Access to Genetic Resources in Africa Analysing ABS Policy Development in 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.

Foreword 1 List of Abbreviations 2 Executive Summary 4 1. Introduction 6 2. Methodology 8 3. Main Findings of Country Reports 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 10 4. Country Studies 16 4.1 Botswana 16 4.1.1 Introduction 16 4.1.2 Background 16 4.1.3 Institutional Stakeholders 16 4.1.4 Review of Existing Information on ABS Activities 18 4.1.5 Analysis of Legislation Affecting ABS 19 4.1.6 Gaps and Recommendations 24 4.2 Ghana 25 4.2.1 Introduction 25 4.2.2 Social, Economic and Environmental Aspects of ABS Provisions in Ghana 25 4.2.3 Gaps and Constraints 27 4.2.4 Analysis of Legislation 28 4.2.5 Gaps and Recommendations 34 4.3 Uganda 34 4.3.1 Introduction 34 4.3.2 Background 35 4.3.3 Methodology 35 4.3.4 Analysis of Legislation, Policies and Strategies 35 4.3.5 Institutional Arrangements for ABS 41 4.3.6 Biodiversity in Uganda and Tools for Conservation 43 4.3.7 Access to Uganda’s Genetic Resources and Associated Benefits 45 4.3.8 Analysis of Issues and Capacity Gaps 49 4.3.9 Recommendations for Uganda’s ABS Regime 53 4.4 Zambia 54 4.4.1 Introduction 54 4.4.2 Background 54 4.4.3 Methodology 55 4.4.4 Programmes with ABS Elements 55 4.4.5 Legislation and Sectoral Policies 61 4.4.6 Stakeholders and Institutional Capacity 63 4.4.7 Challenges 80 4.4.8 Recommendations for a Draft Action Plan 81 5. Challenges, Towards an Action Plan, Lessons Learned, Project Impacts and Conclusion 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 List of Boxes Box 1 Proposed CBD National Coordination Structure for Botswana 17 Box 2 Uganda’s Access to Genetic Resources and Benefit Sharing Regulations (2005) 39 Box 3 Estimated Values of Various Components of Biodiversity 46 Box 4 Benefit Sharing Case-Study in Uganda 48 Box 5 Communities’ Revenue Sharing Ratios in Zambia in Wildlife Management 63 Box 6 ABS Stakeholders in Zambia 64

List of Annexes Annex 1 Note Developed by IBBIS and UNEP to Support Country Consultants 87 Annex 2 Questionnaire 1 Developed by IBBIS and UNEP to Assist National Consultants 88 Annex 3 Questionnaire 2 Developed by IBBIS and UNEP to Assist Country Consultants 90 Annex 4 Questionnaire 3 Developed by IBBIS and UNEP to Assist Country Consultants 127 Annex 5 Terms of References Developed by IBBIS and UNEP for Country Consultants 139

Foreword

The United Nations Environment Programme (UNEP) and As a sustainable development policy think-tank, the Unit- United Nations University Institute of Advanced Studies ed Nations University Institute of Advanced Studies has (UNU-IAS) with the support of the Government of Ireland followed the issue of access to genetic resources and ben- have carried out case studies on access to genetic resourc- efit- sharing (ABS) both at the national and international es and benefit‑sharing (ABS) arrangements in four African policy levels. The Institute has conducted capacity-build- countries namely Botswana, Ghana, Uganda and Zambia. ing on ABS law and policy, traditional knowledge (TK) and These studies exemplify the implementation of existing bioprospecting, and has produced several policy reports ABS arrangements and mechanisms in the context of the on issues ranging from User Measures for TK Protection, Bonn Guidelines adopted by the Conference of the Parties Bioprospecting in the Antarctic, Arctic and Deep-Seabed, to the Convention on Biological Diversity at its sixth meet- Certificates of Origin and an ABS Pocket Guide. Recently ing, in April 2002. we have produced bioprospecting partnership case studies and are now facilitating an International Dialogue on The issues of access to genetic resources and the equita- the Commercial Use of Biodiversity. The Institute recog- ble sharing of benefits derived from their utilization have nizes that the implementation of the third objective of been and still remain the focus of major global forums the Convention on Biological Diversity is a growing con- on biodiversity conservation and its sustainable use. In cern for Parties. The reasons for slow national implemen- this regard, the case studies bring out the perspective(s) tation, as well as the divergence of views in the negotia- of these countries on the issue and challenges they face tion of an international ABS regime, are issues which this when implementing the Bonn Guidelines. report seeks to inform.

It is evident that, although there is a wide range of mea- The report takes a detailed look at the ABS climate of four sures to conserve biological diversity, regulate access to developing countries – Botswana, Ghana, Uganda and biological resources, protect traditional (indigenous) Zambia – and presents the countries’ own views on na- knowledge and share benefits, gaps are apparent. It is tional implementation and ABS policy development. By therefore imperative that as the countries are address- providing such an analysis, it is hoped that the negotiators ing the critical gaps and priority needs inherent in their of the international ABS regime and ABS capacity build- ABS regimes/arrangements, they also lay some important ers will gain new awareness of national policy approaches foundations for the implementation of any future nation- and constraints. The countries themselves provide points al/ABS regimes in the context of the International Regime for action, and since undertaking national consultations on ABS currently under negotiation by the CBD Ad-Hoc to produce the country studies, they have been active on Working Group on ABS and to some great extent, also the building on the momentum generated by the exercise. For relevant outcomes of the Ad Hoc Working Group on Ar- example, in July 2007, Uganda adopted ABS guidelines and ticle 8(j) and Related Provisions. by April 2008, all four countries had nominated a national focal point on ABS. The outcomes and lessons learnt from these case studies will assist countries to effectively contribute to the on- I hope that readers of this report will recognize that coun- going CBD negotiations on the international regime on tries are indeed undertaking national action on ABS, even Access and benefit sharing. though a final ABS policy may not be well defined as yet. Countries such as Botswana and Ghana are still organizing Achim Steiner their environmental policies and considering how ABS may UN Under-Secretary General and be a component of environmental management legisla- UNEP Executive Director tion. However, through this project and other sub-regional United Nations Environment Programme initiatives, national stakeholders are clearer on the issues May 2008 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. Zakri Director United Nations University Institute of Advanced Studies Yokohama, Japan May 2008

