in the NGO sector include those that work in the areas of wildlife, plant genetic resources, conservation and man-agement of biological resources. Most of the NGOs work in collaboration with communities that live on or make use of the biological resources from communally-owned land. The Country Report notes that Botswana needs legislative responses for management, coordination and stakeholder participation relating to ABS, as the institutions and au-thorities involved have no coordination mechanisms - es-pecially where the resources in question are managed by several different agencies. Ghana
In Ghana, there is no overarching institutional and leg-islative framework for genetic resources management. This means that all aspects of access and benefit-sharing are not dealt with by the institutions that, by default or through their mandates on resource management, handle some aspects of the issue. The Forestry Commission regu-lates, manages and utilizes forest and wildlife resources, and co-ordinates related policies. The Fisheries Commission has similar responsibilities. The National Development and Planning Commission, with responsibility for planning and land use, amongst its duties makes proposals for the protec-tion of the natural and physical environment. The District Assemblies are the cornerstone of the government’s decen-tralization policy. They are corporate bodies with perpetual succession entrusted with certain district-level functions, including development, improvement and management of human settlements, and the environment.
A key ministry of relevance to ABS is the Ministry of Lo-cal Government, Rural Development and Environment - formerly the Ministry of Environment and Science (MES). Under the various Ministries there are state agencies which provide services relating to genetic resources. These organizations include:
Departments,e.g. the Department of Parks and Gar-dens;
The Environmental Protection Agency (EPA); and
Universities and research institutions which, collec-tively, host 11 departments and centres whose work relate to genetic resources.
Government agencies include the Plant Genetic Resourc-es Research Institute, which collects and conserves plant genetic resources of Ghana by both ex-situ and in-situ methods, and the Centre for Scientific Research into Plant Medicine (CSRPM), which produces medicinal plants,
conducts arboreta research and development, and iso-lates plant compounds. These agencies mainly provide material, knowledge or technology to farmers, academic and research institutions, other government organiza-tions, large-scale commercial concerns and individuals. They are often collected without the prior consent of, and sometimes without payment to, the owner or holder. Uganda
The institutional set-up for biodiversity conservation in Uganda is rather complex, with many different play-ers operating at different levels of management. These include government agencies (central and local), non-governmental organizations (NGOs), civil society and community-level institutions. Although Uganda has des-ignated its national focal point for the Clearing-House Mechanism (CHM) as NEMA, and an ABS Focal Point contact within NEMA, the Uganda National Council for Science and Technology (which hosts the ABS Competent Authority contact) is the government agency charged with coordination and monitoring of all research within the country. This includes bio-prospecting and related biodiversity conservation. Uganda has implemented, in protected areas, community conservation and collabora-tive forest management projects which include benefit-sharing with surrounding communities.
Biotechnology research and development is still largely public-funded. However, there are private firms engaged in biotechnology activities: Med-Biotech Laboratories, the Centre for Research in Infectious Diseases (CRID), and the Centre Agro Genetics Labs for tissue culture work. The ABS regulations make provision for the use of genetic resources for commercial or industrial purposes, and this is the entry point for the private sector as long as they conform to the requirements of the regulations and other relevant laws.
There are four main NGOs, community-based organizations (CBOs) and local traditional authorities responsible for the conservation of sacred groves and other such habitats. They have played active roles in implementation of the various international conventions, and fulfilling the requirements of national legislation. They have been particularly involved in promoting community participation and empowerment in sustainable natural resource management, and ensur-ing access to benefits it brings. In carrying out their various roles, the NGOs face the challenges of weak coordination and networking systems, unclear operational linkages with governments at central and local levels, competition for fi-nancial resources, and short time-frames within which cer-tain projects have to be implemented, relying as they do on the availability of donor funding.
Cultural institutions in Uganda have historically played a leading role in the management of genetic resources. Al-though their influence was somewhat diminished with the creation of a central government and abolition of many of these institutions, they still have the potential to play a key role in managing various aspects related to control of access to genetic resources, and protection of indigenous knowledge.
12
Zambia
In Zambia, there are about 36 stakeholders involved in ABS arrangements and administration. The Ministry of Tourism, Environment and Natural Resources (MTENR), which includes the Forest Department, Zambia Wildlife Authority (ZAWA), National Heritage Conservation Com-mission (NHCC) and the Environmental Council of Zam-bia, is the key government institution involved in the country’s environmental management. The ministry, as the CBD National Focal Point and National Competent Authority, has a Department of Environment and Natu-ral Resources that co-ordinates the implementation of ABS measures. The major constraint of the department is the lack of an operational Clearing-House Mechanism for effective sharing of information to all stakeholders on various aspects of ABS. While the MTENR is the de facto ABS Competent National Authority and hosts the ABS National Focal Point, it has limited capacity, and may call upon other ministries such as the Ministry of Justice to effect certain provisions.
For actual implementation of activities, the Zambia Wild-life Authority (ZAWA) may be considered the operational National Focal Point and Competent National Authority on matters of ABS related to wildlife management. Com-munity-Based Natural Resources Management (CBNRM) is the strategy for wildlife management. Through Com-munity Resource Boards (CRBs), local communities share benefits through elected Village Area Groups (VAGs), rep-resenting clusters of villages at the sub-chiefdom level. Through this program, various stakeholders are engaged (private sector, CBOs, NGOs and communities) when de-termining access, negotiating and implementing various ABS arrangements, Mutually Agreed Terms and agree-ments in benefit-sharing. ZAWA’s Directorate of Game Management Areas (GMAs) is responsible for the coordi-nation and implementation of ABS principles. The staff-ing of the directorate does not have representation at the lower levels of organization, as is the case with other directorates such the one dealing with conservation. For this reason, while elaborate government legal and ad-ministrative machinery exists, the capacity of ZAWA to enforce and implement these provisions is limited, and remains a major obstacle in effectively implementing ABS measures. In fisheries resource management, Village Fisheries Management Committees are made up of the fishermen, traditional leaders and other key stakeholders such as representatives of local traders, fish traders and fish transporters.
3.3 Access to Resources, Prior Informed Consent and Mutually Agreed Terms
Botswana
Land use in Botswana is guided by the nature of the land tenure system. Generally, to enter land to access resourc-es, the landowners’ permission is needed. However, access is also subject to laws relating to natural resources, which often address the acquisition of resources in all types of
land tenure systems. The use of the resources is not sub-ject to the full rights of the owner of the land, where these resources are regulated and managed under specific laws. For example, the Tribal Land Act recognizes that a particu-lar community owns the land collectively as well as the resources on it. The Act envisages the application of the customary law of the place where the communal land in question is situated. However, the same Act does not give the traditional custodians (Chiefs) of customary law the power to administer either the land itself or the natural resources found on it. None of the land laws make specific mention of genetic resources.
Botswana’s natural resources legislation, designed to meet the objectives of conservation and use of those re-sources, does not cover the key ABS elements of Prior In-formed Consent, mechanisms for consultation with rel-evant stakeholders, legal certainty and clarity, or a clear application process.
For access to wildlife and plants, responsibilities lie across various institutions with several ‘focal points’, thus Bot-swana does not have the preferred system of a single Na-tional Competent Authority to facilitate the ABS process. The Wildlife Conservation and National Parks Act and the Agricultural Resources Act, provide, to a reasonable extent, the structures, processes and procedures for application to access resources in national parks. There is an authority responsible for entry into the national parks and game re-serves; forms for application of licenses to enter the areas for the purpose of acquiring animals; license conditions and rights, including cancellation, waiver, repudiation and amendment of licenses, and the rationale for such actions. These pieces of legislation may provide the foundation on which to develop ABS legislation in Botswana.
The Agricultural (Conservation) Resources Act addresses access and management of resources. It empowers the Agricultural Resources Board to manage “all resources on and below the soil of Botswana.” The Act is implemented through the Ministry of Agriculture, which creates ap-propriate policy and regulations to manage and conserve biological resources. However, the Act still falls short of addressing the resources that are not destined for com-mercial export. In the context of ABS, the legislation pro-vides for the development of regulations for the control of access to resources. One example is the requirement of permits for harvest and export of Devil’s Claw (Singa-parile). However, there are no mechanisms for benefit-sharing. Furthermore, the Act does not spell out the key requirements for PIC and other ABS processes, although the institutional framework for administration of the Act is in place.
Ghana
Ghana’s government agencies provide genetic material, knowledge and technology to farmers, academic and research institutions, other government organizations, large-scale commercial concerns and individuals. These resources are often collected without the prior consent of and sometimes without payment to the owner or holder.
13
Several plant genetic resources projects are implemented by the Plant Genetic Resources Research Institute (Plant GRRI), Centre for Scientific Research into Plant Medicine (CSRPM), Crops Research Institute, Cocoa Research Insti-tute of Ghana (CRIG), Heifer Project International (HPI), and the People, Land Management and Ecosystem Conser-vation (PLEC) project in Ghana, an initiative of UNEP, GEF and UNU. However, they do so without legal designation or administrative regulations.
Generally, accessing genetic resources is uninhibited as there is no specific legislation on access and benefit-shar-ing, technology transfer, or institutional arrangements for ABS. There are frequent cases of rural communities provid-ing guided access to plant material and traditional knowl-edge on the use and management of these resources, while receiving no payment.
As with gold and timber, under the stool lands regime, ge-netic resources can be vested with the state, subject to the use and/or enjoyment by the owners of benefits derived from their exploitation, in accordance with the relevant statutory and constitutional provisions.4
The Ghana Investment Centre Promotion Act, which pro-vides a regulatory framework for foreign direct invest-ments into Ghana, is viewed by some stakeholders as one mechanism for access management when dealing with non-national ABS agreements or applications.
Other measures with an impact on access to genetic re-sources in Ghana are the Traditional Medicines Practice Act which, among other things, enjoins the Traditional Medi-cine Practice Council to collaborate with the appropriate agencies for large-scale cultivation of medicinal plants, and for the preservation of biodiversity; and the Centre for the Scientific Research into Plant Medicine Decree, 1975, which establishes a centre for research into plant medi-cine and botanical gardens for medicinal plants.
Uganda
Although the system for ABS in Uganda is still evolving, there are already some institutional mechanisms in place for addressing technical, scientific, legal and/or trade is-sues in this area. The ABS regulations make provision for use of genetic resources for commercial or industrial pur-poses, and this is the entry point for the private sector as long as they conform to the requirements of the ABS regu-lations and other relevant laws.
There is a Technical Committee on Biodiversity Conserva-tion, with its Secretariat in NEMA, which can be used to evaluate ABS proposals. Under the existing legislation, some arrangements have been made relating to ABS. These include arrangements between Ugandan and collaborat-ing overseas universities, the National Scientific Research Institutions and the Uganda National Council for Science and Technology (UNCST). Some of the arrangements with government agencies and inter-governmental ones include
4 Stool lands are lands controlled by tribal chiefs.
transboundary collaborative programs around the Central Albertine Rift and the Mt. Elgon Ecosystem.
At the community level, there are often conflicts between local communities and the private sector on accessing wa-ter, cultural sites, medicinal plants, firewood and a number of non-timber forest products in protected areas. The com-munities regard the resources within the PAs as belong-ing to them, and thus demand free and unlimited access. There are discussions on providing incentive measures for these local communities to conserve their surrounding bi-odiversity, and to reduce conflicts on accessing protected area resources. There is a growing interest in Uganda in the traditional knowledge these communities hold on the use of medicinal plants - hence the Government is in the final stages of developing a National Policy on Traditional and Complementary Medicine. Some indigenous knowl-edge systems have been incorporated into the national development plans.
Zambia
Non-national collectors are required to submit a written request, and receive approval, before entering the country and undertaking the collection. There is no special permit, and granting of permission is by way of a letter of reply, which normally encourages the collector to be accompa-nied by local colleagues, and reminds the applicant of the need to leave duplicate samples of the collected genetic resources in the country. There are no specified penalties for failure to obtain a letter, or for violating its conditions, as the permission granted is purely administrative.
Foreign and Zambian institutions collaborate either through a Memorandum of Understanding (MOU), in the case of a project running over a period of time, or through a letter of application to the head of the concerned insti-tution in case of a one-time activity.
In cases of protected areas, such as forest reserves and wildlife estates, collections are based on a set of condi-tions derived from national policy and the legislative framework. For the exploration and collection of wild plant species related to crops such as rice (Oryza spp.) and cowpea (Vigna spp.), interested parties make a written application to the Permanent Secretary or Director of the Research and Services Department in the Ministry of Agri-culture and Cooperatives. The applicant is required to pro-vide information on the purpose of the collection, species of interest, and scope of the project. However, no ‘benefits’ conditions have been placed on these collections, as the Consultative Group on International Agricultural Research (CGIAR) institutions are regarded as partners in develop-ment whose activities are assumed to have the potential to benefit the country.
Entry into national parks for collection of plant materials requires a permit from ZAWA, but no conditions relating to ownership, use and third-party transfer are imposed. Therefore, no obligations to the state or local communi-ties for ABS requirements are taken into account.
14
With respect to local access and management, the type of land (State or Customary Land) dictates the type of system for access, use of resources and benefit-sharing. Most for-ests, wildlife reserves, wetlands, botanical and geological gardens and gene collections are under state control. The property rights regime determines the way in which ben-efits accruing from biodiversity use are distributed. Histori-cally, communal ownership of biological and other resourc-es has been replaced by state and private ownership.
Most of the existing protected wildlife and forest reserves were established during the colonial era on what was cus-tomary land. The Zambia Wildlife Act provides the Com-munity Resource Board (CRB) with powers to negotiate, in conjunction with ZAWA, co-management agreements with hunting outfitters and photographic tour operators; to manage the wildlife under its jurisdiction; to appoint Village Scouts to exercise and perform the duties of a Wildlife Police Officer under the supervision of a full-time officer in the area falling under ZAWA’s jurisdiction; and to develop and implement management plans which recon-cile the various uses of land in ZAWA areas. Access to wild-life resources and products is obtained through various access systems such as hunting licenses at local, national or district levels, or a special license. The process and most of the steps for obtaining access to wildlife resources are clear and consistently applied. However, the current steps do not always emphasize the development dimension of research relating to wildlife.
In addition to permits, concessions and licenses, plants breeder’s rights, certificates of origin and traditional knowledge (TK) registers are three interesting protection features in Zambia. The National Science and Technology Council documents Indigenous Knowledge Systems (IKS); plant breeders’ rights are rights given to farmers to help them conserve the genetic diversity of crop varieties and their wild relatives; and certificates of origin are usually issued in the fisheries sector to would-be transporters of fish during the off-season as proof of where and when the fish was sourced. The certificate of origin helps the Fish-eries Department to enforce the fishing ban during the closed fishing period. These systems can be incorporated into an ABS management system in Zambia.
In Zambia, Prior Informed Consent (PIC) is addressed in wildlife management, where annual quotas are published, and general consent on the annual quota for various types of use. However, there are no legal rights or traditional na-tional access policies established for indigenous and local communities - though communities are consulted during the concession-awarding processes. For forest manage-ment, the government’s gazette provides general prior in-formed consent on the concession issued and conditions.
Mutually Agreed Terms for wildlife management are con-tained in various permits and licenses, and there is limited negotiation on what should be mutually agreed as the basic terms are prepared by ZAWA. However, terms on custom-ary use of knowledge related to genetic resources, innova-tions and practices of indigenous and local communities are largely missing from these regulatory documents. The
Forest Department has a process of obtaining access to for-est products, but these steps do not encompass activities in research and development and conservation of forests.
For fisheries, the government gazette and newspapers provide the general prior informed consent on the licenses issued to the private sector and community groups. There are areas where traditional authorities have control over specific fishing areas. However, current legislation does not provide for identification of where and how research and development activities may occur. Similarly, there are also no established procedures or legislation for germplasm exchange, other than the need to abide by the phytosanitary regulations aimed solely at safeguarding movement of germplasm across borders.
3.4 Benefit-Sharing
Across the four countries, benefit-sharing is a feature of wildlife and fisheries management. Benefits are in most cases monetary for communities, through local commu-nity and district boards.
Botswana
Botswana’s resource laws and commercial laws on intel-lectual property rights fail to address benefit-sharing and rules for obtaining PIC.
Ghana
The existing ABS-relevant legislation in Ghana does not address benefit-sharing as associated with accessing ge-netic resources. However, as noted earlier, genetic resourc-es can be vested with the state, subject to the use and/or enjoyment by the owners of benefits derived from their exploitation, in accordance with the relevant statutory and constitutional provisions;5 as obtains under the re-gime of stool lands. The Constitution outlines the follow-ing formulation for sharing of stool lands revenues, which may inform an ABS scheme:
10% of the revenue accruing from the stool lands shall be paid to the office of the administrator of stool lands, to cover administrative expenses;
The remaining revenue shall be disbursed in the fol-lowing proportion:
(a) 25% to the stool through the traditional authority for the maintenance of the stool in keeping with its status;
(b) 25% to the traditional authority; and
(c) 50% to the District Assembly, within the area of authority in which the stool lands are situated.
Uganda
Uganda has a patents statute, dating from 1991, under which a registrar awards patents for an initial period of
5 See for example Article 20 of the 1992 Constitution which provides for prompt payment of fair, adequate and effective compensation as a precondition for compulsory acquisition of land by the Government of Ghana (GoG) for public purposes.
15
15 years, with a possible five-year extension if a request is made one month before expiry of the original term. The Uganda Law Commission has drafted upgraded intellec-tual property laws, with much more stringent enforce-ment provisions. However, there is limited information on the impacts of IPRs on conservation and sustainable use of biodiversity.
Arising through the community conservation and collab-orative forest management programmes in Uganda, na-tional parks share benefits with local communities. These benefits include:
Sharing of limited amounts of specified in-park re-sources such as medicinal plants;
Sharing of revenue from the PAs under a Revenue Sharing Program; and
Provision of support for community development projects from a global fund.
Zambia
In Zambia, benefit-sharing in ZAWA covers conditions, obligations, procedures, distribution and types of ben-efits. However, benefit-sharing is usually not included in the Mutually Agreed Terms in the agreements with us-ers, but is rather included in a separate process in agree-ments with the communities with whom the revenue is shared. Zambia’s Wildlife Act of 1998 does not indicate that private institutions using resources in communal ar-eas should assist communities through provision of social services - but these requirements are included in the bid-ding processes for concessions to operate consumptive and non-consumptive safaris.
The ZAWA arrangement for wildlife use in Game Manage-ment Areas mainly consists of monetary shares of wild-life-generated revenue from license fees, and a few joint ventures. Non-monetary benefits are in-kind contributions according to pledges made by the users in the case of safari hunting. A number of tour operators collaborate, and con-tribute to education and training projects and institutional capacity-building to support anti-poaching activities. Lo-cal employment is generated, and taxes are paid to local authorities. The timing of delivery of benefits, particularly to local communities, is well stipulated and Community Resources Boards disburse funds to the local communi-ties within two weeks after each quarter. Benefit-sharing mechanisms are elaborate, but the monetary benefits are inflexible (cannot be altered by partners). However, the cur-rent mechanisms do not include full cooperation in scien-tific research, technology development and other benefits derived from other commercial production ventures which use the wildlife resources. No conditions exist for the shar-ing of benefits that may arise from research or commer-cialization of resources with associated traditional knowl-edge, nor is there a system of awarding property rights to source communities or national institutions.
16
4.1 Botswana
Botswana’s country reportwaspreparedandcompletedinNovember2005byAlfred Tsheboeng, Kulthoum OmariandNancy Kgnengwenyan.InMarch2008,Alfred Tshebo-engupdatedthisstudy.
4.1.1 Introduction
This report outlines the results of desktop research on the access and benefit-sharing measures in Botswana in light of the Bonn Guidelines. To portray the country’s ex-perience and status in the implementation of the Bonn Guidelines, the report highlights the measures already undertaken, underway or planned to meet the provisions of Article 15 of the CBD on Access to Genetic Resources and complementary provisions in other Articles.
The study was conducted in 2005 up to November by three national consultants, and the report went through the UNEP Peer Review Workshop process.1 The consultants were guided by terms of reference (TORs) and question-naires developed by the Institute of Biodiversity and Bio-technology Initiatives and Services (IBBIS) and UNEP. 2
The report covers an analysis of the institutional ABS frame-work, a review of ABS activities and projects, an analysis of the ABS-relevant legislation, an identification of legislative gaps and recommendations to address the gaps.
4.1.2 Background
Throughout Botswana’s development, its biological re-sources have remained significant in the lives of its peo-ples. However the absence of or inadequate policies for resource conservation, use and management and more specifically effective policies on accessing and sharing of benefits from genetic resources and associated traditional knowledge threatens the very existence of these resourc-es. Indeed it has been recognized that there remains a real, and in some aspects unexploited contribution, that the country’s biological, genetic and associated traditional knowledge can play in the improvement of living stand-ards in Botswana.
Botswana, like many of the Southern Africa Development Community (SADC) Member States, is at the initial phase of domesticating the Convention on Biological Diversity. As a member of SADC, Botswana is party to the SADC Guidelines and Protocols on Access and Benefit-Sharing of April 2005. The SADC guidelines propose two ABS priority
1 The UNEP Peer Review Workshop Report was held in December 2005 with the partici-pation of the consultants.2 In summary, the study involved the following tasks: (i) identification of ABS stakehold-ers; (ii) a review of ABS regulatory and administrative arrangements and significant gaps; (iii) an inventory of current and proposed legislation relevant to ABS; (iv) an in-ventory of ABS projects; (v) liaising with government agencies and other facilities and assessing effectiveness of implementation of the Bonn Guidelines; (vi) identifying national challenges and constraints for ABS arrangements implementation; (vii) participating in UNEP Peer Review Workshop; (viii) submitting final report.
areas: (i) genetic resources relating to food security and human health; and (ii) traditional knowledge (TK) relating to food security and human health.
While the Convention on Biological Diversity looks at ac-cess to genetic resources and equitable benefit–sharing, SADC’s guidelines link genetic resources to food and hu-man security. SADC has now broadened its focus so that it views Biological Resources as defined in the CBD. The is-sues that have been recognized as key are: the modalities of how access should be conducted and granted, thus rais-ing the need for effective measures that consider the is-sues of ownership and proprietary rights; benefit-sharing and associated contractual matters with consideration of equity issues in commercial, research and other transac-tions involving the access and use of biological resources; and the need for an effective institutional framework to ensure appropriate management.
4.1.3 Institutional Stakeholders
The Government of Botswana is responsible at the national level for creating an enabling policy, legal and institutional environment for facilitating access to Botswana’s biologi-cal resources. The overall framework should allow for dif-ferent options for negotiating benefit-sharing agreements and modalities. This responsibility extends from the gov-ernment’s overall mandate through its institutional arms to conserve and manage the different biological resources in Botswana, including those found within the freehold and communal land tenure systems.
The Department of Environmental Affairs (DEA), in the Ministry of Environment, Wildlife and Tourism serves the role of focal point for the CBD. Within the DEA, the stated function of the Policies and Programmes Division is coordination and monitoring of implementation of multilateral environmental agreements (MEAs). This creates uncertainty with respect to implementation of the CBD obligations. The role of coordination assumes that one or more other divisions or institutions are responsible for implementation, and that the role of DEA through the division is to coordinate the efforts of implementers. A structure needs to be developed which identifies the activities that must be coordinated. For example, various institutions may be designated roles to address various thematic areas, and a structure developed as proposed in Box 1.
The type of biological resources accessed, and the purpose of access, determines whether and which other institu-tions are involved in ABS management. For example, the Department of Wildlife and National Parks (DWNP) is pri-marily responsible for animal biological diversity as well as other resources found in wildlife management areas, national parks, private game reserves and other such des-ignated conservation areas.
The Ministry of Agriculture is responsible for plant re-
4. Country Studies
17
sources, agro-biodiversity including veldt products and medicinal plants on state and communal land.3
Other departments and institutions include the Depart-ment of Agricultural Research and in particular the Na-tional Plant Genetic Resources Centre, National Herbari-um, University of Botswana. The National Master Plan for Arable Agriculture and Dairy Development (NAMPAADD) has as one of its objectives the identification of veldt prod-ucts, and researching these products with a view to devel-oping commercial exploitation strategies.
The Department of Forestry is another relevant agency with responsibility for forest products - trees, timber, brushwood, firewood, poles, bamboo, slabs, chips, saw-dust, plants, grass, reeds, thatch, bedding, creeper, fiber, leaves, fruits, seeds, roots, bark, resin, rubber, sap, charcoal, honey, wax, fungi, galls and earth.4 All these type of re-sources contain various components of biological diversity that can be subject to access.
The Crop Production Unit implements domestic agricul-tural policies including those pertaining to indigenous or traditional varieties of crop seeds and their wild relatives.
The Botswana College of Agriculture works on agriculture extension with the local farming communities, and on maintenance of agro-biodiversity.
The Department of Veterinary Services works closely with
3 Veldt refers primarily to wide-open rural spaces and in particular to certain flatter areas or districts covered in grass or low scrub.4 Galls or plant galls are proliferations and modifications of plant tissues and can be caused by various parasites from fungi and bacteria, insects and mites.
Botswana Vaccine Institute for the development of animal vaccines for domestic animals, and is a key player in the ac-cess of animal biological resources for research purposes.
The Department of Fisheries is involved in fisheries man-agement.
An analysis of the above institutions shows that there is a somewhat decentralized ABS institutional framework within Botswana. For access to wildlife and plants resourc-es, responsibilities spread across various institutions. The extent to which these have incorporated the proposals in the Bonn Guidelines varies. For example, to access these re-sources there are several ‘focal points’, diverging from the preference of a single focal point that facilitates the provi-sion of prior informed consent. Therefore, the focal agency for access is unclear, especially where the targeted resourc-es fall within the management of several agencies.
However loosely, the existing institutional framework does provide an access process, in some cases with specific procedures such as the requirements for permits. Even so, the government institutional framework is largely guided by specific legislation administered by specific agencies. Most, if not all, of this legislation was not developed with facilitation of implementation of the Convention on Bio-logical Diversity as an objective, let alone the implementa-tion of its ABS provisions in light of the Bonn Guidelines. It follows that the key elements of prior informed consent, mechanisms for consultation with relevant stakeholders, legal certainty and clarity and a clear application proc-ess for ABS are not hallmarks of the current institutional framework.
Box 1 Proposed CBD National Coordination Structure for Botswana
ABS Institution designated
IAS Institution designated
IK Institution designated
IPR, PIC,MATs etc
Clearing House Institution designated
Biosafety Institution designated
DEANational Coordination
(Policies & Programmes Division)
Product Development
18
In addition to the governmental institutions responsible for activities that have or potentially have an impact on ABS management, there are also non-state actors. These include non-governmental organizations involved in the management of biological resources in an endeavor to as-sist communities and communal organizational structures.
Key non-state actors in the NGO sector include those that work in the areas of wildlife, plant genetic resources, conservation and management of biological resources. These include Kalahari Conservation Society (KCS), which works closely with the Department of Wildlife and Na-tional Parks, Veldt Products Research and Development (VPRD) and Thusano Lefatshe (TL). These latter two or-ganizations work directly with communities on the use of biological resources, including the harvesting of me-dicinal plants for exports, and propagation of indigenous plants for sale.
In relation to agro-biodiversity, the Permaculture Trust of Botswana (PTB), works with communities on biodiversity conservation and sustainable use, including the selection of crop varieties for arable agricultural activities.
There are also communally-organized institutions com-monly referred to as community-based organizations (CBOs), which work with communities at grassroots levels. Such CBOs include Kalamare Development Trust, a com-munity development organization made up of traditional doctors and other TK practitioners.
Most of the NGOs work in collaboration with communities that live on communal land or make use of its biological resources. The NGO institutional structure appears not to include all of the ABS principles (as further expounded by the Bonn Guidelines). At times, there is some level of con-sultation and community involvement in access provision. However, it is sparse, and does not follow the principles of prior informed consent and negotiation of mutually-agreed terms.
Other civil society players include the Botswana Chapter of the African Renaissance (BOCARI), which focuses its ef-forts on poverty and deprivation. To address the issues, the Chapter has encouraged and is engaged in problem-solv-ing inquiry in the areas of agriculture and health, with sev-eral research projects on food procurement and medicinal plants. The extent to which they have aligned their poli-cies and strategies to the CBD is yet to be established.
There are other efforts outside of mainstream institution-al structures such as the Task Force on Indigenous Knowl-edge System, which is seeking to be housed by the Minis-try of Trade and Industry (MTI). The main objective of the task force is to establish an inventory of indigenous and traditional knowledge, and to assist in the protection of intellectual property.
The full list of institutions is somewhat extensive; howev-er the uncoordinated activities of these departments are incidental to ABS, and do not necessarily embrace the ABS principles of CBD.
4.1.4 Review of Existing Information on ABS Activities
The information available on ABS activities in Botswana is fragmented in different institutions, and is not necessarily ABS-specific.
CreationofDatabases
Management of genetic resources and access to them is still relatively unconsolidated in Botswana and in the SADC as a whole. There has been limited action to mature the ABS management process to incorporate CBD’s ABS principles into existing national frameworks. There is evi-dence of the access aspects in some legislation; however, as there is no central management body, there is no spe-cific ABS data source.
At the regional and international levels, there are data sources such as ABS databases at the SADC Plant Genetic Resources Centre, and Biodiversity International.
Botswana can draw lessons and information from these databases. Any central ABS activities data source in Bot-swana should include information on the following:
Procedure followed for application for access; Specific use requirements; Specific resource accessed; The area from which the resource was accessed; Type and conditions of consent; Institution responsible for facilitating access; The time of access; and The mutually-agreed terms (MAT).
This information is useful for conservation and monitor-ing of sustainable resource use. However, a robust regula-tory and institutional framework is needed to manage the information effectively and to make optimal use of it. Ex-isting databases with information relevant to ABS activi-ties could be adapted to capture specific ABS information. Alternatively, the Department of Environmental Affairs, which collates information from various ABS stakeholders, could create a separate database specific to ABS. A cen-tralized database of this nature would facilitate easy ac-cess, relevance and accuracy of information. The database should also contain ABS information sources such as:
CBD and Bonn guidelines; Expert rosters; ABS working groups and institutions; Inventory of biological resources; Publications, case studies, research projects; Legislation, policies; and Best practices on benefit sharing.
Data access and sharing should be open to contributing institutions, both national and international. However, contributing departments should reserve the right to withhold sensitive data, for example on protection of rare and endangered resources.
19
Capacity-Building
Biological resources are fundamental to Botswana’s local and national economy, and the well-being and culture of the people. Management of access to and benefit-sharing from these resources can enable communities using them to derive non-traditional benefits, and improve their live-lihoods and welfare, whilst at the same time conserving the resources. Botswana has recognized that the greater the economic potential of a resource, the greater the need to establish the capability of its holders to manage and conserve it.
Resource conservation entails overhead costs and oppor-tunity costs, which can be offset by sustainable use of the resource. Access and benefit-sharing agreements and re-lationships between providers and users should, therefore, develop through ethical consultations, facilitated by clear policy, good business support and strong links to the mar-kets. They should also provide incentives for re-investing in resource conservation. Furthermore, to achieve a win-win for resource providers and users, all parties should be em-powered though training and education on negotiation techniques, how to grant Prior Informed Consent (PIC), re-source management and other relevant skills. Policy-mak-ers, natural resource managers, researchers, private sector actors, NGOs, and communities all need these skills, and need to understand the spirit of the ABS provisions of the CBD, and of the Bonn Guidelines. These actors should be offered short and long-term educational programmes, so they can be best prepared to negotiate benefits contracts and to use biological resources in a sustainable manner. The depth of the training may vary according to the cat-egory of actor. However, at least introductory information should be provided on:
The CBD and Bonn Guidelines; ABS national legislation and policies, and national ABS
principles; Intellectual Property Rights (IPR); Environmental economics; Environmental law; and Indigenous Knowledge Systems.
4.1.5 Analysis of Legislation Affecting ABS
The project’s terms of reference called for an inventory of relevant legislation, taking account of the Bonn Guide-lines, and the progress of the CBD Working Group on ne-gotiations of an International Regime on ABS. This section offers an analysis of a desktop review of such legislation in Botswana.
Methodology
In conducting the inventory, criteria for selection of the relevant legislation and a list of the minimum elements were developed.
The criteria were drawn up using the Bonn Guidelines, rel-
evant sections of the CBD, relevant COP decisions and the questionnaires provided by the IBBIS and UNEP. The use of the criteria allowed for focus on legislation on relevant biological resource legislation. The analysis looked at leg-islation with the following characteristics:
1. The intent of the legislation – the legislation is intend-ed to regulate biological or genetic resources through provisions for their conservation, management, pres-ervation, utilization, exchange or transfer;
2. The resources governed under the legislation - the leg-islation regulates the method of sale, transfer of rights and exchange through the provision of specifications regarding transaction rights;
3. The relationship with ABS - the legislation seeks to confer ownership, custodianship or user rights of a bi-ological resource that can be the subject of or attracts access and benefit activities; and
4. The gaps and options for addressing them - the leg-islation is intended to implement at domestic level the CBD’s provisions on ABS or any other international agreement that has relevant ABS components.
The second activity was to develop elements that could be considered as necessary to qualify adequately a piece of legislation as adequate or deficient in addressing ABS, based on the guidance of the CBD and the Bonn Guide-lines, as well as basic common legal principles found in various pieces of legislation and legal systems, on rights, their transfer or cessation. This underpinned the assess-ment of what constituted a legislative gap, and pertinent options to address gaps. The basic elements include:
1. Specific implementation measures relating to access to genetic resources and procedures for benefit-shar-ing mechanisms;
2. The legislation establishes and empowers a specific competent authority for managing ABS in the coun-try, clearly specifying the rights and duties of others who may be involved, such as landowners and com-munities, in relation to the mandate of the compe-tent authority;
3. The legislation contains procedures and steps to be taken for securing access, e.g. submission of applica-tion; initial evaluation; determination/notification that the application is correct and complete; consulta-tion; public notice/participation; final evaluation; no-tification (and publication) of decisions and bases for decision; appeal procedures – appeal rights, time limit and other requirements;
4. The legislation has clarity regarding the procedures for applying for ABS rights;
5. The legislation provides specifics regarding applica-tion forms and application processes, accompanying documents and other necessary information, and the timelines for processing of such applications;
6. The legislation provides a clear scope of the nature of the grant. This factor enhances legal certainty by
20
clearly defining the right granted, as well as enunciat-ing mandatory provisions that must be included in the mutually-agreed terms (MAT);
7. The law provides for parameters regarding legitimate expectations, and vested rights of the provider and the user, by setting out clear and specific statutory require-ments and limitations regarding subsequent chal-lenges, cancellation, alteration, repudiation, amend-ment or suspension of the ABS right after receiving the initial authorization;
8. Given the nature of genetic resources, the legislation provides clarity about the role of other bodies, proc-esses and stakeholders in the ABS legislation;
9. The process and legal requirements for acquisition of Prior Informed Consent (PIC) is contained in the legis-lation, including those responsible for giving PIC. The legislation provides for clarity and certainty on the in-stitution or conduit mechanisms for acquiring legally-binding PIC, such as the basis for acquiring PIC, the pro-cedure for notifying the people responsible for giving PIC that their input and consent has been requested, and determinants that consent has been given;
10. The legislation makes clear how it integrates with other required permissions, permits, administration frameworks, officials, sectors and right-holders.
11. The legislation articulates unequivocally exactly what is being granted under ABS provisions, and how the permission may be limited or controlled in normal op-erations. The rights of the provider and those of the user are clearly stated;
12. The legislation has general provisions on what rights may be granted, limitations on the rights that must always be imposed, limitations that may be imposed at the discretion of the authority, and rights that may be granted at the discretion of the authority;
13. The legislation provides clarity on MAT, in terms of what can be done, what cannot be done and what is agreed on;
14. The legislation articulates third-party impact on the ABS agreement, in other words the law states the con-ditions and provisions under which affected citizens or others have the right to challenge formally an ABS agreement after it is final. The legislation further states the basic procedural limitation period on appeal; and
15. The legislation states the rules on claims for non-com-pliance.
A questionnaire was then applied to government and non-governmental agencies at a national workshop of stakeholders.
Botswana does not have specific legislation on access to genetic resources and benefit- sharing in the context of the CBD. However, there are various pieces of sectoral leg-islation with components of and relevance to ABS. These include:
Wildlife Conservation and National Parks Act No. 28 of 1992
The Agricultural (Conservation) Resources Act
Forest Act 38:04
The Town and Country Planning Act – Cap. 39:09
Aquatic Weeds Control Act – Cap. 34:04
Tribal Land Act - Cap. 32:02
Deeds Registry Act
Land Control Act
State Land Act
Fish Protection Act - Cap. 38:05
Water Act
Waterworks Act
Waste Management Act No. 15 of 1998
Local Government (District Councils) Act - Cap. 40:01
Industrial Development Act - Cap. 43:01
Industrial Property Act
Public Health Act - Cap. 63:01
A National Environmental Act has been drafted, within which ABS issues could be captured as a chapter. The proc-ess of developing this act is ongoing, and various studies have recommended that ABS measures should be includ-ed as part of this law, as opposed to forming the basis of stand-alone ABS legislation.
Land Use Laws
Land use in Botswana is guided by the nature of the land tenure system. Generally, to enter land to access resources the landowners’ permission is needed. However, access is also subject to natural resources sectoral laws, which of-ten address the acquisition of resources in all types of land tenure systems. Botswana land laws recognize three land tenure systems. These are:
Tribal land;5
State land, held by the State; and
Freehold land, held under private rights.
Tribal Land
Tribal land, which is the largest category in Botswana in terms of area, is governed under the Tribal Land Act. This provides for the establishment of the Tribal Land Boards, in which communal land is vested. It also defines the powers and duties of the land boards. This process creates a rela-tionship akin to trusteeship between the land boards and the communities who own the land. In other words, the land boards hold the land in trust for the community, and do not assume ownership of such land themselves. They ensure that the land is managed in a way that enables
5 Tribal land is also called communal land in other jurisdictions.
21
benefits to accrue to the community. The mandate given to a land board is wider in scope than the mere designa-tion and allocation of land for residential, commercial or agricultural purposes.
The Act’s the definition of tribal land is: “land in a tribal area and subject to the provisions of the Mines and Min-erals Act, the Water Act and the Mineral Rights in Tribal Territories Act includes any interest in land and anything which is either artificially or naturally attached to the land and which, by operation of the common law accedes to it.”
This definition is significant in considering the rights to the use of biological resources on communal land. Un-der common law, land is owned with whatever is found beneath or above its surface, save for the application of the Acts as discussed under the definition of land. The Act recognizes that a particular community does own the land collectively as well as the resources on it. The Act envisag-es the application of customary law of the place where the communal land in question is found. However, the same Act does not give the traditional custodians of customary law the power to administer such land, or the adminis-tration of the natural resources found on it. A reading of section 13 of the Act on the functions of the land boards, in relation to customary land tenure, indicates that all pow-ers which are or were vested in a Chief in relation to land are to be vested in the land boards. Broadly interpreted, this would include the administration and control of ac-cess to and use of natural resources.
Section 18 of the Tribal Land Act permits the land boards to set aside land outside the grazing area, for the common use of the community (commonage), or for specified class-es or categories of people within it. In practice however, there seems to be a void in communal areas as to who should be responsible for the control of veldt products and other resources found in communal land. Furthermore, land boards only sit occasionally to hear requests and grievances relating to land allocation, and are not avail-able to deal with day-to-day affairs regarding the use of biological resources.
The lack of management of resources in most communal land affects not only plant natural resources, but also af-fects soil, sand, gravel and stones. These materials are in high demand for domestic use, and especially for commer-cial consumption. In the absence of responsibility for non-allocated areas, it is difficult to control the extraction of sand and gravel.
The Tribal Lands Act has a bearing on access to genetic re-sources and benefit–sharing, especially in areas not cov-ered by both the Wildlife and National Parks Act and the Forestry Act. Areas to be addressed include:
A specific legal mechanism for the Land Boards to en-sure that they have direct control over accessing ac-tivities, including the classification of resources under the commonage and communal open spaces;
The legal processes and procedures required to access resources;
The key players, especially the communities in the area and how they interface with those seeking access and the land boards. This would also provide clarity on how to get PIC and primary persons giving consent; and
The institution responsible for negotiating the expect-ed benefits on behalf of the community.
State Land
The State Land Act regulates state land. Except for the re-sources found in state land within national parks and pro-tected areas, and that regulated under other legislation, there is no mention of genetic resources.
Private
The Land Control Act regulates the transfer and ownership of private land. It does not mention access to genetic resources.
In all three tenure systems, the right to grant permission to enter land for purposes of access would normally lie with the owner. In the case of un-alienated communal land, the authority would presumably be with the appropriate land board, in the case of un-alienated state land it would lie with the Ministry of Lands, and in the case of freehold, the owner is directly responsible for granting or refusing access. Open-access land generally exists in Botswana, except in freehold land, but access to genetic resources would be controlled through relevant resource legislation. Tracking of ownership of alienated land is not difficult as it is usually registered by the Land Board, Department of Surveys and Mapping or the Deeds Registry.
Town Planning
The Town and Country Planning Act covers the orderly de-velopment of land in towns through the District Councils, and aims to preserve and improve their amenities. One of the Act’s requirements is that government and private development plans be accompanied by proposals for pro-tection of the environment, including standards and op-erational guidelines for the intended land uses. Granting of permission to develop land and other powers of control over the use of land are provided for under this Act. Sec-tion 23 provides for the protection of trees and woodlands, whereas section 27 covers the protection of heritage sites.
NaturalResourcesLegislation
In Botswana, all natural resources are managed by a statu-tory authority, usually a government department, respon-sible for administering legislation covering a specific sec-tor, depending on the resource.
Wildlife Conservation and National Parks Act
The intention of this Act is to make further and better pro-vision for the conservation and management of wildlife in
22
Botswana and to implement CITES in domestic law, as well as any other international conventions on the protection of fauna and flora to which Botswana is party. It also pro-vides for the establishment, management and control of national parks, private and other game reserves, sanctuar-ies and protected areas. The Act covers protected animals, partially-protected animals, bird licenses, schedules on ar-eas and types of animals and plant life that may not be hunted or harvested.
With respect to ABS, the Act provides:
Conditions and requirements for granting of permission to enter national parks, protected areas and game reserves;
Conditions for the granting of permission to remove any object from the parks and protected areas;
Conditions and requirements for the granting of per-mission to kill, hunt, injure, capture or disturb any ani-mal, or the taking or destruction of any eggs;
Requirements and conditions for the removal of any animal or part of an animal or any vegetation, dead or alive, from the areas that fall under the scope of the Act;
Conditions for cutting, damaging or destruction of any tree or vegetation in a national park;
Conditions for destroying or defacing any object, whether animate or inanimate, in national park;
Rules regarding causing of damage to or disturbing any object of geological, archaeological, historical, eth-nological or other scientific interest within a national park, including its removal;
The prohibition of hunting or capture of any animal or any species or variety of animal unless licensed to do so;
Requirements and processes for applications for li-censes to hunt, kill, harvest etc. in the national park and other protected areas; and
The statutory authority responsible for implementing the Act – Department of Wildlife and National Parks.
The Act itself is not a direct response to the ABS provisions of the CBD, and does not therefore address access to ge-netic resources in the spirit of the Convention. For exam-ple, it is silent on benefit-sharing arrangements. However, it does contain important elements of legal certainty from the perspective of ABS, which include:
Designated statutory authority responsible for entry into the national parks and game reserves;
Clear processes and forms for application of licenses to enter the areas for purposes of acquiring animals, and therefore genetic resources, although genetic re-sources are not the subject of the Act;
License conditions and rights, including their cancella-tion, waiver, repudiation and amendment of licenses and clear rationale for such changes;
Clearly-stated conditions for selling live animals, in-
cluding those for export;
A fee structure for application of licenses; and
The circumstances for accessing live wild animals, through capturing or killing them, in privately-owned property.
Given the intention of the Act, there are gaps regarding ABS management. These include:
No arrangements on direct access to genetic resources;
No arrangements on rights of the Authority and the person who accesses the genetic resources, concern-ing benefits for both parties;
No system for traceability of uses of the genetic re-sources once they leave the parks or protected areas, to make tracking of benefits easier; and
A lack of structure for the protection of knowledge about genetic resources, held by the Authority or by communities that could be used in negotiating ben-efit-sharing options, including the mechanisms for transfer of that knowledge.
The Agricultural (Conservation) Resources Act
The Agricultural Resources Act addresses access and man-agement of resources. It empowers the Agricultural Re-sources Board to manage “all resources on and below the soil of Botswana.” The Act is implemented through the Ministry of Agriculture, which creates appropriate policy and regulations to manage and conserve biological re-sources. However, the Act still falls short of addressing biological resources that are not destined for commercial export. This is a gap in the management and conservation of biological resources, and affects the more economically-vulnerable communities, for which domestic consumption is the focus of management activities.
In the context of ABS, the legislation provides for the development of regulations for the control of access to resources. One example is the requirement of permits for harvest and export of Devil’s claw (Singaparile). However, there are no mechanisms for benefit- sharing. Furthermore, the Act does not spell out the key require-ments for PIC and other ABS processes, although the institutional framework for the administration of the Act is in place.
Forest Act
The Forest Act provides for the regulation and protection of forests and forest products in Botswana. Forest prod-ucts include trees, timber, brushwood, firewood, poles, bamboo, slabs, chips, sawdust, plants, grass, reeds, thatch, bedding, creeper, fibre, leaves, fruits, seeds, roots, bark, resin, rubber, sap, charcoal, honey, wax, fungi, galls, earth and other items that may be provided for by the regula-tions. The focal authority is the Department of Forestry. This Act has declared certain areas as being forests, and as being in these forests. There may be resources classified as
23
protected, and not subject to harvesting. The relationship with ABS is that the forest products are often accessed for research and development.
The major deficiencies of the Act with respect to ABS are:
No clear procedure for access; and
Benefit-sharing is not addressed.
Aquatic Weeds Control Act
The Aquatic Weeds Control Act criminalizes the importa-tion of aquatic weeds into Botswana, and their movement from one place to another within the country. The sole intent of the Act is the management of weeds for better conservation, and it does not respond to ABS in the con-text of the CBD.
Fish Protection Act
This Act provides for the effective regulation, control, pro-tection and improvement of fish and fishing in Botswana. The Act enables the Minister to make regulations on the following:
Imposing and prescribing conditions for the regula-tion of fishing;
Registering all boats employed in fishing;
Determining the times and seasons at which the tak-ing of any species of fish shall commence and cease;
The issuing of licenses and certificates of registration to persons authorized to take any species of fish;
Prescribing the fees to be paid, in respect of any license or registration issued;
Providing for and regulating the description and form of nets to be used in fishing and the size of their mesh-es, or the prohibiting of any special description of nets or meshes or any tackle, instrument or appliance that tends to impede the lawful taking of fish, or that is detrimental to the preservation or increase of fish stocks;
Prohibiting, restricting or regulating the importation into Botswana of any live fish;
Prohibiting, restricting or regulating the sale of fish; and
The Act also provides for the criminalization of the use of explosives, poison or noxious substances for the purposes of killing, stunning or disabling the fish.
