Facilitating or Restraining Access to Genetic Resources? Procedural Dimensions in Kenya
Evanson Chege Kamau
Senior Research Fellow, FEU
University of Bremen, Faculty of Law,
Universitätsallee, GW 1, D-28359 Bremen,
States have the right to regulate access to biological resources subject to national legislations. Allowing, restricting or prohibiting access, however, requires a balance to avoid contravention of the objectives of the Convention on Biological Diversity. The Convention requires that, in regulating access, the measures adopted do not become a hindrance to access. In many instances, however, this has been the case. Overreaction to previous cases of bio-piracy and over-enthusiasm to tap into the benefits from discovered genetic resources have caused many provider countries to either over-regulate or extremely complicate access procedures, thus deterring access. In some instances, over-regulation and complex procedures are to be blamed on the users’ reluctance to collaborate with providers in minimising or eliminating abuse. Also, the need to protect certain rights over genetic resources or of an intellectual (property) character, for example, might at times complicate regulation. While it is appreciated that such issues must also be taken into account in addressing and creating a balance in access and benefit sharing, a discussion embracing all these aspects cannot be captured within the ambit of this article. Focus is therefore laid on the procedural dimensions of access in Kenya and suggestions for improvement.
Access and Benefit Sharing (ABS), access procedure, Convention on Biological Diversity (CBD), genetic resources, Kenya.