1 List of Abbreviations

ABS Access to Genetic Resources and Benefit Sharing ENRMD Environment and Natural Resources Management ABS CNA Competent National Authority on Access to Genetic Department Resources and Benefit Sharing EPA Environmental Protection Agency ABS NFP National Focal Point on Access to Genetic Resources EPC Export Promotion Council and Benefit Sharing EPPCA Environmental Protection and Pollution Control Act ADCs Area Development Committees ESP Environmental Support Programme ADMADE Administrative Management Design FAO Food and Agriculture Organization ARI Animal Research Institute FD Forestry Department AWF African Wildlife Foundation FoRIG Forestry Research Institute of Ghana BG Bonn Guidelines FRMP Forest Resource Management Project BINP Bwindi Impenetrable National Park FSP Forestry Support Programme BNARI Biotechnology and Nuclear Agriculture Research GAEC Ghana Atomic Energy Commission Institute GEF Global Environment Facility BOCARI Botswana Chapter of the African Renaissance GIPC Ghana Investment Promotion Centre CARE Cooperative for Assistance and Relief Everywhere, Inc GMA Game Management Area CBD Convention on Biological Diversity GMO Genetically Modified Organism CBNRM Community Based Natural Resources Management GoG Government of Ghana CBO Community Based Organization GoU Government of Uganda CBU Copperbelt University GRZ Government of the Republic of Zambia CBUD Centre for Biodiversity Utilization and Development GWD Ghana Wildlife Department CEAPs Community Environmental Action Plans GWS Ghana Wildlife Society CEMP Community Environmental Management Program HPI Heifer Project International CEPS Customs, Excise and Preventive Service IAS Invasive Alien Species CGIAR Consultative Group on International Agricultural IBBIS Institute of Biodiversity & Biotechnology Initiatives and Research Services CHM Clearing House Mechanism IGAD Intergovernmental Authority on Development CITES Convention on International Trade in Endangered Species IK Indigenous Knowledge of Wild Fauna and Flora IKS Indigenous Knowledge Systems CLUSA Cooperative League of the United States IPGRI International Plant Genetic Resources Institute COMESA Common Market for East and Southern Africa (Biodiversity International) CONASA Community Based Natural Resources Management IPPC International Plant Protection Convention and Sustainable Agriculture IPR Intellectual Property Rights COP Conference of the Parties IRDCs Integrated Resource Development Committees CPWCNH Convention for the Protection of World Cultural and IRNR Institute of Renewable Natural Resources Natural Heritage ITPGR International Treaty on Plant Genetic Resources CRBs Community Resource Boards IUCN International Union for Nature Conservation CRI Crops Research Institute IUCN- ROSA World Conservation Union Regional Office for CRIG Cocoa Research Institute of Ghana Southern Africa CSIR Council for Scientific and Industrial Research IZC Inter-Zonal Management Committee CSRPM Centre for Scientific Research into Plant Medicine JFM Joint Forest Management DEA Department of Environmental Affairs JPOI Johannesburg Plan of Implementation DEC Department of Environmental Conventions KBI Kagera Basin Initiative DoF Department of Fisheries KCS Kalahari Conservation Society DoWA Department of Water Affairs KNUST Kwame Nkrumah University of Science and Technology DWNP Department of Wildlife and National Parks LDCs Least Developed Countries EAC East African Community LIRDP Luangwa Integrated Resource Development Project ECAZ Environmental Conservation Association of Zambia MAAIF Ministry of Agriculture, Animal Industry and Fisheries ECZ Environmental Council of Zambia MAT Mutually Agreed Terms EDIF Export Development and Investment Fund MEAs Multilateral Environmental Agreements EIA Environmental Impact Assessment MENR Ministry of Environment and Natural Resources ENRM Environment and Natural Resources Management MES Ministry of Environment and Science Program MFEP Ministry of Finance and Economic Planning

2 MGNP Mgahinga Gorilla National Park PIC Prior Informed Consent MLGRD Ministry of Local Government and Rural Development PlantGRRI Plant Genetic Resources Research Institute MLF Ministry of Lands and Forestry PLEC People, Land Management and Ecosystem Conservation MLFM Ministry of Lands, Forestry and Mines PMA Plan for Modernisation of Agriculture MoE Ministry of Education POPs Persistent Organic Pollutant MoFA Ministry of Food and Agriculture PRSP Poverty Reduction Strategy Paper MoH Ministry of Health PTB Perm culture Trust of Botswana MoJ Ministry of Justice PVP Plant Variety Protection MoL Ministry of Lands RAF Resource Allocation Framework MoLG&H Ministry of Local Government and Housing MoM Ministry of Mines RCCs Regional Coordinating Councils MoTIPSI Ministry of Trade, Industry and Presidential Special RDE Royal Danish Embassy Initiative SABSP Southern Africa Biodiversity Support Programme MOU memorandum of understanding SADC Southern Africa Development Community MoWE Ministry of Water and Environment SEA Special Environmental Assistance MSTVT Ministry of Science, Technology and Vocational Training SLAMU South Luangwa Area Management Unit MTENR Ministry of Tourism, Environment and Natural SPS Sanitary and Phytosanitary Measures Resources SPGRC SADC Plant Genetic Resources Centre MTI Ministry of Trade and Industry STCs Specialised Technical Committees MUIENR Makerere University Institute of Environment and TBT Technical Barriers to Trade Natural Resources THETA Traditional and Modern Health Practitioners Together MUST Mbarara University of Science and Technology against AIDS and other Diseases NAMPAADD National Master Plan for Arable Agriculture and Dairy Development TK Traditional Knowledge NAP National Action Plan on Desertification TL Thusano Lefatshe NARO National Agricultural Research Organization TORs Terms of Reference NARP National Agricultural Research Programme TRIPS Trade-Related Aspects of Intellectual Property Rights NBI Nile Basin Initiative UNCCD United Nations Convention to Combat Desertification NBSAP National Biodiversity Strategy and Action Plan UNCST Uganda National Council for Science and Technology NCA National Competent Authority UNDP United Nations Development Programme NCS National Conservation Strategy UNEP United Nations Environment Programme NDPC National Development Planning Commission UNFCCC United Nations Framework Convention on Climate NEAP National Environmental Action Plan Change NEMA National Environmental Management Agency UNU-IAS United Nations University Institute of Advanced NESC National Environmental Steering Committee Studies NFA National Forest Authority UNZA University of Zambia NFO National Focal Point NISIR National Institute for Scientific and Industrial Research UPOV Union for the Protection of Plant Varieties NHCC National Heritage Conservation Commission UWA Uganda Wildlife Authority NGO Non-Governmental Oganization VAGS Village Area Groups NPGRP National Plant Genetic Resources Programme VMCs Village Management Committees NPWS National Parks and Wildlife Services VPRD Veldt Products Research and Development NRDC Natural Resources Development College WECSZ Wildlife Environmental Conservation Society of Zambia NRM Natural Resources Management WIPO World Intellectual Property Organization NSC National Steering Committee WRC Water Resources Commission NSTC National Science & Technological Council WTO World Trade Organization OASL Office of the Administrator of Stool Lands WWF World Wildlife Fund OAU Organization of African Unity ZAFCOM Zambia Forestry Commission OIE Office Internationale des Epizooties ZARI Zambia Agricultural Research Institute OPRI Oil Palm Research Institute PAs Protected Areas ZAWA Zambia Wildlife Authority PCT Patent Cooperation Treaty ZFAP Zambia Forestry Action Plan PEAP Poverty Eradication Action Plan ZFC Zambia Forestry College PFAP Provincial Forestry Action Programme ZMCs Zone Management Committees PGRs Plant Genetic Resources ZNFU Zambia National Farmers Union