EnvironmentalProtectionLegislation
Waste Management Act
The Act establishes the Department of Sanitation and Waste Management, and its functions in relation to waste management. It also provides for the planning, facilita-tion and implementation of advanced systems for regu-lating the management of controlled waste, in order to
prevent harm to human, animal and plant life, as well as to minimize pollution of the environment and to protect natural resources.
This Act is applicable to land-use planning, as there is a requirement to plan and zone land suitable for waste dis-posal sites, as well as to zone land for different uses in a manner that enables the control and collection of residen-tial, industrial, hazardous and clinical waste (s.14).
The Act provides for the conservation of natural resources and environmental protection through the prevention of pollution and contamination caused by unregulated and uncontrolled waste. In the planning and zoning of land, it is necessary to identify areas where there is underground water, fragile ecology etc, so that they can be zoned for those activities less likely to cause detrimental effects to the surrounding natural environment. The Act has no di-rect relevance to ABS.
National Museums Monuments and Art Gallery Act This Act is important in that it protects objects or artifacts that are part of Botswana’s cultural, social and political heritage. This covers both past and present heritage. The Act is not ABS-specific.
Tourism Act
The Act makes provision for the regulating of the tourism industry with regard to promoting its development and well-being. The Act covers requirements on:
Licensing of tourist enterprises;
Categorization of tourist enterprises;
Issuance of licenses; and
Grading of tourist enterprises.
In relation to ABS, the Act does not provide for the regula-tion of access through setting standards, rule and regula-tions on the behavior of tourists during their visits to wild-life management areas and similar locations.
Industrial Development Act
The Industrial Development Act seeks to encourage and control the orderly promotion and development of indus-try in Botswana. Covering the whole country, this legisla-tion appears to be confined to the manufacturing indus-try, as opposed to other industries such as biotechnology, the development of medicinal plants etc.
Acquisition of Property Act
This Act allows the acquisition of property for public and other purposes, and for settling the amount of any compensation to be paid. The scope of the Act covers rights relating to immoveable property and its leasing, rights to use of public water, any servitude, or the crea-tion of any servitude, any land granted or ceded to a corporation, company or person. The land in Tribal Ter-
24
ritories as defined by the Tribal Territories Act is exclud-ed from this Act.
The Acquisition of Property Act provides conditions under which the President may acquire any real estate property (s.3)(1), and these are:
In the interests of defense, public safety, public order, public morality, public health, town and country plan-ning or land settlement;
To secure the development or utilization of that or other property for a purpose beneficial to the commu-nity.
It does not address the acquisition of intellectual property or biological resources for public interest. All manage-ment of intellectual property is addressed in the Indus-trial Property Act, and biological resources under specific resource laws.
Public Health Act
The Act makes provision for public health concerns, includ-ing areas such as housing, trading places, sanitation, pro-tection of foodstuffs and water supplies, and the regula-tion of the use of cemeteries. The Act seeks to promote personal and environmental health in Botswana. This in-volves advising and assisting local authorities concerning matters affecting public health. The Act is not of direct relevance to ABS.
Mines, Quarries, Works and Machinery
The intention of the Act is to provide for the safety, health and welfare of persons engaged in prospecting, mining and quarrying operations, including any ancillary works, and to make provision for the inspection and regulation of mines, quarries, and works and of the machinery used in them. Section 2 of the Act describes “quarrying” as: “the activity of obtaining or extracting, or attempting to ob-tain or extract, any rock, stone, gravel, sand, clay or similar material for commercial or industrial use by any mode or method, or any purpose directly or indirectly connected therewith or incidental thereto”.
This Act has a direct bearing on ABS, especially in the ex-traction of soils, but due to its intended objective, it does not address ABS.
Commercial Laws
Industrial Property Act
The Act provides for the protection of intellectual proper-ty rights, and implements the World Intellectual Property Organization (WIPO) agreements on intellectual property. Among commercial laws, the rights not covered are trade secrets and confidential business information, traditional knowledge and plant variety protection.
4.1.6 Gaps and Recommendations
The land laws in Botswana do provide direction as to which agency or person is responsible for granting per-mission to enter land. However, these laws do not ad-dress the question of accessing resources. The common law system of land ownership applied in Botswana gives the owner of the land the power to grant permission for others to use its resources. However, the use of those re-sources is not subject to the full rights of the landowner, where they are regulated and managed under the nation-al resource laws.
The natural resource legislation was designed to meet the objectives of conservation and natural resource use, and does not cover the key elements of ABS. The Wildlife and Na-tional Parks Act and the Agricultural Resources Act, provide, to a reasonable extent, structures, processes and procedures for application to access resources, albeit not specifically ge-netic resources. These two Acts provide a solid foundation on which to develop ABS legislation in Botswana.
Benefit-sharing is not addressed by the existing legislation.
The commercial laws on intellectual property rights fail to address the following important areas for negotiating mutually agreed terms:
Role and status of traditional knowledge;
Transfer of technology;
Confidential information;
Plant variety protection in the context of both private and traditional knowledge of plants;
The obligation not to file a patent or other intellectual property without first seeking permission;
Sharing of patents between the person seeking access and the providers of genetic resources;
Provisions on sharing of royalties and/or other benefits arising out of the use of resources and the intellectual property rights;
Restriction on permitted uses of the material trans-ferred; and
Rules on the criteria for PIC.
The main gaps identified are the lack of specific nation-al and institutional policy and legislation guiding ABS in Botswana. Because the legislation governing biological resources and their ownership is not tailored to deal with ABS, it does not contain the necessary elements to meet the CBD’s objectives for access to and equitable sharing of benefits from genetic resources.
No databases of ABS projects in Botswana were identified. If they exist, they are rather elusive, with no clear protocol for accessing or collating data. Protocols for data collation and access should be clear, as some of the information may be commercially confidential.
25
Some of the projects do not reveal the owners of the bi-ological resources, what they stand to gain, or what will become of project results or outputs. The projects and ac-tivities involving access to resources and/or use of intellec-tual or traditional knowledge, in its various forms, should be negotiated under clear, basic minimum guidelines and terms for all involved in the project.
The institutions and authorities involved in the projects reviewed have no coordination mechanisms, especially where the resources in question are managed by several agencies in different sectors.
Botswana needs legislative responses for management, coordination and stakeholder participation. The legisla-tion should guide those who wish to access resources by providing clarity and certainty on the following:
The competent authority for a designated biological resource including, as appropriate, the access of infor-mation on the resource;
The process that has to be followed to secure prior informed consent from the relevant stakeholders/ owners;
The entity or entities (natural and judicial) that should be part of the negotiations for benefits arising out of the use of the resources;
Vesting of ownership rights over a resource, or special knowledge about it; and
Parameters for benefits and institutional mechanisms for channeling them, including considerations for tax-es under the laws of Botswana.
4.2 Ghana
ThereportwaspreparedbyseveralconsultantsinAugust2005.ThelegalcomponentwaswrittenbyGeorge A. Sar-pong,FacultyofLaw-UniversityofGhana.Thesocial,eco-nomicandenvironmentalcomponentswerepreparedbyEdwin A. GyasiandEmannuel M. AttuafromtheUniversityofGhana.InMarch2008,thereportwasupdatedbyEric OkoreetheNationalFocalPointonABS.
4.2.1 Introduction
The Ministry of Environment and Science and consult-ants from the University of Ghana completed this report in August 2005, and it then went through the UNEP Peer-Review Workshop process.
The report covers both the legislative and socio-economic aspects of access and benefit sharing in Ghana.
The socio-economic component identifies the ABS stake-holders, and reviews existing ABS activities and projects.
Based on the terms of reference, the legal component cov-ers an inventory of current national, international, and
proposed legislation pertaining to ABS.6 The report also assesses the legal and administrative facilities against the Bonn Guidelines, and identifies the main challenges and constraints of Ghana’s ABS management.7
4.2.2 Social, Economic and Environmental Aspects of ABS Provisions in Ghana
All Ghanaians, and especially farmers, are primary manag-ers and custodians of Ghana’s genetic resources. To iden-tify the key stakeholders, activities and projects in Ghana, the consultants conducted a desktop review and a ques-tionnaire based-survey, participated in a mid-term review and the peer-review workshop.
InstitutionalStakeholders
Ghana’s ABS stakeholders can be grouped as:
Government organizations - various ministries;
Departments, agencies, universities and research in-stitutions and other governmental organizations;
Non-governmental organizations(NGOs) and commu-nity-based organizations (CBOs); and
Other organizations implementing biodiversity-relat-ed project activities in Ghana.
Governmental Organizations
The governmental organizations include the following ministries with ABS-relevant policy:
The Ministry of Local Government, Rural Develop-ment and Environment (previously the Ministry of Environment and Science (MES));
Ministry of Food and Agriculture (MoFA);
Ministry of Lands, Forestry and Mines (MLFM);
Ministry of Health (MoH);
Ministry of Finance and Economic Planning (MFEP);
Ministry of Trade, Industry and Presidential Special Initiative (MoTIPSI);
Ministry of Education (MoE);
Ministry of Fisheries; and
Ministry of Chieftaincy and Culture.
Under the ministries there are state agencies which provide genetic resources services. These organizations include:
Departments, e.g. the Department of Parks and Gar-dens;
6 The legislation reviewed include protected area legislation, wildlife legislation, for-estry legislation, agricultural and other land use legislation, animal welfare legislation, traditional medicine/health care legislation, national and international trade legislation, and regional/sub regional legislation.7 The following agencies provided extensive information for this report: Centre for Scientific Research into Plant Medicine (CSRM); Crops Research Institute (CRI); Plant Genetic Resources Research Institute (PlantGRRI); Cocoa Research Institute of Ghana (CRIG); and Heifer Project International (HPI).
26
Environmental Protection Agency (EPA); and
Universities and research institutions: the University of Ghana – UG (Legon), Kwame Nkrumah University of Science and Technology – KNUST (Kumasi), and the University of Cape Coast – UCC (Cape Coast), which, collectively, host 11 departments and centres whose work relates to genetic resources.
Foremost among the governmental organizations or state agencies are:
The Plant Genetic Resources Research Institute, which collects and conserves Ghana’s plants by both ex-situ and in-situ methods;
The Centre for Scientific Research into Plant Medicine (CSRPM), which produces medicinal plants, conducts arboreta research and development, and isolates plant compounds;
The Aburi Botanical Gardens, which “collects and pro-motes the conservation and sustainable use of orna-mental and medicinal plants in Ghana;”
The Centre for Biodiversity Utilization and Develop-ment (CBUD), Institute of Renewable Natural Resourc-es (IRNR), Kwame Nkrumah University of Science and Technology (KNUST), whose mission is “to stimulate and promote efforts aimed at the judicious use of bio-logical resources of Ghana, by coordinating the identi-fication of products of biodiversity and by facilitating their production, processing and marketing, as well as the development of marketable derivatives;”
The Crops Research Institute (CRI) of the council for Scientific and Industrial Research (CSIR), which seeks “to develop and disseminate environmentally- sound technologies for high and sustainable food and indus-trial crop productivity and enhanced food security and poverty reduction;”
The Cocoa Research Institute of Ghana (CRIG), un-der the Ministry of Finance and Economic Planning, breeds improved cocoa varieties and promotes good agronomic practices;
The Oil Palm Research Institute (OPRI), under the CSIR, conducts research into oil and coconut palm to gener-ate and introduce new/improved technologies for in-creased production and better utilization of crops;
Forestry Research Institute of Ghana (FoRIG), which “conducts high quality, user-focused research that generates scientific knowledge and appropriate tech-nologies, which enhance the sustainable development, conservation and efficient utilization of Ghana’s forest resources;”
The Biotechnology and Nuclear Agriculture Research Institute (BNARI), under the Ghana Atomic Energy Commission (GAEC), conducts research into the peace-ful use of nuclear energy for application to agriculture, health and industry;
The Ghana Wildlife Department (GWD) is responsible for wildlife conservation in Ghana and wildlife man-agement in protected areas;
The Animal Research Institute (ARI) under the CSIR, “undertakes research aimed at providing solutions to problems relevant to the livestock industry in Ghana, and to advise government through the CSIR on live-stock production policy matters;” and
International Water Management Institute, which tar-gets water and land management challenges faced by poor communities in Ghana.
Government agencies mainly provide material, knowledge or technology to farmers, academic and research institu-tions, other government organizations, large-scale com-mercial concerns and individuals. These materials, knowl-edge and technology are often collected without the prior consent of and sometimes without payment to the owner or holder.
Other agencies include:
Export Promotion Council (EPC), and Export Develop-ment and Investment Fund (EDIF) of the Ministry of Trade, both of which influence the situation concern-ing genetic resources, by promoting the export of plants and plant products on a selective basis, espe-cially for the benefit of large-scale commercial inter-ests; and
The Quarantine Division of MoFA and the Customs, Ex-cise and Preventive Service (CEPS), which, among their other functions, regulate the import and export of ge-netic resources.
Non-Governmental Organizations (NGOs) and Communi-ty-based Organizations (CBOs)
There are four main NGOs and CBOs. Local traditional authorities are responsible for the conservation of sacred groves and other such habitats, and are the most relevant for ABS management. The Ghana Wildlife Society (GWS), promotes the conservation, protection, management and wise use of wildlife in all its forms (plants, animals and their habitats), through conservation programmes and community-based projects. Also having some relevance to ABS is the Heifer Project International (HPI) which, under its mission slogan “Ending Hunger; Caring for the Earth”, works in partnership with local people on poverty-related issues and community development, especially through sustainable livestock management.
Other Stakeholders
There are two major internationally-funded projects which have ABS relevance. They are:
UNEP-GEF-UNU project - PLEC (People, Land Manage-ment and Environmental Change, renamed People, Land Management and Ecosystem Conservation), a project dedicated to the “development of sustainable management methods for conservation of biodiver-sity by agrodiversity in agriculturally-used areas;” and
International Plant Genetic Resources Institute (IPGRI) - a Sub-Saharan project on conservation of landraces
27
with a focus on yams, Dioscorea spp., and rice, Glaber-rima spp., in Ghana.
Activities
Several plant genetic resources projects are implemented by the Plant Genetic Resources Research Institute (Plant-GRRI), Centre for Scientific Research into Plant Medicine (CSRPM), Crops Research Institute, Cocoa Research Insti-tute of Ghana (CRIG), Heifer Project International (HPI), and PLEC-Ghana. Activities are carried out in:
Agriculturally-used areas and landscapes;
Arboreta and herbaria;
Protected areas;
Unprotected natural areas; and
Experimental plots.
The projects are conducted without legal designation or administrative regulations. Benefits arising from the ac-tivities include:
Conservation;
Limited proceeds from the sales of genetic materials, which may be used to supplement government sub-ventions;
Plant medicines; and
Training of staff and partners.
These benefits are shared with local individuals or com-munities, government agencies, and wider Ghanaian so-ciety.
Specific Projects
Projects carried out by PlantGRRI include:
Collection, characterization and conservation of germ-plasm of cereals, legumes, vegetables, roots and tu-bers, citrus and avocado, funded through the National Agricultural Research Programme (NARP) of the CSIR; and
Collection, characterization and conservation of leg-umes and wild fruits, through funding under the AgSSIP programme.
PlantGRRI enjoys a range of capacity-building benefits from these projects including infrastructure enhance-ments such as office, residential building and laboratory facilities, and provision of vehicles, equipment, chemicals and staff training.
A major project undertaken by CRIG focuses upon cocoa germplasm collection, conservation, evaluation, characterization and use. It aims to create the variation necessary for the breeding of genetically-improved cocoa. The principal benefit is continued availability of cocoa germplasm required for breeding improved planting material. It is shared by research institutes, universities and farmers.
4.2.3 Gaps and Constraints
In Ghana, accessing genetic resources is relatively uninhib-ited and thus faces several challenges..
Social and Economic
Rural communities often give plant material and tradi-tional knowledge on the use and management of these resources without receiving payment. This is a challenge for conservation and benefit-sharing.
Another challenge is the erosion of local livestock genetic resources (notably cattle, goats and sheep breeds) arising from the view that local is inferior to exotic. There has also been a decline in respect for sacred groves and totems, which were traditionally highly valued.
There is a need for research into medicinal plants, identi-fying the locations where they grow best, analysing the plant chemistry, and optimizing production. Ensuring sustainability after project-based research is another con-stant challenge.
Other challenges include the need to:
Create public awareness of the value of genetic re-sources;
Revitalize communal ownership of genetic resources at the local level;
Add value to genetic resources; and
Ensure that a larger section of society receives the ben-efits from the commercialization of genetic resources or value-addition products.
Environmental
Habitat loss is a growing threat to the conservation of ge-netic resources. Pressures include population growth, un-sustainable land management practices and urbanization.
Institutional
There is no overarching institutional and legislative frame-work for genetic resources management. The institutions which deal with those resources, by default or through their mandates on resource management, do not focus on all aspects of access and benefit-sharing. The construction of such a framework could support conservation and increase social benefits. However, incentives and legal expertise are needed if the appropriate legislation is to be created.
Capacity
To meet the challenges of ABS management, support from government, the private sector, research institutions and external agencies is needed. To clarify and develop the social and economic components of access to genetic re-sources and benefit-sharing, Ghana needs to build capac-ity among the various stakeholders through training and raising of awareness.
28
4.2.4 Analysis of Legislation
International and Regional Framework
Ghana ratified the Convention on Biological Diversity on 29th August 1994. Therefore, the CBD provisions on ABS and the Bonn Guidelines should all guide the manage-ment of the country’s genetic resources.
Several agreements of the World Trade Organization are relevant to ABS in Ghana. The Agreement on the Applica-tion of Sanitary and Phytosanitary Measures (SPS Agree-ment) was developed to ensure that countries apply meas-ures to protect human and animal health (sanitary meas-ures) and plant health (phytosanitary measures), based on an assessment of risk. Under this agreement, the Codex Alimentarius is the main instrument for harmonization of food standards. Codex is implemented in Ghana.
The international instruments relevant to the animal sector are the WTO’s Agreement on Agriculture, the SPS Agreement and the Agreement on Technical Barriers to Trade (TBT agreement). Along with Codex and the World Organisation for Animal Health, (OIE), the SPS Agreement identifies the International Plant Protection Convention (IPPC) as the third source for international standard-setting and, as such, the IPPC serves as the basis for the harmonization of plant protection legislation. Apart from international trade in plants, the 1997 text of the IPPC ad-dress other matters including:
Cooperation and exchange of information on plant protection;
Harmonization of phytosanitary measures, including a procedure to develop international standards;
Procedures for standard setting;
Modern phytosanitary concepts, such as pest risk analysis; and
Designation of pest-free areas and the phytosanitary security of export consignments after certification.
The Food and Agriculture Organization (FAO) Pesticides Management Guidelines are also relevant to ABS in Gha-na, as they encourage responsible trading practices by as-sisting countries in establishing controls to regulate the quality and suitability of pesticide products, as well as the safe handling and use of such products.
The Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) and the 1991 Union Internationale Pour la Protection des Obtentions Vegetales (UPOV Act), prescribed for adoption under the WTO rules, are also rele-vant to ABS. They contain comprehensive rules for member states regarding the protection of plant varieties.
The TRIPS Agreement requires WTO member states to pro-tect new plant varieties using patent rights, a sui generis system of protection (that is, a system of its own kind) or some combination. The agreement seeks to establish
universal, minimum standards of protection across the major fields of intellectual property, including patents, copyrights, trademarks, industrial designs, integrated cir-cuits and trade secrets. TRIPS obligations became binding on developed states in 1996, and for developing states and countries in transition, in 2000. Least Developed States (LDCs) were required to implement TRIPS in 2006.
The agreement specifies the minimum substantive re-quirements for various forms of intellectual property, and requires its members to adopt “effective” provisions within their national laws to permit those whose IPRs are being infringed to enforce them (article 41.1). Although the TRIPS Agreement devotes only minimal attention to plant varieties, its Article 27(b) (3) has done more to encourage the legal protection of plant varieties than any other inter-national agreement.
The 1991 UPOV Act requires states to protect at least fif-teen plant genera or species upon becoming members of the Act, and to extend protection to all plant varieties within ten years. A variety is eligible for protection if it is novel, distinct, uniform and stable. Once protection is granted, any person seeking to use reproductive or vege-tative propagating material of the variety for various pur-poses must obtain prior authorization from the breeder.8 The 1991 UPOV Act requires national treatment, meaning that whatever rights member states grant to their nation-als in their own plant variety protection law, they must also grant to nationals of other member states. The Act also contains a compulsory license provision, under which a member may only restrict a breeder’s exclusive right if it is in the public interest. However, equitable remuneration must be paid to the breeder whose rights are limited.
The International Treaty on Plant Genetic Resources (ITPGR) addresses the nature and needs of the agricultural sector, and the major principles of contemporary international environmental and biodiversity law.9 It also addresses access to information related to plant genetic resources, and farmers’ rights. Non-confidential information regarding catalogues, inventories, technologies, results of research, etc. on plant genetic resources should be available to contracting parties through the global information system provided for in Article 17.10 Furthermore, the treaty provides for participation in decision-making by interested stakeholders on various aspects of plant genetic resource conservation and use.
Under the ITPGR, the responsibility for realizing farmers’ rights, as they relate to plant genetic resources for food and agriculture, rests with national governments. In ac-
8 These include: production or reproduction; conditioning for the purpose of propaga-tion; offering for sale; selling or marketing; exporting; importing; or stocking for any of these purposes (Art. 14).9 For example, in the Rio Declaration and the CBD, including the sovereign rights of states over plant genetic resources (PGRs) which are regarded as a common concern of all countries.10 This system is to be developed by members, in collaboration with the CBD’s Clearing House Mechanism, in order to facilitate information exchange on scientific, technical and environmental matters related to plant genetic resources for food and agriculture,” with a view to contributing to the sharing of benefits therefrom.
29
cordance with their needs and priorities, each party is en-joined to take measures to protect and promote farmers’ rights, including:
Protection of traditional knowledge relevant to plant genetic resources for food and agriculture;
The right to participate equitably in sharing benefits arising from the use of plant genetic resources for food and agriculture; and
The right to participate in making decisions, at the national level, on matters related to the conservation and sustainable use of plant genetic resources for food and agriculture.
The ITPGR contains provisions for the sharing of mon-etary benefits arising from the commercial use of plant genetic resources.11
At the regional level, the Organization of African Unity (OAU) produced the African Model Legislation for the Protection of Rights of Local Communities, Farmers and Breeders and for Regulation of Access to Biological Re-sources, 2000 (African Model Law). The Model Law seeks to protect Africa’s common biological diversity and the livelihood system dependent on it. It proceeds on the basis that the type of rights Africa needs are not those rights that monopolize for commercial purposes, through privatization, what belongs to the community, but those rights that recognize and protect the lives of local com-munities, including farming and fishing communities and indigenous peoples, their innovations, technologies and practices.12
The Model Law is Africa’s reaction to conventional con-cepts of intellectual property law. Today, individual prop-erty rights foster the commercial and industrial interest, and are therefore too limited, conceptually, to accommo-date traditional, cultural notions of ownership, recogni-tion or protection of indigenous intellectual property claims. Traditional concepts emphasize communal rights, which last in perpetuity and are inextricably linked to all other aspects of communal life.
The Model Law is adaptable to Ghana in the sense that it seeks to:
Prevent the disruption of Africa’s rural life and nation-al food production systems by stopping present trends that are threatening to erode seed and other planting material, traditional medicinal plants, and natural fi-bres and colours;
Promote the continuation of the socially positive, cus-tomary, community practices of sharing biodiversity and innovations, and to extend this sharing to the new
11 A person who obtains a commercial profit from the use of genetic resources adminis-tered multilaterally will be obliged, by a Standard Material Transfer Agreement, to share such profits fairly and equitably, and to make an equitable payment to the multilateral mechanism. Such payments are to be used by the governing body of the treaty as part of its funding strategy for benefit-sharing (art. 13.2(d). 12 Ekpere, J (2002). The OAU’s Model Law: The protection of the rights of local com-munities, farmers, and breeders, and for the regulation of access to biological resources.
possibilities arising from the growing use by external interests of the biodiversity, knowledge and technolo-gies of Africa’s local communities;
Safeguard the vital interests of Africans against the negative consequences of globalization; and
Assist OAU Member States of the WTO to meet one of their obligations under article 27.3(b) of the TRIPS Agreement, without undermining the rights of their local communities.
The Model Law complies with the obligations of the CBD to respect and maintain the innovate lifestyles of local and indigenous communities, as well as obtain their consent when granting access to their biological resources, knowl-edge, innovations and practices. It provides for benefit-sharing, prior informed consent and participation.
Its core principles/provisions include:
Food sovereignty and security (Articles: 15 on Access; 26 and 33 on Farmers and Plant Breeders’ Rights);
State sovereignty and inalienable rights and responsi-bilities (Preamble, Article 21);
Value of indigenous knowledge (Preamble, Articles: 16 on community rights; 24,25,26 on farmers’ rights; 31 on plant breeders’ rights and 60 on institutional arrange-ments);
Full participation in decision-making (the Preamble, Part I on objectives, Article 26 on farmers rights);
Access to Biological Diversity and Genetic Diversity (Preamble, Part I on objectives; Part II on definition and scope; Part III on Access to Biological resources; Articles: 3 on grant of access; 18,19, 20 and 21 on com-munity rights; and 67 and 68 on enabling provisions);
Prior Informed Consent (PIC) (Part I on objectives, Arti-cles: 1 on definitions, 5 on access to biological resources and 18 on community rights).
Fair and equitable sharing of benefits (Preamble, Part I on objectives; Articles: 12 on access to biological re-sources; 22 on community rights; 26 on farmers rights and 66 on institutional arrangements);
Plant Breeders’ Rights (Objectives, Articles: 2 on defini-tions and scope; 26(3) on farmers’ rights and Articles 28- 56 on plant breeders rights);
Prohibition of Patents on Life Forms (Preamble, Article 9 on access to biological resources); and
Gender Equality (Preamble, Part I on objectives; arti-cles: 5 on access to biological resources; 18 and 22 on community rights; 24 on farmers rights and 66 on in-stitutional arrangements) (OAU, 2001).
The African Model Law, with the necessary modifications, could therefore provide a basis for legislation on ABS in Ghana.
30
National Legislative Framework
Constitutional and Institutional Frameworks
Ghana’s 1992 Constitution has no specific ABS provisions. Some provisions of the Constitution, however, are relevant to the subject, especially: Articles 11, 21, 36, 40 and 41 on sources of law in Ghana, right to information, respect for international law and treaty obligations, and the safeguarding of the envi-ronment by the state and the citizenry.
Article 11 of the Constitution provides for sources from which laws on ABS arise. It provides that the laws of Gha-na shall comprise:
The Constitution;
Enactments made by or under the authority of the Parliament established by this Constitution;
Any Orders, Rules and Regulations made by any person or authority under a power conferred by this Constitu-tion;
The existing law; and
The common law. 13
Article 21 of the Constitution guarantees all persons the right to information. A Right to Information Bill is current-ly before Parliament for enactment.
Certain provisions of the 1992 Constitution address the environment.
Article 36 (10) enjoins the state to safeguard the health, safety and welfare of all persons in employment, and to establish the basis for the full deployment of the creative potential of all Ghanaians. This provision is of relevance within the context of safe working conditions. Article 37(9) enjoins the state to take appropriate measures to protect and safeguard the natural environment for posterity; and to seek co-operation with other States and bodies for the purposes of protecting the wider international environ-ment for mankind.
Every Ghanaian citizen must protect and safeguard the environment under Article 41 (k).
The Constitution also makes provisions for the creation of certain bodies to address biodiversity conservation along sectoral lines. These are:
The Lands Commission;
The Forestry Commission;
The Fisheries Commission; and the
Water Resources Commission.
13 The common law of Ghana shall comprise the rules of law generally known as the common law, the rules generally known as the doctrines of equity and the rules of custom-ary law including those determined by the Superior Court of Judicature. …, “Customary law” means the rules of law which by custom are applicable to particular communities in Ghana.
Enabling legislation has since been enacted to facilitate the creation of these bodies.
The Forestry Commission regulates, manages and utilizes forest and wildlife resources and co-ordinates related pol-icies. The Fisheries Commission has similar responsibil-ity. The National Development and Planning Commission, established under Article 86 of the Constitution with responsibility for planning and land use, amongst its du-ties makes proposals for the protection of the natural and physical environment.14 The Water Resources Commission (WRC) was established by an Act of Parliament (Act 522 of 1996) with the mandate to regulate and manage Ghana’s Water Resources and co-ordinate government policies in relation to them. The Act stipulates that ownership and control of all water resources are vested in the President on behalf of the people, and clearly defines the WRC as the overall body responsible for water resources manage-ment in Ghana. The Commission, which provides a forum for integration and collaboration of different interests, is composed of the major stakeholders involved in the wa-ter sector.
The District Assemblies are the cornerstone of the govern-ment’s decentralization policy. They are bodies corporate with perpetual succession entrusted with certain district level functions. Functions include the development, im-provement and management of human settlements and the environment.15
Various Ministries or Departments of State also address or ought to address biodiversity conservation, including ABS. These include:
The Ministry of Local Government and Rural Develop-ment (MLGRD);
The Ministry of Lands and Forestry (MLF);
The Ministry of Food and Agriculture;
Ministry of Fisheries;
Ministry of Chieftaincy and Culture;
The Ministry of Health;
The Ministry of Justice;
The Ministry of Trade;
The Department of Wildlife;
Customs, Excise and Preventive Service; and
The Environmental Protection Agency (EPA). This is the major environmental body with responsibility for the management and protection of the Ghanaian envi-ronment. It is entrusted with advisory, research, coor-dinating and enforcement powers.16
14 See 1992 Constitution Arts 258, 269; Forestry Commission Act, 1993 (Act 453); Fisheries Commission Act, 1993 (Act 457).15 Section 10(3) (e) of the Local Government Act, 1993 (Act 462).16 On this see, G. A Sarpong, “Environmental Law from the Ghanaian Perspective”, “Paper presented at the Program of African Studies, North Western University, Illinois, April 12, 2000).
31
In line with the decentralization policy, under the EPA Act, 1994, there is provision for the establishment of offices of the Agency in the regional and district capitals. The En-vironmental Assessment Regulations further strengthens the enforcement powers of the EPA. 17
LI 1652, which establishes Environmental Impact Assess-ment in Ghana, is a comprehensive piece of legislation that deals with procedures and other matters appertain-ing to EIAs.
Health Care
There are several relevant pieces of pre-independence health care legislation in Ghana. These include legislation on:
1. Public Health and Sanitation: The Mosquitoes Or-dinance18 - provides for the destruction of mosqui-toes. It authorizes Sanitary and Medical Officers to enter upon any premises between the hours of 6am and 6pm to take immediate steps to destroy mosquito larvae; and render any accumulation of water unfit for mosquito breeding;
2. The Infectious Diseases Ordinance19 - provides for the prevention of the spread of infectious and contagious diseases and generally for purposes connected with the control of diseases of a communicable nature;
3. Quarantine Ordinance20 - to prevent the introduction of diseases into Ghana and the transmission of diseas-es from Ghana to any other country; and
4. Towns Ordinance21 - provides for the better regulation of towns and for the promotion of public health.
Post-independence statutes on public health include:
1. The Criminal Code, 1960 - A major post-independence legislative enactment that addresses public health and sanitation concerns.22 The Criminal Code criminal-izes certain offences like nuisance, trespass and dam-age to property;
2. Ghana Aids Commission Act 2002 (Act 613) - estab-lish a Commission to formulate a national HIV/AIDS policy; and mobilize, control and manage resources available for the achievement of its objectives and monitor their allocation and utilization; foster link-ages among stakeholders; promote issues relating to research, documentation and dissemination on HIV/AIDS etc;
3. Pharmacy Act 1994 (Act 489) - establishes a Pharmacy Council, and provides for its functions relating to the
17 Act 490.18 Cap 75: Owners or occupiers of such premises may be ordered to do so by the said officials. It is an offence under the Ordinance to allow water to be kept on premises for a period exceeding three days without the receptacle being emptied and cleaned. Contra-vention of the law attracts a fine of twenty - five pounds or imprisonment for a term not e exceeding three months. 19 Cap7820 Cap 7721 Cap86.22 Act 29.
registration of pharmacists, the regulation and control of the practice of pharmacy, the distribution of phar-macies in the country, the licensing of premises for pharmacies and related matters;
4. Food and Drugs Law (PNDCL 305B) (as amended by Food and Drugs (Amendment) Act 1996 (Act 523). This Act prohibits the sale of unwholesome, poisonous or adulterated food. It makes it an offence for any person to sell or offer for sale such foods;
5. The Local Government Act, 199323 - Under the Local Government Act, District and Metropolitan Assem-blies are responsible for the development, improve-ment and management of human settlements and the environment in the district or metropolis;
6. Traditional Medicines Practice Act 2000 (Act 575) - The Act establishes the Traditional Medicine Prac-tice Council whose object is to promote, control and regulate traditional medicine practice. Among the functions of the Council are standards setting, issu-ance of certificates to duly registered members and the licensing of premises for practice, determination and enforcement of code of ethics. Other functions of the Council are to advise the Minister responsible for health on matters relating to and affecting the practice of traditional medicine; to collaborate with the appropriate agencies for large-scale cultivation of medicinal plants and for the preservation of bio-diversity; and
7. Centre for Scientific Research into Plant Medicine Decree 1975 (NRCD344) - The Act establishes a cen-tre for scientific research into plant medicine whose functions include: the conduct and promotion of sci-entific research relating to the improvement of plant medicine; ensuring the purity of drugs extracted from plants; collating, publishing and the disseminating the results of research and other useful technical in-formation; and establishing, where necessary, botani-cal gardens for medicinal plants.24
Town and Country Planning25
The following enactments provide the legal basis for plan-ning in Ghana.
The 1992 Constitution;
The Local Government Act, 1993;
The National Development Planning Commission Act, 1994;26
The National Development Planning (System) Act, 1994; 27
23 Act 462; see pages 31-35 et. seq. for a comprehensive review of the Act.24 These two Acts are of particular relevance to ABS. 25 See Cap 84. This part of the report draws on G.A. Sarpong, “The Legal Framework for Participation Planning: Final Report on Legal Aspects of Land, Tenure, Planning and Management, (FAO; 1999).26 Act 479.27 Act 480.
32
National Building Regulations, 1996.28
The 1992 Constitution provides for a decentralized system of local governance and administration, with District As-semblies as the centre of policy.29 The Constitution also establishes the National Development Planning Commis-sion (NDPC) which, inter alia, is charged with the responsi-bility for advising the President on development planning, policy and strategy; and has the power to make proposals for the development of multi-year rolling plans; protection of the natural and physical environment and even devel-opment of the districts of Ghana.
The National Development Planning (System) Act, 1994 defines and regulates planning procedures and provide for related matters. Under the NDPC Act, the NDPC is the national coordinating body of the decentralized national development planning system.30 This is a tripartite ar-rangement comprising:
District level – District Planning Authorities;
Regional level – Regional Coordinating Councils (RCCs); and
National level – Ministries, Departments, Sector Agen-cies etc.
Both the Local Government Act, 1993 and the NDPC (Sys-tem) Act, 1994, designate the District Assemblies as plan-ning authorities. As planning authorities, District/Metro-politan Assemblies have wide-ranging functions under the aforementioned Acts. They are entrusted with the per-formance of any planning function under any enactment for the time being in force.
Trade
The Ghanaian trade regime does not specifically address ABS. However, it contains several pieces of legislation of relevance to ABS.
1. Business legislation in Ghana includes the Registration of Business Names Act 1962 (Act 151), Incorporated Pri-vate Partnerships Act 1962 (Act 152), Companies Code 1963 (Act 179), Bodies Corporate (Official Liquidations) Act 1963 (Act 180), Banking Law 1989 (PNDCL 225), Fi-nancial Institutions (Non-Banking) Law, 1993 (PNDCL 328), Securities Industry Law 1993 (PNDCL 333), and the Insurance Law 1989 (PNDCL 227);
2. Export and Import Act 199531 - The Act revises the law relating to external trade and provides conditions for the optimum development and efficient conduct of Ghana’s export and import trade;
28 LI 1630.29 1992 Constitution; Arts. 240-255.30 S.I31 Act 503
3. Ghana Export Promotion Council Decree 196932 - The Decree establishes the Export Promotion Council;
4. Export Development and Investment Fund Act 200033 - The Act establishes a Fund known as the Export De-velopment and Investment Fund to provide financial resources for the development and promotion of ex-port trade; and
5. Ghana Investment Promotion Centre (GIPC) Act, 1994 - The Act re-establishes the Ghana Investment Promo-tion Centre (GIPC) as an agency of Government for the encouragement and promotion of investments and to revise the laws relating to investments. The object of the GIPC is to encourage and promote investments in the Ghanaian economy.
Biodiversity and Biodiversity-Related Legislation
There is no single Act for the implementation of the CBD. However, legislation in several sectors touches on the is-sue of biodiversity and genetic resources. Forestry
There are various pieces of forestry legislation. These in-clude - The Forestry Ordinance of 1951; the Forest Protec-tion Decree of 1974; the Trees and Timber Decree of 1974; the Timber Resources Management Act of 1997, and the Forestry Commission Act, 1999. Fire control is covered by the Control and Prevention of Bush Fires Law of 1983, re-placed by a 1990 enactment. The Wetlands Management (Ramsar Sites) Regulations, 1999, (LI 1659) addresses Gha-na’s Treaty obligations under the Ramsar Convention.
These pieces of legislation do not satisfactorily address the issues of biodiversity or ABS. There is no legislation on access and benefit-sharing, technology transfer or insti-tutional arrangements for ABS. However, as in the case of gold and timber, genetic resources can be vested with the state, subject to the use and/or enjoyment by the owners of benefits derived from their exploitation, in accordance with the relevant statutory and constitutional provisions;
32 NLCD 396: The functions of the Council include: (i) promoting, assisting and de-veloping exports in any manner which the Council considers necessary or desirable; (ii) to obtain information on all products with export potential and to determine the extent and location of any market for those products outside Ghana; (iii) to call the attention of potential customers to the availability of goods of Ghanaian origin; (iv) to organize trade fairs in Ghana and overseas and to arrange for the attendance at foreign trade fairs where the promotion of the sale of Ghanaian products can be made; (v) to bring Ghanaian sell-ers into touch with foreign customers and to encourage exploratory discussions between them; (vi) to create interest in, and goodwill for, Ghanaian products by promotional ac-tivities, which may include advertising, exhibiting and providing information about such products; (vii) to make available expert advice and assistance to Ghanaian businessmen concerning export procedures, credit and collection arrangements, shipping documenta-tion, marine insurance and similar matters; (viii) to assist similarly foreign visitors com-ing to Ghana to examine business opportunities involving “made-in-Ghana” goods; (ix) to find out and recommend to Government such trade agreements and pacts as will have the effect of promoting the sale of Ghanaian goods in overseas markets; (x) to organize an insurance credit guarantee scheme for the protection of the interest of Ghanaian export-ers; (xii) to act as a centre of information for the Ghana Export Company Limited, and for all individual exporters; (xiii) to find out and recommend to Government the assistance that should be given to Ghanaian exporters to enable them to compete effectively in over-seas markets; (xiv) to apply for, and to receive in Ghana or elsewhere any trade marks, licences, protections or concessions and in relation thereto, to do all such things as the Council considers necessary or desirable for the development of exports.33 Act 582
33
as obtains under the regime of stool lands. 34 Under article 267(6) of the Constitution, stool land revenue is disbursed as follows:
10% of the revenue accruing from the stool lands shall be paid to the office of the administrator of stool lands; to cover administrative expenses;
The remaining revenue shall be disbursed in the fol-lowing proportion:
(a) 25% to the to the stool through the traditional au-thority for the maintenance of the stool in keeping with its status;
(b) 25% to the traditional authority; and
(c) 50% to the District Assembly, within the area of authority of which the stool lands are situated.
Any ABS regime in Ghana should cater for individual, cor-porate and other institutional interests.
Marine
Article 269 of the 1992 Constitution provides for the es-tablishment of the Fisheries Commission. The Maritimes Zones (Delimitation) Law (PNDCL 159) gives force and ef-fect to the United Nations Convention on the Law of the Sea, following its ratification by Ghana in 1986. A new Fish-eries Commission Act, 2002 (Act 625) which replaces the earlier Fisheries law of 1991, is a comprehensive piece of legislation on fisheries, in line with the requirements dic-tates of UNCLOS. However, the Fisheries Regulations, 1979, the subsidiary legislation on the subject, is outdated, and needs to be updated in line with the new parent enact-ment. On marine pollution, the Oil in Navigable Waters Act, 1964 is also outmoded, and does not cover the inter-national and regional instruments on marine pollution.
Foods
Food-related legislation in Ghana includes: Food and Drugs Law, 1992; Food and Drugs (Amendment) Act, 1996; Draft Food and Drugs Regulations, 2000; Standards Decree, 1973; Standards (Amendment) Decree, 1979; Ghana Standards (Certification Mark) (Amendment)
Rules, 1992; and Ghana Standards Board (Food and Drugs and other
Foods) (General Labelling) Rules, 1992.
The Food and Drug Board and the Ghana Standards Board are the two main agencies responsible for food control and safety - however the mandates of both agencies have various conflicts. Ghana subscribes to all the provisions of Codex, and the Focal Point for the country is the Food and Drugs Board.
34 See for example article 20 of the 1992 Constitution which provides for prompt payment of fair, adequate and effective compensation as a precondition for compulsory acquisition of land by GOG for public purposes.
Animals
For management of wildlife and livestock in animals in Ghana, there are the Animals (Control of Importation) Or-dinance, Diseases of Animals Act, 1961, and the Local Gov-ernment Act, 1992. A Draft Meat Inspection Law is under consideration for adoption. Conflicts and overlaps in the enforcement of the law amongst the veterinary services department, district assemblies and Food and Drug Board characterize this regime. The laws also do not incorporate the Office Internationale des Epizooties standards, which are the norms or benchmarks on animal health and diseases.
Plants
Plant management is guided by: the Pesticides Manage-ment and Control Act, 1996; Prevention and Control of Pests and Diseases of Plants Act, 1965; and the Environ-mental Protection Agency Act, 1994. A draft Plant Quar-antine Act, prepared under the auspices of the FAO that seeks to implement the IPPC, is yet to be enacted. The leg-islation on pesticides needs updating in keeping with the implementation of the Persistent Organic Pollutant (POPs) and Prior Informed Consent (PIC) conventions.
Game and Wildlife
No specific enactments have been passed to bring CITES, the CBD or the Algiers Convention into domestic Gha-naian law. The principal enactment is the Wild Animals Preservation Act, 1961 and its subsidiary regulations: the Wildlife Conservation Regulations, 1971, and the Wildlife Reserve Regulations, 1971. In relation to these interna-tional instruments, the laws are scattered, complex and characterized by low fines for violations; and there is no specifically designated scientific authority for the imple-mentation of CITES.
Wetlands
The principal enactment governing wetlands is the Wild Animals Preservation Act, and its subsidiary Regu-lations as variously amended. The Wetlands Manage-ment (Ramsar Sites) Regulations, 1999, (LI 1659) which seeks to regulate activities in six wetlands, supple-ments this legislation.
Intellectual Property Rights
A number of act relating to IPR exist on the statute books. They do not, however, address ABS. The legislation in this area includes the Patents Act, 2003 (Act 657), the Trade Marks Act, 2004 (Act 664) and the Copyright Act 2005 (Act 690).
The Patents Act is in four parts. Part I provides definitions for patents and inventions, and then proceeds to delimit the scope of patent protection. It also outlines the proce-dure for application for the registration of a patent, the re-quirements for patent protection, right of priority, grant of patent and rights conferred by patent. Part II is on Utility Model Certificates, part III on International Applications
34
under the Patent Cooperation Treaty and part IV on Gen-eral Provisions. 35
The Trade Marks Act provides for the protection of trade-marks and for related matters.
The Copyright Act, 2005 replaces the old Copyright Law, and brings the provisions on copyright and the Copyright Office in conformity with the Constitution. It outlines which works are eligible for copyright and hence copyright protection, and provides that copyright shall not extend to ideas and concepts. 36 The Act also provides for economic and moral rights of authors, duration of copyright, permit-ted uses of copyright, copies of sound recordings, mechan-ical reproduction rights of composers and protection of performers and broadcasters. It establishes the National Folklore Board whose function includes the administra-tion, monitoring and registration of expressions of folklore on behalf of the Republic. It also establishes the Copyright Office and entrusts it with the responsibility for the ad-ministration of copyrights.
Draft legislation, the Protection of Plant Varieties Bill, 2002 seeks to implement the UPOV in consonance with Ghana’s obligations under the WTO Agreements; it has yet to be-come law. The draft could benefit from the progressive provisions of the OAU African Model law, and the Draft Model Legislation on Safety in Biotechnology.
4.2.5 Gaps and Recommendations
This detailed inventory has shown that in Ghana, there is no specific legislation on ABS corresponding to the CBD provisions, the Bonn Guidelines or other international instruments. However, certain pieces of legislation could provide useful guides for the implementation of ABS legis-lation in Ghana. They include the Office of the Administra-tor of Stool Lands (OASL) Act, 1994, the Ghana Investment Promotion Centre Act, 1994 and the Centre for the Scien-tific Research into Plant Medicine Decree, 1975.
The OASL provides a formula for the sharing of stool land revenue between the stool, the traditional authority and the District Assembly within the area of authority in which the stool lands are situated. Benefit-sharing from access-ing genetic resources can adopt or adapt this formula. The Ghana Investment Centre Promotion Act, which pro-vides a regulatory framework for foreign direct invest-ments into Ghana, can be used to deal with ABS agree-ments with foreigners. Of direct ABS relevance are the Traditional Medicines Practice Act which, among other things, enjoins the Traditional Medicine Practice Council to collaborate with the appropriate agencies for large-scale cultivation of medicinal plants and for the preservation of biodiversity; and the Centre for the Scientific Research through the Plant Medicine Decree, 1975, which establish-es a centre for research into plant medicine and botanical gardens for medicinal plants.
35 Washington, June 19, 1970.36 Act 690
After reviewing the various pieces of legislation, this report concludes that any new, comprehensive policy of legisla-tion on access to genetic resources and benefit–sharing in Ghana should include:
Principles, objectives and definitions;
Scope of Application and the legal status of genetic re-sources;
Institutional arrangements to determine and enforce access;
Access determination procedures;
Enforcement: sanctions, penalties, identification and monitoring, conservation arrangements;
Financial issues; and an
Appeals process.
4.3 Uganda
Under the guidance of the National EnvironmentMan-agementAuthority (NEMA), this reportwasprepared inNovember 2005by Apophia Atukunda, anenvironmentand natural resources management specialist; Charles Mugoya,anentomologistandbiotechnologyandbiosafe-tyspecialist;andAggrey Rwetsiba,SeniorMonitoringandResearchCoordinatorattheUgandanWildlifeAuthority.InApril 2006, the reportwas updatedbyOgwal Sabino Meri FrancisofNEMA,theNationalFocalPointonABS.