3 Executive Summary

This report seeks to answer the following questions: Access and Prior Informed Consent

. What policies, legislation and legal capacity exist or In Ghana, Botswana and Zambia, legislation relating to are proposed for the countries of Botswana, Ghana, conservation and use of natural resources does not include Uganda and Zambia to deal with access to genetic re- the key elements of Prior Informed Consent (PIC) to deal sources and the sharing of their benefits (ABS)? with access to genetic resources: mechanisms for consult- ing with stakeholders, providing legal certainty and clarity, . Which institutions in these countries are engaged in and a clear application process. In Uganda, however, there the management and implementation of ABS activi- is a technical committee within the national environmen- ties? What are the administrative arrangements for tal management agency which can be used to evaluate ABS management, and what are the major gaps and ABS proposals. Foreign collectors must submit a written constraints? request and receive approval from this committee before . What projects with ABS components are being imple- entering the country and undertaking collections. mented in the countries? . Procedures for accessing wildlife and national parks are Who are the major ABS stakeholders? much clearer. In Zambia, for example, general consent is . Based on the identified needs and gaps, what actions sought in wildlife management on issues such as annual can be undertaken to clarify, develop and implement quotas for various types of use, in effect a type of PIC. For ABS measures in each country? fisheries, the government gazette and newspapers provide a general form of PIC on licenses issued to the private The report provides a detailed view of the national policy sector and community groups. Generally, communities in climate relating to ABS in the four countries, based on re- Zambia are consulted during the process of awarding fish- search carried out by consultants in co-operation with na- ing and wildlife concessions - however, this is not a legal tional agencies, using questionnaires and workshops. The requirement. country reports were subjected to peer-review and subsequent editing, and can be read in full below. Benefit Sharing The major conclusions can be summarized as follows: In all the countries, benefit-sharing is a feature of wildlife Policies and fisheries management. Benefits are in most cases monetary for communities, through local community and The four countries each have extensive policies relating to district boards. In Uganda, for example, national parks natural resource management, conservation, agriculture share benefits with local people through community con- and fisheries. However, in only one of the countries, Ugan- servation and collaborative forest management. The ben- da, is access to genetic resources and benefit sharing, as efits include revenue sharing, use of park resources such promulgated by the Convention on Biological Diversity as medicinal plants, and support for community develop- (CBD), a focus of these policies. Uganda adopted ABS regu- ment projects. In Zambia, sharing of benefits from wildlife lations in 2005, then developed supporting guidelines in is usually not part of the Mutually Agreed Terms (MAT) in 2007. Some countries have considered adapting model the agreements with users, but is rather included in a sep- legislation drawn up by the African Union for implement- arate process in agreements with communities. There are ing national policy on ABS, while others are considering in- monetary benefits from revenues and license fees, a few cluding ABS elements within emerging national environ- joint ventures, and non-monetary benefits through educa- mental acts or policies. The countries welcome regional tion and training projects. agreements on this issue, and find tools such as regional databases useful for supporting and guiding the design of Challenges national information clearing houses.

Poverty alleviation, food security, human security and rev- The challenges faced by the four countries include: enue generation are key issues which countries see as the . Raising awareness of ABS principles; desired objectives of any national ABS policy. . Maintaining institutional capacity; The decentralized nature of decision-making on natural . Linking ABS and poverty alleviation; resource issues affects the development and implementa- . tion of policies in this area. Bodies such as district assem- Building national technological capacities; blies, community resource boards, fisheries management . Addressing the lack of ABS policy and increasing ca- committees and village area groups are often involved pacity to implement existing policies; in sharing benefits from wildlife and fisheries manage- . ment. Some countries propose these arrangements as a Engaging local and indigenous communities; and possible basis for developing benefit-sharing policies for . Monitoring and enforcement of ABS agreements in genetic resources. user and provider countries.

4 Towards an Action Plan Project Impacts

The countries recognize the need for further national ac- Impacts from the project itself include: tion on implementing the Convention on Biological Diver- . Activities at the national level catalyzed multi-stake- sity, in harmony with other biodiversity-related multilater- holder dialogues and raised awareness of the princi- al, sub-regional and regional environmental agreements. ples of access to genetic resources and benefit shar- To implement the CBD’s third objective, some points for ing, and of the Bonn Guidelines; action highlighted by the countries are to: . Awareness and profile of the roles of ABS National Fo- . Promote a broader understanding and appreciation of cal Points and Competent Authorities and their nomi- ABS principles; nation were enhanced in the countries under study; . Establish and strengthen national institutional frame- . The project launched inventories of projects and pro- works; grammes with ABS elements, information which now . Identify and strengthen cooperation with and dia- lies with the national clearing houses; logue between ABS stakeholders; . The NBSAPs and other action plans underwent some . Provide capacity-building for human resources devel- review to identify their relevance to ABS manage- opment; ment; . Promote and invest in research and development for . The analysis of administrative and policy arrange- both South‑South and North‑South joint ventures ments helped the countries to identify where there within and between provider and user countries; and were institutional overlaps, and in which institutions ABS may be couched; and . Effectively participate in the Convention on Biological Diversity’s process on the negotiation of an interna- . Through their involvement in the project, the four tional ABS regime. countries recognized the need for national action, as well as involvement in the negotiation of an interna- Lessons tional regime on access and benefit-sharing.

Several lessons for the participating countries, and for General Conclusions others in the region, emerged from the project, including that: Overall, for most of the countries to derive benefits from an ABS policy, South-South collaboration is needed with . Stakeholder identification and participation is essen- neighbouring countries with varying degrees of tech- tial as a basis for any ABS policy development, and to nology and research capability. In some of the countries, understand the true ABS climate of a country; research has been mainly funded by the public sector. . Formal national legislative and administrative meas- In order to derive increasing benefits from research and ures are important for clarity and establishment of biotechnology, partnerships with and investment from mandates; the private sector are essential. For policy-makers and ABS . Private sector engagement brings business perspec- management institutions in the countries, the challenge tives and practicalities to ABS policy design and imple- is to design a system that is agile and transparent, and mentation; that balances the goals of conservation and poverty alleviation with the needs and operation style of the research . Valuation of components of the genetic resources of and business communities. Countries are keen on taking biodiversity would encourage conservation and sus- national action, even though the negotiation of an inter- tainable use; national regime on ABS may well overtake national policy . Trained and knowledgeable personnel – researchers, development and implementation in most developing natural resource managers and community leaders – countries. The negotiations can and do provide impetus with awareness of the ABS process and principles are for national awareness and action. This report presents a important in both development and implementation detailed view of national ABS climates, which can in turn of ABS policies; inform the international negotiations and foster national implementation of the objectives of the Convention on . National Biodiversity Strategies and Action Plans Biological Diversity. (NBSAPs) which incorporate sustainable use, facilitation 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 implementation, awareness-raising and training.

5 1. Introduction

The entry into force of the Convention on Biological Diver- tional governments through domestic legislation exercise sity (CBD) in 1994 brought global recognition of the sov- authority over access to genetic resources. However, of ereign rights of countries over their biological resources. 190 parties to the Convention, only 60 have adopted or are National and global action has since focused mainly on adopting ABS measures.6 The proposed answers as to why conservation and, as the 2010 target approaches, reduc- there has been so little national action include: ing the rates of biodiversity loss.1 The third objective of the 1. Lack of a clear understanding of the legal issues relat- Convention, the fair and equitable sharing of the benefits ing to the scope of an ABS regime and definition of its arising from access to and use of genetic resources, com- terms;7 monly known as Access and Benefit-Sharing (ABS), has proven to be difficult to achieve through implementation 2. The complexity of the issue as it touches on different at national and international levels.2 genetic resources used by different activities for different purposes in different sectors; and At the international level, an Ad Hoc Open-Ended Work- 3. Lack of human and institutional capacity, and the ab- ing Group on ABS, set up by the fifth meeting of the Con- sence of adequate infrastructure in developing coun- ference of Parties to the CBD (COP-5) in 2000, drafted a 8 tries. document which subsequently became known as the Bonn Guidelines.3 They were adopted at COP-6 in 2002. The issues which often require clarity amongst stakehold- The guidelines are voluntary, and seek to assist and guide ers and local communities stem from the main ABS provi- governments and stakeholders in their development of an sions from the Convention – contained in Articles 15, 16, and ABS strategy – including administrative, policy and legisla- 19. Article 8(j) is also of relevance, as it addresses genetic tive measures. They also provide guidance on negotiating resources with associated traditional knowledge, and ABS. ABS agreements, and the process of facilitating access and The articles outline the obligations of parties classified as benefit-sharing. users and providers of genetic resources. Parties should implement measures to facilitate access to their genetic Also in 2002, at the World Summit on Sustainable Devel- 9 resources for environmentally-sound uses. These are es- opment, the Johannesburg Plan of Implementation4 en- tablished though national legislation, policies and admin- couraged the implementation of the Bonn Guidelines, and istrative measures. Article 15, paragraph 5, specifies that the negotiation of an international regime to promote access shall be subject to prior informed consent (PIC) of and safeguard the fair and equitable sharing of benefits the contracting parties providing such resources. Access from the use of genetic resources. In 2004 at COP-7, the and PIC shall be granted on the basis of mutually agreed Ad Hoc Working Group was mandated to consider the na- terms (MAT) between user and provider. Parties also have ture, scope and elements of such an international regime. 5 an obligation to ensure the fair and equitable sharing of Subsequently in 2006, parties to the CBD established the benefits arising from utilization of genetic resources. year 2010 as the deadline for completing negotiations on an ABS regime – the issue and the activities of the Work- The key issues to be understood by stakeholders and parties ing Group have therefore received increasing focus in the for implementation of the third objective of the CBD are: period leading up to COP-9 (2008) and COP-10 (2010). 1. Facilitation of access; The negotiations on an international ABS regime are at- 2. Mutually Agreed Terms (MAT) and Prior Informed Con- tempting to bridge contrasting views on the issue - at one sent (PIC); end, some countries are calling for a legally-binding agreement, while at the other, governments argue for prioritiza- 3. Implementation of national measures; and tion and support of national actions. 4. Fair and equitable sharing of benefits.10

Article 15 of the Convention, in recognition of the sovereign Additional issues include: rights of States over their natural resources, notes that na- 1. Participation of providers (especially developing countries) in biotechnology research and development; 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- and 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 2. Access to results and benefits from biotechnologies World Summit on Sustainable Development in 2002, and at the United Nations General and products based on the party’s genetic resources. 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 arising out of the utilization of genetic resources, including by appropriate access to genetic 6 Valerie Normand (2008). “In context: the third objective of the convention” in Busi- resources and by appropriate transfer of relevant technologies, taking into account all ness.2010, Vol.3, Issue 1 January 2008. 3. A newsletter of business and biodiversity by rights over those resources and to technologies, and by appropriate funding”. A frame- the Secretariat of the Convention on Biological Diversity. work for the implementation of this objective is set out in Article 15. 7 CISDL (2005). 3rd Edition – Overview of national and regional implementation of 3 Guidelines on Access to Genetic Resources and Fair and Equitable Sharing of the ABS measures. Benefits Arising out of their Utilization, available online at http://www.cbd.int/doc/publi- 8 Valerie Normand (2008) op cit. cations/cbd-bonn-gdls-en.pdf 9 Article 15, paragraph 2 4 JPOI, chapter IV paragraph 44. 10 Simple definitions and explanations of these issues and terms have been provided in 5 CBD COP Decision VII/19 UNU-IAS, 2007 Pocket Guide on Access to Genetic Resources, and Bioprospecting.

6 The Bonn Guidelines seek to be flexible and useful to swana are developing environmental management legis- stakeholders and governments in understanding these lation, and are considering including ABS as an element terms and incorporating them in their national legislation of such regulations. Countries within wider sub-regional and policies. The Guidelines identify: collaboration, such as the Southern Africa Development Community (SADC), and through national consultations, 1. Steps in accessing genetic resources and benefit- are considering how ABS can be linked to poverty allevia- sharing; tion, food security and human security. These objectives 2. Basic requirements for Mutually Agreed Terms; and may impact the emergent shape of ABS policies at the national level. 3. The roles and responsibilities of providers and users.