4.3.1 Introduction
This report is an analysis and synthesis of information on Uganda’s Access to Genetic Resources and Benefit Sharing (ABS) climate, since the development of the Bonn Guide-lines. Information for the study was gathered through interviews with key stakeholders, literature review, work-shops and analysis of the responses to questionnaires. Two national review workshops were convened in Ugan-da, in August and September 2005. The National Environ-ment Management Authority (NEMA) coordinated and supervised the preparation of the report. NEMA is the Government institution that coordinates the implementa-tion of the Convention on Biological Diversity (CBD). Three national short-term consultants were hired by NEMA to prepare the report. It was completed in November 2005, and underwent the UNEP Peer Review Workshop process in December 2005.
The report provides a brief background on Uganda’s ABS regime in light of the Bonn Guidelines. The policy, legal and institutional measures on ABS are outlined, along with a detailed inventory of the multilateral agreements which affects ABS in Uganda (also including those to which Uganda has not acceded). This is followed by an inventory of the relevant regional agreements. The legal, policy and institutional measures for ABS are outlined, even though most of these measures are under numerous ministries and agencies. The emerging issues of biopiracy and intellectual property rights (IPR) are also discussed.
35
The economic benefits from Uganda’s biodiversity are dis-cussed, along with the use of incentive measures for the sustainable use of biodiversity.
Although Uganda has designated its national focal point for the Clearing-House Mechanism (CHM) as NEMA, in-formation management has yet to be consolidated. The constraints on this process are therefore analyzed, and options for information delivery are provided. In addition to these concerns, Uganda also faces various capacity con-straints in implementing ABS measures in keeping with the Bonn Guidelines. The critical capacity needs include public education and awareness, information acquisition and management, technology development, sustainable national financing, support for ex-situ conservation, and development of effective partnership for management of Uganda’s genetic resources. Recommendations are dis-cussed for further reforms in the policy and institutional framework, more efforts at in-situ and ex-situ conservation, streamlining information management strategies, capac-ity development including diversification of the funding base, and adoption of appropriate mechanisms geared at community mobilization.
4.3.2 Background
Uganda is a country of exceptional diversity and varied habitats, because of its position in the zone of overlap between the East African savannah and the West African rain forests. It is ranked among the top ten countries in the world in terms of animal and plant diversity, and spe-cifically, diversity of mammalian species. Uganda includes part of the Albertine Rift Area of Regional Endemism - a Peistocene forest refugium.
The environment and natural resources sector is the ba-sis for Uganda’s economic and social development. It is accepted that all three aspects of development, (environ-ment, social and economic) must be in balance in order to have effective economic growth. Uganda’s biological re-sources make a significant contribution to the well-being of humanity, both in terms of goods and services. For these biological resources to be sustained and the benefits equi-tably received, a mechanism is required.
With the signing and ratifying of the CBD in 1992 and 1993 respectively, Uganda initiated the process of institut-ing measures for its implementation. In line with this, the National Biodiversity Strategy and Action Plan (NBSAP) was developed. It was approved by the NEMA Board of Di-rectors, and has been submitted to the Cabinet for final endorsement. However, implementation of the sectoral strategies is already under way by the relevant Govern-ment departments and agencies. Uganda has appointed NEMA the principal Government agency for the manage-ment of the environment, and the Ministry of Water and Environment (MoWE) as the National ABS Focal Point.37
37 Mr. Ogwal Sabino Meri Francis, National Environment Management Authority, Plot 17, 19, 21, Jinja Road, P.O. Box 22255, Kampala, Uganda is the ABS NFP while Mr. Ecuru Julius, Uganda National for Science and Technology, Plot 3/5/7 Nasser Road, P.O. Box 6884 Kampala is the ABS-CNA.
Even before the ratification of the CBD, Uganda already had a network of protected areas aimed at conservation of wildlife and forestry resources. The need to regulate ac-cess to the country’s genetic resources, and to ensure eq-uitable sharing of benefits, led to the development of The National Environment (Access to Genetic Resources and Benefit Sharing) Regulations, within the framework of the National Environment Act Cap 153. The ABS regulations were approved by Government in May 2005, and are now being implemented.
4.3.3 Methodology
The consultants conducted interviews with key stakehold-ers, literature reviews, workshops and questionnaire anal-ysis. The stakeholders included government ministries, de-partments and agencies involved in the conservation and management of biodiversity, or whose policies impact on biodiversity. Research institutions, academia, NGOs (both local and international), Community Based Organizations (CBOs), the private sector and representatives of local gov-ernments and communities were also consulted.
4.3.4 Analysis of Legislation, Policies and Strategies
ABS-RelevantInternationalAgreements
At the international level, the main multilateral environ-mental agreements that have provided the fundamental principles to Uganda’s ABS regime are:
Convention on Fishing and Conservation of the Living Resources of the High Seas (1958) - Uganda was not signatory to this convention but ratified it on 14th Sep-tember 1966;
African Convention on the Conservation of Nature and Natural Resources (1968) - This convention has a broad coverage. It has specific provisions on ecosystems, hab-itats and species. The convention was adopted under the aegis of the Organization of African Unity and was a replacement for the 1933 London Convention on the preservation of fauna and flora in their natural state. This convention is essentially an in-situ conservation in-strument for fauna and flora. Uganda signed it on 15th September 1968 and ratified it on 30th November, 1977;
Convention on Wetlands of International Importance Especially as Waterfowl Habitat (Ramsar) (1971) - Uganda signed the convention on 4th March 1988 and ratified it on 4th July 1988;
Convention Concerning the Protection of the World Cultural and Natural Heritage (1972) - Uganda ratified the Convention on 20th November 1987;
Convention on International Trade in Endangered Spe-cies of Wild Fauna and Flora (CITES) (1973) - Uganda ratified the Convention on 18th July 1991 and acceded to it on 16th October 1991;
Convention on Migratory Species of Wild Animals (1979) -- Uganda has neither signed nor ratified this convention;
36
United Nations Convention on the Law of the Sea (1982) - Uganda signed this convention on 10th Decem-ber 1982 and ratified it on 9th November 1990;
Convention on Biological Diversity (1992), and Bonn Guidelines on Access to Genetic Resources and Fair and Equitable Sharing of the Benefits Arising out of their Utilization (2002) - Uganda signed the conven-tion on 12th June 1992 and ratified it on 8th September 1993;
The Cartagena Protocol on Biosafety (2000) - Uganda signed the Cartagena Protocol on 24 May 2000 and ratified it on 30th November 2001.
The United Nations Framework Convention on Climate Change (UNFCCC) (1992) - Uganda signed and ratified the Convention in June 1994 and September 1997 re-spectively;
Lusaka Agreement on Cooperative Enforcement Oper-ations Directed at Illegal Trade in Wild Fauna and Flora (1994) - This agreement focses on conservation of wild species. It also has provisions relating to effective ap-plication of preventive laws. Its objective is to reduce and eventually eliminate illegal access for trade in wild fauna and flora, and to set up a permanent Task Force for this purpose. Uganda signed the agreement on 8th September 1994, and deposited the instrument for ratification on 12th April 1996;
United Nations Convention to Combat Desertification in those Countries Experiencing Serious Drought and/or Desertification Particularly in Africa (1994) - Ugan-da signed the agreement on 21st November 1994 and deposited the instrument for ratification on 25th June 1997;
The International Treaty on Plant Genetic Resources for Food and Agriculture (2001) - Uganda ratified the treaty in March, 2003; and
The World Trade Organization (WTO) Agreements - Uganda signed the TRIPS agreement in January 1995. Union for the Protection of Plant Varieties (UPOV) is a set of two agreements (1978 and 1991) which provide a framework for protecting the rights of ownership for Plant Varieties including the exchange of seeds among farmers. Uganda has not acceded to any of the UPOV agreements. Uganda acceded to the WIPO Convention in October 1973, and the Patent Cooperation Treaty (PCT) in February 1995.
ABS-RelevantRegionalAgreements
The relevant regional agreements which affect ABS in Uganda include:
East African Community (EAC)
The EAC is the regional intergovernmental organization of Kenya, Uganda and Tanzania. It seeks to widen and deepen cooperation among the partner states in political, economic and social fields for their mutual benefit. The EAC has developed the environment protocol and the En-
vironmental Impact Assessment (EIA) guidelines to guide the three countries in environmental management. These are the instruments that will guide ABS across the re-gion. However, the environmental protocol is not detailed enough in this aspect and may need to be taken further, with guidelines developed in this regard.
Intergovernmental Authority on Development (IGAD, 1986)
Uganda is a member of IGAD, which is a successor to the Intergovernmental Authority on Drought and Develop-ment. Created in 1986 to coordinate development in the Horn of Africa, IGAD was shaped around the mandate of drought and desertification issues, but has since expand-ed to cover other issues related to regional security and political dialogue.
Common Market for East and Southern Africa (COMESA, 1993)
Uganda is a member of COMESA. The establishment of COMESA was geared towards contributing to economic integration of Africa and aimed at eventually establishing an economic community for the whole of Africa. COMESA boosts cross-border activities including trade in eastern and southern Africa.
Other Regional Initiatives Involving ABS
Uganda is also a member of other regional cooperation organizations including the Nile Basin Initiative (NBI) and the Kagera Basin Initiative (KBI). The NBI aims to achieve sustainable socio-economic development through equi-table use of and benefits from the common resources of the Nile Basin. The KBI, on the other hand, aims at promot-ing integrated development of the Kagera River region, through cooperation in the areas of agriculture, energy, transport and telecommunication.
NationalLegislativeandPolicyInstrumentsRelatingtoABS
The Government of Uganda (GoU), as well as the stake-holders in the field of natural resources management, has placed more emphasis on biodiversity conservation than on access and benefit–sharing, or technology transfer and IPR for biological conservation innovations. This is reflect-ed through the laws, policies and national programs that have been developed and implemented over the years.
There are several policies and legal instruments aimed at service-provision and establishing more accountability in the field of environment and natural resources manage-ment. Uganda’s macro-economic policies provide for the integration of environment and natural resources man-agement in poverty-eradication strategies. They also pro-vide for decentralization of planning and management functions for natural resources, and encourage private-sector participation.
The Constitution of the Republic of Uganda (1995)
Uganda’s Constitution provides for environmental man-agement at different levels. It requires Uganda to promote
37
sustainable development and public awareness related to land, air and water resources management. It also pro-vides for sustainable use of Uganda’s natural resources to meet the development and environmental needs of the nation, and prevent damage and destruction to land, air and water resources resulting from pollution and other causes. Sections XIII and XXVII and Article 237(2) specifi-cally provide for the protection of natural resources by the State on behalf of the people.
The Constitution empowers government to hold in trust and protect natural lakes, rivers, wetlands, forest reserves, national parks and any land to be reserved for ecological and touristic purposes. This calls for the development of comprehensive mechanisms for sustainable natural re-sources management. These constitutional provisions provide the general legal and policy framework for biodi-versity conservation and ABS.
The Plant Protection Act (1964)
This law regulates the introduction of exotic plants and microorganisms into the country. It does not, however, directly support biotechnology research and development for the production of genetically modified crops, nor does it provide mechanisms for minimizing the risks of involun-tary gene transfers or for managing the risks involved in biotechnology research and development. The Act would therefore require amendment in order to bring it up to date, to counter wrongful introductions and transfers of alien genetically modified organisms (GMOs) resulting from biotechnology research and development.
The National Agricultural Research Organization (NARO) has prepared, through wide stakeholder consultations including national workshops, a Draft National Policy on Plant Genetic Resources for Food and Agriculture. The overall objective of the national policy on plant genetic re-sources for food and agriculture is to ensure the conserva-tion, sustainable use and management of those resources for food and agriculture in Uganda, while optimizing their full potential in contributing to the government’s major development goals of food security, poverty eradication and improvement of people’s livelihoods.
The policy provides for interventions directed at the con-servation, sustainable use and equitable sharing of ben-efits arising from the use of these resources. NARO has submitted the draft policy to the Ministry of Agriculture, Animal Industry and Fisheries for adoption, and thereafter it will be submitted to the Cabinet for approval. A draft bill on Plant Genetic Resources for Food and Agriculture is now under preparation. This will be the legal instrument for implementing the policy on Plant Genetic Resources for Food and Agriculture, and will include issues on collec-tion of germplasm.
The Patents Act Cap 82
This Act provides for the granting, registration, and pro-tection of patents. It also provides for the registration and protection of IPR in patents and utility models. There are
proposals to amend this Act to bring it in line with Ugan-da’s international commitments. There is a general feeling that it should be repealed and replaced with the Industrial Property Bill (2001). This need arises from a multiplicity of developments in intellectual property law on the interna-tional scene, including a number of treaties and organiza-tions to which Uganda is now signatory. In line with this, there is the Patents (Amendment) Bill, 2000, aimed at amending this statute to give effect in and by Uganda, to the provisions of the Patent Co-operation Treaty signed in Washington in 1970.
The Investment Act (1991)
The Investment Act, among other activities, provides for the establishment of the Uganda Export Promotion Board. One of the roles of the Board relevant to ABS is to promote bio-trade development. Under this activity, the board of-fers market entry support for selected companies han-dling products for culinary, medicinal and pharmaceutical use. A five-year project under this activity was developed in 2004.
The National Agricultural Research Organization (NARO) Statute (1992)
Among other measures, the NARO statute provides for the handling of all genetic resources. It establishes NARO as a body corporate under the Ministry of Agriculture, Animal Industry and Fisheries (MAAIF), to ‘undertake, promote, and co-ordinate research for crops, livestock, fisheries and forestry, and to ensure dissemination and application of research results.’ The national botanical gardens are en-trusted to NARO, and one of their functions is to maintain specimen collections, to assess species of potential medic-inal interest, and also to prescribe conditions and respon-sibilities of collectors before, during and after collection.
National Drug Policy (1993)
The policy provides a framework for implementing the Na-tional Drug Statute (1993) that provides a regulatory frame-work for the importation, administration, handling, sale and other matters pertaining to drugs, including herbal drugs. The policy provides for the institutional, administrative and management mechanisms for handling of drugs.
The Agricultural Seeds and Plant Act (1994)
This Act provides for the regulation and control of plant and variety multiplication, marketing and import, among other things. It provides for the promotion, regulation and control of plant breeding and variety release, multiplica-tion, conditioning, marketing, importing and quality as-surance of seeds and other planting materials, plus other related matters.
The Uganda National Environment Management Policy (1994)
The National Environment Management Policy provides guiding principles for environment management in Ugan-
38
da. It is a framework policy broadly addressing manage-ment of all matters relating to environment and natural resources in Uganda. It also establishes a centralized coor-dination mechanism for environment management. The National Environment Management Act, Cap 153, is the umbrella legislation on environmental matters, providing the framework for sectoral laws, policies and administra-tive structures. It sets the stage for effective environmen-tal management through its provision for coordination and monitoring mechanisms. Among other things, it pro-vides for conservation of biological resources in-situ and ex-situ, and management of access to genetic resources and benefit-sharing. The weakness with this policy is the lack of clear institutional linkages necessary for sustain-able development.
The National Biodiversity Strategy and Action Plan (2002)
This is a CBD-derived instrument, which provides guidance for legal, policy and institutional reforms necessary for the planning, conservation and sustainable use of biodiversity. Its goal is to enhance biodiversity conservation, manage-ment and sustainable use and fair sharing of the benefits arising from such use at all levels. The NSABP is before Cabinet for final approval by Government, but implemen-tation of the strategies is under way. NEMA plans to re-view the NBSAP to ensure it addresses some of the new and emerging issues on conservation and sustainable use of biodiversity, for example biofuels and climate change. The NBSAP has a life-span of 10 years, with a major review at the end of 5 years.
The Environmental Impact Assessment Regulations (1998)
The EIA process is integrated in Uganda’s overall environ-ment policy. Uganda accords high ranking to issues related to EIA. This is evidenced through development of the ap-propriate mechanisms i.e. the regulations, the guidelines and the Code of Conduct for practitioners. The institution-al system is also in place to ensure effective implementa-tion of EIA. This includes having gazetted environment inspectors with powers and duties clearly provided for in the National Environment Act. Government has also put in place the National Environment (Conduct and Certifica-tion of Environmental Practitioners) Regulations, 2003, to ensure professionalism among the environmental practi-tioners. The EIA practitioners are all registered, and their activities are coordinated by NEMA through a technical committee on environment impact assessment which has its secretariat in NEMA.
Under the National Environment Act, all development projects that are likely to cause significant impacts on the environment must undergo an EIA. The national EIA guide-lines do not specifically cater for transnational dialogue, but they can be used to undertake this activity. The East African Community Guidelines address the transbound-ary effects of project development, and requires States to notify each other in case of imminent grave danger, or damage to biodiversity across the borders. Uganda has a ministry responsible for disaster preparedness. It is this ministry that is charged with developing mechanisms
for early warning and or emergency response to any ac-tivities or events which present imminent grave danger. In the case of danger to diversity, this ministry is expected to work in partnership with the ministries responsible for environment management and biodiversity conservation. At present, apart from those targeting wildlife veterinary interventions there are no particular mechanisms in place. Limitations to EIA implementation include: political inter-ference in the EIA process, which results in development in biodiversity-rich areas and limited district and communi-ty-level public participation in the EIA process.
The National Policy for the Conservation and Management of Wetland Resources (1995)
This policy targets sustainable management of the bio-logical and socio-economic values of wetlands. These wet-lands are held in trust by Government for the people. The policy provides for environmental impact assessment, re-search and information dissemination, and promotes joint international action. It also gives some basic guidance on access to wetland resources. The National Environment (Wetlands, River Banks and Lake Shores Management) Regulations, 2000, were developed to reinforce this policy.
The Uganda Wildlife Policy (1995)
This policy resulted in the Uganda Wildlife Act, Cap 200. It provides for the management of wildlife resources for ecological, economic, aesthetic, research and scientific and educational benefits. The Wildlife Act gives the legal framework for management of wildlife. It promotes wild-life conservation through sustainable management and use. The Act introduces community-based management of resources. It is of direct relevance to ABS, and offers strate-gies for control of access to wildlife resources and mecha-nisms for sharing of benefits from wildlife management.
Decentralization Policy (1997)
The Decentralization Policy provided the basis for develop-ment of the Local Government Act. It provides for decen-tralization of administrative mechanisms to ensure com-munity-based governance. It gives the basis for devolving natural resources management to the local government level. The weakness with this policy is with the implemen-tation rather than the content. There is inadequate aware-ness of the values of genetic resources, and not enough in-formation available on many aspects of the CBD and other related environmental conventions. This Act empowers lo-cal governments to take responsibility for service delivery, and promotes participation of the local people in decision-making. It enhances community benefits and cost sharing from management of environmental and natural resourc-es. Local Environment Committees at Local Councils II and III are responsible for planning and executing sound envi-ronmental management.
The Land Act (1998)
This Act guides all issues related to land management. It provides for tenure, ownership and management of land
39
in Uganda. The Act imposes a duty on land owners and managers to manage the land in accordance with other legislation, for example the National Environment Act, the Forestry and Tree Planting Act, the Uganda Wildlife Act, etc.
The Penal Code Act 1964 as amended (1998)
This Act has several provisions, which help to deter unau-thorized handling of natural resources. Section 309 of the Act, for example, provides deterrent measures against any person who sets fire to or otherwise destroys or dam-ages any standing trees, saplings or shrubs, whether in-digenous or not.
National Water Policy (1999)
The policy aims at management and development of Uganda’s water resources in an integrated and sustain-able way. It does not recognize the ecosystems approach, and ignores ABS issues in water resources management.
It also fails to address cross-border issues relating to the management of water resources.
The Poverty Eradication Action Plan (PEAP) (2000)
This plan is intended to provide a framework for govern-ment planning and policy development in all sectors. It is a macroeconomic development framework, first developed in 1997, which aims at integrating science and technology into the poverty eradication programs. ABS issues are a component of the second pillar of the PEAP (production, competitiveness and incomes), and are aimed at bringing about social and economic development as well as cultural and political transformation through the use of Uganda’s genetic resources.
The Plan for Modernisation of Agriculture (PMA) (2000)
The PMA is a central element of Uganda’s poverty eradica-tion strategy. It is targeted at enabling the rural popula-tion to improve their livelihood and ensure food security
Box 2 Uganda’s Access to Genetic Resources and Benefit Sharing Regulations (2005)
These regulations are the most comprehensive instrument encountered in the four countries, in terms of fulfilling the requirements as set out by the CBD and the Bonn guidelines on access to genetic resources and benefit-sharing issues. The regulations were developed under the National Environment Act to:
(i) Prescribe the procedures for access to genetic resources for scientific research, commercial purpose- es. bio-prospecting, conservation or industrial application;(ii) Provide for the sharing of benefits derived from genetic resources; and to(iii) Promote the sustainable management and utilization of genetic resources, thereby contributing to the conservation of biological resources of Uganda.
Among the key provisions, the regulations provide for:
(i) Establishing of institutional arrangements;(ii) Management of genetic resources;(iii) Material transfer agreements and benefit-sharing;(iv) Access to information; and(v) Transitions arrangements.
The regulations apply to access to genetic resources or parts of genetic resources, whether naturally oc-curring or naturalized, including genetic resources bred for or intended for commercial purposes within Uganda or for export, whether in in-situ conditions or ex-situ conditions. The regulations do not, however, apply to:
(i) Exchanges of genetic resources amongst local communities for their own consumption, or purely for food or other consumptive purposes as prescribed by the relevant laws;(ii) The transiting of genetic resources through Uganda from other countries;(iii) Access to genetic resources derived from plant breeders as defined by laws relating to plant breed- ing and plant variety protections;(iv) Human genetic resources; and(v) Approved research activities intended for educational purposes by Ugandan institutions recog- nized by the competent authority, and which do not result in access to genetic resources for com- mercial purposes or exports to other countries.
Finally, the regulations provide for a license to be granted for the use or export of genetic resources under any other law, provided it takes into full consideration the provisions of these regulations.
40
through changing from subsistence to commercial agri-culture. Modernising agriculture will result in increased production for food and for sale. The PMA also targets im-proved farmer access to knowledge, improved seed, and other relevant information that will lead to production of more high-value crops that sell well in the market. Agricul-tural production is based on genetic resources, both wild and domesticated. The PMA will thus rely on effective ac-cess to agrobiodiversity.
The National Science and Technology Policy (2001)
The National Science and Technology Policy, 2001, provides for a mechanism to guide the prudent use of science and technology for sustainable development. It envisages the development of a national institutional framework for regulatory administration, and for research and develop-ment. It caters for the promotion of an enabling environ-ment for the creation of partnerships between the private and the public sectors for the development of products for biotechnological applications.
There is no specific national policy on IPR, although the National Science and Technology Policy provides for its for-mulation. What could be referred to as the national policy may only be taken from various pieces of legislation, as well as from government policy statements. Part of the policy pertaining to IPR may be, by implication, also read in international conventions and treaties to which Uganda is a signatory, like the TRIPS agreement.
The Uganda National Council for Science and Technology (UNCST) was established under the UNCST Statute of 1990, as a corporate body within the Ministry of Finance, Planning and Economic Development. It oversees scientific research and technology developments. The UNCST policy of 2001 clearly states that research and technology development policy is the responsibility of the relevant ministries. The Council is charged with rationalising the integration of science and technology in socio-economic development. It was established to be the machinery that the government uses to advise itself on all matters relating to scientific and technological activities necessary for the proper development of the country. The UNCST is the statutory body that coordinates the biotechnology policy development process. Art. 3(a) of the Statute requires the Council to advise and coordinate the formulation of an explicit national policy on all fields of science and technology, and in this regard, biotechnology. The Council therefore is the principal policy body charged with providing guidance and direction to sectoral institutions in matters concerning science and technology.
The Animal Breeding Act (2001)
This Act sets up the National Animal Genetic Resources Centre and Data Bank to promote the regulation and con-trol, marketing and generally dealing in animal and fish genetic materials. The Act regulates the implementation of the national breeding policy, and promotes the develop-ment and use of animal genetic resources that are rela-
tively more tolerant to disease and environmental stress. The Act requires formulation and enforcement of regula-tions and guidelines relating to breeding, processing of se-men and other genetic materials, storage distribution and use in the public and private sector.
National Forest Policy (2001)
This provides for the conservation of biodiversity and the need to involve communities and private owners in the management of forest resources within protected areas (PAs) and outside. The policy has a bearing on the collec-tion of medicinal plants within forest reserves. The policy is the basis for development of the Uganda Forestry and Tree Planting Act, 2003. This is the main law that regulates forest management. It provides for the conservation and sustainable management of Uganda’s forest resources for the benefit of the people, and promotes sharing of ben-efits derived from them. The law focuses on forestry, and does not provide for other fragile ecosystems found within forest reserves e.g. wetlands. In addition, the Act does not provide clear incentive measures for forest protection on private and community land.
The National Fisheries Policy (2003)
The policy goal is increased and sustainable production of fish, contributing to the government’s development policy for poverty reduction and food security. The policy provides for cross-border harmonisation of fisheries management in shared waters. It recognises the importance of biodiver-sity, and requires designation of breeding areas for fish and other aquatic biodiversity, where strict controlled access is observed. It provides for decentralisation and community involvement in fisheries management. Under this policy, the Fisheries Sector Strategic Plan caters for the creation of a national network of Beach Management Units for improved management of the fisheries resources. There is no clear linkage with the enforcement of the National Environment Act Cap 153, and also lacks clear linkages with other sectoral policies on issues related to conservation of biodiversity and control of access to genetic resources.
The National Tourism Policy (2003)
The principles of eco-tourism and community benefit fea-ture greatly in this policy. The aim for tourism develop-ment is to ensure that it provides a medium for poverty reduction, both at local community and national levels. It provides a mechanism for sustainable use of genetic and cultural resources for economic development. The policy is not clear on institutional arrangements at the different levels for its effective implementation. It does not recog-nise other sectoral policies, and is silent about impact as-sessment of tourism activities on genetic resources, cultur-al values and traditional practices of local communities.
The National Agriculture Policy (2003)
This policy is very much related to environment manage-ment through promotion of land-use practices that con-serve and enhance land productivity. It recognises land as
41
a natural resource for agriculture, and that land use has implications on biodiversity conservation through direct impacts on soil, water and living organisms, which farm-ers depend on for agricultural production. The agriculture policy does not make provisions for conservation of agri-cultural genetic resources in the fragile ecosystems. It also ignores the ecosystem approach in achieving sustainable agriculture, and does not emphasise linkages with the Na-tional Environment Act in controlling the negative effects of agricultural practices.
The Draft National Biotechnology and Biosafety Policy
With support from the UNEP/GEF project on the devel-opment of national biosafety frameworks, Uganda has been able to draft a comprehensive framework aimed at promoting the safe use of biotechnology to address eco-nomic, social and environmental problems. Under this framework, a national biotechnology and biosafety policy is being prepared. The draft policy has been submitted, but has yet to receive approval from government.
The Draft Biosafety Regulations
The regulations contain provisions on risk assessment, risk management, unintentional release and emergency measures, identification, labeling and exports of GMOs or products of GMOs, among others. The draft regula-tions were anchored on the Uganda National Council for Science and Technology Act. A closer scrutiny of the Act, however, revealed that it did not provide for some impor-tant biosafety functions, e.g. powers to mount inspections and enforcement of field trial experiments. The idea was therefore dropped, and now efforts are under way to enact a new biosafety bill instead of proceeding with the current regulations. A draft bill has been prepared and this will be presented to Government for approval after the Biotech-nology and Biosafety Policy is approved.
The Draft National Biosafety Guidelines
The guidelines are aimed at protecting individuals, the community and the environment through minimising po-tential hazards associated with new applications of bio-technology. The areas covered by the guidelines include genetically modified micro-organisms; genetic transfor-mation of plants and animals; production and deliberate or accidental release of micro-organisms, plants, animals and products derived from rDNA; provision of risk assess-ment and risk management mechanisms including moni-toring; and DNA technology in vaccine and pharmaceutical products development. The absence of explicit mention of product development in the guidelines does not deter ac-tivities and partnerships geared at product development and commercialization since these would fall within the ambit of support for biotechnology development.
The Draft Indigenous Knowledge (IK) Policy
This policy calls for recognition of the value of IK in em-powering local communities, and urges government to adopt and support national IK efforts and incorporate IK
in its Comprehensive National Development Framework. It provides for the sensitisation and advocacy for IK, docu-mentation, research, validation and dissemination, com-mercialisation and industrialisation, capacity-building, and resource mobilisation for IK.
Traditional Medicine Practice Bill
This bill seeks to establish a Council to regulate the prac-tice of traditional medicine, to register practitioners and license practices.
The international legal framework on ABS as highlighted above provided Uganda an opportunity to assert sover-eignty over her genetic resources, and to facilitate access and equitable sharing of the benefits arising from their use. Thus, Uganda has over the years sought to fulfil her international obligations to Multi-lateral Environmen-tal Agreements through amendment of existing secto-ral laws, for example those on wildlife, forestry, fisheries, wetlands, agriculture, tourism etc., to include provisions on access to genetic resources and benefit–sharing. The enactment of the National Environment Regulations on Access to Genetic Resources and Benefit sharing in 2005 was aimed at guiding and facilitating the implementation of ABS within the mainstream policy and legal framework across the relevant sectors of government.
4.3.5 Institutional Arrangements for ABS
The institutional set-up for biodiversity conservation in Uganda is rather complex and incoherent, with many dif-ferent players operating at different levels of manage-ment. These include government agencies (central and lo-cal), non-governmental organizations (NGOs), civil society and community-level institutions. Some of the key institu-tions are briefly described under this section.
Government Agencies
Ministry of Water, Lands and Environment
This ministry has several departments and divisions, some dealing with biodiversity conservation.
(i) The National Forest Authority (NFA);The major goal of this agency is sustainable man-agement of Central Forest Reserves to optimize their economic, environmental and social functions and contribute towards poverty reduction. The NFA also targets supply of high quality forest products and services on a contractual basis. The NFA mission ad-dresses in-situ forest conservation while providing for harnessing of benefits from forest products for local communities and other interested parties.
(ii) National Environment Management Authority;This Authority is the coordinating, monitoring and supervisory body for environment management. It covers both green and brown issues of environment management.
42
(iii) The Wetlands Inspectorate Division, housing the Na-tional Wetlands Programme;The aim behind this programme was to develop the policy for wetlands management, and later to estab-lish measures for its implementation.
Ministry of Local Government
This ministry is charged with overall coordination of local government policy and supervision of local authorities; the decentralized functions related to natural resources man-agement are the preserve of the lower Local Councils.
Ministry of Tourism, Trade & Industry
This is the government ministry responsible for develop-ment of trade, tourism and wildlife-related enterprises. The MTTI is also responsible for CITES, and management of World Heritage sites. Within this ministry is the Ugan-da Tourist Boar,d charged with promotion of tourism, the Uganda Wildlife Authority (UWA) for wildlife conservation, and the Department of Antiquities charged with preserva-tion of Uganda’s cultural heritage.
The Ministry of Finance, Planning and Economic Development
This is the institution responsible for developing and im-plementing financial and economic development policies. Within this ministry is the Uganda Investment Authority which is trying to sell investment opportunities, including but not limited to agriculture, forestry and mineral resourc-es, while the National Planning Authority is developing “Vi-sion 2035”, to guide the development process in Uganda. The vision will be pursued and operationalised through a focused, comprehensive national development planning framework, characterized by the following key elements:
a) All stakeholders agree to the principle that future development plans are formed within the context of Vision 2035. The development philosophy behind any national plan is to be clearly articulated. The govern-ment will determine the approval procedure for all development plans, and gazette the timelines for de-veloping all statutory plans; and
b) Three successive and well focused 10-year Perspective National Development Plans with appropriate targets, monitorable indicators, implementation strategies and Monitoring and Evaluation systems.
For a better Uganda to live in, the vision recommends that environmental degradation is to be tackled in a holistic man-ner, in order to ensure both economic and environmental sus-tainability; Uganda will aim at the following, among others:
a) To use and conserve the environment and natural re-sources of Uganda equitably and for the benefit of both present and future generations, taking into ac-count the rate of population growth and the produc-tivity of the available resources;
b) To conserve the cultural heritage and use the environ-ment and natural resources of Uganda for the benefit of both present and future generations;
c) To maintain stable functioning relations between the living and non-living parts of the environment, through preserving biological diversity and respecting the principle of optimum sustainable yield in the use of natural resources;
d) To reclaim lost ecosystems where possible, and reverse the degradation of natural resources and well as es-tablish adequate environmental protection standards and to monitor changes in environmental quality; and
e) To require prior environmental assessments of pro-posed projects, which may significantly affect the en-vironment or use of natural resources.
Uganda National Council for Science and Technology
The UNCST is the government agency charged with coor-dination and monitoring of all research within the country. This includes bioprospecting, and research related to bio-diversity conservation. Its remit therefore includes access to genetic resources.
The Council is linked to different sectors through its spe-cialised technical committees (STCs) on agriculture and allied sciences, health sciences, physical sciences, natu-ral sciences, industrial and engineering sciences, and the social sciences and humanities. STCs are policy organs of the Council, whose function is to report to, recommend to and advise on all science and technology policy matters in their respective sectors.
The National Biosafety Committee is the national admin-istrative arm of the UNCST on matters concerning bio-technology and biosafety. Its main function is to provide technical advice to government, especially with regard to the continued assessment of risks and benefits associated with the production and/or application of biological ma-terials produced in laboratories, and those occurring in nature, and to maintain links with biotechnology institu-tions through institutional biosafety committees.
Ministry of Agriculture, Animal Industry and Fisheries
This ministry is responsible for development of agriculture, the livestock industry and fisheries. Within the ministry is the Phytosanitary Division, responsible for monitoring and controlling movement of plant genetic resources, and control of alien and invasive species. Makerere University
The university has a number of faculties, institutes and departments that carry out training in natural resources management. These include the Makerere University In-stitute of Environment and Natural Resources (MUIENR), with a mandate for training and research in all aspects of environment and natural resources management, the Faculty of Forestry and Nature Conservation, and Faculty of Agriculture. The Department of Botany, besides train-ing and carrying out taxonomic and ecological research, houses the Makerere University Herbarium, the de facto National Herbarium, an important resource for taxonomy
43
and an inventory of plant diversity. The Department runs an undergraduate program in Ethnobotany, which relates it closely to issues of ABS among the communities. Other relevant universities include the Mbarara University of Sci-ence and Technology (MUST), with its Institute of Tropical Forest Conservation.
Non-Governmental Institutions
There is an increasing number of environment-related NGOs operating at different levels of management in Uganda. At the international level are - Cooperative for As-sistance and Relief Everywhere, Inc (CARE), World Vision, the Lutheran World Federation, the International Union for the Conservation of Nature (IUCN), the World Wildlife Fund (WWF) and the African Wildlife Foundation. At the national level, NGOs include the Uganda Wildlife Society, Wildlife Clubs of Uganda, Environment Alert, Joint Energy and Environment Project, Nature Uganda, and ECOTRUST.
NGOs have played active roles in implementation of the various international conventions, and fulfilling the re-quirements of national legislation. They have been par-ticularly involved in promoting community participation and empowerment in sustainable natural resource man-agement, and ensuring access to its benefits. In carry-ing out their various roles, the NGOs have come across a number of challenges, including a weak coordination and networking system, unclear operational linkages with governments at central and local levels, competition for financial resources, and short time-frames within which certain projects have to be implemented, as dictated by the availability of donor funding.
Cultural institutions in Uganda have historically played a leading role in management of genetic resources. Although this was somewhat diminished with the creation of a cen-tral government, and the abolition of some institutions, they do still have the potential to play a key role in manag-ing various aspects of control of access to genetic resources, and protection of indigenous knowledge from biopiracy.
Biotechnology Research
The key institutions involved in biotechnology research in Uganda are Makerere University (Departments of Crop Science, Biochemistry, Animal Science, Veterinary Parasi-tology and Microbiology, the Institute of Environment and Natural Resources, and the Medical School); the NARO, in-cluding its research centres at Kawanda and Namulonge; the International Network for the Improvement of Banana and Plantain; and some private companies, for example MedBiotech Laboratories. These institutions are conduct-ing research involving rDNA, but have yet to embark on transformation work in the area of transgenics.
Constraints and Challenges
Uganda’s policy and institutional set-up has a number of challenges:
1. Decentralization of natural resources management has a damaging effect in many cases. The focus of the local governments is establishing money-making ven-tures without adequate analysis of their impacts on the natural resource base. There is also a lack of tech-nical skills at this level, leading to poor management of the genetic resources;
2. Lack of a legal framework and policy on biosafety and biotechnology. The policy has been in draft form since 2003, and the process of developing the policy started in 1999;
3. Inadequate integration of biodiversity concerns in national and district development planning and im-plementation, and into macro and micro economic policies;
4. Inadequate capacity to implement the various policies in a harmonized manner. This has led to weak coordina-tion mechanisms amongst all the stakeholders within the various sectors, especially among governmental institutions and other players in the implementation of the Bonn Guidelines;
5. Environment and natural resources (biodiversity) con-cerns are usually ignored or paid inadequate attention in planning at all levels of government; and
6. Weak infrastructural and institutional capacity for re-search and information management.
4.3.6 Biodiversity in Uganda and Tools for Conservation
This section describes the diversity which is the focus of access, and what creates the need for appropriate policies.
Uganda is an important country for biodiversity conserva-tion, with seven out of eighteen phytochoria (geographic areas with relatively uniform plant species composition) in Africa, and it has one of the highest levels of biologi-cal diversity on the continent.38 More than half of all Af-rican bird species occur in the country, and Uganda is the second-richest in terms of mammal species, following the Democratic Republic of Congo, and the ninth rich-est in the world. This is quite remarkable for a country of Uganda’s size. Conservation of biological diversity has been largely in-situ, centred at species and ecosystem levels largely in protected areas, with limited attempts at ex-situ conservation.
EcosystemDiversity
The major natural ecosystems are forests and woodlands, with distribution across Uganda. The northern region is dominated by woodland and the majority of tropical high forests are in the western region. Natural forests and woodlands together cover approximately 50,000 km2, of which a quarter is protected as Central or Local Forest Re-
38 Davenport TRB and Matthews R.A (1996). Biodiversity Reports. Vol 1-33. Uganda Forest Department, Kampala.
44
serves, and the remainder lies in wildlife-protected areas or on private lands.
The major types of forest are high altitude moorland and heath, high altitude forests, medium altitude forests and wooded savannah. Woodlands and savannah are of two types: the Combretaceious and Butyrospermum. They range between woodlands where woody species form a single layer, with a relatively short closed canopy that is under-lain by a more or less continuous grass layer, through wooded savannah where the canopy is more open and the grass layer continuous, to grass savannah, where trees are generally absent.39
Wetland ecosystems constitute those areas with impeded drainage, swamp forests, papyrus and grass swamps. In Uganda this category includes lake-associated wetlands, river or flood plain associated wetlands, and a system of small, unconnected units dependent on water from sur-rounding uplands without outlets. According to NEMA in 2002, wetland ecosystem coverage is estimated at ap-proximately 12.5% of the country’s total land surface, with 30,000 km2 of Uganda under seasonal or permanent wet-lands. Up to 17% of the country’s surface area is covered by open water, including five major lakes -- Victoria, Albert, Kyoga, Edward and George -- about 160 minor lakes, an ex-tensive river system, groundwater and rain harvest in dams and ponds. These aquatic systems are usually fringed with extensive wetlands or swamps.
Information on soil and underground biodiversity is still relatively low. A number of studies that have been con-ducted focus mainly on the importance of soil biodiversity to soil productivity, as the most crucial factor for agricul-tural practices. There is a need to understand better the complex interactions between the biotic and abiotic com-ponents of soil. Uganda is an agricultural country and is dependent on its soil, creating strong arguments for soil biodiversity conservation.
SpeciesDiversity
Uganda is very rich in species diversity for various catego-ries of flora and flora. The country is estimated to have 210 species of dragonfly, 98 amphibians, 1,245 butterflies and 4,552 vascular plants. The total number of mammal spe-cies in Uganda is currently estimated at 345.40
Agro-Diversity
This encompasses many types of biological resources tied to agriculture, including crop species/varieties, livestock and fish species, soil organisms in cultivated areas and bio-logical control agents for crop and livestock pests. Cultural practices and local knowledge of biodiversity play a vital
39 Langdale-Brown, O. and Wilson, J (1964). The vegetation of Uganda and its bearing on land uses. Uganda Government Printer, Entebbe.40 1. Tsuada S. (1991). A distributional lists of World Odopata. Tsuada, Osaka. 2. God-man J.D (1992). A checklist of amphibians and reptiles of Uganda. MUIENR, unpub-lished. 3. Davenport T. (1993). An annotated checklist of butterflies of Uganda. The Uganda Forest Department, Kamapala. Knox R. (1995). List of Eastern African Plants. National Museum of Kenya. 4. Davis G. and Berghe E.V (1994). Checklist of mammals of East Africa. East African Natural History Society, Nairobi.
role here. Agro-biodiversity therefore includes not only a variety of species, but also many ways in which farmers can exploit biological diversity to produce and manage crops, animals, and land in Uganda. Despite the fact that indigenous plants are well-adapted to the environment and require low inputs, there has still been limited research to determine their potential contribution to human and livestock needs. Because modern agriculture requires high inputs, some exotic crops have become too costly to pro-duce by the majority of farmers, and this has significantly reduced food security in the country.
Important steps were taken from the 1960s onwards to collect and conserve forage germplasm (mainly grasses) at Namulonge Agricultural Research Station, Makerere University Faculty of Agriculture at Kabanyolo and Serere Agricultural Research Station. The National Gene Bank for Agro-biodiversity has been established at Entebbe, within the Ministry of Agriculture, Animal Industry and Fisheries. It is run by NARO. Exotic accessions of grasses and legumes have also been collected as a means of increasing the ge-netic resources base. These materials have been conserved mainly in fields, ex-situ facilities or gene banks.
GeneticDiversity
Genetic characterization of populations of both wild and domestic species is at a relatively rudimentary stage in Uganda. Various breeding experiments are conducted in a number of agricultural research institutes that include Namulonge for cotton, potato and cassava; Kawanda for horticultural crops and banana; and Serere for cereal crops and livestock. A micro-genetic laboratory was established at MUIENR with a view to training local researchers in ge-netic characterization, helping to facilitate genetic studies of wildlife, crop and domestic animal genetic studies.
It is evident that even before the capacity for advanced genetic studies is acquired, large-scale introduction of improved varieties of both plants and animals is bound to have an adverse effect on indigenous varieties. Thus it is important that the genetic attributes of indigenous breeds and varieties are preserved, before they are com-pletely eroded by hybridisation and other forms of genetic manipulation.
In-situConservation
Uganda’s biodiversity conservation efforts within pro-tected areas are guided by the Wildlife Act, Cap 200, and the National Forestry and Tree Planting Act 2003. These two legislative frameworks contain provisions for guiding access to biological resources. Regulations concerning in-situ biodiversity conservation date back to the 1920s. The initial target was protection of forests, but this was later followed by legislation for game preservation in the 1930s, and that for national parks in the 1950s.
In an effort to boost biodiversity conservation, Uganda ex-panded her network of national parks by upgrading the protection and conservation status of six forest reserves in the 1990s. These include Semliki, Rwenzori Mts., Kibale,
45
Mgahinga Gorilla, Bwindi Impenetrable and Mt. Elgon. This was mainly done to address the then emerging threats to the PA system due to over-harvesting of timber from these natural forests, and to halt threats from encroachment and other forms of unsustainable use.
During the past 30 years, many of Uganda’s protected areas were severely encroached, and their wildlife popu-lations drastically eroded through illegal hunting and habitat destruction. This led to a decline in the number of large mammal species, for example the rhino, Derby’s eland, and the bongo. Some others, such as the roan an-telope, are in a precarious state. In an attempt to ensure protection of all representative ecosystems, Uganda un-dertook a protected areas assessment program from 1997, which resulted in some changes to the PA system, approved by Parliament in 2000.
The existing legal framework for biodiversity conservation provides for conservation both inside and outside PAs. The development of the plan was coordinated by NEMA under the Ministry of Water Lands and Environment. The NBSAP targets a number of issues that promote conservation of biological diversity, including wetlands conservation and management, and EIA of projects and programmes likely to have an adverse impact on biodiversity.
There have been also several attempts at sustainable de-velopment in “buffer zones” adjacent to PAs. The main tar-get here is to ensure conservation of critical ecosystems that exist outside formal protection, through education and awareness, and through identification of benefits that can be derived from conservation.
In addition to these measures, regulations have been in-troduced, under the umbrella legislation relating to envi-ronment, wildlife and forestry, for wildlife use rights and to manage degraded fragile ecosystems such as river-banks, lakeshores and hilly and mountainous areas. Access to the genetic resources outside PAs is controlled through Uganda’s ABS regulations.
There are a number of constraining factors for in-situ con-servation efforts:
Absence of guidelines for implementation of many sections of the legislation, e.g. selection and establish-ment of new PAs, declaration of species to be protected;
Limited capacity to prevent, assess and manage the risks posed by alien invasive species;
Inadequate systems for protection and promotion of indigenous knowledge and practices for the conserva-tion of biological diversity. This is coupled with inade-quate mechanisms for providing information, leading to communities being uninformed about their rights;
Inadequate capacity-building for effective manage-ment of PAs and for conservation of biodiversity out-side the PA network; and
Lack of technical capacity and expertise to understand, promote and incorporate indigenous knowledge and
practices in the formal management of agricultural genetic diversity.
Ex-situConservation
The National Environment Act requires the prescription of measures for ex-situ conservation of biological diversity. This is to be done via development of guidelines for the es-tablishment and operation of germplasm banks, botanical gardens, zoos, animal orphanages etc. Ex-situ conservation is also encouraged on private land, e.g. for conservation of domesticated and wild relatives of crops that benefit so-ciety, medicinal plants etc. The wildlife policy provides for wildlife ranching or farming on private land. This provision has, however, remained largely unimplemented.
Uganda has some centres for ex-situ biodiversity conser-vation, but the country does not yet have an inventory of the existing institutions including their respective ex-situ collections. The National Agricultural Research Organiza-tion (NARO), based in the agriculture ministry, acts as the focal point for collections for microbial genetic resourc-es. Other institutions with some collections include the Makerere University Institute of Environment and Natu-ral Resources.
For plant genetic resources, the Focal Point is also NARO. It runs the Botanical Gardens, based in Entebbe, and the Seed Bank at Kawanda Agricultural Research Station. Mak-erere University has a Herbarium and Botanic Garden. The Herbarium holds plant collections dating back to 1946, and serves as the National Herbarium.
The Focal Point for animal genetic resources is also within MAAIF, and some of the institutions with collections in-clude NARO, the Uganda Wildlife Education Centre, the Makerere Museum, Ziwa Ranch for rhinos and Ngamba Is-land housing chimpanzees. There are other depositories of genetic materials scattered in some higher institutions of learning and research facilities, but there is no organized central databank with records of the various numbers of live or sterile specimens.
Ex-situ conservation is constrained by:
Inadequate facilities;
Inadequate guidelines and lack of comprehensive reg-ulatory measures;
Insufficient capacity to manage ex-situ or on-farm ge-netic resources; and
Lack of information about existing facilities across the country.