The Guidelines also emphasize the usefulness of national The country reports and their recommendations suggest mechanisms. The benefits of a national ABS regime, mech- that there may simply be a long learning and implemen- anism or policy include: tation curve at the national level, due to ongoing rationalization of environmental and resource management 1. Enhanced conservation efforts through targeted ac- policies, and not necessarily an outright rejection of the cess and promotion of sustainable use of resources; significance of the third CBD objective. In fact, after the 2. Recognition of ownership of resources and associated country studies were completed, the governments pro- traditional knowledge; posed their own way forward on this issue. These ranged from assessing the country’s climate for access to genetic 3. Generated income to support conservation; resources and sharing of benefits, in the case of Botswana, 4. Creation of a clear structure for collaboration between Ghana and Zambia – to Uganda’s implementation of new providers and those who can provide added value; national ABS regulations and guidelines. All four countries have sectoral policies that may be described as building 5. Support of partnerships: private - public sector; com- blocks, which some have tried to use as they are, others munities - researchers; policy makers - NGOs; may dismantle, and others still may combine to create a 6. Enhanced awareness of the resources, uses, value and complete ABS structure. occurrence; This report proceeds with a description of the method- 7. Facilitation of capacity-building and benefits for rural 11 ology used in the project, followed by a summary of the development and poverty reduction. main findings of the four country reports. The full individual reports follow, for Botswana, Ghana, Uganda and Despite what may be described as a present stalemate Zambia. The report concludes with the challenges, points in international negotiations, it could be argued that the for action, lessons learned and project impacts as defined question of a global ABS regime will soon overtake nation- by the consultants, and a short final conclusion. 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 responsibility, achievement and constraints regarding ABS. The individual studies provide a detailed understanding of the legislative and administrative climates of the countries. Uganda has developed ABS regulations, and other countries have analyzed their sectoral policies for ABS elements. 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

7 2. Methodology

The project entitled ‘Capacity Development for Access to Three questionnaires designed by IBBIS and UNEP were Genetic Resources and the Fair and Equitable Sharing of adopted to assist national consultants in their consulta- the Benefits Arising from their Utilization in Africa’ was tions and literature reviews. An information note also undertaken using the country studies approach. accompanied the questionnaires (Annex 1). The questionnaires were based on the ABS provisions of the Conven- The process was designed to answer the following tion on Biological Diversity’s Bonn Guidelines. The ques- questions: tionnaires also attempted to capture complementary . What are the existing and proposed policies, legislation measures undertaken within the countries (not necessar- and the legal capacity- building needs as they relate to ily based on the CBD or the Bonn Guidelines). The ques- access to genetic resources and benefit-sharing? tionnaires also looked at the countries’ implementation of other biodiversity-related conventions and regional ini- . Which institutions are engaged in ABS management tiatives, as well as the issues of national focal points and and implementation activities? What are the adminis- stakeholders. Additionally, they allowed for various inven- trative arrangements for ABS management and what tories to be conducted. are the major gaps and constraints? . What projects with ABS components are being imple- National consultants began their activities between July mented in the country? and August of 2005. National workshops for awareness- . Who are the major ABS stakeholders? raising, information-gathering and reviews were conducted in the countries as follows: . Based on identified needs and gaps, what actions can be undertaken to clarify, develop and implement ABS Botswana - 26 August 2005 measures in the country? Ghana - 12 September 2005 and 14 October 2005 Uganda - 25 August 2005 and 22-23 September 2005 The United Nations University Institute of Advanced Stud- Zambia - 17 October 2005 ies and the United Nations Environment Programme (UNEP) contracted the Institute of Biodiversity & Bio- The country reports were first submitted to IBBIS and technology Initiatives and Services (IBBIS) to support the UNEP at the end of October 2005. A Peer Review Work- countries of Botswana, Ghana, Uganda and Zambia, over shop was then convened at UNEP in Nairobi 9-10 Decem- 1 the period of 15 January 2005 to 30 September 2005. The ber 2005. The workshop participants reviewed the country project was extended to December 2005 with submission studies, in light of the terms of reference and objectives of of revised reports in January 2006. the project and linked to the Initiative of the New Part- nership for Africa’s Development (NEPAD), and the NEPAD IBBIS activities with respect to the project included: Environment Initiative Action Plan which seeks to improve . Assistance to UNEP’s Department of Environmental Africa’s implementation of the objectives of the Conven- Conventions (DEC) to organize an initial meeting in tion, including the relevant decisions of the Conference of Nairobi for participating countries (convened 1-2 Feb- the Parties with special emphasis on sustainable use and 2 ruary 2005); the fair and equitable sharing of benefits. The National Reports of Botswana, Ghana, Uganda and Zambia were . Selection of national consultants for the case studies, presented, as was a presentation on Kenya’s ABS policies, and support to national processes including develop- and were peer-reviewed at the workshop. Participants ment of questionnaires and guidance for the national shared their experiences with and insights into the chal- processes; and lenges and opportunities presented in the course of the . Assistance to and participation in Final Peer Review application of the Bonn Guidelines on access and benefit Workshop in December 2005. sharing in the four participating countries.

The consultative workshop 1-2 February 2005 was con- The reports were preliminarily edited by UNU-IAS in Febru- vened at the start of the project and identified the na- ary 2008, and consultations were carried out with the re- ture of the activities to be undertaken by the country port writers and country focal point offices. By April 2008 consultants. The terms of reference and the use of the all countries provided updates to the reports. The updates questionnaires were discussed and agreed on at the are included in this report, which thus reflects the current workshop. The workshop was attended by the identi- status of ABS law and policy in the four countries. fied country consultants, lead national agencies, UNEP, UNU-IAS and IBBIS.

2 The meeting was attended by participants from Botswana, Ghana, Kenya, Uganda and 1 Initially the project targeted six countries (Botswana, Botswana, Ghana, Uganda and Zambia. Also participating were Mr. Brendan Tobin, United Nations University Institute Zambia, Ethiopia and Kenya). Capacity constraints within Ethiopia and Kenya prevented of Advanced Studies (UNU-IAS) and Mr. Paul Chabeda of the Institute of Biodiversity and their full participation in the project. IBBIS provides consultancy services and serves as a Biotechnology Initiatives and Services (IBBIS). UNEP participants included Mr. Bakary south-south and north-south network that assist countries to meet their obligations under Kanté, Director of the Division of Environmental Conventions, Mr. Nehemiah Rotich, biodiversity related Multilateral Environmental Agreement. Senior Programme Officer, Regional Office for Africa and Dr. Margaret Oduk, Division of Environmental Conventions.

8 3. Main Findings of Country Reports

Botswana, Ghana, Uganda and Zambia are all parties to the National Law and Policy Convention on Biological Diversity. The individual country studies show that there are a wide range of existing meas- Of the four countries, Uganda is the most advanced in de- ures, both pre-dating and after ratifying the CBD, to con- velopment of a specific ABS policy. Uganda has developed serve biological diversity and share benefits from natural ABS regulations - The National Environment (Access to Ge- resources. The countries have extensive sectoral natural netic Resources and Benefit Sharing) Regulations, within resource management, conservation, agriculture and fish- the framework of Chapter 153 of the National Environ- eries policies. However, access to genetic resources and ment Act. The regulations were approved by Government benefit–sharing, as promulgated by the CBD, is not a focus in May 2005, and are now implemented. of these policies except for the still-infant ABS regulations and guidelines developed by Uganda. Community boards, Across the four countries, ABS has been taken into account district assemblies and traditional authorities play a key in National Biodiversity Strategies and Action Plans to a role in resource management, especially in wildlife and varying extent. fisheries management. Wildlife management in all countries appears to have historically received wide attention The ABS-relevant policies of the countries have the fol- in sectoral laws, and provides examples of the principles lowing objectives: upon which a national ABS regime may be structured. . Poverty alleviation; 3.1 ABS Law and Policy . Sustainable development; . Conservation and sharing of revenue (especially from Regional Agreements wildlife); and The country reports recognize the utility of regional agree- . Sustainable use of biodiversity. ments, policies and tools which can support national ABS policies. Databases such as those of the SADC Plant Genetic The national reports provide detailed inventories of relevant Resources Centre and the International Plant Genetic Re- national legislation, regional and global multilateral agree- sources Institute (IPGRI – now Biodiversity International) are ments to which the countries are party, as well as invento- cited as examples for local ABS Clearing House Mechanism ries of various on-going ABS arrangements. Most of the (CHM) development. Some of the countries are parties to ABS-relevant policies and measures were fragmented, and the African Convention on the Conservation of Nature and are linked with government ministries and departments Natural Resources (1968), and the Lusaka Agreement on Co- dealing with sectoral natural resource management. operative Enforcement Operations Directed at Illegal Trade in Wild Fauna and Flora (1994). Uganda (along with Kenya Botswana and Tanzania) is a member of the East African Community (EAC), which has developed an environment protocol and Botswana does not have specific legislation on access guidelines on Environmental Impact Assessments (EIAs), to genetic resources and benefit-sharing as provided for to guide the three countries in environment management. under the CBD and the Bonn Guidelines. However, there Uganda is also a member of other regional cooperation pro- is sectoral legislation with components of and relevance grammes including the Nile Basin Initiative (NBI) and the to ABS. In Botswana, natural resources are managed by Kagera Basin Initiative (KBI). The Intergovernmental Author- a statutory authority, usually a government department ity on Development (IGAD, 1986) and the Common Market that would be responsible for administering sector-spe- for East and Southern Africa (COMESA, 1993) are other rel- cific legislation depending on the resource. The report for evant regional agreements. The Southern Africa Biodiversity Botswana inventoried at least 19 pieces of legislation rel- Support Programme (SABSP) is a regional programme, now evant to ABS issues, with six covering land. The rest are involving the 14 members of the Southern Africa Develop- sectoral, addressing water and waste management, indus- ment Community (SADC), including Zambia and Botswana, try, public health, forestry, agriculture, fish protection and which now focuses on invasive alien species and ABS.1 aquatic weeds. The Wildlife and National Parks Act and the Agricultural Resources Act, provide, to a reasonable ex- In 2000, the Organization of African Unity (OAU) produced tent, the structures, processes and procedures for applica- the African Model Legislation for the Protection of Rights of tion to access resources (particularly wild flora and fauna Local Communities, Farmers and Breeders and for Regula- within gazetted wildlife parks). These measures pre-date tion of Access to Biological Resources – the African Model both the CBD and the Bonn Guidelines. Benefit-sharing is Law. Adoption and local adaptation of this model law is not addressed by the existing legislation. However, these seen by some countries as one path by which to proceed two Acts can be the foundation for development of ABS with national implementation of the CBD’s third objective. legislation in Botswana. A Draft National Environment Act is undergoing review and consultation, and suggestions

1 This 2000-2005 programme, funded by UNEP and the GEF, after review now focuses on have been made to consider ABS as an additional Chapter invasive alien species and ABS. The member states of SADC are Angola, Botswana, the in this Act, instead of creating an additional piece of legis- Democratic Republic of Congo, Lesotho, Madagascar, Malawi, Mauritius, Mozambique, lation dealing specifically with the issue. Namibia, South Africa, Swaziland, United Republic of Tanzania, Zambia and Zimbabwe.

9 Ghana 3.2 Institutions and Stakeholders in ABS Management

There is no single Act for the implementation of the CBD The institutional arrangements in the four countries have in Ghana. More than 70 relevant pieces of legislation the following characteristics: touching on the area of ABS have been compiled, under . Local communities play a key role in ABS as seen the broad headings of health-care, trade, biodiversity and through Ghana’s District Assemblies, and Zambia’s International Property Rights. In addition, the National Community Resource Boards, Fisheries Management Constitution has provisions relevant to ABS, in Articles Committees and Village Area Groups (VAGs); 11, 21, 36, 40 and 41. Furthermore, three specific commissions have been established to address certain aspects of . The CBD Focal Point Agencies are the de facto Compe- biodiversity along sectoral lines, namely the Land Com- tent National Authorities on ABS (ABS CNA) - however, mission, the Forestry Commission and the Fisheries Com- all countries have recently appointed National Focal mission. There is existing legislation which addresses Points on ABS (ABS NFP). For example, Uganda has ap- benefit–sharing, and which may provide a formula for pointed the natural resources management specialist the specific requirements of ABS. within the National Environmental Agency (NEMA), the principal Government agency for the manage- Uganda ment of the environment within the Ministry of Wa- ter and Environment (MoWE), as its National ABS Fo- The Uganda Report gives a detailed inventory of all mul- cal Point. It has also nominated an officer within the tilateral agreements of possible influence on ABS in the Uganda National Council for Science and Technology 3 country. It articulates the policy, legal and institutional as the Competent National Authority for ABS; measures, observing that these are somewhat fragment- . ABS management is diffused across several natural ed, and fall under the auspices of numerous ministries resource management agencies, mainly government and agencies. Recognizing the shortcomings of its man- agencies (in some cases including universities and re- agement of this issue, Uganda has adopted new ABS search organizations); measures, the Access to Genetic Resources and Benefit . Sharing Regulations (2005). These regulations and asso- Existing management structures for forestry, wildlife, ciated guidelines also seek to address the emerging re- game management and protected areas are the oper- lated issues of intellectual property rights and biopiracy.2 ational ‘focal points’ for ABS. Examples of community Guidelines for Accessing Genetic Resources in Uganda benefit-sharing are found in these programmes; were prepared in July 2007, with plans for the training of . Across the countries there is no overarching institu- stakeholders in their use at the national and local levels, tional and legislative framework for genetic resources including local communities. Recently, the National Ag- management and benefit-sharing. In countries such ricultural Research Organization has prepared, through as Zambia and Uganda, where the existing agencies wide stakeholder consultations including national work- with natural resource management responsibility im- shops, a Draft National Policy on Plant Genetic Resources plement elements of ABS management, there is limit- for Food and Agriculture. ed capacity to implement and monitor ABS measures effectively; and Zambia . An operational Clearing-House mechanism (CHM) for ABS information is absent in all countries. Although In Zambia, there are 32 pieces of legislation that have Uganda has designated its national focal point for the a bearing on environment and natural resources man- Clearing-House Mechanism (CHM) as NEMA, informa- agement. In addition, Zambia has, over the past dec- tion management has yet to be consolidated. ade, developed a number of sectoral policies with elements of ABS in the wildlife, forestry, fisheries, water Botswana and environment sectors, as well as strategies to address emerging environmental challenges and to meet In Botswana, the Department of Environmental Affairs international obligations of some biodiversity-related (DEA), in the Ministry of Environment, Wildlife and Tour- Multilateral Environmental Agreements (MEAs). The ism, is focal point for the CBD. The type of biological re- strategies include the Zambia Forestry Action Plan, sources accessed and the purpose of access determines the National Biodiversity Strategy and Action Plan, the whether and which other institutions are involved in ABS National Environmental Action Plan, and the National management. For example, the Department of Wildlife Action Plan on Desertification. Several initiatives have and National Parks (DWNP) is primarily responsible for an- been implemented that directly or indirectly address imal biological diversity as well as other resources found the ABS objective of the CBD. However, this has been in wildlife management areas, national parks, private done sectorally, through various Community-Based game reserves and other such designated conservation Natural Resources Management Programmes, particularly in the wildlife and forestry sectors. 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 2 Uganda’s country report in Box 2 gives more details of the scope of the regulations. are no ABS NCA listed for Botswana, Ghana, Uganda and Zambia.