4.3.7 Access to Uganda’s Genetic Resources and Associated Benefits
Uganda’s rich biodiversity base forms a key part of future sustainable economic development and growth. The gross economic output attributed to biological resources, i.e. fish-
46
eries, forestry, tourism, agriculture and energy sectors, is estimated to be in excess of Ushs 820 billion (approximate-ly US$ 546.6 million) a year.41 Further research reveals that biodiversity supports economic output indirectly through secondary inputs such as ecosystem services and functions that maintain human production and consumption. These indirect benefits are worth at least Ushs 300 billion (ap-proximately US$ 200 million) a year. Biodiversity, therefore, makes a significant contribution towards Uganda’s nation-al sustainable development and poverty alleviation goals.
Many of the sectors targeted for future economic growth depend directly on biological resources and ecosystems. Biodiversity conservation also maintains a diverse pool of genetic resources available for future developments and applications, some of which may not yet be known. These may contribute to the further development of tourism and leisure activities, and the use of resources for a wide variety of agricultural, industrial, pharmaceutical and medicinal applications.
The ABS regulations are in place, and Guidelines for Ac-cessing Genetic Resources in Uganda were prepared in July 2007. The government plans to carry out training of stakeholders at the national and local level, including lo-cal communities, on the use of the guidelines. Although the system for ABS in Uganda is still evolving, there are already some institutional mechanisms in place for ad-dressing technical, scientific, legal and trade issues in this area. There is a Technical Committee on Biodiversity Con-servation, with its Secretariat in EMA that can be used to evaluate ABS proposals.
Under the existing legislation, some arrangements have been made relating to ABS. Some of the arrangements are between Ugandan and external collaborating universities and the UNCST, and others between national scientific re-search institutions and UNCST. Some of the arrangements with government agencies and intergovernmental ones include transboundary collaborative programs around the Central Albertine Rift and the Mt. Elgon Ecosystem.
There is a wide range of benefits that can be obtained from Uganda’s biodiversity that can be shared at local, national, regional and international levels. This could be in the form of direct, indirect and/or existence benefits. The incentives for biodiversity conservation in place in Uganda are in form of programmes geared towards facilitating and enabling equitable access and benefit sharing of genetic resources.
In accordance with Article 11 of the CBD, Uganda is obliged to ensure economically and socially sound measures in the form of incentives to conserve biological diversity, and use its components sustainably. Some incentives are direct cash or in kind. Other incentives to conserve biological di-versity are indirect, and can be service or socially based.
Biological resources provide a wide range of direct eco-nomic benefits. This is through provision of a source of raw
41 Emerton, L. (1999). Community-based incentives for nature conservation. IUCN Eastern Africa Regional Office, Nairobi, Kenya.
materials for a wide range of products, which are used for subsistence, income and employment purposes. According to Emerton and Muramira (1999) the direct economic ben-efits of Uganda’s biodiversity were estimated at more than UShs 823 billion / year (approximately US$ 548.6 Million/year). This figure measures only the total direct value of bi-odiversity, as there is insufficient data to determine the full value of biological resources – it is therefore based on only a small proportion of the complete resource. Estimated values of some components of biodiversity are given in Box 3, showing a total value close to the 1999 estimate.
Box 3 Estimated Values of Various Components of Biodiversity
Components of biodiversity Estimated values/ Year (million US$)
Non Wood forest products 44
Total wood products 115.3
Wildlife tourism 17.3
Fisheries 271.3
Papyruses from wetlands 4
Source: The Draft National Biodiversity Strategy and Action Plan.
Fisheries and associated industries provide annual export earnings of US$ 600 million, of which US$ 240-460 mil-lion is paid directly to fishers.42 This provides a per capita income in the range of US$ 90-270 p.a.43
Ecosystems and their component species generate a wide range of indirect benefits, including soil erosion control, catchment protection, carbon sequestration functions of natural forests, woodlands, bush lands and grass-lands, and water retention and purification functions of wetlands. While the quantified value of these services is almost UShs 300 billion a year (US$ 193m), Emerton & Muramira (1999) caution that the total indirect value of Uganda’s biodiversity is likely to be far higher than this. These include annual estimated values of US$98.6m for forest catchment protection and erosion control services, US$3.5m for wetland water purification, and US$46.3 Mil-lion for carbon sequestration by forest woodlands, bush lands and grasslands.44
Uganda’s biodiversity’s option and existence benefits are extremely large. Maintaining a diverse range of biological resources and ecosystems therefore allows for possible fu-ture uses and developments for recreational, pharmaceu-tical, industrial and agricultural purposes. Biodiversity is thus likely to have a high commercial option value.
42 Ntiba M. J., et.al. (2001). Management issues in the Lake Victoria watershed. Lakes and Reservoirs: Research a and Management. 6, 211–216.43 World Bank (1996). Kenya, Tanzania, Uganda, Lake Victoria Environmental Manage-ment Project. Project Document, June 1996. Washington DC, USA: Global EnvironmentFacility, The World Bank.44 National Environment Management Authority (2002). State of environment report for Uganda.
47
ABS Implementation Projects in Uganda
Benefit-sharing as envisaged in the CBD is a relatively new concept to many actors in the area of biodiversity conser-vation, although sharing of benefits has been practised in Uganda since the 1950s. The current approach has been implemented in a few cases, largely under the new innova-tive conservation and resource management approaches such as community conservation and collaborative forest management. The experiences gained under these initia-tives could provide broader understanding of the issues involved, and good building blocks for practical ways of re-alising the third objective of the CBD, relating to equitable sharing of benefits.
Based on different categories of ABS projects, and in or-der to ensure appropriate and sustainable ABS measures, a number of programmes were established and imple-mented, or are being implemented in various districts and parts of the country to catalyse and facilitate imple-mentation.
Box 4 gives a case study of benefit-sharing from genetic resources with local communities around Bwindi Impen-etrable (BINP) and Mgahinga Gorilla (MGNP) National Parks in Uganda.
Some of the lessons learned from this initiative include:
There are diverse interest groups ranging from local community to global community;
The natural resources base is small; and
The parks have no buffer zone around them, and as a result incidences of crop raiding, encroachment and problem animals are likely to increase - this could cause big conflicts that would affect implementation of multiple use programs.
Other initiatives with ABS elements include:
The Budongo Forest Community Development Organization
This began in 2000 with a primary strategic focus of sup-port for community conservation, education, alternative income generation, promotion of collaborative forest management, tree planting and energy saving.
Enhancing Livelihoods of Local Communities Dependent on Echuya Forest
This programme began in 2004 and was implemented by Nature Uganda, and various local partners. The project was developed to enable communities to gain benefits by claiming their rights to manage the natural resources in and around Echuya and to influence forestry policy.
PRIMEWEST
This started in 2004, and operates in and around protect-ed areas in Western Uganda. Activities include initiating collaborative forest management, conflict resolution, and
enhancing economic opportunities through better conser-vation and use of natural resources.
Rights Equity and Protected Areas Project
This project is funded by CARE and was started in 2003. It operates around Queen Elizabeth National Park, providing advocacy on community rights to resource access, use and equitable sharing of costs and benefits of conservation.
The International Gorilla Conservation Program
This programme started in 1991 and focuses mainly on eco-tourism promotion, ecological monitoring, commu-nity participation / benefit-sharing, capacity-building of park staff, and a small grants scheme in and around MGNP and BINP. It also promotes transboundary natural resourc-es management in the Virunga area.
The Netherlands Development Organization
This organization has various projects targeting the re-duction of negative impacts caused by local communities, through strengthening of capacity of district authorities for natural resources management. It operates in 13 dis-tricts in Uganda.
The United Organization for Batwa Development in Uganda
This organization began in 2000 and works with commu-nities outside Echuya Forest Reserve. It helps to represent the Batwa’s concerns to stakeholders across the area, and improve participation of the Batwa in various economic development programs.
The WWF Rwenzori Mountains Conservation and Environ-mental Management Project
This project began in 1990 with the aim of strengthening management of Rwenzori Mountains National Park. It fo-cuses on enhancing financial viability, sustainable use of park resources, effective communication between the park and communities, increased capacity of local government for environment management, watershed management and landscape restoration, and transboundary natural re-sources management.
The Mt. Elgon Regional Ecosystem Conservation and De-velopment Program
This programme developed as a regional approach to management of the Mt. Elgon transboundary ecosystem that straddles the Kenya-Uganda border. In order to ensure continued and sustainable benefit and services provided by the ecosystem both directly to the local community on either side and beyond, it was recognised that an ecosys-tem and regional approach was essential.
ConstraintstoAccesstoGeneticResources
The control of access to water, cultural sites, medicinal plants, firewood and a number of non-timber forest prod-
48
Box 4 Benefit Sharing Case-Study in Uganda
In Uganda, the idea of sharing benefits from protected areas with adjacent local communities was first conceived in the 1950s by the then Uganda National Parks (now UWA). This idea died out in the 1970s but was later repackaged in 1991. The initiative was based on the premise that sharing of benefits from PAs can be an effective tool in strengthening the linkages and ensuring harmonious co-existence between wildlife conservation agencies and local communities, fostering a common need to conserve biodiversity, and encouraging community participation in management activities. The sharing of benefits would provide incentives for the local resource-users to appreciate the need to conserve biodiversity,, and thus stop or minimise illegal and unsustainable resource use practices in and around the PAs. These are people who lost full access rights to the PAs, yet incur high costs in conserving biodiversity on a daily basis for national and global benefit.
Benefit-sharing arrangements for the local communities around BINP and MGNP include the following:
(i) Sharing with local communities, on a sustainable basis, of limited amounts of specified park resources such as medicinal plants (e.g Rytigynia kigezinsis, Octotea usambarensis), food plants (such as wild yams, mushrooms) and handicraft materials (e.g Myrica salicifolia) from the designated multiple-use zones,(i.e., the Multiple Use Program);
(ii) Sharing of revenue from the PAs (i.e. revenue from tourism) with the neighbouring local communities under the Revenue Sharing Program;
(iii) Provision of support for community development projects, from a global fund, i.e., the GEF-funded Mgahinga and Bwindi Impenetrable Forest Conservation Trust Fund (MBIFCT), as immediate direct benefits to compensate for the incremental costs incurred by the local people for conserving biodiversity in BINP and MGNP.
MBIFCT was established in 1994 and funded by the Netherlands Government, GEF/World Bank, and formerly the United States Agency for International Development. It provides funding for community development projects (rural infrastructure, and income generating projects), park management, research and the Batwa Program. The Trust Fund supports biodiversity conservation directly by providing incremental support for park management and related research activities, and indirectly by giving grants to help local community groups develop projects, which provide alternative means of meeting basic requirements that were originally met from harvesting forest resources.
RevenueSharingFiguresforBINPandMGNP
FinancialYear GorillaIncomeUgandaShillings 20%ShareforBINP 20%ShareforMGNP
2000-2001 1,451,310,686 14,404,7900.99%
4,742,3310.33%
2001-2002 1,812,609,563 15,781,2170.87%
5,118,3350.28%
2002-2003 2,448,332,566 30,285,4231.24
12,455,4950.51%
2003-2004 2,920,457,683 38,439,5841.32%
9,450,0340.32%
Source: UWA Financial Records, 2004.
49
ucts in PAs has resulted in conflict with local communi-ties and the private sector. These communities regard the resources within the PAs as belonging to them, and thus demand free and unlimited access. On the other hand, the private sector demands certain resources, for example timber, minerals and game, for economic gains. Harvest of these resources from PAs would require strict regula-tion and monitoring. It would also require baseline studies to determine sustainable levels of off-take. All this is cur-rently unaffordable. Other challenges to access to genetic resources include:
Uncontrolled access to genetic resources, especially outside the PA system;
Lack of alternatives to resources found within Pas;
Inadequate public awareness and training on the val-ue of genetic resources;
Low levels of monitoring and research, resulting in in-sufficient information for decision-making in control-led access to genetic resources.
4.3.8 Analysis of Issues and Capacity Gaps
IncentiveMeasuresforSustainableUseofBiodiversity
Uganda has for some time now realised the need for using economic instruments to encourage good environmental practice, while at the same time improving economic per-formance and international competitiveness. There has been an effort to ensure that the current policies cater for provision of incentives for environmental management. The use of the International Treaty on Plant Genetic Re-sources for Food and Agriculture provides incentives for access to genetic resources from outside the country. A number of measures have been discussed by government at various levels, although they have not been comprehen-sively analyzed, nor have many of them been adopted for implementation. These include:
A revenue-sharing program in wildlife protected areas in which 20% of the revenue from gate collection is shared with peripheral communities. The funds go to community-based projects;
Regulated access and use of some selected resources following the benefit-sharing policy, where communi-ties adjacent to PAs, through negotiated agreements, have controlled access to certain resources in desig-nated areas, for example access to water, cultural sites, medicinal plants, firewood and a number of non-tim-ber forest products;
Collaborative forest management, in which commu-nities adjacent to forest reserves reach collaborative agreements with the National Forest Authority to gain access to forest resources from designated areas or zones, and participate in their management; and
Community-based eco-tourism, capacity-building and small grants scheme.
IncentiveMeasures for Indigenous and Local Communi-ties’SustainableUseofBiodiversity
Traditional knowledge tends to be collectively owned, and takes the form of stories, songs, folklore, proverbs, cultural values, benefits, rituals, community laws, local language, and agricultural practices, including the development of plant species and animal breeds. Developed from experi-ence gained over the centuries and adapted to the local culture and environment, traditional knowledge is trans-mitted orally from generation to generation. Traditional knowledge is mainly of a practical nature, particularly in the fields of agriculture, fisheries, health, horticulture and forestry. Today there is a growing appreciation of the val-ues of traditional knowledge by modern industry. Many widely-used products such as plant-based medicines and cosmetics have their origins in traditional knowledge. Other valuable products based on traditional knowledge include agricultural and non-timber forest products, as well as handicrafts.
A growing respect and interest for traditional knowledge in Uganda has led to the adoption of certain procedures. Some indigenous knowledge systems have been incorpo-rated into the national development plans. Mechanisms have been designed to integrate traditional healing sys-tems in modern healthcare delivery services. According to WHO (2002), traditional medicine is still used as the first line of intervention in primary healthcare by approximate-ly 60% of Uganda’s people. Traditional birth attendants work together with government physicians to provide healthcare services in rural areas. Traditional and Modern Health Practitioners Together against AIDS and other Dis-eases (THETA), an indigenous NGO, has been working with traditional health practitioners since 1992. THETA has mo-bilised and comprehensively trained over 2,000 tradition-al healers in 12 districts of Uganda. The training is aimed at building the capacity of traditional healers to integrate counselling and care for HIV/AIDS and other sexually transmitted diseases with their routine practice, and to reach out to their community with preventive strategies. The Network on Medicinal Plants and Traditional Medi-cine, Uganda Chapter, based at the National Chemo-therapeutics Research Laboratory, is a programmatic and collaborative platform that offers the opportunity for all stakeholders in medicinal plants and traditional medicine to share information and experience on their respective activities. It also aims at harmonising their approaches and methodologies, and working together to develop projects that promote the conservation and sustainable, safe, and effective use of medicinal plants and herbal products, as well as the integration of traditional medi-cine in public health services.
The government is in the final stages of developing a Na-tional Policy on Traditional and Complementary Medicine. The policy will be crucial in defining the role of traditional medicine in the national health care delivery systems. It will also ensure the creation of regulatory and legal mechanisms for the promotion and maintenance of good practice, and protection of indigenous traditional knowl-edge on medicine. The government is also finalizing the
50
Traditional Medicine Bill, which will regulate the practice of traditional medicine and bring it to nationally and in-ternationally acceptable standards.
The Ugandan government has also adopted the develop-ment, efficient absorption, adoption and commercialisa-tion of indigenously-developed appropriate technolo-gies as the cornerstone for increased productivity in the economy. Potential indigenous agricultural practices such as pest management systems, soil fertility management practices and control of livestock worms and ticks have been incorporated in crop and livestock farming systems. Micro-entrepreneurs have also set up cottage industries for producing drugs from local herbs, some of which are used to treat diseases associated with HIV/AIDS and oth-er ailments.
BiopiracyandIPR
An operating system that allows people to gain benefit from their knowledge and their resources would provide incentives for conservation of genetic resources. Ugandan laws on intellectual property were drafted during colonial times, from the 1890s until 9th October 1962, when Ugan-da gained independence from British colonial rule. Under section 32 of the patents statute of 1991, the Registrar of Patents awards patents for an initial period of 15 years, with a possible five-year extension if a request is made one month before expiry of the original term. The Uganda Law Commission has drafted upgraded intellectual prop-erty laws, with much more stringent enforcement provi-sions. The draft bill is before parliament for consideration and approval.
Limited general information exists regarding the impacts of IPRs on conservation and sustainable use of biodiversity. Uganda has not been spared the problem of biopiracy, and the existing laws rarely act as deterrent to this problem. This is especially true in relation to local communities and their traditional knowledge of herbal medicines. There has been direct and indirect misappropriation of biologi-cal and genetic resources and traditional knowledge from Uganda for a long time. This is done by researchers, and by bioprospectors in the guise of researchers.
There are a number of negative impacts of IPRs on bio-diversity conservation, specifically in the area of agrobio-diversity. This is especially true of the tendency for agri-cultural diversity to be homogenised, and for native and traditional crops to be displaced. Concern has also been expressed about the increasing concentration of IPR on genes and improved seeds in the hands of a few interna-tional companies. The challenge is to devise regulations that would turn biopiracy into “bioprospecting”. This re-quires finding the middle ground in which the financial and scientific resources of biotechnology companies are exploited not only to their own benefit, but also to that of the communities from which these companies prospect.
Although some steps have been taken to protect access to genetic resources and manage biodiversity through Uganda’s ABS regulations, there is still a lot to do as far
as the control of biopiracy is concerned. The Patent Stat-ute 1991, the major legal regime for IPRs in Uganda, does not provide adequate protection for genetic resources, and therefore the provisions relating to ABS need to be re-viewed and strengthened. In addition, this statute needs to be publicised and instruments for implementation of the ABS provisions developed by the relevant institutions.
However, the development and application of incentives is constrained by:
Inadequate priority at national level to undertake pol-icy research and analysis that would stimulate discus-sions to incorporate incentive measures for biologi-cal diversity conservation in the national investment framework;
The lack of effective participation of the private sector in providing incentives for the protection of biological diversity; and
An underdeveloped intellectual property rights system.
InformationManagement
It is the mandate of the Uganda National Council for Sci-ence and Technology (UNCST) to coordinate all research activities in Uganda. This is done in collaboration with the various sectoral agencies, which do the actual coordi-nation within their sectors. For example, the mandate for agricultural research is delegated to NARO to undertake, promote and co-ordinate research on crops, livestock, fish and forestry, and ensure dissemination and practical ap-plication of results from this research.
Existing Information Centres
There are a number of institutions currently involved in research and training, related to biodiversity conserva-tion and sustainable use. The research institutions include universities e.g. Makerere University (Makerere University Institute of Environment and Natural Resource, Faculty of Agriculture, Faculty of Forestry and Nature Conservation, Faculty of Science etc) and MUST’s Institute of Tropical Forest Conservation and other tertiary institutions, agri-cultural research institutes and some NGOs. These insti-tutions undertake both basic and applied research. Only a few of them, including MUIENR, have elaborate data banks targeting management of information related to Uganda’s genetic resources. The Makerere University Her-barium holds a lot of information on the country’s flora, although mostly in raw form.
Some of the government agencies have carried out some research activities and have data relevant to ABS. NFA has carried out inventories on forestry biodiversity and timber in natural forests. The Fisheries Resources Research Insti-tute is in the process of developing a biodiversity atlas for Lake Victoria and the satellite lakes, while the Wetlands Inspectorate Division has a wetlands biodiversity report. The Export Promotion Board has a lot of data, especially on agricultural exports, and UWA has a Management In-formation System with data on wildlife resources and
51
PAs in general. The Budongo Forest Project has extensive information on genetic resources and the communities that use them. This facility is proposed to be the research institute for Makerere University’s Faculty of Forestry and Nature Conservation.Databases are being developed, but there is need for per-sonnel and standards to capture relevant data. NEMA is charged with the responsibility for coordinating environ-mental information networks to provide cross-sectoral linkages.
The Clearing-House Mechanisms (CHM)
Although Uganda has designated its national focal point for the CHM as NEMA, it has no operational CHM. Part of the reason for this is that there are no resources directly committed for the development and implementation of the CHM by the country. Manpower is lacking, facilities are inadequate and there is lack of resources for coordinating information acquisition. Consequently, the development of national capabilities through exchanging and dissemi-nating information on experiences and lessons learned in implementing the Bonn Guidelines is rather limited. Inter-institutional coordination is still very weak, although an Environmental Information Network (EIN) has been es-tablished, targeting a few institutions within the environ-ment and natural resources sector. From this EIN collabo-ration, areas of biodiversity concern have been mapped for some districts by MUIENR.
Information Management Gaps
1. Lack of a national system for information manage-ment and exchange that captures all the relevant data from different sectors and institutions carrying out re-search in related to ABS;
2. Lack of capacity to manage information systems and networks for ABS;
3. Inadequate funding for research and training, unco-ordinated research priorities across the sectors, and lack of technical and administrative capacities to use research findings in management decision-making;
4. Limited information on below-ground biodiversity, amphibians, reptiles, small insects, agro-biodiversity and other areas of genetic diversity;
5. Inadequate uptake of resource valuation mechanisms to feed into government’s decision-making processes; and
6. Inadequate number of professionals in taxonomy, applied ecology, biotechnology, conservation biology, anthropology, environmental economics and environ-mental law.
TechnologyTransferandCooperation
The Uganda Constitution (1995), the National Environmen-tal Act Cap 153 (1995) , the Land Act (1998), the PEAP and the PMA and the ratification of the CBD, all address issues of sustainable development with particular emphasis on ensuring a healthy environment and promoting sustain-
able development.
However, more effort is needed to enable Uganda to access advanced technologies for environmental management, and to share benefits of access to genetic resources, infor-mation exchange and human resources capacity-building and development, including improved regional coopera-tion especially on transboundary issues. Uganda, through its Commissions for United Nations Education, Scientific and Cultural Organisation office, among others, operates a number of technical and scientific cooperative programs with other countries. The cooperation addresses general aspects of science and technology with special emphasis on environment, agriculture, health and social sciences. The Man and Biosphere Program has so far designated two PAs: Queen Elizabeth (1979) and Mt Elgon (2005) as Man and Biosphere Reserves. A number of ABS activities have been undertaken including:
Small mammal research;
Inventory of large mammals and their potential use (Biosphere Reserves for Biodiversity Conservation and Sustainable Development in Anglophone Africa Project);
Fisheries resources research;
Studies of resource use by local communities, prob-lem animal management and food security;
Fire as a management tool; and
Monitoring tourism activities and their impacts on ecosystems.45
There are piecemeal measures to facilitate transbound-ary access to or transfer of appropriate technologies that make use of genetic resources, and do not cause signifi-cant damage to the environment. These include establish-ment of UNCST with its committees; award of scholarships in the relevant areas and establishment of an Innovation Fund at UNCST.
Uganda, in order to engage sensibly in biotechnology, needs to build up a critical minimum level of competence. This is particularly true in those aspects of biotechnology that show greatest relevance for future long-term devel-opment.46
Comprehensive measures are in place at the institutional level to promote joint ventures between the private sec-tor and public institutions, that facilitate access to, joint development of, as well as transfer of technology (includ-ing biotechnology). These include development of general legislation e.g. the Investment Act, Forest Act and other sectoral policies.
In Uganda, biotechnology research and development is still largely in the public domain. The private sector’s involve-
45 A full inventory of technical and scientific cooperative programs in Uganda is main-tained by UNCST46 Ecuru J. and Asiimwe P. (1999). Foundations for biotechnology policy making pro-cesses in Uganda. Paper prepared for “Biotechnology and Public Policy” training curse under the BIO-Earn programme, organized by the African Centre for Technology.
52
ment is small. The private firms engaged in biotechnology activities are: Med-Biotech Laboratories, and the Centre for Research in Infectious Diseases. Recently, another centre, Agro Genetics Labs, has been established mainly for tissue culture work. There is a need to attract the private sector to participate more in the area of ABS. The ABS regulations make provision for use of genetic resources for commer-cial or industrial purposes, and this is the entry-point for the private sector as long as they conform to the require-ments of the ABS regulations and other relevant laws.
PublicAwarenessandEducationandLocalCommunities
There have been efforts to raise public awareness and de-veloping education programs on environment and natural resources management. Although there has been some level of publicity on radio and TV, the target audience is generally urban with minimum rural impact.
Some collaborative programs have been undertaken in the area of communication, education and public awareness with international organizations, including the Global Environment Facility (GEF) and UNEP. Other efforts have been geared towards international tourism exhibitions and international documentaries, for example the Discov-ery Channel documentary spearheaded by the President.
Despite these efforts, the level of public awareness both in rural and urban areas is still very low as far as the require-ments of the CBD and the Bonn Guidelines are concerned. For example, rural communities are not aware of the legal instruments that exist to protect their indigenous knowl-edge from biopiracy, and do not know about the control measures for access to genetic resources.
There is also a lack of concerted national strategies, pro-grams and plans to empower indigenous and local com-munities and build their capacities for management of ABS. The local communities with the genetic resources need to be empowered to manage them in line with cur-rent international developments. The capacity of com-munities to organize themselves is very weak. They lack the ability to negotiate for their rights and protect their indigenous knowledge from unscrupulous resource users and are often cheated. There is a lack of knowledge of the legal framework for accessing genetic resources at com-munity level. The community needs to be organized in as-sociations and trained so that people are aware about all issues relating to ABS, and are able to negotiate effectively with any interested individuals or companies that want to access their genetic resources or utilize their traditional knowledge. There is also limited capacity to develop and apply economic tools for biodiversity conservation, mak-ing it financially attractive to local communities, and to provide economic incentives to them in order to promote sustainable use of genetic resources.
ResearchandMonitoring
A number of capacity-building programs have been im-plemented in this area, including some related to training.
Measures have been developed to promote and encourage research, which contributes to the effective conservation and sustainable use of genetic resources and their deriva-tives. Research systems are in place, priority areas for re-search have been identified, the enabling policies and in-dependent researchers are available to carry out research on biodiversity conservation.
These measures require resources to facilitate imple-mentation. The problem has been that despite consider-able training undertaken and the management systems developed, facilities are not available for management-oriented research, and the funded research topics do not match existing needs and priorities for information. The need for a national system for information management and monitoring is still outstanding. There is inadequate capacity on the use of indicator species for monitoring ecosystem dynamics.
In-situandEx-situConservationEfforts
As discussed previously, there has been a lot of effort to-wards in-situ conservation, and not as much towards de-velopment of ex-situ facilities. There are inadequate na-tional and local capacities to enhance the effectiveness and functions of PA networks as well as implementa-tion of sustainable PA management strategies through forest and wildlife corridors and ecological restoration when needed. In addition to this, there is limited capac-ity to assess and manage the risks posed by alien inva-sive species on ecosystems and habitats, as well as a lack of capacity to restore and manage degraded ecosystems at district levels. The capacity for ex-situ conservation is mainly hampered by the lack of the required resources to undertake the necessary programmes. In addition, there is a need to develop a national strategy targeting ex-situ conservation, and to improve coordination of the current efforts.
LegalCapacity
There is need for legal capacity-building at all levels of management. ABS is relatively new, and there is a gap in the ability to handle legal issues related to access and com-munity rights. ABS requires many legal agreements and once implemented, there is expected to be a lot of litiga-tion. There is therefore a need to bridge the legal capacity gap amongst institutions and private practitioners. Recog-nising this capacity gap, Makerere University has started an undergraduate environmental law course which can include ABS elements.
SustainableFinancing
Financial resources are the key to all successful manage-ment. Without the required resources, even though the necessary legislative and institutional framework may be in place, management of ABS will not succeed to the re-quired levels. There is thus a need for finances to develop the country’s capacity in the areas already identified in the report.
53
4.3.9 Recommendations for Uganda’s ABS Regime
Policy,LegalandInstitutionalFramework
There are gaps in the policy, legal and institutional frame-works, which have resulted in weak coordination mecha-nisms among government institutions responsible for the implementation of the ABS framework. Coordination can be improved at both the institutional and systemic levels through:
Policy and legal reforms aimed at harmonization;
Identification and strengthening of the existing link-ages, networking and collaboration mechanisms among the various institutions;
Provision of incentives for team building and coordi-nation among institutions;
The guidelines on ABS need to be developed as a matter of priority. These should specify what is to be shared, how it is to be shared and whom to share it with. The mechanisms for dissemination of the guide-lines need to be well thought out and implementation well planned;
The IPR policy should be harmonised with existing pol-icies and legislation and its implementation strength-ened; and
The decentralization policy has to be reviewed in re-spect of the capacity of the local governments to man-age ABS.
In-situ and Ex-situ Conservation
There is a general lack of awareness of the need to con-serve biodiversity. This has led to unsustainable utilisation of genetic resources, especially outside of PAs. This prob-lem is exacerbated by poor institutional linkages both at policy and implementation level. Some of the legislation is also weak, and the punitive measures that are in place do not act as a strong deterrent to illegal activities, and do not control unsustainable use. This calls for:
Strengthening the institutions to implement the ex-isting policies;
Development of the required guidelines that are need-ed to implement the various provisions of the Wildlife Act and the Forestry and Tree Planting Act;
Development of capacity for management and resto-ration of degraded areas;
Public awareness to provide knowledge about the val-ue of conserving genetic diversity, and strengthening the mechanisms that have been developed to control access to genetic resources;
Development of mechanisms for control of alien inva-sive species;
Finalising development of mechanisms for provision of incentives for sustainable conservation of genetic resources; and
Provision of incentive measures for both in-situ and ex-situ conservation.
InformationManagement
NEMA prepared a proposal for setting up a CHM in 2005, and submitted this for funding under the enabling activity of GEF. This activity is still a priority for Uganda, and has been included for funding from Uganda’s RAF allocation. NEMA is the CHM National Focal Point, and thus the CHM will be set up in NEMA once funds have been secured. Guidelines for participation in and sharing of informa-tion with stakeholders will be developed to ensure proper management of information.
This centre will go beyond the requirements of the CBD, and will also house information on other environmen-tal conventions and other relevant environmental and natural resources data. It can produce knowledge tools to assist in decision-making and develop mechanisms for standardising data, building on what the EIN developed by NEMA has attained. The EIN will help in information exchange as a stopgap measure while the capacity to es-tablish the CHM is built. As the CHM is established, re-sources should be identified for information acquisition. For example, there is a need to acquire information on available benefits and their value – quantifying and valu-ing the genetic resources
StrengtheningCapacityBuilding
In order to formulate and effectively implement a national access and benefit-sharing regime, Uganda urgently requires the necessary capacity. This should be drawn from a wide range of disciplines with skills in the legal and policy aspects, as well as scientific and technical issues, IPRs, and local communities’ roles and rights in an access regime. There are a number of areas that should be given some special attention: planning for natural resources and ABS at lower levels of management, e.g. community level, sensitisation of customs officials on ABS, and identification of species.
Although there has been some effort at local and na-tional levels, Uganda lacks the capacity to develop and market her bio-products both on the national and inter-national markets. In addition, there is a lack of awareness as to what kind of market exists for certain products, and a general absence of negotiating skills. There is a need to develop this kind of capacity, and to provide information on existing markets at these two levels. Although the Ex-port Promotions Board has initiated a project targeting this area, this project is limited to a few companies and needs to benefit all interested companies and the local communities.
FundingBaseandMechanisms
Limited budgetary sources of funding to support imple-mentation of ABS are available in Uganda. The amounts available nationally, and the funds so far obtained from international agencies have been inadequate to facilitate
54
effective development of the ABS regime. This has been largely due to the weak funding base and the inability by the government to develop an innovative funding mech-anism. However, there are opportunities for mobilizing resources from the government and the CBD-affiliated agencies like UNEP/GEF, among others.
CommunityMobilization
To a limited extent, there is good environmental govern-ance practice at community levels through use of tradi-tional knowledge and practices for ABS. However, concert-ed efforts are needed for:
Strengthening linkages between formal government institutions and traditional practitioners;
Promoting use of traditional knowledge and practices and incorporating their values in ABS mechanisms;
Undertaking ABS capacity-building programmes for community and civil society organizations at grass-root levels; and
Identifying, supporting and implementing community based initiatives for in-situ conservation.
4.4 Zambia
The authors of Zambia’s country report were: Excellent Hachileka – IUCN Zambia Country Representative;Davy Siame–ChiefNaturalResourcesManagementOfficer;andGershom Chilukusha–ActingDirectorGeneralofZambiaWildlifeAuthority. InApril 2008,Excellent Hachilekaup-datedthereport.
4.4.1 Introduction
Zambia’s Ministry of Tourism, Environment and Natural Resources through the Department of Environment and Natural Resources completed this country study report in January 2006. The report was written by three consult-ants who submitted earlier drafts of the report, which underwent a national review and the UNEP Peer-Review Workshop process in December, 2005.
To fulfil the terms of reference, the consultants conducted a desktop review, interviews, a national consultative work-shop, participated in the UNEP Peer-Review Workshop and developed criteria to identify relevant legislation
The report provides a summary of existing ABS arrange-ments in Zambia; reviews programmes, projects and activ-ities with ABS elements; highlights the relevant resources management policies and legislation; and analyzes the government legal and administrative capacity for the implementation of ABS measures as guided by the Bonn Guidelines. The final section of the report identifies the challenges to the implementation of ABS measures as rec-ommended by the Bonn Guidelines, and provides recom-mendations for future action.
4.4.2 Background
Biological resources are the primary source of livelihoods and economic development in Zambia. Its gradual loss, as a result of a number of factors, represents a silent emer-gency that threatens to undermine efforts to eradicate poverty and achieve sustainable development.
Zambia, as with other developing countries with extensive biodiversity and associated traditional knowledge, does not obtain a fair share of the benefits derived from the use of genetic resources for the development of products and their derivatives, such as pharmaceuticals and cosmetics.
In order to address Zambia’s increasing loss of biologi-cal diversity, the Government of the Republic of Zambia (GRZ) developed the National Conservation Strategy (NCS) in 1985. In 1994, this was replaced by the National Envi-ronmental Action Plan (NEAP), which provided updated information on environmental policy actions for tackling key environmental issues, including wildlife resource de-pletion, deforestation, land degradation, air and water pol-lution and inadequate sanitation. The NEAP’s overall ob-jective was to integrate environmental issues of concern into the social and economic development planning proc-ess of the country. The principles, on which the NEAP was founded, include rights of citizens to a clean and healthy environment and the participation of local communities and the private sector in natural resources management.
In 1999, Zambia developed the National Biodiversity Strat-egy and Action Plan (NBSAP) as a master plan to meet the objectives of the CBD, following the country’s signing and ratification of the Convention in 1992 and 1993 respective-ly. The NBSAP addresses six goals, each with strategies ad-dressing a number of issues including the concept of Ac-cess and Benefit Sharing, in recognition of the important role communities play in biodiversity conservation.
In addition, Zambia is party to various international envi-ronmental conventions such as the Convention on Wet-lands, the United Nations Convention to Combat Deser-tification (UNCCD), the United Nations Framework Con-vention on Climate Change (UNFCCC), the Convention on International Trade in Endangered Species of Wild Flora and Fauna (CITES) and the Convention for the Protection of World Cultural and Natural Heritage (CPWCNH).
The country has, over the years, developed and imple-mented a number of Action Plans that include commu-nity-based natural resources management (CBNRM) pro-grammes, with elements of ABS, with a view to creating partnerships with local communities in management of biological resources in sectors such as forestry, wildlife, ag-riculture, and fisheries.
It is the responsibility of Zambia as a party to the CBD to regulate and control access and negotiate benefit-sharing for genetic resources obtained from the country, and en-sure that the CBD’s ABS objectives are realized. The study provided an opportunity to initiate processes to develop a national ABS regime (ABS law and policy) or strategy for
55
promoting implementation of ABS arrangements, in order to achieve conservation, sustainable management of bio-logical diversity and equitable development.
4.4.3 Methodology
The study was undertaken using a combination of meth-ods including literature review, interviews, and two con-sultative workshops at national and regional levels.
1.LiteraturereviewThis study is largely a desk-top review. The literature reviewed included existing legislation, policies, strate-gies and administrative arrangements for ABS at na-tional level and the relevant CBD documentation on ABS such as Articles 8( j), 10(c), 15, 16 & 19, as well as the Bonn Guidelines.
2.InterviewsInterviews were conducted with staff representing key stakeholder institutions and organizations involved in ABS. These provided information, which was used to validate the information from the literature search as well as providing primary data for the task.
3.Consultativeworkshops
The consultative workshop, in October 2005, was or-ganised to seek input by a wider range of stakeholders including those not interviewed. The draft report was presented to the workshop, and the stakeholder com-ments and contributions were incorporated into the second draft of the report.
4.Peer-reviewworkshopThe second draft of the report and the other outputs were presented at a peer-review workshop involving case study teams from Botswana, Ghana, Kenya, Ugan-da and Zambia. The peer-review comments and contri-butions have been incorporated into this final report.
4.4.4 Programmes with ABS Elements
There are various past and on-going initiatives with ABS elements being implemented in Zambia, through com-munity-based natural resources management (CBNRM) programmes, intellectual property rights/patents, permit systems, concessions, licensing, and breeders’ rights. All these arrangements provide access and opportunities for the generation of benefits mainly from use of genetic re-sources, and less from use of traditional knowledge and other innovations related to various genetic resources. The existing ABS arrangements in Zambia are:
1.Community-BasedNaturalResourcesManagementProgrammes(CBNRM)These have been piloted in Zambia since the 1980s, especially in the wildlife sector. Forestry and fisheries have also adopted the CBNRM approach in the man-agement of these key economic resources. The CBNRM programmes have been designed to ensure local com-munity participation in the management of resources, and the sharing of benefits between the affected com-
munities and the state agencies that have the overall mandate of managing them. CBNRM is the most com-mon arrangement in the country implementing some ABS elements.
2.IntellectualPropertyRights/PatentsIntellectual Property Rights / Patents have gained rec-ognition at most forums, and are also recognised in the CBD. The main stakeholders are the private sector and indigenous people. Technologies developed by the pri-vate sector are in most case patented. But the concern is now largely for locally-adapted technologies used by local people for centuries. In most cases these technolo-gies are not patented and are sometimes misappropri-ated. The National Science and Technology Council is in the process of documenting Indigenous Knowledge Sys-tems (IKS).
3.Permits,ConcessionsandLicensesAccess to most of the genetic resources in the coun-try is through the issuing of permits, concessions and licences by competent national authorities to individu-als or institutions. These are generally accompanied by a set of regulations, and failure to comply may lead to the withdrawal of the permit, concession or license.
4.FarmersandBreeders’RightsPlant breeders’ rights are rights given to farmers to help them conserve the genetic diversity of crop vari-eties and their wild relatives. This is usually achieved through the following activities at national level:
Conducting a field survey to determine the distribu-tion and availability of traditional crop varieties and their wild relatives;
Identifying threats to traditional crop varieties;
Developing a database on available crop genetic di-versity and their wild relatives; and
Setting priorities and determining strategies for the conservation of crop genetic diversity and their wild relatives.
5.CertificatesofOriginCertificates of Origin are usually issued in the fisher-ies sector to would-be transporters of fish during the off-season as proof of where and when such fish was sourced. The certificate of origin helps the Fisheries Department to enforce fishing bans during the closed period.
On-Going Projects, Programmes
1.EnvironmentalProtectionandNaturalResourcesManagementProgrammeThe Environmental Protection and Natural Resources Management Programme is a capacity-building pro-gramme funded by the UNDP for the period 2002-2006. The programme seeks to enhance managerial capacity for environmental protection and sustainable management of natural resources, as well as for coor-
56
dinating the implementation of environmental inter-national conventions to which Zambia is a party. The project specifically focuses on the following:
Environmental policy formulation that includes support to civil society organizations and commu-nities, to enable their effective participation in the policy formulation process. The policy, which has yet to be adopted, places emphasis on the participation of local communities in natural resources manage-ment and for them to derive direct benefits;
Enhancing and enforcing knowledge management, enforcement and communication tools for environ-mental protection and natural resources manage-ment; and
Strengthening existing institutional mechanisms for enforcement of environmental standards and the sustainable management of natural resources in the MTENR, ZAWA, Environmental Council of Zambia (ECZ) and the Zambia Meteorological De-partment (ZMD).
2.NaturalResourcesManagement(NRM)Component,SpecialEnvironmentalAssistance(SEA)The Natural Resources Management (NRM) Component is a 3-year program which began in January 2005 with support from the Royal Danish Embassy (RDE). It builds from on the CBNRM Project in Mumbwa District, which started in 2001, and ended mid-2006. The Component takes into account the abundance of natural resources in Zambia, the crucial reliance of the rural people on the use of natural resources, and the need to enhance the income generation potential of these resources to address poverty (in line with the Poverty Reduction Strategy Paper (PRSP), the NEAP and the Millennium Development Goals). The Component focuses on re-sources of the five Game Management Areas (GMAs) around Kafue National Park, and the income generated from from them through nature tourism and safari hunting, and the potential for sustainable use of for-estry and fisheries resources. The Component empha-sizes capacity-building for local institutions - Commu-nity Resource Boards (CRBs) and Village Action Groups (VAGs) - to protect and manage natural resources, as well as building capacity at district and central govern-ment levels (particularly the capacities of NRM-related institutions) to improve the experience, dialogue and capacities of communities to develop local income op-tions and manage natural resources.
The development objective of the component is to reduce poverty through sustained NRM, and the immediate ob-jectives are:
Enhanced income opportunities and resource man-agement in target areas;
Testing and sharing of innovative approaches and partnerships in NRM and poverty alleviation; and
Improved capacity of government and civil society institutions to support sustainable NRM.
The Component has several sub-programmes, the key ones of which include the following activities:
Enhancing and sustaining natural resource use;
Providing specific options for the most vulnerable groups;
Improving community mechanisms for resource management and enforcement;
Development of an innovative model for communi-ty management of GMAs, and an associated system for simple and practical performance monitoring of community institutions in CBNRM;
Development of models for private sector involve-ment in awareness-raising and training, and pio-neering of a mechanism for sourcing investment and service-provision in support of sustainable ru-ral livelihoods.;
Strengthening the skills and institutional perform-ance of selected community institutions (CRBs and VAGs);
Generating experience among District Agencies and Local Government authorities in supporting and collaborating with CRBs and VAGs;
Facilitating dialogue and consultations between Government and Civil Society stakeholders through the Natural Resources Consultative Forum; and
Capacity building within ZAWA on a demand-driven basis that focuses on local staff located in the target areas, primarily targeting specific roles of ZAWA in CBNRM, e.g. wildlife monitoring of CBNRM / CRBs.
3.ProvincialForestryActionProgramme(2000-2005)The Provincial Forestry Action Programme (PFAP) imple-mented Joint Forest Management (JFM) in open areas and local forests of four provinces of Zambia -- namely Luapula, Copperbelt, Central and Southern. The initia-tive sought to increase the responsibilities, rights and share of benefits accrued from natural resource usage in order to improve livelihoods of local communities.
Local communities living adjacent to the open areas can cut and collect any forest produce for their con-sumption, but are required by law to obtain permits to extract and offer for sale forest products. In protected areas, access to any forest produce is through a permit from the Forestry Department or JFM committee. The JFM guidelines propose a 60% allocation of the ben-efits accrued for government, whilst local communities acquire 40%. This rationale of sharing benefits is based on the notion that the forest estates lie on government lands on behalf of the State. Activities in these JFM ar-eas include the following:
Development of forest management plans;
Environmental education and public awareness;
Promotion of use and research of non-timber forest products;
57
Promotion of sustainable charcoal production and beekeeping; and
Promotion of use and research of medicinal plants.
For international trade, a timber export license after fulfill-ing the required conditions, such as evidence of a sustain-able source of raw materials in form of a forest concession area with the required timber processing equipment and qualified labour force, is required.
4.ForestResourcesManagementProject(2002–2008)The Forest Resource Management Project (FRMP) is implemented in North-Western and Luapula Prov-inces. The project aims to increase the incomes of the poor who are dependent on forest resources. This goal is both short-term through increased productiv-ity and more efficient marketing, and long-term by maintaining production activities at levels that do not deplete the forest resources. The project focuses on the following:
Knowledge and capacity-building on appropriate harvesting and production technologies, leading to improved harvesting, processing and marketing of forest products;
Natural resources planning and development of eco-nomic activities related to extraction and process-ing of broad range of forest products; and
Community development in forest areas and sus-tainable income generation.
5.ForestryComponentoftheRuralWaterSupplyandSanitationProject(RWSS)The Ministry of Local Government and Housing is exe-cuting the Rural Water Supply and Sanitation Project. It is implemented in five districts of the Central Province namely Chibombo, Mkushi, Mumbwa, Kapiri-Mposhi and Serenje. One component addresses the protection of water catchments. The project is community-based and adopts a demand responsive approach to the ex-pressed needs of the communities.
The project supports the following activities in catch-ment areas:
Seed collection and production of seedlings;
Establishment of village nurseries to support refor-estation of degraded areas of the river catchments;
Establishment of woodlots at household level, com-prising of fuel wood and fruit trees;
Community sensitization; and
Capacity-building.
6.IntegratedLandUseAssessmentProject(2005-2010)The Integrated Land-Use Assessment Project is be-ing implemented by the Forestry Department in col-laboration with the Agriculture, Wildlife, Fisheries and Survey Departments, and the Central Statistics Office.
The project aims to update information, which would assist the Department to plan and manage the land resources on a sustainable basis. The activities to be undertaken include:
Developing and strengthening the capacity of nat-ural resource management institutions to collect, compile, process and disseminate reliable and up-to-date information on land use to policymakers and other land use specialists in an integrated ap-proach; and
Establishing long-term land-use monitoring sys-tems and supporting purchase of forest inventory equipment.
7.WildlifeSector
Community Based Natural Resources ProgrammeThe wildlife sector leads in CBNRM activities in Zambia, both in terms of community involvement in the manage-ment process, and the sharing of benefits between the state and the local communities. The Zambia Wildlife Au-thority (ZAWA) is responsible for the management of 19 National Parks and 34 Game Management Areas, which together, account for about 30% of the country’s land area. These are protected areas where communities live side by side with wildlife. Both consumptive and non-consump-tive use of wildlife occur in GMAs. The local communities living in GMAs and the ZAWA share the revenues. The Na-tional Parks and Wildlife Act 57 of 1968 established nation-al parks, leading to the displacement of local people with little or no compensation.
Since the 1970s, illegal wildlife harvesting has been a serious concern for Zambia. The National Conservation Strategy (NCS, 1985) and the National Environmental Ac-tion Plan (NEAP, 1994) both recommended increased par-ticipation of local communities in wildlife management to reverse the negative trends, and emphasized the need to address poaching. The National Parks and Wildlife Act, 1991, ushered in provisions of community participation in wildlife management, that was absent in the 1968 Wildlife Act. Community-based Integrated Resource Development Committees (IRDCs) were then established to facilitate community involvement in wildlife management.