10 areas. The Ministry of Agriculture is responsible for plant conducts arboreta research and development, and iso- resources, agro-biodiversity including veldt products and lates plant compounds. These agencies mainly provide medicinal plants on state and communal land. However material, knowledge or technology to farmers, academic loosely, the institutional framework does provide an ac- and research institutions, other government organiza- cess process, and in some cases specific procedures such tions, large-scale commercial concerns and individuals. as the requirement for permits. Even so, the key elements They are often collected without the prior consent of, and of Prior Informed Consent, mechanisms for consultation sometimes without payment to, the owner or holder. with relevant stakeholders, legal certainty and clarity and a clear application process for ABS are not covered by the Uganda current institutional framework. Key non-state actors in the NGO sector include those that work in the areas of The institutional set-up for biodiversity conservation wildlife, plant genetic resources, conservation and man- in Uganda is rather complex, with many different play- agement of biological resources. Most of the NGOs work ers operating at different levels of management. These in collaboration with communities that live on or make use include government agencies (central and local), non- of the biological resources from communally-owned land. governmental organizations (NGOs), civil society and The Country Report notes that Botswana needs legislative community-level institutions. Although Uganda has des- responses for management, coordination and stakeholder ignated its national focal point for the Clearing-House participation relating to ABS, as the institutions and au- Mechanism (CHM) as NEMA, and an ABS Focal Point thorities involved have no coordination mechanisms - es- contact within NEMA, the Uganda National Council for pecially where the resources in question are managed by Science and Technology (which hosts the ABS Competent several different agencies. Authority contact) is the government agency charged with coordination and monitoring of all research within Ghana the country. This includes bio-prospecting and related biodiversity conservation. Uganda has implemented, in In Ghana, there is no overarching institutional and leg- protected areas, community conservation and collabora- islative framework for genetic resources management. tive forest management projects which include benefit- This means that all aspects of access and benefit-sharing sharing with surrounding communities. are not dealt with by the institutions that, by default or through their mandates on resource management, handle Biotechnology research and development is still largely some aspects of the issue. The Forestry Commission regu- public-funded. However, there are private firms engaged lates, manages and utilizes forest and wildlife resources, in biotechnology activities: Med-Biotech Laboratories, the and co-ordinates related policies. The Fisheries Commission Centre for Research in Infectious Diseases (CRID), and the has similar responsibilities. The National Development and Centre Agro Genetics Labs for tissue culture work. The ABS regulations make provision for the use of genetic resources Planning Commission, with responsibility for planning and for commercial or industrial purposes, and this is the entry land use, amongst its duties makes proposals for the protec- point for the private sector as long as they conform to the tion of the natural and physical environment. The District requirements of the regulations and other relevant laws. Assemblies are the cornerstone of the government’s decentralization policy. They are corporate bodies with perpetual There are four main NGOs, community-based organizations succession entrusted with certain district-level functions, (CBOs) and local traditional authorities responsible for the including development, improvement and management of conservation of sacred groves and other such habitats. They human settlements, and the environment. have played active roles in implementation of the various international conventions, and fulfilling the requirements A key ministry of relevance to ABS is the Ministry of Lo- of national legislation. They have been particularly involved cal Government, Rural Development and Environment - in promoting community participation and empowerment formerly the Ministry of Environment and Science (MES). in sustainable natural resource management, and ensur- Under the various Ministries there are state agencies ing access to benefits it brings. In carrying out their various which provide services relating to genetic resources. These roles, the NGOs face the challenges of weak coordination organizations include: and networking systems, unclear operational linkages with . Departments,e.g. the Department of Parks and Gar- governments at central and local levels, competition for fi- dens; nancial resources, and short time-frames within which cer- . tain projects have to be implemented, relying as they do on The Environmental Protection Agency (EPA); and the availability of donor funding. . Universities and research institutions which, collectively, host 11 departments and centres whose work Cultural institutions in Uganda have historically played a relate to genetic resources. leading role in the management of genetic resources. Al- though their influence was somewhat diminished with Government agencies include the Plant Genetic Resourc- the creation of a central government and abolition of es Research Institute, which collects and conserves plant many of these institutions, they still have the potential genetic resources of Ghana by both ex-situ and in-situ to play a key role in managing various aspects related to methods, and the Centre for Scientific Research into Plant control of access to genetic resources, and protection of Medicine (CSRPM), which produces medicinal plants, indigenous knowledge.