From around 1983, the then Department of National Parks and Wildlife Services (NPWS) pioneered conserva-tion programmes of co-management of wildlife resourc-es. The Administrative Management Design (ADMADE) and Luangwa Integrated Resource Development Project (LIRDP) were implemented as conservation programmes. The ADMADE was implemented in 20 GMAs, while LIRDP now known as South Luangwa Area Management Unit (SLAMU), was implemented in the Lupande GMA, bor-dering the South Luangwa National Park. In return, local communities received financial benefits to improve living standards. The programmes sought to alleviate poverty in the local communities, as poverty was the primary driver of wildlife reduction in the Luangwa Valley.
58
The communities received 80% of wildlife revenues gener-ated in the Lupande GMA during implementation of the LIRDP. These communities decided the use of their wild-life revenues. The remaining 20% was divided as follows: chiefs received 6%; the former Area Development Com-mittees (ADCs) 4%; and as a contingency, 10% awaited the development of effective and accountable higher-level in-stitutions that could begin to manage the resource.
Game Ranching Game ranching is the keeping of wild animals on private land. This is a relatively new land-use practice in Zambia compared to other countries in southern Africa, particu-larly South Africa and Zimbabwe. Its development in Zam-bia has been fragmented. The concept of private wildlife estates began in the 1950s and 1960s in the communal hunting areas and protected game reserves. The practice halted due to lack of infrastructure in the wildlife estates to support mass production of red meat (venison) and high product delivery cost to the urban markets. The es-tablishment of the first game ranch in 1979 led to a game ranching revival in the early 1980s. The industry gained momentum in the early 1990s. Game ranching has since grown from 10 ranches in 1989 to 43 operating ranches in 2000. The total area under game ranching by 1997 was 134 146 ha (i.e. 134 Km2).47
The Government of Zambia supports game ranching be-cause of its biological and socio-economic importance. The industry is a critical ex-situ conservation strategy that may enhance the conservation of threatened and endan-gered animal species. Game ranches have the potential to take the hunting pressure off the Game Management Ar-eas (GMAs) with their depleting wildlife, which have little or no opportunity to regenerate. These game areas sup-plement the game stocks of depleted protected national parks and GMAs. Secondly, game ranching is an important source of revenue, employment, food security and food diversity. A well-developed game ranching industry can in fact contribute to alleviating poverty, especially among resource-poor rural communities.
To facilitate the development of game–farming, the gov-ernment put in place an ad hoc arrangement through a statutory instrument, Statutory Instrument 66 of 1993, that is still in force. The Government then provided the initial stock of game - animals either captured from state Protected Areas (PAs) or resident fauna on the fenced prop-erties. In both cases, the Government offered the animals at 50% the ruling animal fees for the resident hunting fraternity. According to Siamudaala (1997), 1730 animals were captured from Protected Areas - Kafue, Lochinvar and Blue Lagoon National Parks and the Chikuni sector of the Bangweulu Area between 1990 and 1994. By 1997, there were about 3762 animals of various species resident on game ranches.
47 1. Siamudaala, M., Nambota A.M et. al (2003). An Overview on the development of the game ranching industry in Zambia. ZambianJ. Vet. Sci.. 2. Siamudaala V. 1997. Crocodile farming in Zambia. Report to National Parks and Wildlife Service, Ministry of Tourism, Chilanga, Zambia.
Generally, game ranches are distributed throughout the country, with the highest number along the line railway line between Chisamba and Mazabuka.
Commercial farmers who switched from livestock and crop production to game ranching established most of the initial ranches. Attempts by indigenous Zambians to enter the industry tend to end at the ecological survey stage - most are constrained by the prohibitive costs of fencing and procurement of animals from existing ranches.
The primary objective of private game ranches is income generation. The major economic enterprises on the ranches are non-consumptive (i.e. eco-tourism) and consumptive use (trophy hunting, live sales, venison production).48 The ecotourism facilities are under-developed at most ranch-es. Safari hunting is the most lucrative form of wildlife use, but it is constrained by the lack of the most sought-after animal species by trophy hunters: African buffalo, lion and leopard. The market for live animals and trophies is still relatively small. Low-priced illegal bush meat undermines the profitability of venison from the game ranches.
The Director-General of ZAWA receives game ranching ap-plications, and then initiates an ecological survey. The sur-vey assesses the suitability of the proposed ranch in terms of stocking rates, grazing capacities, water availability, species suitability and other parameters required to keep animals in captivity (keeping game in fences according to viable species and populations). When the areas meet the criteria, applicants receive provisional authority to keep wild animals in captivity, allowing the investor to begin in-frastructure construction such as fencing and water points in areas where there is no natural or perennial water sup-ply. Investors receive final authority only upon completion of infrastructure development. This allows the applicant to operate a game ranch upon obtaining certificates of ownership and permits to keep wild animals in captivity for the animals under their custody.
Game conservancies involving local communities are new to Zambia. Recently, local communities in Mazabuka and Bangweulu area began community-based game ranching with the support of the private sector and non-govern-mental organizations (NGOs).
The Zambia Wildlife Authority has since developed guide-lines for conducting ecological assessments for the estab-lishment and management of game ranching in Zambia. Private game ranchers receive certificates of ownership for the wild animals on their ranches. The Authority releases updates to guidelines and regulations on keeping animals on game farms to which the certificates are subject. There are no mechanisms to share benefits arising from game farms with local communities.
8.Fisheries-BasedCBNRMProgrammesEven though the Fisheries Act does not provide for com-munity-based natural resources management, the Fisher-
48 Zieger, U. and Cauldwell, A. (1998). Wildelife ecology and management. Practical aspects for Zambia game ranches. Business print center, Pretoria.
59
ies Department has implemented, out of eight fisheries areas, four community-based fisheries management areas at Mweru-Luapula, Bangweulu, Kariba and Zambezi. The programme on Lake Kariba, the Zambia/Zimbabwe SADC Fisheries Project, focuses on research and joint manage-ment of the fish resources in the lake. Of the four areas, the Lake Kariba model of fisheries co-management, initi-ated in the early 1990s, is the best developed. It involved the relocation of people into bigger village units to fa-cilitate easy provision of services such as schools, clin-ics, clean drinking water and organization structure for fisheries management. The fishing area was zoned, with the Area Chief acting as head of all the zones. A Village Headman heads each zone. Staff of the Fisheries Depart-ment provides secretarial services to the Village Fisheries Management Committees. District Authorities pay the committees for collecting fish levies on their behalf and in addition, they collect some revenue from the conveyance license that the committees administer on behalf of the Fisheries Department.
The Village Fisheries Management Committees are made up of the fishermen, traditional leaders and other key stakeholders such as representatives of local traders, fish traders and fish transporter.
Past Programmes with ABS elements
1.EnvironmentalSupportProgrammeThe Environmental Support Programme (ESP) was an initiative implemented by the Ministry of Environment and Natural Resources (MENR) between 1998 and 2003. It was prepared as a means of managing and mitigat-ing the key environmental problems and related insti-tutional and legislative constraints identified by the National Environmental Action Plan of 1994. The pro-gramme involved various stakeholders in programme formulation in order to build a sense of ownership, and to facilitate easy implementation. The programme also sought to support the government’s strategy of poverty reduction within the framework of economic growth, and the protection of the environment and natural re-sources at national and local levels. At the national lev-el, the programme sought to strengthen institutional and regulatory frameworks, while at community level it sought to strengthen local institutions and empower communities to achieve sustainable development.
The major activities included:
Institutional Strengthening and Legal Framework: The component sought to implement an effective institutional and regulatory framework for envi-ronmental protection and natural resources man-agement. It built capacity in MENR and the Envi-ronmental Council of Zambia (ECZ). A community environmental management program (CEMP), built into the component, facilitated demand- driven de-velopment in support of environmental protection and better use of natural resources in rural and ur-ban communities. A Legal Framework and Enforce-
ment Capacity component helped to develop a con-sistent and enforceable body of environmental leg-islation. Under the CEMP, communities developed Community Environmental Action Plans (CEAPs). This was piloted in nine districts, then applied in an additional seven districts;
Environmental Education and Public Awareness: The component raised public awareness on envi-ronmental matters through media, modification of selected school curricula and support for commu-nity initiatives in environmental education;
Pilot Environmental Fund: There were two financing windows: (i) a community- based initiatives fund to establish an incentive framework for community involvement in projects identified under CEMP; and (ii) the Pilot Environmental Fund (PEF) that funded studies to develop strategies to respond to environ-mental emergencies and to undertake environmen-tal impact assessments; and
Environmental Information Management: The com-ponent provided a forum to facilitate the exchange of information between agencies and provided information to public and private sector decision makers.
At the national level, a National Environmental Steering Committee (NESC), made up of line ministries, commu-nity representatives and the private sector, managed the programme. At the local level, District Environmen-tal Committees in pilot districts were part of the exist-ing District Development Coordinating Committees.
2.EnvironmentandNaturalResourcesManagementPro-grammeThe Ministry of Environment and Natural Resources, from 1998 to 2001, implemented an Environment and Natural Resources Management Program (ENRM). The program sought to strengthen Zambia’s national capac-ity to manage the environment and natural resources at community level by supporting the implementation of the ESP. There were two pilot programmes focused on enhancing environmental management at district and community level. The specific program objectives were to:
Pilot a Community Environmental Management Programme to develop mechanisms for involving communities in environmental planning, decision- making and implementation;
Pilot community-based sustainable natural re-sources management programmes for improving rural livelihoods; and
Build capacities among various stakeholders and fa-cilitate the implementation of CBNRM programmes through training, information dissemination and networking, community-oriented policy and insti-tutional support, coordination support and through support to strategic national programmes.
60
The ENRM program had the following major activities:
Preparation of participatory integrated resource management plans;
Preparation of Community Environmental Action Plans (CEAPs);
Training of local community representatives and district staff;
Preparation of materials for dissemination;
Preparation of a resource manual on community structure;
Conducting a baseline study on community under-standing of legal roles, rights and responsibilities in CBNRM;
Preparation of the National Biodiversity Strategy and Action Plan (NBSAP); and
Support to enhanced community participation in forest management.
3.NaturalResourcesManagementThe Natural Resources Management project was im-plemented between 2002 and 2004 in Mumbwa dis-trict. The project covered Mumbwa and later Namwala GMA and the Kaindu open area. The project aimed to increase the capacity of rural communities to manage their natural resources (land, water, forests, wildlife and fish) productively. There was an emphasis on assisting local communities to identify, formulate and imple-ment activities with the assistance of local supporting agents and through linkages between local communi-ties and government agencies.
The Natural Resources Management project included the following activities:
1. Creation of awareness on ecologically and economi-cally sound management practices;
2. Collection of social and environmental baseline data;
3. Extension and dissemination of information on natural resources legislation;
4. Training in sustainable management practices for agriculture, wildlife, forestry and fishing;
5. Mapping of land use potential and elaboration of land suitability maps;
6. Preparation of simple land use action plans;
7. Improving food security;
8. Enhancing income generation activities among lo-cal communities; and
9. Strengthening of a sustainable institutional frame-work and capacity to support community natural resources management.
4.ZambiaForestryActionPlanThe Zambia Forestry Action Plan (ZFAP), initiated in 1987, provided a national framework for sustainable forest planning and management to enhance the con-tribution of the forest sector to Zambia’s development, and especially to address the concerns of communities and other forest resources stakeholders. The ZFAP proc-ess enabled the MENR to review the forest policy and the Forest Act. The ZFAP objectives were:
1. To develop capacities at national, provincial, dis-trict and lower levels to support forest sector policy, planning, education, training, research and exten-sion;
2. To improve the welfare of both rural and urban com-munities through equitable gender participation in sustainable management and use of resources;
3. To provide on a sustainable basis, society’s require-ments for forest products including sawn timber, fuel wood, poles, folder and non wood and minor forest products;
4. To increase the contribution of the forest sector to the national economy through the generation of employment and export of forest products;
5. To conserve forest ecosystems and biological diver-sity through sustainable management, to benefit both present and future generations;
6. To protect major watersheds; and
7. To support sustainable agricultural production and enhance food security through improved land hus-bandry, including strategic and local level land use planning, increased soil fertility and reduced land degradation.
The ZFAP process involved the following components:
Indigenous Forest Management and Biodiversity Development;
Forestry Industries and Non Wood Products;
Farm Forestry/ Agro forestry Tree and Forest Produc-tion;
Wood-fuel Energy Development; and
Forestry Education and Training Development.
The Forestry Policy, (1998), was the key outcome of the ZFAP process. Implemented almost parallel to the ZFAP process was the Provincial Action Plan (PFAP), which in-volved local communities and other stakeholders in for-estry planning. The Plan was implemented in Copperbelt, Luapula and Central provinces of Zambia, and later in the Southern province.
5.ForestrySupportProgramme(2003-2004)The Forestry Support Programme (FSP) sought to re-structure the Forestry Department into an autono-mous, self-financing organization with a legal and in-
61
stitutional mandate for sustainable management and use of forest resources in partnership with local com-munities and the private sector. The programme:
Reviewed the current forest policy, legislation and administrative framework pertaining to the man-agement and conservation of forest resources in the country;
Contributed to the creation of an enabling environ-ment for sound economic development of the for-estry sector; and
Carried out costing of the new institution, Zambia Forestry Commission (ZAFCOM) and analysed the implications for transforming the current Forestry Department into a Forestry Commission.
6.CommunityBasedNaturalResourcesManagement(CBNRM)Programme(1999–2004)A Community Based Natural Resources Management (CBNRM) Programme was implemented under the Cooperative League of the United States (CLUSA) in Mumbwa, Katete and Petauke districts. The focus of the programme was on raising farmers’ incomes and alleviating poverty, through improved production and marketing of agricultural and forest products, and small enterprises development. The programme devel-oped pilot forest management sites to demonstrate its approach to community-based forest management. The programme focussed on the following activities:
Strengthening community groups and group-based enterprises in selected target areas, through acqui-sition of skills and knowledge;
Improving living standards and the effective man-agement and conservation of Zambia’s forests and agricultural areas; and
Identifying, initiating and managing economic ac-tivities of forest and agricultural lands in a sustain-able way.
7.SouthernAfricaBiodiversitySupportProgramme(SABSP)The Southern Africa Biodiversity Support Programme (SABSP) is a regional programme involving 10 South-ern Africa Development Community (SADC) countries, namely Zambia, Zimbabwe, Botswana, Malawi, South Africa, Lesotho, Swaziland, Namibia, Angola and Mozam-bique. Launched in September 2000, the 5-year SABSP sought to conserve and sustainably use the region’s biodiversity. The SABSP was subsequently reviewed, and now focuses on Invasive Alien Species (IAS) and Access and Benefit Sharing (ABS). The programme was execut-ed by SADC and funded by the United Nations Develop-ment Programme (UNDP) /Global Environment Facility (GEF), while The International Union for Nature Conser-vation Regional Office for Southern Africa (IUCN – ROSA) served as technical adviser to the project. In Zambia, the Ministry of Tourism, Environment and Natural Resources (MTENR) through the Environment & Natural Resources Management Department (ENRMD) coordinated the implementation of SABSP activities through the Nation-
al Focal Point, a full time Project Officer, and a National Steering Committee (NSC).
The Programme sought to: generate knowledge and information for effective regional collaboration in man-aging invasive species and applying ABS principles; cre-ate a policy and legal environment to promote effective regional collaboration in managing invasives and ap-plying ABS principles; establish sustainable financing mechanisms for managing invasive and applying ABS principles; and advocate a common regional approach to the conservation and sustainable use of biological resources.
4.4.5 Legislation and Additional Policies
As Zambia has many national and international legal frameworks addressing various elements of ABS, criteria for the selection of the legal frameworks for analysis was necessary. The criteria included:
Legislation and policies with a focus on specific natu-ral resources / resource sectors;
Legislation and policies with elements of ABS; and
Legislation and policies covering key natural resources including wildlife, forestry, agriculture and fisheries.
The legislation analysis was undertaken using the Bonn Guidelines, relevant CBD Articles and decisions on ABS. Each of the selected pieces of legislation, policies, strate-gies and programmes was assessed by identifying com-plementarities, gaps and strengths in ABS aspects of the legislation against the specifics of the guidelines. They were also assessed for their contribution and effectiveness in promoting or realizing the objectives of ABS arrange-ments, namely poverty alleviation, development, technol-ogy transfer, conservation, sustainable use of biological resources, protection of traditional knowledge and equi-table sharing of benefits.
There are 32 pieces of legislation relevant to environment and natural resources management in Zambia. The Min-istry of Tourism, Environment and Natural Resources is responsible for providing policy guidance on matters of tourism, environment and natural resources development. The country has over the years developed a number of sec-toral policies in the wildlife, forestry, water and environ-ment sectors, and some strategies to address the national environmental challenges and to meet international ob-ligations. Some of the notable strategies are; Zambia For-estry Action Plan (ZFAP), the Provincial Forestry Action Plan (PFAP), the National Biodiversity Strategy and Action Plan (NBSAP), the National Environmental Action Plan (NEAP), the National Conservation Strategy (NCS), and the Nation-al Action Plan on Desertification (NAP).
To provide for a mechanism to implement the Convention on Biological Diversity (CBD) to which Zambia became a party on 28 May 1993, the National Biodiversity Strategy and Action Plan was prepared in 1999. The NBSAP came
62
up with six goal areas, namely:
Ensure the conservation of a full range of Zambia’s natural ecosystems through a network of protected areas of viable livestock;
Conservation of the genetic diversity of Zambia’s crops and livestock;
Improve the legal and institutional framework and human resources to implement strategies for conser-vation, sustainable use and equitable sharing of ben-efits from biodiversity;
Sustainable use and management of biological re-sources;
Development of an appropriate legal and institutional framework and the needed human resources to mini-mize the risks of the use of GMOs; and
Ensuring the equitable sharing of benefits from the use of Zambia’s biological resources.
SectorSpecificLegislation
The legislation that has guided the implementation of the projects, programmes and activities with ABS ele-ments are:
Lands Act Cap 184 of 1995
The Lands Act, Chapter 184 of the Laws of Zambia of 1995 governs land management in Zambia. The Act states that all land in Zambia is vested in the President on behalf of the people of Zambian people. Land is in two categories, namely state and customary land. On state land, the Com-missioner of Lands is responsible for the alienation of land to would-be developers through a leasehold arrangement to a maximum period of 99 years while Traditional Author-ities (Chiefs) are responsible for land allocation on custom-ary land. Granting of title on customary land is only possible with the prior consent of the Chief and the local authority in the area where the piece of land is been sought.
The state plays a major role in biodiversity conservation in Zambia given that the majority of forests, wildlife re-serves, wetlands, botanical and geological gardens and gene collection are under state control. The property rights regime determines the way in which benefits accruing from biodiversity use are distributed. Historically, commu-nal ownership of biological and other resources has been replaced by state and private ownership. Most of the exist-ing protected wildlife and forest reserves were established during the colonial era, upon what was customary land. The premise was that the Government could share the benefits more appropriately. However, over the years the communities which live adjacent to protected areas suffer the negative consequences of environmental degradation and uncompensated biodiversity erosion. The marginali-zation of local communities has led to over-exploitation of resources by these communities. The community-based natural resources management programmes implement-
ed in various parts of the country all seek to reduce envi-ronmental degradation and to improve the livelihoods of the local communities.
The origins of CBNRM can be traced to the Natural Re-sources Act, Chapter 315, of the Laws of Zambia of 1962, en-acted to establish a Natural Resources Board and Natural Resources Tribunal, and to provide for the preparation and enforcement of conservation plans in designated areas. The Act, 1970 - provided for the establishment of District and Provincial Natural Resources Committees, drawn from both the public and private sectors. The Natural Resources Act, 1970, replaced the Natural Resources Act, 1962. The Natural Resources Tribunal provided a forum for aggrieved persons to seek redress. The District and Provincial Natural Resources Committees provided general supervision over the natural resources of the district and province, coordi-nated and reviewed plans for their conservation, wise use and improvement. The committees were established un-der the authority of the Minister, and could be dissolved by the Minister. The enactment of the Environmental Protec-tion and Pollution Control Act (EPPCA) in 1990 led to the repeal of most parts of the Natural Resources Act except for Parts IV, V and VI that relate to conservation and im-provement of the natural resources, control of bush fires and conservation plans. The demise of the Department of Natural Resources in 1997 resulted in the Natural Resourc-es Act being orphaned as it no longer had an institutional structure to implement its provisions.
The Environmental Protection and Pollution Control Act (EPPCA) No. 12 of 1990 established the Environmental Council of Zambia (ECZ). The EPPCA is the principal envi-ronmental management legislation in Zambia. The Envi-ronmental Council of Zambia advises Government on en-vironmental protection and pollution control and ensures that formulated environmental regulations are adhered to. In 1997, Environmental Impact Assessment regulations were established. Most projects now undergo an EIA be-fore implementation.
Wildlife Legislation
The National Parks and Wildlife Policy, 1998, and the Zam-bia Wildlife Act Cap 312, 1998, provide for the conserva-tion, protection and management of wildlife resources in Zambia. From the lessons of the ADMADE and LIRDP pro-grammes, the Zambia Wildlife Act established the Zam-bia Wildlife Authority (ZAWA) after the transformation of NPWS, and made specific provisions to facilitate the par-ticipation of local communities in wildlife management. The Act provides for the establishment of Community Resource Boards (CRBs) along geographic boundaries con-tiguous to chiefdom in any Game Management Area or an open area. The CRBs are democratic local institutions, made up of seven to ten representatives elected by the lo-cal community; one representative of the local authority in the area and a representative of a Chief in whose area a CRB has been established. The Chief in whose area a CRB has been formed is a Patron of that particular board. Ap-plications to establish a CRB are made by the traditional leadership to ZAWA, which then facilitates the holding of
63
elections. CRBs provide the link between ZAWA and the lo-cal communities.
The Boards seek to improve community involvement in law enforcement, wildlife monitoring, quota setting and the implementation of community projects. The Zambia Wildlife Act, 1998, mandates the CRBs to:
Negotiate, in conjunction with ZAWA, co-management agreements with hunting outfitters and photographic tour operators;
Manage the wildlife under its jurisdiction, within quo-tas specified by ZAWA;
Appoint village scouts to exercise and perform the du-ties of a wildlife police officer, under the supervision of a wildlife police officer in the area falling under ZAWA’s jurisdiction;
In consultation with ZAWA, develop and implement management plans that reconcile the various uses of land in areas falling under ZAWA’s jurisdiction; and
Perform such other functions as ZAWA may direct or delegate to it.
In return for their participation in the management of the wildlife resource, communities receive a share of revenue arising from consumptive utilization of wildlife in their respective areas. The current agreed ratios are listed in Box 5 below.
Box 5 Communities’ Revenue Sharing Ratios in Zam-bia in Wildlife Management
Hunting Fees Concession Fees
Chiefs (Patrons) 5% Chiefs (Patrons) 5%
Local communities (CRBs) 45%
Local communities (CRBs) 15%
ZAWA 50% ZAWA 80%
Local communities should use these public funds for local community-agreed, socio-economic development projects such as schools, health centres and feeder roads. Guide-lines on the use of community funds have since been pre-pared and agreed with the communities.
Safari hunting outfitters, awarded hunting concessions in Game Management Areas, have made specific pledges to de-velop areas where they operate. The pledges are in the form of social and economic infrastructure and wildlife protection.
Fisheries Legislation
The Fisheries Act Cap 314, 1974, provides for the conser-vation and protection of aquatic biodiversity. A specific
policy on fisheries is currently absent as fisheries are con-sidered to be a sub-sector of agriculture, and as such the sector is covered under the national agriculture policy. The national agriculture policy provides for the provision of a legal framework for community participation in shar-ing the responsibility for better management of aquatic resources and the building of capacity among stakehold-ers in the fisheries subsector. Although the department of fisheries is engaged in CBNRM activities, there is no pro-vision in the Fisheries Act for co-management of the fish resources with local communities. Efforts are, however, underway to review the Act in order to bring it in line with current national and international approaches to natural resources management. There is also a Draft Fisheries Bill from 1998 which is awaiting parliamentary enactment. The Bill provides for community involvement in fisheries management.
Forest Legislation
The Forest Act, 1973, and the Forest Policy, 1998, guide the forestry sector. The 1973 Act removed provisions from the 1941 Forest Act that had empowered local and rural authorities to issue orders for the management of the forests, and their exploitation and for them to realize a direct financial benefit. The shift is a factor in increased encroachment and deforestation.
The National Environmental Action Plan, 1994, identified deforestation as one of the five main areas of environmen-tal concern to Zambia. Subsequently the Zambian Govern-ment prepared the Zambia Forestry Action Plan (ZFAP) of 1994. The ZFAP process subsequently resulted in the 1998 Forest Policy and the Forest Act of 1999, which have yet to be implemented. Both the Policy and new Act note the need for the involvement of local communities in forest management and for the communities to share benefits arising from their participation in forest management through a programme known as Joint Forest Manage-ment (JFM). In addition to promoting JFM the 1999 Forest Act provides for the establishment of the Zambia Forestry Commission (ZAFCOM) as an institutional structure to re-place the Forestry Department.
4.4.6 Stakeholders and Institutional Capacity
This section looks at the existing and some proposed legal and administrative arrangements in the wildlife, fisheries, forests and agricultural sectors, and assesses the institu-tions’ capacity to administer and implement the Bonn Guidelines. Gaps in meeting the Bonn Guidelines in the legal and administrative arrangements for ABS implemen-tation are identified.
Institutions that manage access and benefit sharing proc-esses should be competent, i.e have the full legal mandate, knowledge, skills and expertise in the application of the principles of Access and Benefit Sharing as articulated in Articles 8j, 10c, 15,16,17,18,19, 20 and 21 of the CBD and in accordance with the Bonn Guidelines.
64
Zambia’s legal and administrative machinery for the im-plementation of the Bonn Guidelines is embedded within the legal, policy and institutional framework for the im-plementation of the country’s overall CBD obligations as articulated in the National Biodiversity Strategy and Ac-tion Plan. This is largely according to legal and statutory obligations and mandates accorded to relevant biodiver-sity management State Departments and Institutions within the Ministry of Tourism, Environment and Natural Resources and in each natural resource sector.
Stakeholders
The Box below provides a list of various stakeholders that are involved in ABS arrangements and administration in Zambia.
Institutions
The criteria for assessing the institutions’ capacity to ad-minister and implement the Bonn Guidelines are the fol-lowing broad areas of the Bonn Guidelines on ABS:
1. General provisions: meeting the objectives of the guidelines;
2. Roles and responsibilities in access and benefit-sharing: national focal point, competent national authority;
3. Participation of stakeholders;
4. Steps in the access and benefit sharing: overall strat-egy, identification of steps, prior informed consent;
5. Mutually agreed terms: basic requirements for mutu-ally agreed terms, indicative list of mutually agreed terms, benefit sharing, type of benefits, timing of ben-efits, distribution of benefits, mechanisms for benefit sharing; and
6. Other Provisions: incentives, national monitoring and reporting, means for verification, settlement of dis-putes, remedies.
The assessment looked at the key management institu-tions that are responsible for genetic resources and evalu-ated their competence, capacity and effectiveness in im-plementing each one of these criteria.
Box 6 ABS Stakeholders in Zambia
Institution Roles
GovernmentInstitutions
Ministry of Tourism, Environment and Natural Resources (MTENR) Policy, Co-ordination
Forestry Department (FD) Community Based Natural Resources Management Programmes, Joint Forest Management and Research
Department of Fisheries (DoF) Co-management programme on Community Based Natural Resource Management, research
Department of Water Affairs (DoWA) Policy, water rights, water resources management
Ministry of Science, Technology and Vocational Training (MSTVT) Policy, co-ordination
Ministry of Justice (MoJ) Policy and legislation
Ministry of Local Government and Housing (MoLG&H) Decentralization, coordination, policy
Ministry of Lands (MoL) Land policy
Ministry of Education (MoE) Dissemination and advocacy
Ministry of Mines (MoM) Conservation and exploration of mineral resources
Patents Office Protection of Intellectual Property Rights
National Heritage Conservation Commission (NHCC) Conservation of heritage sites
Zambia Agricultural Research Institute (ZARI) Farming systems, plant genetic resources, research, IPRs
Semi-AutonomousBodies
Environmental Council of Zambia (ECZ) Enforcement of Environmental Impact Assessment Guidelines
65
Zambia Wildlife Authority (ZAWA) Community Based Natural Resource Management, research
National Science & Technological Council (NSTC) Policy development for Science & Technology, indig-enous technical development programmes
National Institute for Scientific and Industrial Research (NISIR) Research and development, IPRs
AcademicInstitutions
University of Zambia (UNZA)Training of trainers, research, dissemination, infor-mation & data management systems (agric, natural resources)
Copperbelt University (CBU) Same as above (natural resources)
Zambia Forestry College (ZFC) Same as above (forestry)
Natural Resources Development College (NRDC) Same as above (agric, natural resources)
CommunityBasedOrganizations(CBOs)
Community Based Natural Resources Manage-ment and Sustainable Agriculture (CONASA)
Community Based Natural Resources Management, Joint Forest Management, co-management
Community Based Natural Resources Manage-ment (CBNRM) Forum JFM, CBNRM, co-management
Community Resource Boards (CRBs) Community Based Natural Resources Management, Joint Forest Management, co-management
Local and Indigenous People
Traditional Leaders Allocation of land, settlement of disputes
LocalNGOs
Wildlife Environmental Conservation Society of Zambia (WECSZ) CBNRM, training of trainers, advocacy
Zambia National Farmers Union (ZNFU) Plant breeders rights, sui generis systems
Environmental Conservation Association of Zam-bia (ECAZ) Advocacy, CBNRM, training of trainers
InternationalNGOs
World-Wide Fund for Nature (WWF) CBNRM, training of trainers, advocacy
International Union for Nature Conservation (IUCN) CBNRM, TBNRM, training of trainers, advocacy
African Wildlife Foundation (AWF) CBNRM, TBNRM, training of trainers, advocacy
MS Zambia CBNRM, training of trainers, advocacy
PrivateSector
Muzama Trust CBNRM, certification of forest products
Kaloko Trust CBNRM
Kasanka Trust CBNRM
Associations
Traditional Healers Practitioners Association of Zambia Research on use of traditional medicines
66
Ministry of Tourism, Environment and Natural Resources
The Ministry of Tourism, Environment and Natural Re-sources (MTENR), which includes the Forest Department, Zambia Wildlife Authority (ZAWA), National Heritage Conservation Commission (NHCC) and the Environmental Council of Zambia, is a key Government institution in en-vironmental management in Zambia. Other Government institutions include: the Ministry of Lands, Ministry of Ag-riculture and Cooperatives (which includes the Fisheries Department), Ministry of Local Government and Housing, Ministry of Energy and Water Development, Ministry of Mines and Mineral Development and Ministry of Finance and National Planning.
The MTENR is responsible for the formulation and im-plementation of policies related to the protection of the environment, pollution control, conservation and rational exploitation of natural resources on a sustainable basis, for the benefit of present and future generations. It is also responsible for all aspects related to the role of Govern-ment in tourism and tourism development. The Ministry is the government focal point on matters of the Convention on Biological Diversity, and is therefore a key institution in the management of the genetic resources of the coun-try. MTENR has a department of Environment and Natural Resources that co-ordinates the implementation of ABS in the country, and is the CBD National Focal Point and Na-tional Competent Authority. The Department spearheads all initiatives for biodiversity conservation by provid-ing policy guidance and general supervision. In addition MTENR has a Planning and Information Department that spearheads policy formulation, and ensures that Cabinet adopts the policies for Tourism, Environment and Natural Resources. The Department is also mandated to develop information systems, disseminate information and moni-tor the implementation of programmes in the Ministry. Though this Department is responsible for policy formula-tion, it has no legal expertise and may therefore, without outsourcing, not comprehensively handle aspects of ABS and community rights over resources.
The MTENR has the legal and institutional mandate to meet the objectives of theBonn Guidelines and serves as the National Focal Point and indeed the Competent Na-tional Authority for ABS in Zambia, through its work of co-ordinating the wildlife, forest and fisheries sectors. The major constraint is the lack of an operational Clearing-House Mechanism for effective sharing of information to all stakeholders on various aspects of ABS. While the MTENR is the de facto Competent National Authority, it has limited capacity as a Ministry, and may call upon oth-er Ministries such as the Ministry of Justice to effect some of the requirements and provisions.
Specific sectoral departments and institutions under the MTENR carry out the mandates of the ministry in their dai-ly activities – for example, the wildlife and forestry sectors through the Zambia Wildlife Authority and the Forestry Department respectively. The capacities of these institu-tions are discussed in detail below.
Wildlife Sector – Zambia Wildlife Authority
The Zambia Wildlife Authority (ZAWA) is the principal institution for wildlife management in the country. It is a statutory body as established by an Act of Parliament, No.12, 1998. ZAWA’s mission is to contribute to the pres-ervation of Zambia’s heritage, ecosystem and biodiversity for present and future generations through conservation of the country’s wildlife. The Zambia Wildlife Act provides for the current management of wildlife. The Act outlines ZAWA’s responsibilities concerning protected areas man-agement and regulation. The Act provides for protected species, licensing, entry in wildlife protected areas, man-agement planning requirements for national parks and game management areas, and enforcement of wildlife-related activities for compliance with international agree-ments, including the CBD.
ZAWA as such serves as the central government author-ity for tendering concessions, setting hunting quotas, issuing hunting licences and monitoring and enforcing hunting and wildlife management in the GMAs. ZAWA’s functions in relation to ABS are the establishment, con-trol and management of Game Management Areas (GMAs) as well as the sustainable use of wildlife and the effective management of the wildlife habitat and GMAs, so as to enhance the benefits of the GMAs both to local communities and to the wildlife estate. GMAs are man-aged in partnership with local communities through Community Resource Boards, which are registered lo-cal institutions to manage wildlife in GMAs. ZAWA has a GMA directorate that manages wildlife in partnership with local communities. It has three other directorates namely, Conservation, Research and Commercial Services that cater for implementation of its mandate as the stat-utory body responsible for wildlife management in the country. Therefore, in terms of structures and mandates, ZAWA is set up to spearhead the implementation of ABS in accordance with the Bonn Guidelines.
1. General Provisions: Meeting the Objectives of theGuidelinesThrough its Directorates, ZAWA has the institutional and administrative machinery to implement ABS measures and meet most of the objectives of the Bonn Guidelines. Through the CRBs and community based wildlife management programmes, ZAWA contrib-utes effectively to the conservation and sustainable use of wildlife resources. It provides capacity-building to communities in CRBs through its GMA Directorate and other NGOs. By promoting and effecting sharing of wildlife generated revenues with communities, the private sector and government, ZAWA is contributing to poverty alleviation and is indeed supportive of the realization of food security in rural areas, and provision of social services such as health care through commu-nity projects funded by wildlife dividends to communi-ties. However, there are many obstacles to meeting ad-equately all the objectives of the Guidelines. The objec-tive - to promote the adequate and effective transfer of appropriate technology to developing countries and Zambia in particular, is not adequately met. Currently,
67
the transfer of technology is largely limited to promo-tion of commercial interests by the users and less on conservation and sustainable use. Additionally, the lack of adequate funding limits taxonomic research.
Contributions to poverty alleviation, food security, health and cultural integrity are often lacking. Under the system of Community Resource Boards, discussed earlier, communities receive a 50% share of hunting li-cense revenues. There are questions as to whether the sharing of revenues is fair - both between ZAWA and the CRBs - as well as between CRBs and VAGs, and the community.
2. RolesandResponsibilitiesinAccessandBenefit-Shar-ing:NationalFocalPoint,CompetentNationalAuthorityVarious sesctor institutions share the responsibility for ABS in Zambia. The Zambia Wildlife Authority has wildlife resources related roles and responsibilities as provided in the Zambia Wildlife Act, 1998. ZAWA can therefore be considered as a National Focal Point and Competent National Authority on matters of ABS re-lated to wildlife management. ZAWA has continuously reviewed its policy, administrative and legal frame-work to ensure that ABS arrangements comply with the Bonn Guidelines.
ZAWA’s community empowerment programme, through the sharing of benefits from wildlife use with the communities through the CRBs, is a major attempt in Zambia towards ensuring fair and equitable shar-ing of benefits. As the providers of wildlife resource products, ZAWA supplies these resources as the sole legal national entity. All restrictions on wildlife access enforced by ZAWA are as provided for in the Zambia Wildlife Act, and hence there is no room for arbitrary restrictions on the wildlife resources.
3. ParticipationofStakeholdersZAWA through its CBNRM programme has developed systems of engagement with various stakeholders in-cluding the private sector, CBOs, NGOs and communi-ties. As such, a wide range of stakeholders are consult-ed and their views taken into account when determin-ing access, negotiating and implementing various ABS arrangements and Mutually Agreed Terms and Agree-ments in Benefit Sharing. All stakeholders do partici-pate in the development of various national strategies and programmes through various forums such as in the on-going process of developing the Wildlife Based CBNRM Policy.
4. Steps in the ABS: Overall Strategy, Identification ofStepsandPriorInformedConsent
Overall StrategyZambia does not have an overall access and benefit sharing strategy; however, one of the goals of the Na-tional Biodiversity Strategy and Action Plan is equita-ble sharing of benefits accruing from the use of the country’s biological resources. ZAWA is in this regard
spearheading the promotion of this goal through its CBNRM programme in GMAs.
Identification of StepsZAWA has established steps in the process of obtain-ing access to wildlife resources and products through various access systems, such as local national hunting license, district hunting license, and special license. The process and most of the steps for obtaining access to wildlife resources are clear and consistently applied. However, the current steps do not always emphasize activities in research concerning wildlife management and development.
Prior Informed ConsentPrior Informed Consent is addressed by ZAWA. It pub-lishes annually quotas for the following year to pro-vide general consent on the annual quota for various utilization types. The notice includes timing and dead-lines for various types of wildlife use, and specifies the uses for which consent is granted and the permitted uses in accordance with mutually agreed terms. In the case of the wildlife utilization licenses issued, the type and numbers of wildlife species for which access is granted, period and duration of access granted and the geographical area are specified. In the case of hunting concessions or permits, information is specified on the types of benefits - including pledges to be obtained by local communities. The procedures for obtaining ac-cess permits or licenses are transparent and open to all interested parties.
There are efforts to involve all relevant stakeholders - however, there is limited actual and genuine participa-tion and consultation in the award of hunting conces-sions. Secondly, there are no legal rights or traditional national access policies established for indigenous and local communities, though communities are consulted during the concession awarding processes. There is no guidance on traditional knowledge associated with wildlife resources. Some procedures for obtaining prior informed consent in wildlife use are not adequately addressed by ZAWA. These include the identification of where the research and development will take place and information on how any research and develop-ment activities will be carried out. Research contribu-tion by resource users is generally not taken into ac-count in the prior informed consent procedures.
Even though the PIC system in ZAWA is not as elabo-rate as outlined by the Bonn Guidelines, there is a sys-tem that can be improved by incorporating all the basic principles and elements of the prior informed consent.
5. MutuallyAgreedTerms
Basic Requirements for Mutually Agreed TermsMutually Agreed Terms are enshrined in the wildlife legislation, administrative and policy measures. For ZAWA these are contained in the various permits and licenses. Therefore, there is limited negotiation on
68
what should be mutually agreed, as the basic terms are prepared by ZAWA. The indicative list of the mutu-ally agreed terms is well represented on the various li-censes and permits. However, terms on customary use of genetic resources related knowledge, innovations and practices of indigenous and local communities are largely missing from the MATs on these regulatory documents.
Indicative List of Mutually Agreed TermsZAWA has addressed most of the items on the indica-tive list of Mutually Agreed Terms in the Bonn Guide-lines. For example, under the CBNRM programme, benefit-sharing is addressed. The conditions, obliga-tions of various stakeholders, procedures and mecha-nisms of benefits are all well articulated in the CRBs and ZAWA agreements in line with the Zambia Wild-life Act. However, there are weaknesses on issues of capacity building in conservation and sustainable use and on ascertaining whether the knowledge, any in-novations and practices of indigenous people are be-ing respected in the agreements and their enforce-ment. This is mainly because the formal agreements do not as yet incorporate indigenous technologies and practices in legal wildlife utilization types.
Benefit-SharingBenefit-sharing in ZAWA covers conditions, obliga-tions, procedures, distribution and types of benefits. However, it is usually not included in the Mutually Agreed Terms in the agreements by users, but is rath-er included in a separate process in agreements with the communities with whom the revenue is shared. In other words, while the Zambia Wildlife Act, 1998 does not indicate that the private sector utilizing resources in communal areas should assist com-munities through provision of social services, these requirements are included in the bidding processes for concessions to operate consumptive and non-consumptive safaris.
The ZAWA arrangement in wildlife utilization GMAs is mainly monetary shares of wildlife-generated revenue from license fees and a few joint ventures. Non-mon-etary benefits are in-kind contributions according to pledges made by the users in the case of Safari hunting. A number of tour operators collaborate and cooperate in, and contribute to education and training as in the case of Kapani Lodge and Yosef Primary School in Mfu-we. Non-monetary benefits have also been in the form of institutional capacity building through support to anti-poaching activities by tour operators as is the case with Conservation Lower Zambezi in Lower Zambezi national Park. Other non-monetary benefits in wildlife include general contributions of the sector to the local economies especially through provision of employment to local people and taxes to Local Authorities.
The timing of delivery of benefits particularly to local communities is well stipulated. Community Resources Boards disburse funds to the local communities within two weeks after each quarter.
The distribution of benefits is through CBNRM pro-grammes in ZAWA, is largely limited to communities and leaves out other stakeholders contributing to con-servation and sustainable use of wildlife. Benefits are distributed, based on predetermined percentages that are largely arbitrary and not based on various benefici-ary contributions to the management of wildlife. Cur-rently the distribution of benefits from wildlife use is limited to ZAWA and the local communities. The dis-trict local authorities, NGOs, academic and research institutions are excluded, even though they too con-tribute to sustainable use of wildlife biodiversity. The utilization ratios for the community funds are also predetermined in the guidelines for use of community wildlife revenues as follows: wildlife protection (45%), socio-economic development projects (35%) and CRB administration (20%).
Benefit-sharing mechanisms are elaborate, but the monetary benefits cannot be altered by the parties. However, they can agree on the non-monetary ben-efits. In the case of Concession Agreements, they are part of the prior agreements within the signed con-cessions at the start of the commercial production agreement. The sharing mechanism varies, depending on whether it is revenue from hunting licenses or con-cession fees. The current mechanisms do not include full cooperation in scientific research, technology de-velopment and other benefits derived from commer-cial production using the wildlife resources.
6. OtherProvisions:Incentives,NationalMonitoringandReporting,MeansforVerification,SettlementofDis-putes,Remedies
IncentivesThe CBNRM programme in GMAs is designed as an in-centive package for local communities to support con-servation and sustainable use of wildlife resources in the country. However, the extent to which the benefit sharing schemes provides incentives that foster effi-cient allocation of benefits is questionable. The use of markets and valuation methods to allocate benefits as incentives for conservation needs further appraisal. Obstacles to conservation and sustainable use of wild-life include unrealistic fines for offenders.
Accountability in Implementing Access and Benefit Sharing MeasuresTo promote accountability in ABS, ZAWA and the CRBs use reporting systems for shared revenues where in-formation disclosure is possible. There are guidelines on the use of community funds accrued from wildlife management for CRBs. These guidelines specify the use of funds including infrastructure development, water supply, transport, wildlife protection and train-ing. In addition, all CRBs provide quarterly financial and activity reports to ZAWA and audited accounts of the funds received. Lack of capacity and other social cultural barriers undermines the effectiveness of this mechanism.
69
Monitoring and ReportingCommunities and the private sector are involved in monitoring and with ZAWA Wildlife Officers, they en-sure compliance with the license or permit for wildlife. There is little research and stakeholder property rights are not established by legislation; therefore it is uncer-tain whether wildlife access links with research or de-velopment priorities or whether there is any concern for local community rights. In some instances, wildlife utilization quotas are set without current animal cen-sus information.
Means of VerificationThere is no system of voluntary certification, mainly due to lack of awareness of the Bonn Guidelines and there is no legislation informed by the guidelines.
Settlement of DisputesThe Mutually Agreed Terms as reflected in various licenses and also the legal system, provides for arbi-tration arrangements agreed upon in the producer/user agreements, which may include penalties and are stipulated in these contractual agreements. The Hunt-ing Concession Agreement between ZAWA, the Lo-cal Community and the Safari Operators provides for events of default and corresponding penalties includ-ing termination, which are legally binding.
RemediesThere are measures that may be taken as remedies un-der the Zambia Wildlife Act No.12, 1998, and Subsidiary Statutory Instruments for regulating and administer-ing access and benefit sharing in the wildlife sector. One such example is the Zambia Wildlife (Elephant) (Sport hunting) Regulations, 2005, which regulates the hunting of elephants for sport. While all such pro-visions exist, the obstacles to effective application are usually a result of limited infrastructure or human re-source capacity within ZAWA.
Capacity Assessment ZAWA’s Directorate of GMAs is responsible for the coordination and implementation of ABS principles within the Authority’s CBNRM programmes. However, the staffing of the Directorate does not have repre-sentation at the lower levels of the organization as is the case with other Directorates such as Conservation Directorate. Therefore, while elaborate government le-gal and administrative machinery exists, the capacity of ZAWA to enforce and implement these provisions is limited and remains a major obstacle in effectively implemting ABS measures.
As the main community institution in wildlife man-agement, CRBs are charged with a number of man-dates and responsibilities, but typically lack institu-tional negotiations and resource monitoring capacity. There is a need to support institutional strengthen-ing within these and related areas to ensure that CRBs develop as democratic, transparent and capable institutions that are able to support the ABS process locally. Both the wildlife management strength and
weakness of the CRBs is based on their close connec-tion with ZAWA. Funding from revenue sharing with ZAWA is unpredictable, and they are not individually registered CBOs, but can be established and disman-tled according to the Wildlife Act. Their collective ca-pacity and negotiating power is weak, and this makes it impossible for them to claim their entitlements in line with the provisions of the wildlife legislation. Transparency and accountability is inadeqauate at most levels - between CRBs and ZAWA, and Village Area Groups, or between farmers and their Village Ac-tion Groups (VAGs). The VAGs are unable to prevent local elite from dominating CRBs.
The concept and practice of CBNRM as a major strat-egy for ABS implementation has become of great stra-tegic importance and an essential part of contempo-rary wildlife management in Zambia. However, ABS, through CBNRM programmes in the wildlife sector has in the main, been integrated into the strategies, func-tions and culture of ZAWA. This challenges ZAWA’s ability to become an effective National Authority for ABS in the wildlife sector.
ABS implementation through CBNRM needs to be regarded and taken as an important strategy for the Zambia Wildlife Authority to achieve its wildlife conservation objectives. The envisaged end point of ABS implementation should be to gain the apprecia-tion, understanding and ultimately the commitment of communities to take responsibility for the con-servation of the wildlife and all biological resources occurring on their land. If ABS measures were imple-mented in line with the Bonn Guidelines, it may help reduce the financial and management commitments of ZAWA to conserve the nation’s wildlife and pro-tected areas.
While ZAWA has implemented environmental educa-tion and extension services through the CRBs, it is still lacks relevant, caring, transparent, and quality services for the communities. The activities make little con-tribution to local level socio-economic development objectives such as joint venture partnerships, job crea-tion, small business creation and direct material ben-efits from wildlife utilization both consumptive (hunt-ing) and non-consumptive (tourism). An ineffective problem animal control (PAC) programme remains a source of conflict between wildlife management and other community land uses and affects communities’ appreciation of wildlife. The Boards (CRBs), lack appropriate legal and institu-tional backing for devolution to manage the wildlife resources in their area. This limits the extent to which ZAWA should fully delegate resource use/manage-ment rights and responsibilities to communites. The Boards lack capacity and legislative support to man-age decision-making on resource utilization and the collection of revenues (hunting fees, lodge royalties etc) directly from the resource users.
70
ZAWA has been unable to effectively monitor and evaluate their projects over the past 20 years. Few programmes have undertaken baseline surveys on at-titudes, knowledge, awareness, living standards and wildlife/ecological conditions. A monitoring and eval-uation system that goes beyond donor or government reporting would facilitate ABS processes.
Attempts at CBNRM have neglected to build the ca-pacity of ZAWA to support the local boards. While some revenue from resource utilization in GMAs trick-les to CRBs, the communities have to manage and utilize their natural resources without technical and financial support. Even ZAWA faces a shortage of op-erational funds, thus CBNRM is secondary to ZAWA’s immediate priority of developing its enforcement ca-pability. In fact, this shortage of operational funding has necessitated that ZAWA retains 50% of hunting revenues from GMAs leaving donors, NGOs and com-munities somewhat aggrieved.
ZAWA currently has only limited expertise in taking on the role of the regulating and monitoring agency with-in specific ABS processes, and lacks experience in the implementation of the Bonn Guidelines. Capacities to facilitate and implement ABS in ZAWA are limited, and there is need to build necessary capacities at all levels. However, the longer it takes to successfully establish, functional, fully empowered and accountable CRBs and VAGs that accrue meaningful benefits on a sustainable basis from wildlife utilization, the greater the risk of the eventual demise of all wildlife resources in the GMAs.
Forestry Sector – Forestry Department
The formal and informal sectors are both involved in forestry and management. Planning, coordina-tion and monitoring of legitimate activities are the responsibility of the Forest Department. It manages and conserves forest resources to meet national and local demand for timber and other forest products and services. It is empowered to control and manage all gazetted forest areas (a total are of 9.6% of Zam-bia), and trees and forest produce on non-gazetted forest land (60% of the country). The Department re-searches forests and forest products and offers a na-tional forest extension service. There are five special-ized divisions - Beekeeping, Forest Products Research, Forest Research, Management Division, Extension and Regions / Provincial Division.
The Department has representation and functions at national, provincial and district levels. At the national level the activities are - formulation and review of the forest policy and co-ordination of its implementation, enforcement of rules and regulations, preparing and ensuring effective implementation of various ABS related agreements. At the provincial level, the func-tions include providing policy implementation guide-lines to districts, coordinating and monitoring policy implementation and forest management activities, ensuring effective implementation of various agree-
ments contained in the Policy and Act, including ABS proc-esses. The district level has several activities, and those re-lated to ABS include providing extension services that pro-mote ABS processes to local communities, private sector and interested parties in the district, collecting revenues realized from sale of forest products and building capacity of local communities.
Ex-situ forest resources conservation collections include botanical gardens and the Forest Research Herbarium. The Munda Wanga Botanical Garden located in Chilanga contains various flora and plant specimens. There are four herbaria in Zambia, the largest being the Forest Herbarium located in Kitwe. It was established in the 1930s in Ndola. It houses about 55,000 Zambian plant specimens almost all 6,400 indigenous plant species found in Zambia. These herbaria contain collections of duplicate voucher speci-mens of wild plant species after original plant specimens were collected. The Forest Herbarium has specific infor-mation, herbarium notes, and vegetation descriptions at ecosystem and district levels. This information is im-portant for forest management and conservation. There are botanical reserves of important Zambian vegetation. These are small areas of woodland or forest with repre-sentative vegetation of a particular part of the country. They are important for comparative studies of vegetation affected by various change processes and for monitoring changes in plant diversity. This has become critical, due to the high levels of deforestation estimated at 800,000 hectares annually.
1. GeneralProvisions:MeetingtheObjectivesoftheGuidelinesThe Forest Department through the Extension Serv-ices Division at the provincial and district levels, has the institutional and administrative machinery to im-plement ABS and meet most of the objectives of the Bonn Guidelines.
However, revenue-sharing arising from use of for-est resources, decentralization of licensing to com-munities and the structure of the forest fees are key problems areas of community based forest manage-ment based on the 1973 Forest Act. The Act does not include the concepts of participatory, collaborative or joint forest management. At its enactment, the gov-ernment policy objective was to vest the ownership, control and management of all trees and forest pro-duce on Zambian land in the State, with this power exercised on behalf of Government by the Chief Con-servator of Forests. The Act does not have an enabling provision for the transfer of ownership of forests. Un-der the Lands Act, 1995, a person may acquire land but not natural resources, oil, or the mineral resources on it. They are vested in the State and the State reserves rights of re-entry.
Unfortunately, the Forest Act No.7, 1999, which pro-vides for community involvement, in forestry manage-ment has not come into effect because of financial, legal and administrative huddles. A further legal com-plication is that even in the Forest act No.7, 1999, Joint
71
Forest Management is only allowed in Local Forests and a number of other substantive provisions of the Act already require amendments. Therefore, most of the objectives of the Bonn Guidelines in line with Arti-cles 8j, 10, 15-21 are not being met in the forestry sector. There has been limited capacity building for ABS and technology transfer is specific for enhancement of ca-pacities to harvest efficiently and effectively with little or no support to conservation and sustainable use of forest resources.
2. RolesandResponsibilitiesinAccessandBenefit-Sharing:NationalFocalPoint,CompetentNationalAuthorityThe roles and responsibilities in forest management in Zambia with the Forestry Department, as provided for in the Forest Act of 1973 and the new Forest Act No.7, 1999.
The Forests Act No.7, though not fully implemented, is a positive development. It embraces some of the Bonn Guidelines by providing for the participation of local communities, traditional institutions, NGOs, and other stakeholders in sustainable forest man-agement. This has in turn broadened the legal provi-sion for more institutions to be involved in sustain-able forest management and allows for different roles and responsibilities to be performed by various stakeholders. However, the Forestry Department re-tains most of the planning, regulatory and manage-ment roles and responsibilities for forest manage-ment. The Department therefore performs the roles and responsibilities of the National Focal Point and Competent Authority in all forest related access and benefit sharing issues.
Participation of StakeholdersThe implementation of the Bonn Guidelines remains erratic due to the non-enforcement of the Forest Act No.7 of 1999. Though elaborate, institutional and administrative arrangements are in place at various levels for implementation of ABS through joint for-est management, the participation of stakeholders is still impeded by limited implementation of the em-powering Act (Forest Act No.7, 1999). However, under the Joint Forest Management in the new Act, the Lo-cal Forest Committee will have the powers to develop and implement in conjunction with the Forest Com-mission, management plans for the joint forest man-agement area and to negotiate in conjunction with the commission co-manage agreements with other stakeholders.
In the process of preparing management plans, consultations will be carried out with holders of rights in the area, committees in the area and the local community in such an area. This will certainly provide a window for stakeholder participation in sustainable forest management as required by the Bonn Guidelines.
3. StepsintheAccessandBenefitSharing:Overallstrat-egy,IdentificationofSteps,PriorInformedConsent
Overall StrategyZambia does not have an overall access and benefit-sharing strategy, however the goals and objectives of the National Biodiversity Strategy and Action Plan support conservation, sustainable use and the eq-uitable sharing of benefits accruing from the use of the country’s biological resources, including forests. The declaration of Joint Forest Management Areas under Part V of the Forest Act No. 7 of 1999 provides the legal framework for future ABS in the forest sec-tor. The Forest Department through the Provincial Forest Action Programme (PFAP) promotes this goal through its Joint Forest Management Initiative that will be implemented when the new 1999 Forest Act is in force.
Identification of StepsThe Forest Department has laid a process of obtain-ing access to forest products as provided for in both the 1973 and 1999 Forest Acts through issuance of li-censes and conditions of licenses. These may include sawmill licenses, pit-sawing license, casual license and conveyance licenses. The process for obtain-ing access to forest resources is well identified and consistently applied where resources and capacities exist. However, these steps do not encompass activi-ties in research, development and conservation of forests by parties that acquire access agreements to use the forests.
Prior Informed ConsentThe Forest department uses various public communi-cation media including the government gazette to pro-vide the general prior informed consent on the conces-sion issued and conditions. The Public Notices include the geographical area of concession from which forest products are to be harvested and the timing of the harvest as well as the tree species to be harvested. The procedures for obtaining access permits or licenses are transparent and open to all interested parties. Under the Joint Forest Management Programme, an area can be declared a Joint Forest Management Area only with the consent of the local community. The basic princi-ples of prior informed consent are fully provided for in the arrangements for future ABS implementation in the forest sector.
The Forest Department is the Competent National Au-thority for PIC at national, provisional and local levels as mandated by the Forest Act. However, under cur-rent access arrangements, the involvement of stake-holders is minimal as the Forest Department has the sole responsibility for granting such consent though in consultation with local communities where access to concessions is involved but with limited transparency. Similarly, the approval and involvement of holders of traditional knowledge and innovations in granting of prior informed consent is not done and there are no established legal rights of local communities associat-
72
ed with forest resources being accessed or where tra-ditional knowledge associated with forest resources is being accessed and exploited.
Most procedures for obtaining PIC as outlined in the Guidelines are met, except for identification of where research and development should take place and in-formation on how such research and development may be affected. While permission to access forest resources may not necessarily mean permission to ac-cess associated knowledge and vice versa, there is no capacity to enforce this important aspect in all access provisions.
4. MutuallyAgreedTerms
Basic Requirements for Mutually Agreed TermsThe various permits and licenses contain the MATs and there is limited negotiation of the terms as these are standard. The minimum MATs are weak on issues of IPRs, traditional knowledge, research and develop-ment.
Indicative List of Mutually Agreed TermsThe indicative list of the mutually agreed terms is in the various licenses and concessions. However, terms on knowledge, innovations and practices of indige-nous and local communities are largely missing from the MATs except under the provisions of Forest Man-agement Committees.
Benefit-SharingUnder the Joint Forest Management Programme, benefit-sharing is fully addressed as one of the mutu-ally agreed terms. The Forest Act, 1999, outlines the conditions, obligations of various stakeholders, proce-dures and mechanisms of benefit sharing in terms of percentage of the revenues payable in respect of dif-ferent licenses for Joint Management Areas. However, benefit-sharing is not included in the access licenses and may be negotiated separately by the parties.
The future arrangement under Joint Forest Manage-ment is that license fees and other revenue including donations, will be paid to a Joint Management Area Fund established by the Forest Management Commit-tee. This will mainly be in monetary terms rather than in-kind. It is envisaged, that concessionaires may make non-monetary contributions to community social in-frastructure and to the local economies through crea-tion of employment for the local people as well as in taxes to Local District Councils.
The timing of delivery of community funds will de-pend on when the license or concession fees are pay-able by the commercial producers of forest products. However, under the current Forest Act of 1973, only the Forest Department can receive funds from forest resources. This aspect of the Bonn Guidelines has not been met but it is provided for under the Joint Man-agement Area Fund.
When the New Forest Act of 1999 is in effect, a system of benefit sharing is likely to be implemented. For now, no benefits are distributed to communities or any oth-er stakeholder other than the government through the Forest Department. However, the distribution of benefits to communities and other stakeholders is the core concept in the proposed Joint Forest Manage-ment arrangements.
In the provisions of the New Forest Act of 1999, funds payable for use of forest resources within a Joint forest Management Area will be paid into the Fund set up by the Forest Management Committee. The money from the fund should meet technical and administrative services costs. The proposed benefit sharing mecha-nism under Joint Forest Management is not flexible as it proposes preset percentages and does not take into account technology development and scientific research contributions by various stakeholders.
5. OtherProvisions:Incentives,NationalMonitoringandReporting,MeansforVerification,SettlementofDis-putes,Remedies
IncentivesThe Joint Forest Management programme provided for in the Forest Act, 1999, recognizes that forest resourc-es play an important role in local people’s livelihoods; therefore, the programme would encourage local com-munities to manage forests in a sustainable way. How-ever, the extent to which the benefit-sharing scheme will provide incentives that will foster efficient alloca-tion of benefits will only be ascertained when the pro-gramme is implemented fully. Even so, the proposed incentive system does not effectively mitigate against perverse incentives, and no specific mention of use of valuation methods and markets to promote conserva-tion and sustainable use of forests is made. In fact, the Forest Act, 1999, provides for license fees, and abolishes the fixing of prices for forest products in line with Gov-ernment policy of a free market economy. This does not promote economic valuation of forest products, which is useful in determining realistic market prices for for-est products. Inclusion of a wide range of incentive measures prior to the commencement of Joint forest Management will be necessary if the Bonn Guidelines are to be met in the implementation of ABS policies in the forestry sector.
Joint Forest Management will only provide the desired incentive if participating communities receive rev-enues from their forest management activities. This has been a sticking point in the wildlife management ABS experience in the country.
Accountability in Implementing Access and Benefit SharingThe Forest Department and subsequently the Forest Commission will implement the financial provisions for Joint Forest Management as provided for in the Forest Act, 1999. Under this provision, a Joint Forest Management Committee will be required to, a not
73
later than one hundred and eighty days after the end of a financial year, submit to the local community and the Forest Commission an audited balance sheet, an audited statement of income and expenditure and a report concerning its activities during the financial year. This however, will require building of the capac-ity of the local communities and Joint Forest Manage-ment Committees to implement the accountability measures.
Monitoring and ReportingThe overall monitoring and evaluation of forest re-sources is the responsibility of the Management Divi-sion of the Forest Department in line with Forest Area Management Plans. The involvement of communities in management of forests, particularly in Joint Forest Areas, will provide a good monitoring and reporting system, as the communities will be direct beneficiar-ies from forest resources utilization through revenues accruing from their use.
In addition, concession license holders are also respon-sible for monitoring of the resource in the concession-designated areas under the supervision of the Forest Department. The Forest Act No.7, 1999, also introduces in Part XI for regulation of export and import struc-tures for forest produce - a crucial aspect in monitor-ing timber shipments from Zambia and the introduc-tion of foreign species.
Means of VerificationThere are no specific national legal instruments with ABS provisions informed by the Bonn Guidelines. There is also no system of voluntary certification. The Uchi Mukula Trust attempted certification and eco-labeling of timber and honey but this has since failed due to lack of capacity and commitment by various stake-holders to meet the certification requirements.
Settlement of DisputesParts XIII and IV of the Forest Act No.7, 1999, provides for arbitration if arrangements agreed upon in produc-er agreements are not able to address such disputes. This may also make use of the penalties stipulated in contractual agreements in line with Parts XIII and XIV of the Forest Act using provisions for law enforcement, forest offences, penalties and forfeiture. Provisions for appeal also exist in case of unfair or unsatisfactory settlement of any disputes.
RemediesThe remedies under the Forest Act, 1999, include stat-utory instruments for regulating access such as the de-gazetting of a national or local forest area. A statu-tory instrument may also be issued to assign control and management of a local forest to a local commu-nity, traditional authority or a Joint Forest Manage-ment Committee. Other restrictions on access to for-est products may be effected through the granting of rights, titles and other restrictions as provided for in Part IV of the Forest Act No. 7, 1999.
Capacity Assessment StatementThe Forestry Department structures are insufficient in key areas such as planning, monitoring and evaluation, extension and finance - all of which are important for access and benefit mamagement.
The research in forests and forest products is at a near stand still due to shortage of specialized research of-ficers, lack of funding for research and inadequate equipment and infrastructure for research. It is there-fore difficult to try new innovative sustainable forest management strategies including use of the Bonn Guidelines in the design and implementation of ABS arrangements in the forest sector.
Forestry extension is important in Zambia given the high incidence of deforestation, soil degradation, fuel wood shortages and poverty. Extension work is even more important for implementation of ABS related projects and programmes. However, Forestry exten-sion work can best be described as invisible due to a number of constraints and challenges. These include: shortage of trained extension staff with the neces-sary skills particularly in ABS; inadequate extension facilities, materials, funds and equipment; and lack of incentives for both the extension staff and com-munities.
Any serious attempts to implement ABS with its prin-ciples, in line with the Bonn Guidelines, in sustainable forest management and especially community forest-ry, depends on a fully functioning and effective exten-sion programmes. There is need to build the capacity of the Forestry Department, communities and other stakeholders in extension work.
The monitoring and evaluation capacity in the Depart-ment is limited. There are many weaknesses in forest planning, monitoring and evaluation. These include the absence of an overall monitoring and evaluation plan at various levels, lack of reliable data on forest resources and utilization and the lack of mechanisms and systems to transfer responsibility to local commu-nities under the Forest Act of 1973 which is still being enforced.
Traditional Institutions/ District CouncilsMost forests are on traditional land and administered by the Chiefs and their headmen and women. The tra-ditional management of forests is based on custom-ary laws where rights and decisions about use of for-est products originate from the Chief and are granted to their people. Commercial operators have to seek permission to operate from the Chief. However, all revenue goes straight to the central treasury, without benefiting the local communities.
District Councils should participate in the manage-ment of forest resources outside reserves, especially on resource utilization, and the gazetting of forests. They should be consulted by the Forest department before granting commercial licenses in areas outside
74
the forest reserves with an entitlement to receive 20% of license revenues. The councils rarely receive these funds due to theie lack of capacity to engage. The traditional and local (district) institutions involved in forest management are administratively weak in terms of financial systems, records and accountability below the minimum expected standards to deal with access and benefits sharing matters in forestry.
The general situation for ABS in the forestry sector is that there are serious legal and policy constraints, lack of capacity, lack of funds, limited technologies and in-adequate information systems. Unless these are ad-dressed, the implementation of ABS will not help in biodiversity conservation, sustainable use and poverty alleviation in the country.
Fisheries Sector - Fisheries Department
The Fisheries Department is a sub-sector department un-der the Ministry of Agriculture and Co-operatives with representation at national, province and district levels. The Department coordinates development of commercial fishing, controls fishing and conservation, and facilitates capacity building among stakeholders.
The Department’s structure involves Capture Fisheries and Aquaculture with subdivisions in Fisheries Management, Extension, Research and Training. The Department has the capacity to promote the ABS processes and policies through its fisheries co-management programmes.
1. GeneralProvisions:MeetingtheObjectivesoftheGuidelinesThe Fisheries Department structure provides a frame-work for sustainable fisheries management and im-plementation of ABS principles. The Fisheries policy based on the subsisting Fisheries Act Chapter 200, 1974, does not include the local communities within or near fishing areas as key fisheries management stakeholders. The Fisheries Act No. 21, 1974, was specif-ically enacted to provide for the development of com-mercial fishing through the control of fishing, licens-ing and payment of levies, registration of fishermen and boats, protection of certain areas and restrictions on fishing methods. This Act therefore, does not pro-vide for multiple stakeholder community participa-tion in fisheries management and benefit-sharing as all control and licensing/levying is through the Fisher-ies Department.
A draft Fisheries Bill, currently cited as the Fisheries Act, 2001, which will come into operation upon issuance of a statutory order, is under legal review. This Act will repeal and replace the Fisheries Act Cap 200 , 1974, es-tablish the Fisheries Service and the Central Fisheries Committee, to provide for the establishment of Fisher-ies Management Committees, Fisheries Zonal Manage-ment Committees and Fishing Village Management Committees and to control fishing in the country. The
new Act will also provide for conservation, manage-ment and sustainable utilization of fisheries resources. It will further provide for the registration of fishermen, their boats, fishing gears and fish farmers, licensing of fishing and development of aquaculture. The current Bill has an important provision to enhance benefits from fishery areas to surrounding local communities. The provisions of the Bill are conducive for implemen-tation of ABS in line with the Bonn Guidelines.
The Bill provides for establishment of a Fisheries Serv-ice that shall take necessary steps and measures to ensure sustainable management and development of fisheries and rational exploitation and conservation of fish stocks in fishery waters and do all such things necessary, including implementation of ABS measures to achieve this purpose. The further establishment of various divisions will help in enabling the Fisheries Services to implement its functions in aquaculture, capture fisheries, research and extension work. The general principles of management provided in Part II Section X of the Bill promotes utilization of the coun-try’s fish resources and aquaculture development to achieve ecological balance and economic growth by way of practical and accountable stakeholder partici-pation in sustainable fisheries management.
Despite the lack of enabling legislation for ABS imple-mentation in the Fisheries sector, a few CBNRM pro-grammes with some elements of ABS have been and are being implemented in anticipation of the enact-ment of the new Act. These include the SNV-Zambia initiated community-based fisheries management programme in Luapula province, which is operation-al in the Luapula River, Lake Mweru and Bangweulu swamps fisheries. The second documented initiative is the Lake Kariba Community fisheries management programme initiated with funding from the SADC project whose funding was from the GTZ - German Technological Cooperation. This initiative is operat-ing under the Fisheries Department along the shores of Lake Kariba. The local management structures in the Lake Kariba fisheries are Village Management Committees (VMCs) at the fishing village level, Zone Management Committees (ZMCs) at Chiefdom level and the Inter-Zonal Management Committee (IZC) covering the whole lakeshore from Sinazongwe to Siavonga.
These programmes face legal and policy constraints and the provisions of the Bill are weak on the following:
Provision of targeted capacity building to different ABS related management structures;
Transfer of technology appropriate technology for enhanced conservation and sustainable use of fish-eries;
The Clearing-House Mechanism as a mechanism for
75
cooperation among parties in ABS;
Taxonomic research; and
Protection of traditional knowledge and practices of indigenous and local people.
2. RolesandResponsibilitiesinAccessandBenefit-
Sharing:NationalFocalPoint,CompetentNationalAuthorityThe Fisheries sector is a sub-sector under Agricul-ture where ABS implementation has been minimal and the application of the principles has been prob-lematic. The Agricultural Sector Policy for 2001 –2010, advocates increased fish production while promoting the sustainable utilization of fisheries resources. The proposed fisheries sub-sector policy seeks to achieve sustainable fisheries management objectives, among which is the institutionalisation, through legal reform, of community participation in the management of the country’s aquatic resources and capacity building through provision of techniques in post harvest han-dling, processing and market information to all those involved in fish industry. These provisions provide the platform for the Fisheries sector to undertake roles and responsibilities in access and benefit-sharing as the National Focal Point and Competent National Au-thority. However, there is urgent need to complete further policy and legislation reviews to ensure com-pliance with Article 15 of the CBD.
3. ParticipationofStakeholdersThe proposed Agriculture Policy on the fisheries sub-sector recognizes consultations with stakeholders as an important component of a successful ABS regime. The few community based programmes being im-plemented institutions such as Fishing Village Com-mittees, Fishing Area Committees and Zonal Fishing Committees, which provide avenues for private sector, community and traditional leadership participation in sustainable fisheries management through ABS ar-rangements. All these stakeholders however, need ca-pacity building for active involvement in various ABS arrangements.
4. StepsintheAccessandBenefitSharing:Overallstrat-egy,IdentificationofSteps,PriorInformedConsent
Overall StrategyThere is no overall strategy or policy for ABS imple-mentation in Zambia despite f equitable sharing of benefits accruing from the use of the country’s bio-logical resources being a goal of the National Biodiver-sity Strategy. The provision for establishment of Zone and Village Fisheries Management Committees in the Fisheries Bill provides for local community participa-tion in the monitoring and enforcement of fishing regulations, drawing up fisheries management plans, collection of fisheries license fees, fines and charges on behalf of the Fisheries Service. The Zone Fisheries Management Committees are also mandated to rec-ommend establishment of fishing villages and revolv-
ing funds. There is need for a fisheries specific policy with provisions for ABS implementation in order to ensure that all steps in the Bonn Guidelines are consid-ered. The fisheries programme does not mention ABS management as a component of its plans to achieve CBD implementation.
Identification of StepsThere are fisheries management systems and proc-esses under the current Fisheries Act for obtaining ac-cess to fisheries resources. These steps include those prescribed in obtaining various licenses for access for undertaking fishing or engaging in aquaculture. Ap-plications for various licenses should be made to the Director using prescribed forms. The licenses confer exclusive rights to harvest the products of the aquac-ulture facility or fishery water within a specified area. The steps and procedures are as provided for in the legislation but do not include research and fisheries development activities which are critical in creating conditions that facilitate environmentally sound ac-cess to fishery resources.
Prior Informed ConsentThe Fisheries Department uses the government ga-zette and newspapers to provide the general prior in-formed consent on the licenses issued to the private sector and community groups. However, some of the basic principles for prior informed consent such as the consent of relevant stakeholders such as indigenous and local people (under current commercial fishing circumstances) is not adhered to. The Department, as a Competent Authority may determine such allo-cations of access with minimal consultation. This is partly because there are established legal rights of local communities in association to fishery resources that may be accessed in such a manner. This is par-ticularly so in areas where traditional authorities have control over specific fishing areas such as lagoons as is the case in the Western Province of Zambia under the Barotse Royal Establishment. Other procedures for obtaining prior informed consent not fully addressed in the current and proposed legislation and practice are: identification of research and development activi-ties necessary; and where and how such activities may take place.
5. MutuallyAgreedTerms
Basic Requirements for Mutually Agreed TermsThe MATs in fisheries management are as contained in the various permits and licenses, as such, there is limited negotiation on what is to be mutually agreed, as these are set legally and therefore not negotiable. The indicative list of the mutually agreed terms is represented on the various licenses and conditions. However, the aspects on knowledge, innovations and practices of indigenous and local communities are largely missing from the mutually agreed terms on the regulatory documents, as the legislation in force does not provide for broader stakeholder participa-
76
tion. The other omission is on matters of Intellectual Property Rights for the traditional knowledge of the local communities, and research and fisheries devel-opment findings by various institutions.
Benefit Sharing The current benefit-sharing arrangement focuses at improved conservation and sustainable use of the fish-eries with less emphasis on direct community benefits in the form of dividends or community shares of rev-enue. Moneys go to the various institutional organs to meet conservation and sustainable use requirements for the fishery area.
In community fisheries, the Zone Fishing Committee has revolving funds provided for in the Fisheries Bill.
The timing of delivery of community funds is not well articulated or specified due to the lack of a fisheries specific policy or programme for benefit sharing. How-ever, funds may be paid into the Fishery Management Area Fund at any given time.
The Revolving Fund should be used primarily for fish-eries management. Mechanisms for benefit sharing are between the Fisheries Department and the differ-ent Fisheries Committees on a case-by-case basis.
6. OtherProvisions:Incentives,NationalMonitoringandReporting,MeansforVerification,SettlementofDis-putes,Remedies
IncentivesThe community-based fisheries management pro-grammes provide communities with revenues for reinvestment in fisheries management related infra-structure and activities aimed at improving fisheries conservation, harvesting, processing and marketing. The availability of such revenues provides an incen-tive for the local communities and the private sector to support sustainable fisheries management. There is need to incorporate in the final Bill, well-designed economic and regulatory instruments directly related to ABS to foster efficient allocation of benefits, use of valuation methods as a tool to provide information to stakeholders involved in ABS and the creation and use of markets as an effective way of achieving conserva-tion and sustainable use of fish resources.
Accountability in Implementing Access and Benefit SharingThe establishment of community institutions such as Fishing Village Committees, Fishing Area and Zonal Committees Area provides structures for accountability. The committees are accountable to their constituency for implementation of management plans and other administrative arrangements. These structures can en-sure that ABS policy implementation is accountable.
Monitoring and ReportingMonitoring and evaluation of fishery resources is the responsibility of the Fisheries Extension Division and
the Fishing Committees where these exist. The provi-sion in the Bill for the involvement of fishers in man-agement of fisheries in their Villages, Areas and Zones provides a platform for monitoring and reporting on fisheries management. License holders, including community groups and the private sector have an ob-ligation and incentive to monitor fish stocks and other conservation related matters in their areas of opera-tion but can only be effective with oversight from the Fisheries Department. The Bill specifically empowers the Minister to make fishermen keep records of infor-mation relating to fishing in the commercial fishing areas. The challenge again is on implementation and supervision by the fisheries sector.
Means of VerificationThere are no concrete means of verification on whether the ABS principles as promoted by the Bonn Guidelines are considered due to the lack of a specific national le-gal instrument and institutional arrangements with such provisions or mandate.
Settlement of DisputesThe legal framework provides options for settlement of disputes, whereas, in areas with local management institutions in place, other consultative mechanisms to resolve disputes exist such as through traditional leaders. Most disputes include cancellation or suspen-sion of licenses for regulation contraventions. In the Bill, where a license has been cancelled, the person ag-grieved may appeal to the Minister not later than 60 days after receipt by him or her of the notice of cancel-lation, suspension or refusal.
RemediesThe remedies under the Fisheries Act and Bill are to secure sustainable fisheries resources. These include prohibited fishing methods such as use of explosives, electrical fishing devises and any other equipment that does not conform to the standard prescribed fish-ing gear and the same applies to trade in such prohib-ited gear by any person in the country. Other remedies include restrictions and prohibition for introduction of any fish species that is not native, importation of any live fish and translocation of live fish from one fishery to another. Fisheries Officers enforce these restrictions and prohibitions, as remedies to threats to sustainable fisheries management. Unfortunately there is no hu-man capacity to enforce these remedies.
Capacity Assessment Statement The Fisheries Sector has sufficient structures and in-stitutional arrangements to implement various sus-tainable fisheries management programmes. How-ever, the sector is constrained by limited financial and human resources to implement its mandates. Many provisions of the current Act and Bill for law enforce-ment and sustainable management practices are not enforced due to lack of personnel in most of the major fishery areas. The major constraint of course is the lack of enabling legislation. With the Bill having been in ex-istence for over 12 years now without being enacted
77
into law, the capacity of all stakeholders to advocate, review and amend the Act is lacking.
Given this scenario, it may not be possible to implement ABS principles based on the Bonn Guidelines in the fore-seeable future unless necessary support is secured.
Agriculture Sector-The Ministry of Agriculture and Cooperatives through the National Plant Genetic Re-sources Programme (NPGRP), Bioprospecting and SADC Gene Bank
The management of agricultural biological resources, such as crops and fisheries falls under the Ministry of Agriculture and Cooperatives. The Ministry of Agricul-ture and Cooperatives has a number of Directorates and Sub-divisions. These include Research and Spe-cialist Services, Extension Services, Land-use Planning Division, and the Fisheries sub-sector. The National Plant Genetic Resources Programme, established in 1989, within the Department of Research and Special-ist Services, is the National Focal Point institution for agricultural biological resources.
Agro-biodiversity as defined by the CBD refers to the variability among living organisms associated with cultivated crops, domesticated animals and the eco-logical complexes of which they are part. Agro-biodi-versity in Zambia is assessed within the context of the major agro-ecological regions and farming systems.
In Zambia, about 85% of the rural population depends on agricultural production. Access to agro-biodiversity resources is through the use of genetic material col-lected through research, restocking and bio-control. Benefit-sharing of genetic material is through seed multiplication where farmers are provided with seeds from research, which they grow and market - the crop or seeds. Continued research aimed at crop develop-ment and improvement is necessary for increased and sustainable crop production. Availability of these crop genetic resources can only be guaranteed if deliberate measures for their efforts are in place.
Zambia has a wide range of genetic material in the form of cultivated plant species, their wild relatives, and useful wild plant species as well as farm animal ge-netic resources. The crop and animal genetic resources consist of mainly traditional varieties and breeds that have evolved over generations through human and natural influences. Zambia has also benefited from ex-otic genetic resources, which have enhanced the local germplasm and facilitated the development of higher performing varieties.
Over the years, these genetic resources have been sub-jected to different pressures and threats leading to some loss of valuable genetic diversity. The main fac-tors contributing to the loss of this diversity include the introduction of high yield crop varieties and ani-mal breeds over a number of years, clearing of large ar-eas for agriculture and other developments, recurring droughts and land degradation through soil erosion and overgrazing.
Botanical collections of wild plant species for taxo-nomic and other scientific studies by scientists (local and foreign), are some of the officially-known bio-prospecting activities relating to local genetic resourc-es. Although the objectives of bioprospecting in Zam-bia are to collect specimens for taxonomic and biosys-tematics studies, plant parts capable of regeneration have also been sampled and taken out of the country for other purposes.
There are no clear procedures for obtaining permits to collect plant genetic resources from Zambia by foreign collectors. However, the collector is required to submit a written request and receive approval before enter-ing the country and undertaking the collection. There is no special permit and granting of permission is by way of a letter of reply, which normally encourages the applicant to be in the company of local counter-parts and reminds the applicant of the need to leave duplicate samples of the collected genetic resources in the country. There are no specified penalties for failure to obtain a letter or for violating the conditions of the letter, as the permission granted is purely an adminis-trative matter.
The foreign institutions collaborate with local institu-tions either through a memorandum of understanding (MOU), in the case of a project running over a period of time, or through a letter of application to the head of the concerned institution in case of a one-time activ-ity. In the cases involving protected areas, such as for-est reserves and wildlife estates, collections are based on a set of conditions derived from national policy and legislative framework.
One such institution that has undertaken botanical collections for botanical studies through a collaborative project is the Missouri Botanical Gardens of the United States of America. This was executed through a MOU signed with the Ministry of Agriculture through the National Plant Genetic Resources Centre. These explorations and collections were undertaken between 1993 and 1997 covering the whole country, and were targeted at collecting herbarium specimens of wild plant species. Duplicate voucher specimens were left with the local herbarium at Mt. Makulu Research Centre. No conditions regarding ownership, use and distribution were applied as it was assumed that only herbarium specimens would be collected and taken out of the country. This was before the Bonn Guidelines.
The other activity related to bio prospecting of genet-ic resources is the exploration and collection of wild plant species related to crops such as rice (Oryza spp.) and cowpea (Vigna spp.). Interested parties make a written application to the Permanent Secretary or Director of the Research and Services Department in the Ministry of Agriculture and Cooperatives. The ap-plicant is required to provide information on the pur-pose of the collection, species of interest, and scope
78
of the project. There is a requirement that external institutions seeking to apply to undertake bio-pros-pecting activities need to partner local counterpart institutions that must become part of the collecting expeditions - mainly to ensure that duplicate sam-ples of the collected genetic material are left in the country. However, no conditions have been placed on these collections as the Consultative Group on Inter-national Agricultural Research (CGIAR) institutions are regarded as partners in development, whose ac-tivities are assumed to have potential to benefit the country.
Entry into national parks for collection of plant mate-rials requires a permit from ZAWA, but no conditions relating to ownership, use and third party transfer are imposed. Therefore, no obligations to the state or lo-cal communities for ABS requirements are taken into account.
Collections of plant material for medicinal purposes by both locals and outsiders have largely been conducted privately and unofficially from Zambia’s Protected Ar-eas due to lack of effective monitoring.
The lack of institutional, technical capacity for proper maintenance, ineffective monitoring and supporting legislation, has led to the loss of all duplicate samples and an inability to follow-up on samples taken out of the country for results or possible benefits.
Some germplasm accessions collected by the National Plant Genetic Resources Programme, established in 1989, have been distributed to both local and external institutions with the requirement that the recipient institutions provide feedback on research undertaken to the releasing institution. No other conditions are placed on the distributed genetic resources apart from the need to share research results.
The SADC Plant Genetic Resources Centre (SPGRC), based in Lusaka, was established to preserve indig-enous plant genetic resource material, the natural crop heritage of the region, which is a prerequisite for establishing successful plant breeding material and, increasing agricultural production. Phase I (1988 – 1992) focused on the development of regional and national programmes, establishment of the neces-sary facilities, and training and to undertake an in-ventory of available genetic resources. The other key functions include:
Advise and support SPGRC staff in initiating the collec-tion in field gene banks or In situ maintenance, char-acterization, documentation and dissemination of the vegetative propagated plant genetic resources;
Advise and support the SADC Member States in es-tablishing communication between the regional gene bank network and its users of plant genetic re-sources material, researchers and plant breeders; and
Inventory of botanic competence resources for
the proper identification and classification of germplasm.
Seed samples are maintained in triplicate. The active sample is maintained in several small distribution bags and is used for research and other activities. The base collection sample is for long-term conserva-tion whose storage is guaranteed for use even by fu-ture generations whilst the base safety duplicate is a backup against unforeseen events like wars or natural disasters that might damage the collection at SPGRC. No conditions or regulations exists for the sharing of benefits that may arise from research or commerciali-zation of such materials in terms of indigenous knowl-edge or local knowledge or even property rights from the source communities or national institutions for that matter.
Similarly, there are also no established procedures or legislation for germplasm exchange, other than the need to abide by the phytosanitary regulations aimed solely at safeguarding movement of germ-plasm across borders. In fact, individual breeders and researchers outside the country are reported to have exported germplasm material without the knowledge of the Ministry of Agriculture and Cooperatives as the Competent National Authority.
For species whose mode of propagation is vegetative rather than germplasm (seed), field gene banks have been established where clones of sweet potato, cas-sava, and similar crops are planted in small plots.
On-farm conservation is promoted to support and build farmers’ ability to manage plant genetic resourc-es conservation while improving farmers’ livelihoods.
1. GeneralProvisions:MeetingtheObjectivesoftheGuidelinesThe Ministry of Agriculture and Cooperatives through the National Plant Genetic Resources Programme (NPGRP), provides an institutional arrangement that could support or promote the objectives of the Bonn Guidelines. The Ministry does not have a national in-stitution since the NPGRP is only a programme and not an institution.
The lack of specific legislation, regulations or strin-gent conditions for access to germplasm, leaves the genetic resources vulnerable to abusive exploita-tion. This is compounded by the lack of control and monitoring of the importation and exportation of genetic resources (germplasm). There is a lack of con-ditions and regulations for the sharing of benefits of research other than the research findings and no benefit-sharing from the revenues arising from the use of biological resources and local and indigenous knowledge or innovations from the source commu-nities or institutions. No legal framework exists on Plant Variety Protection (PVP) for the protection of plant varieties. There are also no policies or laws that
79
specifically addresses the farmers’ rights in the coun-try. However, the Agriculture policy has mechanisms which take into account the rights of farmers and fa-cilitate their active participation in the conservation, utilization of genetic resources and possible sharing of benefits that may accrue.
There are no laws in place that address the rights of local communities to control access, ownership and utilization of genetic resources. However, such provi-sions exist in the current draft policies and legislation (Forest Act and Draft Fisheries Bill).
The current institutional and administrative arrange-ments are inadequate and the benefits from com-mercialization of results of research and indigenous knowledge on genetic resources are not guaranteed.
2. RolesandResponsibilitiesinAccessandBenefit-Sharing:NationalFocalPoint,CompetentNationalAuthorityThe Agricultural sector policy for 2001–2010 advo-cates for increased crop production while promoting the sustainable utilization of crop genetic resources. However, the policy does not take into full account the Bonn Guidelines. There is also no long-term National Authority for overseeing the access and results of ac-cess to genetic resources.
3. ParticipationofStakeholdersThe implementation of ABS measures, in light of the Bonn Guidelines remains erratic mainly due to the-lack of an agricultural biodiversity legal provision for broader stakeholder participation in the management of the genetic resources.
4. StepsintheAccessandBenefitSharing:OverallStrat-egy,IdentificationofSteps,PriorInformedConsent
Overall StrategyEven though the NBSAP aims for the equitable shar-ing of benefits accruing from the use of the country’s biological resources, this is not the case where agricul-tural germplasm is involved. A sector specific strategy on ABS is required given the significance of the agri-cultural sector.
Identification of StepsThere are no clearly established steps and procedures for obtaining access to germplasm for bio-prospecting or other purposes other than the need to abide by the phytosanitary regulations for the sake of ensuring safe passage of germplasm across borders and not for ensuring equitable sharing of benefits arising from the use of the germplasm.
Prior Informed ConsentPrior Informed Consent is ad-hoc in nature and ad-ministration as there are no clearly established pro-cedures for obtaining permits to collect plant genetic resources from Zambia by local and foreign collectors. Furthermore, while the collector is required to submit
a written request and receive approval before entering the country and undertaking the collection, there is no special permit and permission is by way of a letter of reply. The local communities living around genetic resources being accessed may not even be informed prior to collection.
5. MutuallyAgreedTerms
Basic Requirements for Mutually Agreed TermsThe poor and inadequate provisions and processes for access to agricultural and other germplasm, points to a lack of legally binding mutually agreed terms in the regulation of exploitation of such genetic resources and any premise for benefit sharing.
Benefit Sharing The sharing of research findings is the only require-ment on benefit sharing. However, there is no sharing of benefits from commercialization of genetic resourc-es resulting from bio-prospecting and from related traditional knowledge exploitation. The collectors of germplasm are, for example, not obliged to share any benefits that may accrue from developments out of the research findings.
Only research findings may be shared with the source institutions. Any other benefits that may arise are not guaranteed for the country or institution or local com-munity.
With the current poor monitoring and follow up on samples collected, due to lack of institutional and sci-entific capacity, the local or counterpart institutions do not follow up research findings in most cases. Thus, research findings may not return to the country, even when the duplicate samples sometimes go missing.
There are no clear mechanisms for sharing of research findings.
6. OtherProvisions:Incentives,NationalMonitoringandReporting,MeansforVerification,SettlementofDis-putes,Remedies
IncentivesThere are no incentives for communities under the current provisions other than the benefits of access to research findings for participating institutions though such benefits may not translate into monetary or the non-monetary benefits of capacity building or train-ing. There is no specific law that allows patenting of plant varieties while there is no other form of protec-tion that may lead to benefits related to genetic re-sources access and exploitation.
Accountability in Implementing Access and Benefit SharingThere is no real accountability in the arrangements as duplicate samples go missing and violation of require-ments for access to collect germplasm are left unpun-ished as no legally binding permits are issued.
80
Monitoring and ReportingMonitoring of access and the results of such access is poorly monitored. In some cases germplasm is taken out of the country without the knowledge of the au-thorities. Follow-up is up hazard and not guaranteed. Verification means are not elaborate and no institu-tion has such a mandate.
Settlement of DisputesThere are no set procedures for settlement of disputes since no legally binding permits or license conditions exist.
Future ScenarioThe Ministry of Agriculture and Cooperatives through the Seed Control and Certification Institute (SCCI), has a draft Bill on Plant Variety Protection. The draft Bill incorporates the Breeders’ Rights, Farmers’ Rights and the regulation of access to plant genetic resources. It is therefore, hoped that once the Bill is enacted into law, some of the legislative gaps for ABS implementa-tion of will be filled.
The Ministry of Science, Technology and Vocational Training is spearheading the development of a Na-tional Biotechnology and Biosafety Policy and Legisla-tion. This legal and policy framework will help in the protection, control and management of potential risks in posed by biotechnology to animals, human health and the environment.
Zambia, through the Department of Research and Specialist Services in MACO, is also participating in a global Biodiversity International project aimed at strengthening capacity for policy development for ABS arrangements in genetic resources.
4.4.7 Constraints and Challenges
There are a number of challenges and constraints to the implementation of ABS principles as guided by the Bonn Guidelines.
Themajorconstraintsare:
The lack of an enabling legal and policy framework to support ABSSeveral initiatives have been implemented that di-rectly or indirectly address the ABS objective of the CBD. However, this has been done sectorally, through various Community-Based Natural resources Man-agement Programmes, particularly in the wildlife and forestry sectors. The effectiveness of the programmes is varied, but most have been adversely affected by unfavourable legal and policy frameworks, particu-larly with respect to access and control of the natural resources, and subsequent sharing of benefits arising from their use. For example, The Zambia Wildlife No. 12 Act, 1998, while providing for the establishment of Community Resource Boards, does not provide them with a legal status that may allow them to make de-cisions on resource use and sharing of benefits. Simi-larly, the Forest Act,1973, precludes communities to access and commercial utilization of forest resources. Consequently, a Joint Forest Management Programme
sought to improve community livelihoods. There re-mains no holistic enabling legal framework for effec-tive implementation of the access and benefit-sharing concept, as an incentive for sustainable management of biological resources in an integrated cross-sectoral manner in the country.
No overall access and benefit sharing strategy at the national levelWhile one of the goals of the National Biodiversity Strategy and Action Plan is to ensure “equitable shar-ing of benefits from the use of Zambia’s biological re-sources”, the country has no overall strategy on ABS. The current sectoral nature of existing initiatives with elements of ABS has resulted into having no authorita-tive institution for spearheading a holistic framework, let alone the implementation of a well-coordinated ABS regime in the country. The NBSAP has 3 objectives related to ABS. These are: to develop and adopt a legal and institutional framework, which will ensure that benefits are shared equitably; to provide education in natural resources management; and utilization for the traditional establishment and local stakeholders as well as to train local stakeholders in entrepreneur-ship skills to maximize benefits from natural resourc-es management. These objectives have not fully been achieved and require some dedicated capacity build-ing activities. While the NBSAP does recognize the need for equitable sharing of benefits from the use of the country’s biological resources, there has been no concerted efforts to undertake the actions identified for realizing the ABS objectives.
Inadequate access to and transfer of technology for conservation and sustainable use from the developed worldCurrently, transfer of technology is primarily for im-proved, efficient and effective harvesting of genetic resources for which access is granted to users from de-veloped countries and not for improved conservation and sustainable use necessarily. Little attention has been given to empowering local communities to add value to local products. The trend has been the remov-al of genetic material and taking it to the developed world for value adding with little or no direct benefits from the products or knowledge resulting from the use of such resources.
Limitations in generation of scientific, socio-economic and documentation of indigenous and traditional knowledge on genetic resourcesThere are insufficient funds for research in genetic resources for which access is being granted and limi-tations in exchange of information, as there is no op-erational National Clearing-House Mechanism. There have been no extensive or complete inventories of most of the genetic resources available in the coun-try. Selected inventories in selected areas are through project funding while using different methods, which make comparison or series data analysis extremely difficult.
Current and recent technical and scientific cooperation is largely for piloting of ABS initiatives without target-ed research on issues underpinning such ABS pilots
81
A lack of scientific guidance in the design and imple-mentation of benefit sharing mechanisms has made it almost impossible for communities to realize the in-centives for conservation. Technical and scientific co-operation targeted at the development and strength-ening of the national capacity in human resources and institutional development related to ABS is minimal.
Inadequate provision of financial resources for the country to meet its obligations to the CBD on ABSZambia is preoccupied with economic development and poverty alleviation in its resource allocation to various sectors of the economy. Without urgent finan-cial support from the developed world, Zambia will be not be able to apply the Bonn Guidelines and meet its obligations to the CBD, for even where there is politi-cal will and capacity, most of the constraints emanate from the lack of financial resources to implement strategies and programmes.
Themajorchallengesinclude:
Lack of full understanding of the concept of Access and Benefit Sharing In most cases CBNRM is misconstrued as synonymous to access and benefit-sharing, while many key aspects of ABS are absent in a number of CBNRM projects and programmes. There is need, therefore, to build capacity among all stakeholders and actors in the understand-ing and implementation of ABS mechanisms and ar-rangements particularly in dealing with protection of traditional and indigenous knowledge, intellectual property rights, negotiation of ABS arrangements and their enforcement.
Lack of awareness and appreciation of the utility of Bonn Guidelines in the natural resources management sectors of wildlife, fisheries and forestry even among planners, policy makers and natural resources manage-ment staffThere is a lack of awareness among most stakehold-ers and especially communities on the importance of ABS as a tool for improved natural resources manage-ment mainly due to lack of information on best prac-tices and success stories of such initiatives from else-where. Awareness building is required on the concept, its importance and value in poverty alleviation. There is need to build awareness at various levels including among politicians, government bodies, the public, the private sector and local communities.
One other major challenge relates to power relations between local communities and the State;While communities should be given access and con-trol of the resources in their areas, the state in most cases has purposely retained rights and control over resources as its own source of income. A good case is the Zambia Wildlife Authority (ZAWA) power rela-tions with the local communities where the benefits from wildlife utilization in various categories of land use shared between the community and ZAWA lead-ing to lower benefits to the local community as ZAWA
also needs a share of the revenues to meet its opera-tional costs.
4.4.8 Recommendations for a Draft Action Plan
There are several actions which can promote the imple-mentation of the third objective of the CBD. These in-clude:
Establish a legal and policy framework that promotes the development and implementation of national law and policies on ABS;
Develop an overall ABS strategy, and adequate capac-ity in developing appropriate policies and legislation and implementation of the principles for equitable and fair sharing of benefits arising from use of ge-netic resources. Capacity-building is required in prior informed consent procedures, negotiation of ABS ar-rangements, awareness building, implementation, monitoring and enforcement of existing ABS arrange-ments, value adding to resources, taxonomy, and valu-ation of biodiversity;
Developed countries can provide and facilitate access and transfer of appropriate and affordable technology relevant to the conservation and sustainable use of Zambia’s genetic resources. Developed countries can also support the negotiation of an international re-gime that is pro-poor;
Promote joint research arrangements between de-veloped country institutions and local institutions for documentation of indigenous and traditional knowl-edge on genetic resources, which is necessary for ef-fective conservation and sustainable use of genetic re-sources. Where such information has been deposited in developed country, repatriation of such information should be facilitated;
Invest in ABS-related research. Experiments and pilots without sound scientific inputs are often inappropriate, costly and ineffective in providing incentives for conser-vation, sustainable use and in alleviating poverty;
Increase financing to:
1. Enact appropriate legislation;
2. Establish appropriate institutions;
3. Build necessary capacities to undertake research and effectively exchange information; and
4. Build awareness, understanding and the capacity to implement ABS arrangements / principles and the Bonn guidelines such as prior informed consent, ne-gotiation, implementation, valuation, monitoring and enforcement.
82
At the Peer Review Workshop in December 2005, the countries involved in this project identified the common challenges faced in developing and implementing national access and benefit-sharing policies in keeping with the Bonn Guidelines. Several recommendations were made as to the way forward for the countries to achieve the third objective of the Convention at the national level.
5.1 Challenges
The challenges include the need to: raise awareness of ABS principles; maintain institutional capacities; link ABS and poverty alleviation; build national technological ca-pacities; address the lack of ABS policy and increase capac-ity to implement existing policies; engage local and indig-enous communities; monitor and enforce ABS agreements in user and provider countries.
1. Raising awareness, identification and participation of stakeholders: In each country, there is limited aware-ness, at all levels, of ABS principles. This has inhibited the development of effective regulations, and man-agement of resources. Existing resource management programmes do not have a holistic approach to ABS. The challenge is to identify the relevant and potential stakeholders, and to raise the awareness of politicians, government bodies, the private sector, indigenous and local communities, and especially research organiza-tions, about ABS principles and components such as prior informed consent, mutually agreed terms, bene-fit-sharing and technology transfer.
2. Sustainability of national institutional capacities: Institutional capacity to develop and implement a comprehensive ABS system is quite a challenge, as existing natural resource management institutions are already constrained in their ability to implement their mandates fully. Capacity to deal with related issues such as protection of traditional (indigenous) knowledge, intellectual property rights, negotiation of resource access and ABS agreements, and monitor-ing and enforcement, are all limited in terms of the number of trained personnel, funding to implement related activities and the availability of up-to-date technology to improve efficiency. These issues, often systemic, will require some budgeting creativity, ra-tionalization of available resources, creative private-public sector partnerships, and international and re-gional support.
3. Linking ABS and poverty-alleviation: ABS must be made relevant to anti-poverty objectives, including the realization of the Millennium Development Goals, in addition to meeting the biodiversity loss reduction targets, taking into account the Addis Ababa Princi-ples and Guidelines for the Sustainable Use of Biodi-versity.
4. Building national technological capacities: Technology transfer and support must be mobilized, to strengthen national capacity to add value to genetic resources, and to undertake research and biotech activities within the country. There has been some reliance on North-South transfer -- the challenge is to create an environment for South-South transfers as well. This would involve strengthening the existing intra-regional and sub-re-gional cooperation policies, which are currently weak, and creating lateral links between such policies.
5. Addressing the lack of ABS policy and increasing capac-ity to implement existing policies: The appropriate legislative, policy and institutional space for ABS man-agement and implementation must be identified and, where necessary, created.
6. Engaging local and indigenous communities: Communi-ties should be involved in the development and imple-mentation of legislation, policy and projects affecting their resources and traditional knowledge.
7. Monitoring and enforcing ABS agreements in user and provider countries: National and international commit-ment must be secured to ABS governance structures, sustainable use and adding value to biological and ge-netic resources.
An additional challenge is to improve and increase taxo-nomic research, biodiversity assessments and economic valuations, and information management and sharing.
5.2 Towards an ABS Action Plan
Several steps were identified as critical for all countries to undertake, if they are to develop and implement ABS poli-cies. These action points are:
1. Further implementation of the Convention on Bio-logical Diversity, in harmony with other biodiversity-related multilateral, sub-regional and regional en-vironmental agreements. Biodiversity conservation and sustainable use should be mainstreamed across all sectors at the national level, and where natural re-source management is decentralized, at community levels. This can be achieved by:
Reviewing and updating biodiversity strategies and action plans, and where appropriate develop-ing sub-national points of action;
Including ABS as a priority area for funding in na-tional development programmes and for other purposes; and
Adopting or adapting regional, sub-regional and model legislation on ABS, and reviewing the les-sons from countries with advanced ABS policies and projects.
5. Challenges, Towards and Action Plan, Lessons Learned, Project Impacts and Conclusion
83
2. Promote a broader understanding and appreciation of ABS principles;
3. Adopt an agreed glossary of terms and harmonization of terminology at local, national, sub-regional, region-al and global levels;
4. Develop national policy, ABS legislation and imple-mentation guidelines;
5. Establish and strengthen national institutional frame-works for ABS by:
Promoting the roles of the National Focal Points and Competent National Authorities;
Encouraging collaboration amongst the various CBD-related focal points and between other bio-diversity-related focal points; and
Conducting a more detailed inventory of national institutions dealing with or handling ABS issues, their awareness of ABS principles and objectives set out by the CBD, and their actual practices.
6. Conduct an inventory of past, current and proposed projects with ABS components, and identify the finan-cial needs and benefits of such projects;
7. Conduct environmental impact assessments of the ABS arrangements already undertaken, ongoing or planned, and providing:
Status and impact reports on specific (and target-ed) biological resources;
Status and impact reports on the ecosystems sup-porting those resources;
Impact reports on indigenous and local communi-ties.
8. Conduct periodic valuations of biodiversity resources, especially in areas designated or targeted for bio-prospecting;
9. Promote the sustainable use of biodiversity and for-mulate positive incentive measures to promote and optimize ABS arrangements. Countries can develop a code of conduct in the light of international and re-gional principles, to ensure national sustainable use of biodiversity;
10. Identify ABS stakeholders - i.e. governmental organi-zations, community-based organizations, non-gov-ernmental organizations, the private sector and civil-society organizations - and strengthen cooperation between them, with a view to creating incentives for the development and implementation of ABS meas-ures and projects;
11. Establish and maintain national information man-agement and information exchange mechanisms, and extend the roles of such national clearing-house mechanisms, including national biosafety clearing-houses established for the CBD’s Biosafety Protocol (possibly including information and reports to other Conventions);
12. Provide capacity-building for human resources devel-opment, including national workshops, seminars and
training forums on specific ABS issues and areas for priority focus; and promote participation in interna-tional or regional training, and visits or secondments to countries with advanced ABS management struc-tures and projects;
13. Conduct scientific and technical cooperation pro-grammes, and provide technology support to neigh-bouring countries, including the transfer of relevant biotechnology, research partnerships and secondment of scientists;
14. Promote and invest in research and development for both South-South and North-South joint ventures, within and between provider and user countries;
15. Document and integrate traditional knowledge, inno-vation and practices of relevance to ABS in key sectors such as agriculture and health;
16. Develop guidelines for handling confidential or sensi-tive information such as traditional knowledge and business information;
17. Develop national or sub-regional toolkits and modali-ties for strengthening and implementing intellectual property rights across multilateral environmental agreements;
18. Create checks to monitor compliance with and en-forcement of prior informed consent, mutually agreed terms and material transfer agreements in respect of ABS at the national level (also needed at international and regional levels);
19. Establish and maintain programmes for in-situ conser-vation and for maintenance of ex-situ facilities;
20. Provide support to the Convention on Biological Diver-sity on the negotiation of an international ABS regime;
21. Establish a multidisciplinary roster of experts on ABS at national, sub-regional and regional levels, and peri-odically update the roster in the clearing-house mech-anism;
22. Restore degraded areas of important biological re-sources;
23. Cooperate on the transboundary movement and management of genetic resources, with standardized measures and a mechanism to ensure cross-border compliance and enforcement;
24. Support community-based activities with financial and technical resources from identification through to implementation; and
25. Develop toolkits and guidelines on how regulations and policies are to be implemented by providers, us-ers, researchers and others.
5.3 Lessons Learned
From the experience of undertaking detailed country studies, several lessons for ABS policy development and implementation were learned. They include:
1. Stakeholder identification and participation is essential
84
as a basis for any ABS policy development, and to un-derstand the true ABS climate of the countryAn all-inclusive approach ensures that available information, concerns and perspectives from a wide spectrum of individuals, communities, institutions and organizations – through various forums at national, district and local levels – are captured and taken on board in ABS policy development and envisaged agreements. The information captured at the forum should be presented in clear language to decision-makers at various relevant levels, and convey to all stakeholders the significant outcomes of their participation. Simple definitions should be used, and ABS misconceptions cleared up early in any consultations --especially misconceptions about the types and timing of benefit-sharing, and about the provision of prior informed consent. This process fosters agreement on the basic principles and definitions that will help guide the development and monitoring of ABS arrangements, and increase opportunities for future collaboration and cooperation in ABS and other ventures.
2. Formal national legislative and administrative meas-ures are important for clarity and establishment of mandatesA formal national legal and administrative ABS struc-ture, with empowered national focal points (ABS NFPs) and national competent authorities (ABS CNAs), is likely to lead to better, more effective and more effi-cient implementation and monitoring of ABS arrange-ments. Such a national framework and policy, based on transparency, accountability and good governance, would create the environment for ABS projects which embrace the principles of prior infomed consent, mutually-agreed terms and benefit-sharing. It would also lead to greater awareness of the complexities of the issues within national institutions. In addition, these legal structures, by giving legislative credibility and authority to the ABS issues, would support main-streaming and inter-sectoral collaboration and co-operation, incorporation of local, indigenous and tra-ditional knowledge systems and intellectual property rights, and would support links with the scientific and NGO communities.
3. Private sector engagement brings business perspec-tives and practicalities to ABS policy design and imple-mentationThe private sector’s role in ABS is widely acknowl-edged. Its engagement can be at various entry points. At the stage of developing policy, private companies can identify criteria of use for the ABS framework, give perspectives on cost/benefit parameters, and suggest formulas for benefit-sharing. Once the system is estab-lished, the private sector can create partnerships with government and research groups, transfer technology and train local scientists, and undertake bioprospect-ing activities. Corporate social responsibility activities can support biodiversity conservation, sustainable use and ABS arrangements.
4. Valuation of components of the genetic resources of
biodiversity would encourage conservation and sus-tainable useIn the four countries, poverty alleviation and economic development are key objectives of most sectoral poli-cies, and have also been identified as an objective of any national ABS regime.
Valuation of targeted resources and ecosystems (and also associated traditional knowledge), and identifi-cation and quantification of potential benefits to be derived from the use of these resources, can create an impetus for conservation and management. However, methodologies for carrying out these valuations have not been applied and are poorly understood in most countries. This has had an impact on various natural re-source sectors, especially wildlife and fisheries, and will also impede ABS management. Currently, the values, benefits and costs of use of natural resources hardly feature in national accounts (to some extent wildlife resources are reflected). Valuation reports can capture and present:
The quantity and types of benefits to be derived from use and conservation of, research into, and fa-cilitating access to genetic resources;
The “investment” or opportunity costs incurred by the country and local communities in terms of con-servation over the years; and
The projected “investment” or research and devel-opment cost involved to bring a product to the mar-ket (e.g. in the case of pharmaceutical research and drug development).
Such costs and benefits could then be duly reflected and considered in the equitable benefit-sharing arrangements elaborated by the relevant entities at the national and local levels. The results of valuation can also inform prioritization of conservation, sustainable use and access activities. This can lead to promotion of particular resources (and possibly associated traditional knowledge) for bioprospecting, thus increasing the likelihood of successful screenings. Where information is incomplete, the precautionary approach may be applied, to avoid adverse impacts on the ecosystem and local communities dependent on the resources.
5. Trained and knowledgeable personnel – researchers, natural resource managers and community leaders – who are aware of the ABS process and principles, are important in both development and implementation of ABS policiesThis involves training and awareness-raising in key areas, including: ABS law and policy options; monitoring and evaluation; the principles of PIC and procedures for granting it; negotiation of MATs and benefits; technology awareness, research methods, documentation and value addition chains.
6. National Biodiversity Strategies and Action Plans (NBSAPs), which incorporate sustainable use, facilita-
85
tion of access to genetic resources and links conserva-tion and poverty alleviation, help to promote the con-cept of ABS early in biodiversity management plan-ning, and allow later development of ABS policies to progress more smoothlyThe NBSAPs are important tools at the national level (and potentially sub-national levels) for biodiversity mainstreaming in various sectors, and revising these strategies to incorporate ABS helps to raise the profile and acceptance of the issue in policy circles and with stakeholders. Introducing ABS within the NBSAP allows it to build on synergies achieved between: (i) the NBSAP (often conservation-focussed) and other sector strategies such as Traditional Knowledge, Land Tenure, Health, IPRs, MDGs, Poverty Reduction and Climate Change; and (ii) regional or subregional environmental and technology transfer programmes, and science and technology policies.
7. Predictable financial allocation and project support stabilizes ABS policy development and implementa-tion, awareness-raising and trainingResources from rationalization of country programmes, donor support, GEF allocations and UNEP/UNDP regional and country projects and research programmes, should be planned so that activities do not contradict one another, but tackle various aspects of ABS management and development. Funding for training of taxonomists, research and screening, in-situ and ex-situ conservation, valuation, reduction of biodiversity loss, sustainable use, community natural resource management, trade, and protection of international property rights and traditional knowledge, can all support ABS activities and planning.
5.4 Project Impacts
The project made a significant impact in the countries, both during and after the time when it was undertaken. Activities at the national level catalyzed multi-stakeholder dialogues and raised awareness of the principles of access to genetic resources and benefit–sharing, and of the Bonn Guidelines. Most countries convened two national stakeholder workshops and conducted surveys with stakeholders. For Uganda, the stakeholder workshops also presented an opportunity to promote and review emerging ABS regulations and guidelines.
The project raised the awareness and profile of the roles of National Focal Points and Competent Authorities on ABS, and their nomination was raised as a point of action by the countries. Since the project was implemented, the countries have now appointed ABS National Focal Points and submitted names to the CBD Secretariat (for example, Uganda in March, 2008).
The project launched inventories of projects and programmes with ABS elements, and identified national and private institutions, CBOs and NGOs which undertake ABS-relevant activities in each country. This information
was submitted to acting national clearing-houses for wider access, and is being built on since the close of the project. This inventory also allows for closer monitoring of the projects to ensure the principles of ABS are applied, and to provide lessons for the design of ABS policy and administrative arrangements.
The NBSAPs and other action plans underwent some review to identify their relevance to ABS management. In all cases, the countries identified the need for greater incorporation of ABS issues into the NBSAPs, or development of specific ABS strategies and action plans. Even though these actions were neither time-specific nor costed, several of them have been undertaken, or are being addressed by the countries to a varying extent.
The analysis of administrative and policy arrangements allowed countries to identify where there were insti-tutional overlaps, and in which institutions ABS may be couched. Stakeholders and policy-makers recognized that some elements of ABS, and especially benefit–sharing, can be found within existing programmes such as wild-life management, even if the term ABS has not been used. The concept of benefit-sharing was not considered new for communities – however, the types of benefits derived from ABS programmes may be different or additional to the types currently being received from wildlife and fisheries management. Some of the formulas for bene-fit-sharing and community resource management have been proposed as a basis for negotiation of ABS mutually-agreed terms.
The countries also recognized the need for national action, as well as involvement in the negotiation of an international regime on access and benefit-sharing. To contribute to these negotiations, countries have agreed to share at an international level the lessons they have learned, the constraints identified and points for action. This will take place through workshop events and presentations at international and regional meetings, publication of the country studies, and submission of the country reports to the CBD secretariat for wider distribution and further analysis.
5.5 Conclusion
Overall, for most of the countries to derive benefits from an ABS policy, South-South collaboration is needed – neighbouring countries with varying degrees of technology (genomics and even synthetic biology), research capability (use of bioinformatics tools), shared resources and traditional knowledge, and similar governance structures can collaboratively add value to their resource use, and improve their innovation capability. Further investigation into the capabilities and opportunities for research groups, conservation facilities and universities should be carried out, including the potential for joint projects with industry, and across sectors such as food and agriculture, industrial development and traditional pharmaceuticals.
For policy-makers and ABS management institutions in the
86
countries, the challenge is to design a system that is agile and clear, and which balances the goals of conservation and poverty alleviation with the needs and operation styles of the research and business communities. To encourage North-South and even South-South business collaboration and investment, the countries must revisit their investment climate so that user countries and bioprospectors can undertake local activities with relative confidence. Science governance and innovation policies should be clear and supportive not only of basic education, but of research in basic and applied sciences at university level, and should advance technologies by independent research groups with clear ethical guidelines. These policies should aim to facilitate, and should recognize that scientific discovery by its nature is often unexpected, even if it may have been driven by associated traditional knowledge.
Sensitivity to cultural norms, such as traditional access to forest resources, and the acquired knowledge of local, indigenous and traditional communities, is especially important when considering both the ‘access’ and ‘benefits’ components of ABS policies. Countries may wish to identify specific areas which are open to bioprospecting, and create specific polices for such areas (e.g. national parks, wildlife reserves, forests etc).
There are associated complex issues such as ownership, legal provenance - whether certificates of origin or licenses for collections and transfers agreements - which should also be considered by the countries using criteria such as practicality and cost- effectiveness.
The widespread misconception of unlimited benefits from provision of access to resources should be clearly resolved at national and local levels, and the danger of overselling potential benefits to galvanize national action should be avoided.
The countries covered by this project are keen on national action, however likely it may be that the negotiations on an international regime on access to genetic resources and benefit-sharing will overtake national ABS policy development and implementation in most developing countries. The negotiations do and can provide impetus for national awareness and action. This report demonstrates that countries are taking steps to understand the ABS issues, raise awareness amongst stakeholders, and understand their national climate and where an ABS policy space can be created. By nominating focal points, responding to requests from the Convention’s secretariat, and providing case-studies, countries are demonstrating a commitment to fulfilling their obligations, and a willingness to promote dialogue based on mutual understanding of provider and user climates. What may appear as a somewhat sluggish approach to national action on ABS and genetic resources may in fact be creative lateral thinking.
Developing countries, and these four countries in particular, perhaps recognize that removing the causes of limited national implementation of the CBD’s third objective, often systemic due to sectoral organization of resource management, is a tremendous and lengthy undertaking, which will need to respond to increasing and varying national, international and regional demands.
Rather than removing all of the the constraints to the management of access to genetic resources and the fair and equitable sharing of the benefits arising from access to and use of genetic resources, it appears that the countries are seeking a way forward even though the constraints remain. Uganda’s way has been to develop specific ABS regulations and guidelines, whereas the other countries may adopt an innovative mix, using existing structures and policies to implement national ABS measures and achieve the Convention’s third objective.
87
NOTE ON THE QUESTIONNAIRES ON ABS TO ASSIST IN THE EXECUTION OF THE CASE STUDY EXERCISE
Enclosed please find a set of three (3) questionnaires on ABS and related issues. They are intended to assist and guide the national consultant(s) contracted to executive the above case study rigorously but expeditiously, in accordance with the Terms of Reference (TORs) which were adopted during the workshop held 1-2 February 2005 in Nairobi.
The purpose of the questionnaires (especially Questionnaire No. 2) is to prompt the national consultant(s) to bring out the necessary wider and deeper perspective on the issue of ABS, with respect to the measures required, as envisaged by Parties to the CBD, to underpin/address the challenges and promote/optimize the opportunities, entailed in Access and Benefit Sharing modalities agreed upon by the respective Parties. Accordingly, in order to accurately portray the country’s experience and current status in the implementation of the Bonn Guidelines, there is need to highlight not only the critical/requisite measures already undertaken, underway or planned to meet the obligations/provisions of Article 15 of the CBD on Access to Genetic Resources but also those other equally vital complementary measures already undertaken, underway or planned, with a view to adequately address the pertinent provisions of other relevant Articles of the CBD that are essential and conducive to the effective realization of ABS arrangements based on the Bonn Guidelines.
Questionnaire No. 1 and Questionnaire No. 3 were circulated and fully discussed during the above cited workshop. Whereas Questionnaire No.1 is reproduced as it was, Questionnaire No. 3 has been extracted from the Background Workshop Paper Doc. No. 3, revised and reformatted. It now combines requests for information as contained in NOTIFICATIONS dated 29/04/04 and 11/05/05 issued by the CBD Secretariat. It is essential that the case study includes/reflects information requested therein regarding the implementation of CBD Decision VII/19, as highlighted in this Questionnaire No.3.
In filling out Questionnaire No. 2, it is anticipated that many of the questions merit more than one response from among the options listed. It is for this reason that, for such questions, provision is made for more detailed elaboration including further articulation of the outstanding measures requiring urgent actions to address the issue at hand.
Part V of Questionnaire No.2 calls for observations, recommendations and conclusions. The National Consultant(s) will articulate this portion whose content is naturally expected to flow from the responses in the questionnaires and beefed up, as appropriate, by other details emanating from dialogues/discussions at other forums relevant to the case study exercise (e.g. national workshops, mid-term review etc).
Special Observation:
It is also worth pointing out that, to be PRO-ACTIVE AND PERFORM EFFICIENTLY, the country’s ABS National Focal Point and the National Competent Authority/Authorities would be expected to have the necessary administrative, technical, legal, scientific and other capacities to back-up and facilitate their smooth functioning. This would ensure and enhance the country’s adequate involvement, effective participation and appropriate contribution in all the relevant KEY FORUMS AND ACTIITIES at the local, national, subregional/ regional and global levels that address the issue of ABS.
It is such capacities that would enable the country to fully discharge its responsibilities, meet its obligations and harness the opportunities presented by the ABS principles envisaged under the various provisions of the CBD; in concert with those in other biodiversity-related MEAs to which the country is Party.
Annex 1 Note Developed by IBBS and UNEP to Support Country Cousultants
88
CASE STUDY ON COUNTRY EXPERIENCES AND CHALLENGES IN THE ADAPTATION AND APPLICATION OF “THE BONN GUIDELINES ON ACCESS TO GENETIC RESOURCES AND THE FAIR AND EQUITABLE SHARING OF THE BENEFITS ARISING FROM THEIR UTILIZATION” (ABS) IN AFRICA
QUESTIONNAIRE NO.1
1. Please indicate when your country became a Party to the following biodiversity-related global conventions/treaties of relevance to the issue of ABS and the ministry/agency/department with responsibility for its implementation:
Treaty YearSigned
YearRatified
ImplementingMinistry/Agency
DesignatedFocalPoint/ContactPerson Remarks
(a) Convention on Biological Diversity (CBD)
Focal Point for CBD:
Focal Point for CHM:
(b) The Cartagena Protocol on Biosafety
Focal Point for BCH:
Competent Authority:
(c) Convention on International Trade in Endangered Species of Wild Fauna and Flora
Scientific Authority:
Management Authority:
(d) The Convention on Wetlands (RAMSAR)
(e) The FAO’s International Treaty on PGR for FA
The World (f) Trade Organization (WTO) TRIPS’s Agreement
(g) World Intellectual Property Organization (WIPO)
Annex 2 Questionnaire 1 Developed by IBBIS and UNEP to Assist National Consultants
89
2. (a) Has your country developed and or adopted a National Biodiversity Strategy and Action Plan (NBS/AP) or similar document? YES/NO
(b) Which ministry/agency was (or is) responsible for its development/adoption?
If not, is the NBS/AP or its equivalent currently being developed? YES/NO. When is it likely to be finalized/and adopted? – In 2004/Early, Middle, Late 2005/Not in pipeline
3. Does your country have an inventory of its existing institutions including their respective ex-situ collections of:(i) microbial genetic resources (MGRs) YES/NO(ii) Plant genetic resources (PGRs) YES/NO(iii) Animal genetic resources (AGRs) YES/NO
Please provide a list of the Institutions and their focal points.
4. Does your country have any legislative, administrative or policy measure(s), regulations, or bylaws on access to, or sharing of benefits derived out of the utilization of, microbial, plant or animal genetic resources held under the auspices of :(a) national gene banks and or ex-situ germplasm banks? YES/NO(b) national agricultural, veterinary, medical or other scientific/research institutions? YES/NO(c) national universities or other academic institutions? YES/NO(d) national protected areas and sanctuaries (e.g. national parks, biosphere reserves, world heritage sites etc.)? YES/NO(e) International or intergovernmental centres of excellence? YES/NO (f) other national facilities e.g national museums, herbaria, botanical gardens, arboreta, aquaria etc.)? YES/NO
Has your country or any institution in the country undertaken or participated in any bilateral or multilateral 5. project or programme incorporating any access and or benefit sharing arrangements?Not at all- Not to our knowledge- Yes but covering only access to genetic resources- Yes but covering both access to genetic resources and benefit sharing-
6. The above access and benefit sharing arrangements were made between/involving:
(a) In-country universities and: (i) external collaborating universities; and/or (ii) external private sector entities(b) National Scientific Research Institutions and (i) external collaborating counter-part institutions; (ii) universities or; (iii) private sector entities(c) National NGOs and: (i) external NGOs; (ii) universities or; (iii) private Sector entities?(d) Government Agencies and: (i) UN Agencies or; (ii) intergovernmental agencies.
Is a list of any such projects/programmes available? YES/NO accessible to the Public? YES/NO7. Hasyourcountryputinplaceanyinstitutional(administrative/technical)mechanism(s)foraddressingtechnical/
scientific,legalortradeissuesintheareaofAccesstoGeneticResourcesandBenefittSharinge.g.
Technical/Scientific Committees to evaluate ABS proposals(a) Legal Expert Committees for drafting contractual arrangements on ABS(b) Technical/trade/economic valuation committees(c) National Guidelines for ABS.(d)
90
Case study on Implementation of the Bonn guidelines on “ACCESS TO GENETIC RESOURCES AND THE FAIR AND EQUITABLE
SHARING OF BENEFITS ARISING OUT OF THEIR UTILIZATION” (ABS) in six countries in Africa
ABS QUESTIONNAIRE NO. 2
PART I: INTRODUCTION/GENERAL BACKGROUND
A. NATIONAL FOCAL POINTS FOR ABS
Please provide full particulars of the following:
(a) National institution designated as National Focal Point for ABS.(b) Full Particulars of the Contact Person for ABS
Name:
Official Title:
Mailing address:
Telephone :
Fax:
e-mail address:
B. NATIONAL CONSULTANTS FOR THE STUDY
Please supply details of the national consultants for the case study:
(a)
(b)
(c)
C. DESCRIPTION OF THE PROCESS FOR THE CASE STUDY
(a) MEAs/conventions covered include: CBD_____ CITES_____ CMS_____RAMSAR_____ FAO/IT _____ WTO/TRIPs _____ WTO/SPS_____ WTO/TBT_____ WIPO_____
(b) Stakeholders involved included the following:
(c) Workshops held and resource materials used.
Annex 3 Questionnaire 2 Developed by IBBIS and UNEP to Assist National Consultants
91
D. SPECIAL NATIONAL CIRCUMSTANCES RELEVANT TO ABS
(a) Does your country have a National Biodiversity Strategy and Action Plan? Yes _____ No _____
(b) What is the country’s priority ranking for the implementation of the NBS/AP: Very High _____ Medium _____ Low _____ Unknown _____
(a) Is the issue of ABS addressed in the NBS/AP: Yes _____ No _____ Indirectly _____
What is the priority given to ABS in terms of Financial Resource Allocations?High ____ Medium ____ Low ____ Unknown ____
(d) Are the state resources made available to ABS National Focal Point considered:
Fairly adequate _____Adequate _____Limited _____Severely limited _____Totally inadequate _____
PART II: CBD PROVISIONS ON ACCESS TO GENETIC RESOURCES, INCENTIVE MEASURES AND SUSTAINABLE USE ETHIC
Please tick the appropriate answer(s) and specify/elaborate in greater detail in respect of each question.
A. IMPLEMENTATION OF THE CBD ARTICLE 15: ACCESS TO GENETIC RESOURCES
General
1. What priority ranking does the country accord to the implementation of this Article and the associated CBD COP decisions/recommendations?
(a) Very High _____ (b) High _____ (c) Medium _____ (d) Low _____ (e) Unknown _____
2. Are the resource allocations for meeting the obligations in this Article and the various CBD COP decisions/recommendations considered:
(a) Fairly adequate (b) Adequate (c) Limited/limiting (d) Severely limited/limiting (e) Totally inadequate
Article 15(1) Reads: Recognising the sovereign rights of states over their natural resources, the authority to determine access to genetic resources rests with the national Governments and is subject to national legislation
3. Has the state put in place the necessary national legislation regarding access to genetic resources? YES/NO
Please specify
92
Article 15(2) Creating conducive conditions that do not impose restrictions for access to genetic resources
4. What national conducive measures have been taken to date to facilitate access to genetic resources for environmentally sound uses by other Contracting Parties?
(a) None or hardly any measures (b) Some/most measures taken in a piecemeal manner (c) Some/most measures are limited to certain sectors (d) Comprehensive measures are required for especially wildlife/fisheries/forestry sectors
Please specify
Article 15(3) Access to Genetic Resources to be provided only by countries of origin of the genetic resources
5. Has the country acquired the following genetic resources from other Contracting Parties since the CBD entered into force in December 1993? (Yes/No)
(a) Microbial genetic resources (b) Plant genetic resources (c) Animal genetic resources
Please specify
6. Has the country provided the following genetic resources to other Parties as a “country of origin” of the genetic resources in questions? (Yes/No)
(a) Microbial genetic resources (b) Plant genetic resources (c) Animal genetic resources
Please specify
Article 15(4) Granting access to genetic resources to be under Mutually Agreed Terms (MATs)
7. (a) Does the country grant access to genetic resources to various stakeholders through Mutually Agreed Terms (MATs)? (Yes/No)
Please specify
(e) Are there measures to ensure enforcement of and compliance with the Mutually Agreed Terms on the part of the various stakeholders in question? (Yes/No)
Please specify
(c) Have the Mutually Agreed Terms been enforced and complied with? (Yes/No)
Please specify
8. What are the constraints and/or factors contributing to lack of enforcement?
(a) Lack of human resources (f) Poorly drafted/crafted contracts (g) Lack of financial resources (e) Lack of awareness of issues by law enforcement officers
Please specify
93
9. What are the factors contributing to lack of compliance?
(a) lack of skilled human resources (b) Lack of awareness of issues at stake (c) Poorly drafted/crafted contracts (d) Lack of timely/adequate financial resources (e) Lack of goodwill/ethics for compliance
If other(s), please specify
Article 15(5) Prior Informed Consent (PIC) Process(es)
10. What processes does the country have in place to ensure that access to genetic resources is subject to prior informed consent (PIC) of all relevant stakeholders?
(a) None at all (b) The process(es) at early stages of development (c) The process at advanced stages of development (d) An open/transparent participatory planning process involving all stakeholders in place
Please specify
Article 15(6) Participation of state/country in the Scientific R & D being carried out on its genetic resources.
11. What measures has the state/country taken to ensure that any scientific R & D based on its genetic resources are being carried or developed with full participation of the country’s scientists/institutions/communities etc?
(a) No measures at all (b) Some piecemeal measure in place (c) Potential measures under review (d) Comprehensive measures in place in some sectors (h) Comprehensive measures for all sectors/institutions required
Please specify
12. What measures has the state/country taken to ensure that the scientific R & D based on its genetic resources is carried out preferably WITHIN the country?
(a) No measures at all (b) Some piecemeal measure in place (c) Potential measures under review (d) Comprehensive measures in place in some sectors (e) Comprehensive measures for all sectors/institutions required
Please specify
Article 15(7) Fair and equitable sharing of the results of Scientific R & D
13. Does the state have any measures to ensure the fair and equitable sharing of the results of R & D based on its genetic resources which access it has granted or has been granted to another Party.
(i) Legislative Measures:
(a) No measures at all (b) Some piecemeal measures in place (c) Potential measures under review (d) Comprehensive measures in place in some sectors (e) Comprehensive measures for all sectors required
Please specify
94
(ii) Statutory Policy or Subsidiary Legislation
(a) No measures at all (b) Some piecemeal measures in place (c) Potential measures under review (d) Comprehensive measures in place in some sectors (e) Comprehensive measures for all sectors required
Please specify
(iii) Policy and Administrative Measures
(a) No measures at all (b) Some piecemeal measures in place (c) Potential measures under review (d) Comprehensive measures in place in some sectors (e) Comprehensive measures for all sectors required
Please specify
Article 15(7) Fair and Equitable sharing of benefits from commercialization of the country’s genetic resources
14. Has the State taken any measures to ensure fair and equitable sharing of benefits arising from the commercialization and other use(s) of its genetic resources for which access it has granted, or has been granted, to another party?
(i) Legislative measures
(a) No measures at all (b) Some piecemeal measures in place (c) Potential measures under review (d) Comprehensive measures in place in some sectors (e) Comprehensive measures for all sectors required
Please specify
(ii) Statutory Policy or Subsidiary Legislation
(a) No measures at all (b) Some piecemeal measures in place (c) Potential measures under review (d) Comprehensive measures in place in some sectors (e) Comprehensive measures for all sectors required
Please specify
(iii) Policy and administrative measures
(a) No measures at all (b) Some piecemeal measures in place (c) Potential measures under review (d) Comprehensive measures in place in some sectors (e) Comprehensive measures for all sectors required
Please specify
95
IMPLEMENTATION OF DECISIONS TAKEN BY CBD COPs REGARDING ABS
Decisions ii/11 and iii/15
15. Does the relevant authority also ensure benefit sharing arrangements are part of the mutually agreed terms
(MATs) on which access was granted? Yes _____ No _____
16. (a) Did the country participate in the development/negotiations associated with the FAO International Undertaking on Plant Genetic Resources for Food and Agriculture?
Yes_____ No _____
(b) Did the country take an active interest or role in the negotiations for the subsequent FAO International Treaty on Plant Genetic Resources for Food and Agriculture (FAO Undertaking)?
Yes _____ No _____
(c) Has the country ratified the ITGRFA? Yes _____ No _____
When ____________
Designation of NFPs and CNAs
17. (a) Has the country designated a National Focal Point(NFP) and one or more Competent National Authorities (CNAs) to be responsible for ABS arrangements and/or to provide information of such arrangements to the CHM? Yes _____ No _____
(Please supply the full particulars of the NFP and the NCAs).
(b) Has the CBD Secretariat been duly notified? Yes _____ No _____
96
B. IMPLEMENTATION OF ARTICLE 16 ACCESS TO AND TRANSFER OF TECHNOLOGY
** Notes
• “Technology” includes biotechnology.•• Both access to and transfer of technology among contracting parties are essential elements for the
attainment of the objectives of the CBD relevant to ABS.
• This is the only place where IPRs are cited in the CBD.
General
18. What is the priority ranking given by the country to implementation of this article and the associated CBD COP decisions/recommendations?
(a) Very high _____ (b) High _____ (c) Medium _____ (d) Low _____ (e) Unknown_____
19. How are the international resource allocations from external sources for meeting the obligations and the CBD COP Decisions/recommendations considered?
(a) Fairly adequate (b) Adequate (c) Limited/limiting (d) Severely limited/limiting (e) Totally inadequate
20. Are the NATIONAL resource allocations from the GOVERNMENT for meeting the obligations and the CBD/COP Decisions/recommendations AS WELL AS policy decisions/recommendations at national level considered:
(a) Fairly adequate (b) Adequate (c) Limited/limiting (d) Severely limited/limiting (e) Totally inadequate
Please specify
21. Are the resource allocation
(i) From external sources disbursed in a predictable and/or timely manner?Yes _____ No _____
(ii) From national sources disbursed in a predictable and timely manner?Yes _____ No _____
97
Article 16.1 Measures to facilitate access for and/or technologies (including biotechnologies) from other contracting parties
22. What measures has the country put in place to facilitate access to appropriate technologies ABROAD and/or transfer of appropriate technologies in the country, that are relevant to the conservation and sustainable use of biodiversity and do not cause damage to the environment?
(a) No measures at all (b) Some piecemeal measures in place (c) Potential measures under review (d) Comprehensive measures are in place (e) Outstanding measures requiring urgent action have been identified
Please specify
23. What measures/undertakings has the country made or put in place to facilitate access to appropriate technologies from ABROAD, and/or transfer of technologies (especially biotechnologies) into the country, that make use of genetic resources and do not cause significant damage to the environment?
(a) No measures at all (b) Some piecemeal measures in place (c) Potential measures under review (d) Comprehensive measures are in place (e) Outstanding measures requiring urgent action have been identified
Please specify
Article 16.2 Facilitated Access to and transfer of technology under Mutually Agreed Fair and Most Favourable Terms /Consessional and Preferential Terms;
24. Are there any on-going or planned initiatives between the state/country and another party/state/country under which the relevant technologies is or will be transferred under:
(a) Fair and most favourable terms (b) Concessional and preferential terms (c) Other Mutually Agreed Terms
* PLEASE PROVIDE FULL DETAILS*
Article 16.3 Mutually Agreed Terms (MATs) for access to and transfer of technology protected by patents and IPRs.
25. What legislative, administrative or policy measures has the country taken as a party providing its genetic resources in order to facilitate the country’s access to and transfer of relevant technology which makes use of those genetic resources, or Mutually Agreed Terms (MATs), including technology protected by PATENTS and other intellectual property rights (IPRs)? (Yes/No)
(a) No measures/no attempts made (b) Some/most measures are at an early stage of development (c) Some/most measures are at an advanced (d) Comprehensive measures (legislative/administrative/Policy) are in place at (i) institutional level only (ii) sectoral level for a few sectors (iii) national level (e) Outstanding measures requiring urgent action have been identified (f) These measures call for/include (i) Full legislation
98
(ii) Subsidiary legislation (iii) Statutory policy (iv) Administrative/regulatory arrangements
Please elaborate
Article 16.4 Access to and Transfer of Technology through Joint ventures between private sector and public or Government Institutions
26. Has the country put in place legislative, administrative or policy measures that promote joint ventures between the private sector and public/government institutions that the private sector facilitates access to, joint development of, as well as transfer of technology (including biotechnology?) (Yes/No)
(a) No measures/no attempts made (b) Some/most measures are at an early stage of development (c) Some/most measures are at an advanced (d) Comprehensive measures (legislative/administrative/policy) are in place at (i) institutional level only (ii) sectoral level for a few sectors (iii)national level (e) Outstanding measures requiring urgent action have been identified
Please elaborate
(f) These measures call for/include (i) Full legislation (ii) Subsidiary legislation (iii) Statutory policy (iv) Administrative/regulatory arrangements
Please specify
Article 16.5 Protecting of Patents/IPRs subject to National Legislation and International Law
27. Does the country have systems for protection of patents and intellectual property rights (IRPs):
(a) At national level Yes _____ No _____(b) At institutional level Yes _____ No _____
(Please provide full details)
Please specify
CBD COP-3 Decision III/17 Intellectual Property Rights
28. Has the country undertaken any case studies on the impacts of intellectual property rights (IPRs) in order to ensure that such IPRs are supportive of and do not run counter to the objectives of the CBD? (a) At national level Yes _____ No _____(b) At institutional level Yes _____ No _____ (Please provide full details)
99
C. IMPLEMENTATION OF ARTICLE 10 SUSTAINABLE USE OF COMPONENTS OF BIODIVERSITY
General
29. What is the priority ranking accorded to implementation of this Article and the associated CBD COP decisions?
(a) Very High _____ (b) High _____ (c) Medium _____ (d) Low _____ (e) Unknown _____
30. Are the resource allocation for meeting the obligations and CBD COP decisions/recommendations considered? (Yes/No)
(a) Fairly adequate (b) Adequate (c) Limited/limiting (d) Severely limited/limiting(e) Totally inadequate
Please specify
Article 10(a) Integrating conservation/sustainable use considerations in national decision-making
31. Has the country integrated consideration and issues of the conservation and sustainable use of biological resources into the national decision making processes? (Yes/No)
(a) No yet (b) At early stages of development (c) At advanced stages of development (d) Integrated programmes or policies in place (e) Review of implementation available
Please specify
Article 10(b) Sustainable use measures that Avoid/Minimize Adverse Impacts
32. Has the country adopted measures relating to the use of biological resources that avoid or minimize adverse impacts on biological diversity? (Yes/No)
(a) No measures at all (b) Some piecemeal measures in place (c) potential measures under view (d) comprehensive measures in place (e) Recommendation on measures requiring urgent action are attached
Please specify
Article 10(c) Protection/Promotion of compatible customary uses traditional cultural practices of Biodiversity
33. Has the country put in place measures that protect and encourage customary use of biological resources in accordance with traditional practices that are compatible with conservation or sustainable use requirements? (Yes/No)
(a) No measures/hardly can measure (b) Some measures in place (c) Potential measures under review (d) Comprehensive measures in place (e) Outstanding measures requiring urgent action attached
Please specify
100
Article 10(d) Assistance to local communities for Remedial Actions to restore /degraded Habitats/Ecosystems
34. Has the country put in place measures that help local populations develop and implement remedial action in degraded areas where biological diversity has been reduced? (Yes/No)
(a) No measures/hardly can measure (b) Some measures in place (c) Potential measures under review (d) Comprehensive measures in place (e) Outstanding measures requiring urgent action attached
Please specify
Article 10(e) Measures to Promote Government/Private Sector Co-operation
35. Does the country actively encourage cooperation between government authorities and the private sector in developing methods for sustainable use of biological diversity? (Yes/No)
(a) None at all (b) At early stages of development (c) At advanced stages of development(d) Comprehensive programmes or policy in Place(e) Review of implementation available
Please specify
CBD COP-4 Decision IV/15 Relationship of the CBD with the Commission on Sustainable Development (CSD) and biodiversity-related conventions
Tourism and its impacts
36. Has the country submitted to the CBD Secretariat information on tourism and its impacts on biological diversity, and efforts to effectively plan and manage tourism? (Yes/No)
(a) No report ever submitted (b) First national report covers this issue (c) Case-studies available/submitted to CBD (d) Comprehensive initiatives are underway (e) Outstanding measures requiring urgent action are attached
Please specify
Biodiversity-Related Activities of the CSD Process
37. Has the country submitted to the CBD Secretariat information on biodiversity-related activities of the Commission on Sustainable Development (CSD) process addressing the following as applicable to the country?
(Yes/No)
(a) Oceans and Seas (b) Freshwater resources (c) Consumption and production patterns
101
CBD COP-5 - Decision V/24. Sustainable use as a cross-cutting issue
Sectoral Indicators/Incentive Measures for Sustainable Use
38. Has the country identified indicators of sustainable use and incentive measures required for various sectors relevant to the conservation and sustainable use of biodiversity? (Yes/No)
Indicators
(a) No indicators have been identified (b) Assessment of potential indicators underway (c) Details of indicators identified (d) Comprehensive programme/policy under review(e) Outstanding measures requiring urgent action are attached
Please specify
Incentive Measures
(a) No incentive measures identified (b) Some piecemeal measures in place (c) Assessment of potential incentives (d) Comprehensive programme/policy under review(e) Outstanding measures requiring urgent action are attached
Please specify
Collaboration with/Assistance to other Parties for sustainable use
39. Has the country assisted other Parties to increase their capacity to implement sustainable-use practices programmes and policies at regional, national and local levels, especially in pursuit of poverty alleviation (Yes/No)
(a) Some assistance provided at national level (b) Some assistance provided at regional level (c) Assistance provided to a significant extent at sub-regional level
Please specify
Modalities for involvement of Private Sector/Local Communities Initiatives
40. Has the country developed mechanisms to involve the private sector and indigenous and local communities in initiatives on sustainable use, and in mechanisms to ensure that indigenous and local communities benefit from such sustainable use? (Yes/No)
(a) No modalities in place (b) Some ad-hoc/piece meal mechanisms under review (c) Comprehensive mechanisms in place (d) Recommendations requiring urgent action are attached
Please specify
102
41. (a) Has the country further identified specific areas for conservation that would benefit through the sustainable use of biological diversity? Yes_____ No _____
(b) Has this information been communicated to the CBD Executive Secretariat?
Yes _____ No _____
Please specify
CBD COP-5 Decision V/25 Biological diversity and tourism
42. Are the country’s policies, programmes and activities in the field of sustainable tourism based on an assessment of the inter-linkages between tourism and biological diversity?(Yes/No)
(a) To a limited extent Yes _____ No _____(b) To a significant extent Yes _____ No _____(c) Comprehensive policy available/underway Yes _____ No _____
Please specify
43. Has the country undertaken and/or submitted to the CBD Secretariat any case-studies on tourism as an example of the sustainable use of biological diversity?
Yes _____ No _____
44. Has your country undertaken any activities relevant to biodiversity and tourism in support of, or as follow-up to the International Year of Mountains?
Yes _____ No _____
45. Has your country undertaken activities relevant to biodiversity and tourism in support of, or as part of the International Coral Reef?
Yes _____ No _____
46. Has the country established enabling policies and legal frameworks to complement private sector and/or voluntary community efforts for the effective implementation of sustainable tourism?
(a) None at all (b) To a limited extent (c) To a significant extent (d) Comprehensive measures are under way
Please specify
_____
103
D. IMPLEMENTATION OF ARTICLE 11INCENTIVE MEASURES
General
47. What is the priority ranking given to implementation of this Article and the associated CBD COP decisions by the country?
(a) Very High _____ (b) High _____ (c) Medium _____ (d) Low _____ (e) Unknown _____
48. Are the resources allocations for meeting the obligations and CBD COP decisions/recommendations considered:
(a)Good _____ (b)Adequate _____ (c) Limited/Limiting _____ (d) Severely Limited/Limiting _____
49. What programmes are in place to identify and ensure the adoption of economically and socially sound measures that act as incentives for the conservation and sustainable use of components of biological diversity?
(a) None at all (b) At early stages of development (c) At advanced stages of development (d) Some/most programmes in place (e) Review of implementation available
Please specify
50. Do these incentives, and the programmes to identify and ensure their adoption, cover the full range of sectoral activities? (Yes/No)
(a) None at all (b) For some sectors only (c) For all major sectors (d) For all sectors
Please specify
CBD COP-3 Decision III/18. Incentive MeasuresReview of Legislation and economic policies and Identification of Incentives
51. Has the country reviewed legislation and economic policies to identify and promote incentives for the conservation and sustainable use of components of biological diversity? (Yes/No)
(a) Some reviews undertaken (b) Most reviews in progress (c) Some/most reviews have been completed (d) Recommendations requiring urgent action are attached
Please specify
104
Capturing Market and Non-Market Values
52. Has the country developed mechanisms or approaches that adequately incorporate both market and non-market values of biological diversity into (i) plans, policies and programmes and other relevant areas; (ii) national accounting systems; and (iii) investment strategies? (Yes/No)
(i) For Plans, policies and programmes
(a) No mechanisms in place (b) At early stages of identifying mechanisms (c) At advanced stages of identifying mechanisms (d) A review of impact of mechanisms in place available
Please specify
(ii) National Accounting Systems
(a) No mechanisms in place (b) At early stages of identifying mechanisms (c) At advanced stages of identifying mechanisms (d) A review of impact of mechanisms in place available
Please specify
(iii) For Investment Strategies
(a) No mechanisms in place (b) At early stages of identifying mechanisms (c) At advanced stages of identifying mechanisms (d) A review of impact of mechanisms in place available
Please specify
53. Has the country developed training and capacity building programmes to promote and implement incentive measures for private-sector initiatives? (Yes/No)
(a) None at all (b) A programmes in place (c) Some/most programmes at early stages of development (d) Some/most programmes at advanced stage of development
Please specify
54. Has the country incorporated biological diversity considerations into environmental impact assessments (EIAs) as a step in the design and implementation of incentive measures?
(Yes/No)
55. Has the State shared its experience on incentive measures with other Contracting Parties, including making relevant case-studies available to the National CHM and to the CBD Secretariat? (Yes/No)
(a) Has hardly/partly (b) Has shared through previous national report(s) (c) Has shared through case studies (d) Other means placed at National CHM/CBD CHM
(Please give details below, e.g. media, workshops etc)
105
Decision IV/10. Measures for implementing the Convention
56. What incentive measures for implementing ABS provisions of the Convention is the country actively designing, promoting and implementing?
(a) None at all (b) At early stages of development (c) At advanced stages of development (d) Comprehensive measures in place are under review (e) Review of implementation available
57. What threats has the country identified with regard to biological diversity and the underlying causes of biodiversity loss, including identification of the relevant actors, key factors in designing incentive measures?
(i) Measures for identified threats
(a) No threats identified (b) Threats partially reviewed (c) Measures thoroughly reviewed (d) Measures designed based on the reviews are attached (e) review of implementation available
Please specify
(ii) Measures to address underlying causes of biodiversity loss
(a) No causes identified (b) Causes and their effects partially reviewed (c) Measures thoroughly reviewed (d) Measures designed based on the reviews are attached (e) review of implementation available
Please specify
58. Do the existing incentive measures take account of (i) economic, social as well as (ii) cultural and ethical valuation of biological diversity? (Yes/No)
(i) Socio-economic valuation
(a) Not at all (b) To limited extent (c) To significant extent
(ii) Cultural and Ethical Values/Valuation
(a) Not at all (b) To limited extent (c) To significant extent
Please specify
59. Has the country developed any legal and policy frameworks for the design and implementation of incentive measures? (Yes/No)
(a) No legal/policy framework (b) At early stages of development (c) At advanced stage of development (d) Recommendations requiring urgent measures are attached
Please specify
106
60. Does the country carry out consultative processes to define clear, target-oriented incentive measures to address the underlying causes of biodiversity loss? (Yes/No)
(a) Not regularly/not at all (b) Processes being identified (c) Processes identified but not implemented (d) Processes in place
Please specify
61. Has the country identified and considered measures to address perverse incentives? (Yes/No)
(a) No means identified (b) Identification process under way (c) Identified but not all perverse incentives removed (d) Identified and most perverse incentives removed
Please specify Decision V/15. Incentive measures
62. (a) Has the country reviewed the incentive measures promoted through the Kyoto Protocol to the UN Framework Convention on Climate Change?
Yes _____ No _____
Please specify
(a) Is the implementation of the review underway/available? Yes _____ No _____
63. Has the country explored possible ways and means by which the incentive measures of the Kyoto Protocol can support the objectives of the Convention on Biological Diversity in country? (Yes/No)
(a) Not yet explored (b) Issue under consideration (c) At early stages of development (d) At advanced stages of development (e) Recommendations for further actions are available
Please specify
107
PART III: ADDRESSING ISSUES REGARDING IMPLEMENTATION OF OTHERESSENTIAL PROVISIONS OF THE CBD PERTINENT TO ABS
A. IMPLEMENTATION OF ARTICLE 8: IN-SITU CONSERVATION
Article 8a: Establishing a protected area system/network
64. Does the country have an established system of protected area with a view to conserving biodiversity as per this article? (Yes/No)
(a) No System/Network of Protected areas (b) System/Network under development (c) Relatively complete system in place (d) National review of protected area coverage is underway
Please specify
Article 8b: Guidelines for Selecting/Establishing/Managing Protected Areas
65. Are there any nationally adopted GUIDELINES for the selection, establishment and management of the protected areas covered/established as per Article 8(a) described above: (Yes/No)
(a) No guidelines on Protected areas issue (b) Guidelines are under development (c) Policy/Guidelines are under review (d) Comprehensive Guidelines are in place
Please specify
Article 8(c): Regulating/Managing Biological Resources for Sustainable use
66. Does the country have measures to regulate or manage biological resources important for the conservation of biodiversity with a view to ensuring their sustainable use for ABS purposes? (Yes/No)
(a) No measures (b) Measures at early/stages of development (c) Measures at advanced stages of development(d) Some/most reports on implementation of these programmes/policies are available
Please specify
Article 8(d): Measures for Protection of ecosystems/habitat and viable populations
67. What measures have been undertaken that promote the protection of ecosystems, natural habitats, maintenance of viable species in their natural environments?
(a) None at all (b) A few piecemeal measures are in place (c) Potential measures are under review (d) Fairly comprehensive measures are in place
Please specify
108
Article 8(f): Recovery Programme for threatened species
68. Has the country taken any measures that promote the recovery of threatened species over the past 10years? (Yes/No)
(a) None at all ___ (b) A few measures are in place (c) Potential measures are under review (d) Comprehensive measures are in place
Please specify
Article 8(g): Necessary Biosafety issues (Related to ABS)
69. What measures has the country taken, to date, to regulate, manage or control the risks associated with the use of release of living modified organisms resulting from biotechnology?
(a) No measures (b) Some measures taken prior to the Cartagena Protocol on Biosafety (c) Potential Measures under review after the Cartagena Protocol on Biosafety(d) Comprehensive measures are required to be in line with the Cartagena Protocol on Biosafety(e) ABS issues pertinent to biotechnology R & D are taken into account
Please specify
Article 8(h): Addressing the issue of invasive alien species
This article reads as follows: Each party shall, as far as possible and appropriate, prevent the introduction of, control or eradicate those, alien species which threaten ecosystems, habitats or species.
General
70. What priority ranking does the country accord to the issue of alien invasive species addressed in this Article and the associated CBD COP Decisions in particular CBD Decisions VI/23 and the recommendations of the Global Invasive Species Programme (GISP?)
(a) Very High _____ (b) High _____ (c) Medium _____ (d) Low _____ (e) Unknown _____
71. Are the resource allocations for meeting the obligations and the CBD COP Decisions/ Recommendations of the GISP considered (Yes/No)
(a) Fairly adequate (b) Adequate (c) Limited/limiting (d) Severely limited/limiting (e) Totally inadequate
Please specify
72. Has the country undertaken an inventory of alien invasive species that are already in the country in the areas detailed below?
(a) Within the Protected Area system/network (b) Within the ex-situ facilities (c) In the wilderness areas outside the in-situ conservation /Protected Area System/Network(d) In the country outside the above categories (e.g. private homes)
Please specify
109
73. What measures/activities are underway or planned to prevent the introduction of alien invasive species that are already in the country in respect of:
(i) Plants
(a) No measures (b) Measures still under review (c) Limited measures in place (d) Significant measures are in place
Please specify
(ii) Animals
(a) No measures (b) Measures are in early stages of development (b) Measures are at an advanced stage of development (c) Measures under other MEAs with relevant provisions are in place(d) Comprehensive policy, legislation and or other regulatory measures are in place
Please specify
(iii) Microbial Species
(a) No measures (b) Measures are in early stages of development(d) Measures are at an advanced stage of development(e) Measures under other MEAs with relevant provisions are in place(f) Comprehensive policy, legislation and or other regulatory measures are in place
Please specify
74. What measures/activities are underway/or planned to control/prevent the spread of alien invasive species that are already in the country in respect of:
(i) Plants
(a) No measures (b) Measures still under review (c) Limited measures in place (d) Significant measures are in place
Please specify
(ii) Animals
(a) No measures (e) Measures are in early stages of development(f) Measures are at an advanced stage of development(g) Measures under other MEAs with relevant provisions are in place(h) Comprehensive policy, legislation and or other regulatory measures are in place
Please specify
110
(iii) Microbial Species
(a) No measures (b) Measures are in early stages of development (c) Measures are at an advanced stage of development (e) Measures under other MEAs with relevant provisions are in place (f) Comprehensive policy, legislation and or other regulatory measures are in place
Please specify
75. What measures/activities are underway or planned for the eradication of alien invasive species that are already in the country in respect of:
(i) Plants
(a) No measures (b) Measures still under review (c) Limited measures in place (d) Significant measures are in place
Please specify (ii) Animals
(a) No measures (b) Measures are in early stages of development (c) Measures are at an advanced stage of development (d) Measures under other MEAs with relevant provisions are in place (e) Comprehensive policy, legislation and or other regulatory measures are in place
Please specify
(iii) Microbial Species
(a) No measures (b) Measures are in early stages of development (c) Measures are at an advanced stage of development (d) Measures under other MEAs with relevant provisions are in place (e) Comprehensive policy, legislation and or other regulatory measures are in place
Please specify
Article 8(i) Providing conducive Environment for Compatible uses of Genetic Resources
76. Has the country made any attempts to provide the conducive environment needed for compatibility between on the one hand, the present uses of (access to) genetic resources and on the other, the conservation of biodiversity and the sustainable use of its components? (Yes/No)
(a) No measures/some attempts made(b) Some/most measures are at an early stage of development (c) Some/most measures taken are at an advanced stage (d) Comprehensive legislation or other measures are in place
Please specify
111
Article 8(j) and Related Provisions of the CBD
77. What is the priority ranking accorded to the implementation of this Article?
(a) Very High _____ (b) High _____ (c)Medium_____ (d) Low _____ (e) Unknown _____
Please specify
78. How do you rate the resources made available for meeting the obligations of the CBD and the CBD/COP Decisions as well as recommendations at national level forums?
(a) Good (b) Adequate (c) Limited/limiting (d) Very limited/very limiting (e) Outstanding measures requiring urgent action have been identified
Please specify
79. What measures has the country taken to ensure that the knowledge, innovations and practices of indigenous and local communities relevant for conservation and sustainable use of biodiversity are recognised, respected, rewarded preserved and maintained?
(a) No measures (b) Some piecemeal measures in place (c) Potential measures under review (d) Comprehensive measures are in place (e) Outstanding measures requiring urgent action have been identified
Please specify
80. Has the country undertaken work/activities to encourage the equitable sharing of benefits arising from the utilization of such knowledge, innovations and practices? (Yes/No)
(a) No work undertaken (b) Work at early stages of development (c) Work at advanced state of development (d) Comprehensive Programme/Policy in place(g) Support to/Participation in Working Groups on Article 8j(h) Facilitating the active participation of representatives of indigenous and local communities in the Working Group on Article 8j(h) Outstanding measures requiring urgent action have been identified
Please specify
Article 8(k): Measures for protection of threatened species
81. Has the country developed and maintained the necessary/relevant policy, legislation and other regulatory measures for the protection of threatened species and populations? (Yes/No)
(a) No measures (b) Measures are in early stages of development (c) Measures are at an advanced stage of development (d) Measures under other MEAs with relevant provisions are in place comprehensive policy, legislation and or other(e) Regulatory measures are in place
Please specify
112
Article 8(l): Measures directed at processes and categories of activities with significant adverse impact (See Article 7)
82. What measures has the country instituted to regulate or manage processes and categories of activities identified under Article 7(of the CBD) as having significant adverse effects on biological diversity.
(a) No measures (c) Measures still under review (d) Limited measures in place (d) Significant measures are in place
Please specify
Article 8(m): Adequacy/Timeliness of Financial and other Support for in-situ conservation
83. Does the country receive adequate financial and other support for in-situ conservation for biological diversity? (Yes/No)
(a) Very limited financial or other support (b) Reasonable financial or other support but below expectations(c) Adequate resources provided in a timely manner
113
B. IMPLEMENTATION OF ARTICLE 9: EX-SITU CONSERVATION
Article 9a: Ex-situ measures for native and/or endemic species/components of biodiversity
84. Has the country adopted measures for the ex situ conservation of components of biological diversity that are endemic, native or natural to the country? (Yes/No)
(a) no measures (b) some measures in place (c) potential measures under review (d) comprehensive measures in place
Please specify
85. Has the country adopted measures for the ex situ conservation of components of biological diversity that are exotic, introduced or originating outside the country? (Yes/No)
(a) no measures (b) some measures in place (c) potential measures under review (d) comprehensive measures in place
Please specify
86. If the answer to the previous question was yes, are there measures to ensure that this is being done in active collaboration with competent institutions and/or organizations in the other countries?
(a) no measures (b) some measures in place (c) potential measures under review (d) comprehensive measures in place
Please specify
Article 9b: Research facilities for endemic and/or native species
87. Has the country established and maintained facilities for the ex situ conservation of and research on plants, animals and micro-organisms that represent genetic resources native to the country? (Yes/No)
(a) Hardly any facilities established (b) Limited facilities established (c) Significant number of facilities (d) Comprehensive systems/network required
88. Has the country established and maintained facilities for the ex situ conservation of and research on plants, animals and micro-organisms that represent genetic resources originating elsewhere? (Yes/No)
(a) Hardly any facilities established (b) Limited facilities established (c) Significant number of facilities (d) Comprehensive systems/network required
Please specify
114
89. If the answer to the previous question was yes, is this being done in active collaboration with organizations in the other countries? Yes _____ No _____
Please specify
Article 9c: Re-introduction of threatened species
90. Has the country adopted measures for the reintroduction of threatened species into their natural habitats under appropriate conditions?(Yes/No)
(a) no measures(b) some measures in place(c) potential measures under review(d) comprehensive measures in place
Please specify
Article 9d: Regulating/Managing/collection of species
91. Has the country taken measures to regulate and manage the collection of biological resources from natural habitats for ex situ conservation purposes so as not to threaten ecosystems and in situ populations of species? (Yes/No)
(a) no measures (c) some measures in place(d) potential measures under view(e) comprehensive measures in place
Please specify
Article 8(e): Financial and other support for Ex-situ conservation
92. Has the country received financial and other support for ex situ conservation and in the establishment and
maintenance of ex situ conservation facilities? Yes _____ No _____
Please provide details.
115
C. IMPLEMENTATION OF ARTICLE 18:TECHNICAL AND SCIENTIFIC CO-OPERATION
93. What is the priority ranking recorded by the country to this Article and the associated CBD/COP decisions?
(a) Very High _____ (b) High _____ (c) Medium _____ (d) Low _____ (e) Unkonwn _____
94. How would you rate the national resources made available for meeting the CBD obligations and recommendations in the CBD/COP decision?
(a) Good (b) Adequate (c) Limited/Limiting (d) Outstanding measures requiring urgent action have been identified
Please specify
Article 18(1): Promotion of international technical and scientific co-operation
95. What measures has the country taken to promote international technical and scientific co-operation in the field of conservation and sustainable use of biodiversity?
(a) Hardly any measures taken (b) Some piecemeal measures are in place (c) Potential measures under review (d) Comprehensive measures are in place (e) Outstanding measures requiring urgent action have been identified
Please specify
Article 18(2) :Development/strengthening Human Resource and Institutional building
96. Do the measures taken above pay special attention to the development/strengthening of national capacities in respect of:
(i) human resources development and (ii) institutional capacity building?
(a) Hardly so (b) To a limited extent (c) to a significant extent (d) Outstanding measures requiring urgent action have been identified
Please specify
Article 18(4): Co-operation for development of technologies, including indigenous/traditional technologies.
97. What has the country done to encourage and/or develop modalities for international co-operation for the development and use of technologies, including indigenous/traditional technologies for conservation and sustainable use of biodiversity?
(a) Hardly any measures taken (b) Measures still at early stages of development (c) Measures are at advanced stage of development (d) Comprehensive measures are in place (e) Outstanding measures requiring urgent action have been identified
Please specify
116
D. IMPLEMENTATION OF THE CLEARING-HOUSE MECHANISMS (CHM)IN THE CONTEXT OF ARTICLE 18
98. Has the country designated a National Focal Point for the CHM? Yes _____ No _____
99. Has the country established a multi-sectoral, and multi-disciplinary and/or multi-stakeholders CHM Steering Committee?
(a) Yes _____ List of current members is attached
(b) No _____ Establishment is underway
100. Has the country reviewed the priorities/measures identified in Annex I of Decision V/14?
Yes _____ No _____
101. What measures have been taken to implement Decision V/14?
(a) Hardly any measures taken some limited/piecemeal measures in place (c) Priorities/Measures reviewed but not fully implemented (d) Priorities/measures reviewed and implemented as appropriate (e) Outstanding measures requiring urgent actions have been identified
Please specify
102. Is the National CHM linked to the Internet? (Yes/No)
103. Are the resources allocated for the further development, operation and implementation of the CHM and its associated activities considered:
(a) Totally inadequate (b) Reasonably adequate (c) Adequate(d) Outstanding measures required urgent actions have been identified
Please specify
104. Is the training of personnel and exchange of experts included in the international co-operation programmes? (Yes/No)
(a) Not always (b) To a limited extent only (c) To a significant extent (d) Outstanding measures requiring urgent actions have been identified
Please specify
117
Article 18(c): Joint Research Programmes/Joint Ventures
105. Does the country promote and/or has it entered into
(i) joint ventures and/or(ii) joint research programmes for the development/diffusion of relevant technologies pertinent to any of the three objectives of the CBD?
(a) Hardly any (b) To a limited extent (c) To a significant extent (d) A list of joint research programmes is available/underway (f) A list of joint ventures is available/under preparation (g) Outstanding measures requiring urgent action have been identified
Please specify
106. Is the country planning, facilitating and participating in workshops and other expert meetings at national/regional and global levels to further the operationalization and development of the CHM?
(a) Hardly any activities underway (b) Participating in piecemeal (c) Limited support to some workshops/meetings (d) Fully committed to CHM activities (e) Outstanding measures requiring urgent action have been identified
Please specify
118
E. IMPLEMENTATION OF ARTICLE 12RESEARCH AND TRAINING
General
107. What priority ranking does the country accord to the Article?
(a)Very High _____ (b) High_____ (c) Medium _____ (d) Low _____ (e) Unknown _____
Please specify
108. Are resource allocations for meeting the obligations and CBD COP decisions/recommendations considered?
(a) Fairly Adequate (b) Adequate (c) Limited/Limiting (d) Severely Limited/Limiting (e) Totally Inadequate
Please specify
Article 12(a) Establishing Programmes for Scientific and Technical Education and Training for Specific National Needs
109. Has the country established programmes for Scientific and Technical Education and training in measures for (Yes/No):
(i) Identification of biodiversity and its components
(a) Hardly any measures at all (b) Some limited measures in place (c) Potential measures under review (d) Comprehensive measures in place (e) Outstanding measures requiring urgent actions have been identified
(ii) Conservation and sustainable use of biodiversity and its components
(a) Hardly any measures at all (b) Some limited measures in place (c) Potential measures under review (d) Comprehensive measures in place (e) Outstanding measures requiring urgent actions have been identified
Please specify
110. Has the country provided support to other Parties/Countries in measures for identification, conservation and sustainable use of biodiversity and its components?
Yes _____ No _____
Please specify
119
Article 12(b) Promotion of Research Activities for effective conservation and sustainable use of biodiversity
111. What measures has the country put in place to promote and encourage research which contributes to the effective conservation and sustainable use of biodiversity and its components?
(a) Hardly any measures at all (b) Some limited measures in place (c) Potential measures under review (d) Comprehensive measures in place (e) Outstanding measures requiring urgent actions have been identified
Please specify
Article 12(c) (Cooperation in the use of Scientific Advances and Research Methodologies
112. Does the country have measures in place to promote collaboration and co-operation in the use of scientific advances in biodiversity R & D methodologies for conservation and sustainable use of biological resources? (Yes/No)
(a) Hardly any measures at all (b) Some limited measures in place (c) Potential measures under review (d) Comprehensive measures in place (e) Outstanding measures requiring urgent actions have been identified
Please specify
120
PART IV ADDRESSING ISSUES OF ENVIRONMENTAL IMPACT ASSESSMENT, INFORMATION EXCHANGE, PUBLIC AWARENESS AND PARTICIPATION
A. IMPLEMENTATION OF ARTICLE 13PUBLIC AWARENESS AND EDUCATION
[Communication, Education and Public Awareness]
General
113. What priority ranking does the country accord to the implementation of this Article and the associated CBD COP decision?
(a) Very High _____ (b) High _____ (c) Medium _____ (d) Low _____ (e) Unknown_____
114. Are the resource allocations for meeting the obligations and CBD COP decisions/ recommendations considered (Yes/No)
(a) Fairly adequate (b) Adequate(c) Limited/limiting(d) Severely limited/limiting(e) Totally inadequate
Article 13 (a) Use of Media for Awareness Raising
115. Does the country use the media to promote and encourage understanding of the importance of, and measures required for conservation and sustainable use of biodiversity, ecosystems and habitats at primary, secondary and tertiary levels of education?
(a) Media is used to a very limited extent? (b) Media is used to a large extent and rather effective (c) Media usage is very significant and effective
Please specify
116. Does the country use education programmes for awareness raising and understanding of the importance of, and the measures required for consideration and sustainable use of biodiversity, ecosystems and habitats at primary, secondary and tertiary levels of education?(Yes/No)
(i) Primary level
(a) Hardly, if at all (b) To a limited extent (c) To a large extent (d) To a significant extent
Please specify
121
(ii) Secondary level
(a) Hardly, if at all (b) To a limited extent (c) To a large extent (d) To a significant extent
Please specify
(iii) Tertiary level
(a) Hardly, if at all (b) To a limited extent (c) To a large extent (d) To a significant extent
Please specify
Article 13(b) Collaboration and co-operation with other states and international organisations
117. What collaborative/co-operative programmes/activities has the country established/undertaken in the area of communication, education and public awareness (CEPA) with other states and/or international organisations?
(i) With other States
(a) Hardly any programmes/activities at all (b) Some limited programmes/activities in place (c) Comprehensive programmes/activities in place (d) Special programmes/activities requiring urgent action have been identified
Please specify
(ii) With international organisations
(a) Hardly any programmes/activities at all (b) Some limited programmes/activities in place (c) Comprehensive programmes/activities in place (d) Special programmes/activities requiring urgent action have been identified
Please specify
118. Does the country support the initiative and programmes of major groups to foster multi-stakeholder participation and involvement in decision making regarding relevant awareness raising campaigns?(Yes/No)
Please specify
119. Has the country translated the CBD text or relevant Articles/provisions of the CBD [and other MEAs such as CITES, CMS, RAMSAR] into local languages to promote awareness raising among major groups/stakeholders/relevant sectors?
Please specify
122
120. Does the country support and promote local, national, sub-regional and regional awareness raising programmes on specific issues/areas of public concerns regarding biodiversity, biosafety and biotechnology?
Yes_____ No _____
Please specify
B. IMPLEMENTATION OF ARTICLE 17: EXCHANGE OF INFORMATION
121. What is the priority ranking given to the implementation of this Article and the associated CBD COP decisions by the country?
(a) Very High_____ (b) High _____ (c) Medium _____ (d) Low _____ (e) Unknown _____
122. To what extent are the resources available adequate for meeting the obligations and recommendations made?
(a) Good(b) Adequate(c) Limited/Limiting(d) Outstanding measures requiring urgent action have been identified
Please specify
Article 17(1): Exchange of Information from all publicly available sources
123. Has the country taken measures to facilitate the exchange of information from publicly available resources? (Yes/No)
(a) Limited/piecemeal measures taken (b) restricted by lack of resources (c) some measures in place (d) potential measures under review (e) comprehensive measures in place through the CHM
Please specify
Article 17(2):
124. If so, do these measures include all categories of information listed in Article 17(2), including:
(i) Technical/Scientific socio-economic research
(a) No measures (b) Some measures in place (c) Potential measures under view(d) Comprehensive measures in place
Please specify
123
(ii) Training and surveying programmes
(a) No measures (b) Some measures in place (c) Potential measures under view (d) Comprehensive measures in place
Please specify
(iii) Specialized knowledge
(a) No measures (b) Some measures in place (c) Potential measures under view (d) Comprehensive measures in place
Please specify
(iv) Indigenous and traditional knowledge
(a) No measures(b) Some measures in place(c) Potential measures under view(d) Comprehensive measures in place
Please specify
(v) Repartriation of information
(a) No measures (b) Some measures in place (c) Potential measures under view (d) Comprehensive measures in place
Please specify
124
C. IMPLEMENTATION OF ARTICLE 14ENVIRONMENTAL IMPACT ASSESSMENT
General
125. What priority ranking does the country accord to the issues of environmental impact assessments (EIAs) raised in this article?
(a) Very High _____ (b) High _____ (c) Medium _____ (d) Low_____ (e) Unknown _____
126. How are the resources allocations for meeting the obligations of this Article and the various CBD/COP recommendations considered?
(a) Very High _____ (b) High _____ (c) Medium _____ (d) Low_____ (e) Unknown _____
Article 14.1a Legislation Requiring EIAs of Proposed projects with Likely Adverse Impacts on Biodiversity
127. What legislation or regulatory measures does the country have requiring Environmental Impacts Assessment (EIAs) of proposed projects which are likely to have adverse effects on biological diversity?
(a) None at all (b) Legislative/policy/regulatory measures are at early stages of development (c) Legislative/policy/regulating measures are at advanced stage of development (d) Legislative/policy/regulatory measures in place (e) A review of their implementation is available(f) Specific recommendations in respect of proposed ABS Projects are included in this case study
Please specify
Article 14.1a Public Participation/Involvement of Local Communities
128. Do the EIA procedures of the country allow/cater for; public participation; full involvement of local and indigenous communities and multi-stakeholder participation?
(i) Public Participation
(a) Not at all/very rarely (b) Allows some limited involvement indigenous and local communities (c) Caters for indigenous /local communities to a significant extent (d) Allows full public participation (e) Modalities under review for comprehensive
Please specify
(ii) Full Involvement of local and indigenous communities
(a) Not at all/very rarely (b) Allows some limited involvement indigenous and local communities (c) Caters for indigenous /local communities to a significant extent (d) Allows full public participation (e) Modalities under review for comprehensive
Please specify
125
(iii) Mutistakeholder Involvement
(a) Not at all/very rarely (b) Allows some limited involvement indigenous and local communities (c) Caters for indigenous /local communities to a significant extent(d) Allows full public participation(e) Modalities under review for comprehensive
Article 14.1b Mechanisms that take into account environmental consequences/adverse impacts of national programmes/policies
129. What mechanisms does the country have in place to ensure that the environmental consequences of national programmes/policies that are likely to have adverse impacts on biodiversity are duly taken into account?
(a) None at all (b) Mechanisms at early developmental stages (c) Mechanisms at advanced development stages (d) Mechanisms in place are stages partially compliant with current scientific information (e) Mechanisms are fully compliant with current scientific information
Please specify
Article 14.1c Activities likely to significantly affect biodiversity beyond national jurisdiction
130. Do the country’s EIA procedures cater for dialogue/consultations at bilateral/multilateral as well as regional/sub-regional levels on national activities/programmes/policies that are likely to have significant adverse impacts on biodiversity outside/beyond the country’s territorial jurisdiction?
(a) Not at all/very rarely (b) To a limited extent (c) To a great extent (d) Modalities are under review for regular consultative dialogue at bilateral/multilateral levels
Please specify
Article 14.1c Implementation/enforcement of and compliance with bilateral, multilateral and/or regional/sub-regional agreements
131. Is the country implementing , enforcing or complying with bilateral/multilateral and/or regional/sub-regional agreements on activities likely to significantly affect biodiversity outside/beyond the limits of national jurisdiction?(Please give examples)
(a) Only partially implementation/enforcement/compliance undertaken (b) Assessment/review of some agreements for areas of improvement underway (c) Comprehensive review at an advanced stage
126
Article 14.1d Notifying other States of cases of imminent/grave danger or damage to biodiversity originating in the country
132. What mechanisms does the country have in place to NOTIFY other states of cases of imminent or grave danger or damage to biodiversity originating from the country and with potential to affect those countries?
(a) No mechanisms (b) Mechanisms at early developmental stages (c) Mechanisms at advanced developmental stages(d) Comprehensive mechanisms under review (e) Comprehensive mechanisms in place
Please specify
Article 14.1d Mechanisms to prevent/minimize danger or damage
133. What mechanisms does the country have in place to prevent or minimize danger originating within the country to biodiversity in other states or areas beyond the limits of national jurisdiction?
(a) No mechanisms (b) Mechanisms at early developmental stages (c) Mechanisms at advanced developmental stages(d) Comprehensive mechanisms under review (e) Comprehensive mechanisms in place
Please specify
Article 14.1e Mechanisms for Early Warning and/or Emergency Response to activities or events presenting grave/imminent danger to biodiversity
134. What mechanisms does the country have in place for early warning and/emergency response to activities or events which present grave/imminent danger to biodivesity?
(a) No mechanisms (b) Mechanisms at early developmental stages (c) Mechanisms at advanced developmental stages(d) Comprehensive mechanisms under review (e) Comprehensive mechanisms in place
Please specify
PART V - OBSERVATIONS, RECOMMENDATIONS AND CONCLUSION(S)
The National consultant(s) will articulate this section which is expected to naturally flow from the outcomes of the various national processes engaged for the case study exercise and responses to the questionnaires. More details would emanate from discussions at the national review level and mid-term review.
127
CASE STUDY ON IMPLEMENTATION OF THE BONN GUIDLINES ON “ACCESS TO GENETIC RESOURCES AND THE FAIR AND EQUTABLE SHARING OF BENEFIT ARISING OUT OF THEIR UTILIZATION” (ABS) IN SIX COUNTRIES IN AFRICA
ABS QUESTIONNAIRE NO. 3
Under the case study exercise it is also intended to gather and compile information as per Decision. VII/19 and elaborated in NOTIFICATION of 29/04/04, as well as NOTIFICATION of 11/05/05 issued by the CBD Secretariat. The accompanying Annexes I, II and III developed by the CBD Secretariat are essential in this regard. It is important that the country case study includes or reflects the info requested in the relevant paras. under the respective sections of decision VII/19, as detailed below:
Decision VII/19B – USE OF TERMS, DEFINITIONS AND/OR GLOSSARY, AS APPROPRIATE
Para. 1 DIRECTED AT PARTIES/COUNTRIES/GOVERNMENTSPlease provide
A.InfoonexistingNationalDefinitionsoftermsofrelevancetoABS(seeAnnexI)B.Viewsonwhether(andifpossiblewhich)additionaltermsareneeded,andtheirdefinitions
Decision VII/19C - OTHER APPROACHES, AS SET OUR IN DECISION VI/24B
Para.1 - DIRECTED AT PARTIES/COUNTRIES/GOVERNMENTSPlease provide
C.Views/infoonotherapproachesassetoutinDecisionVI/24B;suchas
- Interregional/bilateral arrangements - Code of ethics- Others (specificy)
Decision VII/19D - INTERNATIONAL REGIME ON ACCESS TO GENETIC RESOURCES AND BENEFIT-SHARING
Para. 8 - DIRECTED AT PARTIES/COUNTRIES/GOVERNMENTSPlease provide, as appropriate. D.ViewsontheelementsoftheInternationalRegimeonABS,setoutintheTORsfortheABSWG[seepara.(d)AnnextoDecisionVII/19D]
Decision VII/19E – MEASURES, INCLUDING CONSIDERATION OF THEIR FEASIBILITY, PARCTICALITY AND COSTS, TO SUPPORT COMPLIANCE WITH PRIOR INFORMED CONSENT OF THE CONTRACTING PARTY PROVIDING GNEETIC
RESOURCES UNDER THEIR JURISDICTION
Annex 4 Questionnaire 3 Developed by IBBIS and UNEP to Assist Country Consultants
128
Para. 7 DIRECTED AT PARTIES IN ORDER FOR THE ABS-WG TO CONSIDER MEASURES TO SUPPORT COMPLIANCE WITH PIC/MATs ON WHICH ACCESS WAS GRANTED
With regard to applications for IPRs
E.[identify]issuesrelatedtodisclosureoforiginof
- genetic resources- associated Traditional Knowledge , innovations and Practices (TK) of indigenous and local communities
F.Issuesraisedbytheproposedinternationalcertificateoforigin/source/legalgovernance
Decision VII/19E
Para. 8 DIRECTED AT WIPO (TO EXAMINE WITH ASSISTANCE OF PARTICIES/GOVERNMENTS)
G.Issuesregardinginter-relationofaccesstoGRanddisclosurerequirementsinIPRapplications
Decision VII/19E –
Para. 9 - DIRECTED AT UNCTAD /OTHER RELEVANT ORGANIZTIONS
H.[Examine]issuesinandrelatedtomattersspecifiedin,paras.7&8thatUNCTAD/otherrelevantorganisationsshouldaddress.
Decision VII/19F - DIRECTED AT CBD SECRETARIAT TO UNDERTAKE, WITH ASSISTANCE OF PARTIES/GOVERNMENT, FURTHER ANALYSIS OF ISSUES AS SPECIFIED THEREIN
Para. 10
I. Provide necessary information to the Executive Secretary who was requested, in paragraph 10, “to gather information, with the assistance of Parties, Governments and relevant international organizations, and undertake further analysis relating to:
(a) Specific measures to support and ensure compliance with national legislation, prior informed consent of the Contracting Parties providing such resources, including countries of origin , in accordance with Article 2 and Article 15, paragraph 3, of the Convention, and of the indigenous and local communities providing associated traditional knowledge, and with mutually agreed terms on which access was granted;
(b) Existing measures to support compliance with national, regional, and international legal instruments;
(c) The extent and level of unauthorized access and misappropriation of genetic resources and associated traditional knowledge;
(d) Access and benefit-sharing arrangements existing in specific sectors;
(e) Administrative and judicial remedies available in countries with users under their jurisdiction and in international agreements regarding non-compliance with the prior informed consent requirements and mutually agreed terms;
129
(f) Existing practices and trends with regard to commercial and other utilization of genetic resources and the generation of benefits;
(g) Measures that preserve and promote legal certainty for users over the terms and conditions of access and use; and prepare a compilation of the information received and make this compilation available for the consideration of the Ad Hoc Open-ended Working Group on Access and benefit-sharing at its third meeting;
ACTION PLAN FOR CAPACITY BUILDING FOR ABS
Decision VII/19F Annex
J. [Provide] information regarding implementation of capacity building projects related to ABS.
See attached Annex II for the list of main capacity building areas requiring major focus to provide the conducive/enabling environment for effective ABS arrangements.
130
Use of Terms
In accordance with decision VII/19B, Parties are invited to provide to the Executive Secretary existing national definitions or other relevant definitions of the terms included in the following table along with the source of these definitions. Any views on whether additional terms should also be considered, including their definitions and source, are to be included in the last row of this table.
Termstobedefined Existingdefinition/Source
Access to genetic resources
Benefit-sharing
Commercialization
Derivatives
Provider
User
Stakeholder
Ex situ collection
Voluntary nature
Other term(s) to be defined:
Comments:
131
Database on ongoing ABS capacity-building projects
DATA ENTRY FORMGeneral guidelines for completing the form
For a project to be included, it should be primarily aimed at building capacity for access to genetic resources and benefit-sharing. The project should be implemented over a period of time (preferably over six months) and should not be a one off event (e.g. organization of a workshop or a study tour). It should include several activities over a period of time. Detailed description of the project and other relevant information (e.g. project reports), where available, should be provided as a separate attachment.
Generaldescription:Title of project or programme:
StatusIndicate whether the project is ongoing, planned or completed
Planned
Ongoing
Completed
PeriodIndicate the specific dates of the project
Date (Day/Month/Year)
From
To
Country(ies)orRegion(s)Indicate in which geographic region or in which country (ies) the project is being implemented
Participatingorganization(s)
Leadorganization(s)implementingtheprojectorprovidingsupport:
132
Typeofimplementingagency(ies)
Please indicate, in the following list, the type of organization(s) which initiated and is/was mainly responsible for the implementation of the project:
Inter-governmental organization
UN System Organization
Non-governmental organization
Government
Private foundation
Industry
Research/Scientific
Education/University
If other, please specify:
Other collaborating organizations/agencies, if applicable:
MaintargetgrouportargetaudiencePlease indicate, in the following list, the main target group/audience and beneficiaries of the project.
Government officials
Policy makers
Civil servants
Indigenous and local community representatives
Farmers
Researchers/scientists
Business sector
Civil society
Other
133
ContactdetailsProvide the name and position of a contact person who will be responsible for updating information about the project
and responding to requests from the database users for further information.
Title (Mr, Ms, Dr):
Name
First Name:
Last Name:
Designation/Jobtitle/Function
Organization
AddressStreet Address
Postal Code
City, State or Province
Postal Code
Country
International Phone Number:
International Fax Number:
Email address:
Web site:
FundingSourcePlease indicate whether the source of funding for this project is multilateral or bilateral
Multilateral
Bilateral
Other
Fundingagency(ies)Please indicate the funding agency and the amount of funding
Name of funding agency
Amount in US$
134
GoalsandobjectivesState the overall goal of the project and outline the main objectives
Overallgoal:
Specificobjectives:
ScopeandactivitiesMain capacity building areas
• The following list of capacity-building areas related to access and benefit-sharing is based on the key areas requiring capacity-building identified in the Action Plan on capacity-building for access to genetic resources and benefit-sharing (included in Annex to decision VII/19F
• For ease of use and to facilitate database searches, the description of key areas has been synthesized. Reference to the relevant paragraphs of the Action Plan are included in parenthesis.
• Please indicate, out of the following list, the main capacity-building areas to which the project is contributing:
Assessment, inventory and monitoring of genetic resources and related traditional knowledge A. (paragraph 5(b))
Assessment, inventory and monitoring of in situ and ex situ conservation activities (paragraph 5(b))
Bioprospecting (paragraph 5 (d))
Valuation of genetic resources and related traditional knowledge and development of their market potential (paragraph 5 (e))
Impact of access activity on conservation and sustainable use of biodiversity (paragraph 5 (o))
Inventories and case studies of existing policies and legislative measures related to access and benefit-sharing (paragraph 5 (g))
Development of relevant policies and legislation on access to genetic resources and related B. traditional knowledge (paragraph 5(h))
Development of appropriate measures in countries with users of genetic resources under their jurisdiction to support compliance with measures in provider countries related to prior informed consent and mutually agreed terms (paragraph 5(f))
Information systems for information management and exchange linked to the Clearing House Mechanism under the Convention (paragraph 5 (i))
Information to all potential users on their obligations regarding access to genetic resources and related traditional knowledge (paragraph 5 (q))
Public education and awareness with respect to access and benefit-sharing issues (paragraphs C. 5 (k) (m))
Human resource development at all levels related to access and benefit-sharing (paragragh 5(l))
135
Development and strengthening of the capacities of indigenous and local communities (paragraph 5( j))
Clarification and/or recognition of rights and claims of indigenous and local communities over D. genetic resources and related traditional knowledge (paragraph 5 (p))E.
Institutional capacity-building (paragraph 5(a))
Inter-institutional coordination (paragraph 5(n))
For the capacity-building areas identified above, please indicate whether the capacity-building activity(ies) is/are being carried out at the national, regional/subregional and/or international levels.
National level activities
Regional, sub-regional activities
International level activities
Pleasedescribethenatureofactivity(ies)
OutcomesandlessonslearnedOutcomes:
Lessonslearned,includingadditionalresourcesneeded:
Anyotherrelevantinformation:
136
Database on Access and Benefit-sharing Measures
DATA ENTRY FORM General guidelines for completing the form
Parties and relevant organisations are invited to fill out this form in order to identify the main characteristics of the measures undertaken to address access to genetic resources and the fair and equitable sharing of benefits, in accordance with Article 15 of the Convention [Special Note: See also Questionnaire No. 2 Part II] . Parties and relevant organisations are also encouraged to forward to the Secretariat a copy of the measure, preferably in electronic form (Word format would be appreciated), which will be accessible through the Clearing House Mechanism, for information purposes.
In the event that more than one measure has been adopted at the national or regional level, Parties and relevant organizations are requested to fill in a separate form for each different type of measure.
Identificationoflevelandname1) In the second column, please indicate whether the measure has been undertaken at the
regional, national, sub-national, community or local level.
Level
Regional
National
Sub-national
Community
Local
Other
2) Please provide the name of the region or of the country and, if applicable, of the sub-national level (e.g. State, Province, etc) or community or locality within that country to which the measure applies:
Areaofactivity
Please indicate whether the measure is general or whether it has been undertaken to apply to specific sectors (e.g. agriculture, forestry) and/or whether it is meant to apply to specific categories of users (e.g. industry, botanical gardens, research institutes, ex situ collection holders).
General
Sectoral
Specific to a category of users
If sectoral and/or specific to a category of users, please specify the sector and/or category of user:
137
Typeofmeasureinplaceandofficialtitle
Please indicate whether the measure undertaken has taken the form of a national or regional strategy, policy, legislation, regulation, community management plan, guidelines or a code of conduct on access and benefit-sharing.
Strategy
Policy
Legislation
Regulation
Community management plan
Guidelines/Code of conduct
Other
If other, please specify:
Pleaseprovidetheofficialtitleofthemeasure:
ScopePlease indicate whether the policy, strategy, legislation, regulation, community management plan, guidelines or code of conduct related to access and benefit-sharing is within the framework of a broader measure dealing with sustainable development, environment or biodiversity or whether it is a distinct measure focussing only on access and benefit-sharing:
Sustainable development
Environment
Biodiversity
Access and Benefit-sharing
CoveragePlease indicate which of the following specific issues related to access and benefit-sharing are covered by the measure:
Access to Genetic Resources
Equitable Sharing of benefits arising out of the utilization of genetic resources
Equitable sharing of benefits from the utilization of traditional knowledge, innovations and practices
Intellectual property rights related to genetic resources
Intellectual property rights concerning the protection of traditional knowledge, innovations and practices related to genetic resources
Customary or traditional use of genetic resources
Other
If other, please specify:
138
Currentstatusofthemeasure
Where applicable, please indicate whether the measure is still in draft form, or whether it has been adopted and has entered into force and if so, at which date it has been adopted and/or has entered into force.
Status Date(Day/Month/Year)
Draft
Adopted
Entered into force
139
CASE STUDY ON CAPACITY DEVELOPMENT FOR THE IMPLEMENTATION OF THE BONN GUIDELINES ON “ACCESS TO GENETIC RESOURCES AND THE FAIR AND EQUITABLE SHARING OF THE BENEFITS ARISING FROM THEIR UTILIZATION” IN AFRICA
Termsofreference(TORs)fortheconsultantsundertakingcountrystudiesonABS
Under the overall guidance of IBBIS and the direct supervision of the relevant national competent au-thority/national focal point(s), the national consultant(s) will be expected to compile, analyse and syn-thesize information in a Case Study that will portray the country’s status in the area of ABS following the adoption of the Bonn Guidelines and in the context of the negotiations of the International Regime on ABS under the aegis of the CBD’s Open-ended Working Group on ABS.
More specifically, the consultant(s), guided by the questionnaires attached hereto, shall undertake the following tasks:
1. Obtain, as far as possible and appropriate, information pertinent to the country/as required in the ques-tionnaires as well as under the relevant decisions of CBD COP-6 and 7. IBBIS shall ensure that the follow-ing specific tasks, which should be addressed, include:
(i) Identify stakeholders in ABS arrangements in each country including government departments/agencies, national NGOs, private sector entities/commercial interests, academic institutions, in-ternational NGOs, and representatives of local and indigenous people.
(ii) Conduct a review of existing information on ABS activities including, regulatory and adminis-trative arrangements in that country, and identify any significant gaps. Information gathered should be as detailed and accurate as possible.
(iii) Conduct, to an appropriate level of detail, an inventory of current and proposed legislation per-taining to ABS in the country including: protected area legislation, wildlife legislation, forestry legislation, agricultural and other land use legislation, animal welfare legislation, traditional medicine/health care legislation, national and international trade legislation, regional/subre-gional legislation, and any other specific legislation that may impact on ABS.
(iv) Conduct an inventory of ABS projects in the country, including those supporting the everyday functioning of government departments, agencies and any significant biodiversity-based pro-posed projects.
(v) Liaise with government legal and administrative machinery and other similar facilities etc in the country and assess whether they meet minimum requirements for effective implementa-tion of the Bonn Guidelines.
(vi) Identify the main national challenges and constraints pertaining to ABS arrangements in the country, such as funding, training and staff shortages, legal constraints, infrastructure limita-tions, etc.
2. Attend/Participate in the mid-term review workshop in July 2005 and in this regard shall submit first draft(s) of reports on the above tasks, highlighting priority issues, areas or projects for ABS
3. Attend/participate in a Peer-Review Workshop in August 2005 and in this regard shall submit the sec-ond draft(s) of reports detailing proposed modalities to address the priority issues, areas, projects and draft recommendations thereon for review and comments by July 2005.
4. Prepare a final report by 15 September 2005 for review by UNEP.
Annex 5 Terms of References Developed by IBBIS and UNEP for Country Consultants
140
United Nations Environment Programme P.O Box 30552 NairobiKenya Tel: (254 20) 7621234 Fax: (254 20) 7623927 Email: [email protected]: www.unep.org
United Nations University Institute of Advanced Studies6F International Organizations CenterPacifico-Yokohama, 1-1-1 Minato MiraiNIshi-ku, Yokohama 220-8502Japan
Tel: +81 45 221 2300Fax: +81 45 221 2302Email: [email protected]: www.ias.unu.edu
Printed on recycled paper