11 Zambia land tenure systems. The use of the resources is not subject to the full rights of the owner of the land, where these In Zambia, there are about 36 stakeholders involved in resources are regulated and managed under specific laws. ABS arrangements and administration. The Ministry of For example, the Tribal Land Act recognizes that a particu- Tourism, Environment and Natural Resources (MTENR), lar community owns the land collectively as well as the which includes the Forest Department, Zambia Wildlife resources on it. The Act envisages the application of the Authority (ZAWA), National Heritage Conservation Com- customary law of the place where the communal land in mission (NHCC) and the Environmental Council of Zam- question is situated. However, the same Act does not give bia, is the key government institution involved in the the traditional custodians (Chiefs) of customary law the country’s environmental management. The ministry, as power to administer either the land itself or the natural the CBD National Focal Point and National Competent resources found on it. None of the land laws make specific Authority, has a Department of Environment and Natu- mention of genetic resources. ral Resources that co-ordinates the implementation of ABS measures. The major constraint of the department Botswana’s natural resources legislation, designed to is the lack of an operational Clearing-House Mechanism meet the objectives of conservation and use of those resources, does not cover the key ABS elements of Prior In- for effective sharing of information to all stakeholders on formed Consent, mechanisms for consultation with rel- various aspects of ABS. While the MTENR is the de facto evant stakeholders, legal certainty and clarity, or a clear ABS Competent National Authority and hosts the ABS application process. National Focal Point, it has limited capacity, and may call upon other ministries such as the Ministry of Justice to For access to wildlife and plants, responsibilities lie across effect certain provisions. various institutions with several ‘focal points’, thus Bot- swana does not have the preferred system of a single Na- For actual implementation of activities, the Zambia Wild- tional Competent Authority to facilitate the ABS process. life Authority (ZAWA) may be considered the operational The Wildlife Conservation and National Parks Act and the National Focal Point and Competent National Authority Agricultural Resources Act, provide, to a reasonable extent, on matters of ABS related to wildlife management. Com- the structures, processes and procedures for application munity-Based Natural Resources Management (CBNRM) to access resources in national parks. There is an authority is the strategy for wildlife management. Through Com- responsible for entry into the national parks and game re- munity Resource Boards (CRBs), local communities share serves; forms for application of licenses to enter the areas benefits through elected Village Area Groups (VAGs), rep- for the purpose of acquiring animals; license conditions resenting clusters of villages at the sub-chiefdom level. and rights, including cancellation, waiver, repudiation and Through this program, various stakeholders are engaged amendment of licenses, and the rationale for such actions. (private sector, CBOs, NGOs and communities) when de- These pieces of legislation may provide the foundation on termining access, negotiating and implementing various which to develop ABS legislation in Botswana. ABS arrangements, Mutually Agreed Terms and agreements in benefit-sharing. ZAWA’s Directorate of Game The Agricultural (Conservation) Resources Act addresses Management Areas (GMAs) is responsible for the coordi- access and management of resources. It empowers the nation and implementation of ABS principles. The staff- Agricultural Resources Board to manage “all resources on ing of the directorate does not have representation at and below the soil of Botswana.” The Act is implemented the lower levels of organization, as is the case with other through the Ministry of Agriculture, which creates ap- directorates such the one dealing with conservation. For propriate policy and regulations to manage and conserve this reason, while elaborate government legal and ad- biological resources. However, the Act still falls short of ministrative machinery exists, the capacity of ZAWA to addressing the resources that are not destined for com- enforce and implement these provisions is limited, and mercial export. In the context of ABS, the legislation pro- remains a major obstacle in effectively implementing vides for the development of regulations for the control ABS measures. In fisheries resource management, Village of access to resources. One example is the requirement Fisheries Management Committees are made up of the of permits for harvest and export of Devil’s Claw (Singa- fishermen, traditional leaders and other key stakeholders parile). However, there are no mechanisms for benefit- such as representatives of local traders, fish traders and sharing. Furthermore, the Act does not spell out the key fish transporters. requirements for PIC and other ABS processes, although the institutional framework for administration of the Act is in 3.3 Access to Resources, Prior Informed Consent and place. Mutually Agreed Terms Ghana Botswana Ghana’s government agencies provide genetic material, Land use in Botswana is guided by the nature of the land knowledge and technology to farmers, academic and tenure system. Generally, to enter land to access resourc- research institutions, other government organizations, es, the landowners’ permission is needed. However, access large-scale commercial concerns and individuals. These is also subject to laws relating to natural resources, which resources are often collected without the prior consent of often address the acquisition of resources in all types of and sometimes without payment to the owner or holder.

12 Several plant genetic resources projects are implemented transboundary collaborative programs around the Central by the Plant Genetic Resources Research Institute (Plant Albertine Rift and the Mt. Elgon Ecosystem. GRRI), Centre for Scientific Research into Plant Medicine (CSRPM), Crops Research Institute, Cocoa Research Insti- At the community level, there are often conflicts between tute of Ghana (CRIG), Heifer Project International (HPI), local communities and the private sector on accessing wa- and the People, Land Management and Ecosystem Conser- ter, cultural sites, medicinal plants, firewood and a number vation (PLEC) project in Ghana, an initiative of UNEP, GEF of non-timber forest products in protected areas. The com- and UNU. However, they do so without legal designation munities regard the resources within the PAs as belong- or administrative regulations. ing to them, and thus demand free and unlimited access. There are discussions on providing incentive measures for Generally, accessing genetic resources is uninhibited as these local communities to conserve their surrounding bi- there is no specific legislation on access and benefit-shar- odiversity, and to reduce conflicts on accessing protected ing, technology transfer, or institutional arrangements for area resources. There is a growing interest in Uganda in ABS. There are frequent cases of rural communities provid- the traditional knowledge these communities hold on the ing guided access to plant material and traditional knowl- use of medicinal plants - hence the Government is in the edge on the use and management of these resources, final stages of developing a National Policy on Traditional while receiving no payment. and Complementary Medicine. Some indigenous knowledge systems have been incorporated into the national As with gold and timber, under the stool lands regime, ge- development plans. netic resources can be vested with the state, subject to the use and/or enjoyment by the owners of benefits derived Zambia from their exploitation, in accordance with the relevant statutory and constitutional provisions.4 Non-national collectors are required to submit a written request, and receive approval, before entering the country The Ghana Investment Centre Promotion Act, which pro- and undertaking the collection. There is no special permit, vides a regulatory framework for foreign direct invest- and granting of permission is by way of a letter of reply, ments into Ghana, is viewed by some stakeholders as one which normally encourages the collector to be accompa- mechanism for access management when dealing with nied by local colleagues, and reminds the applicant of the non-national ABS agreements or applications. need to leave duplicate samples of the collected genetic resources in the country. There are no specified penalties Other measures with an impact on access to genetic refor failure to obtain a letter, or for violating its conditions, sources in Ghana are the Traditional Medicines Practice Act as the permission granted is purely administrative. which, among other things, enjoins the Traditional Medi- cine Practice Council to collaborate with the appropriate Foreign and Zambian institutions collaborate either agencies for large-scale cultivation of medicinal plants, through a Memorandum of Understanding (MOU), in the and for the preservation of biodiversity; and the Centre for case of a project running over a period of time, or through the Scientific Research into Plant Medicine Decree, 1975, a letter of application to the head of the concerned insti- which establishes a centre for research into plant medi- tution in case of a one-time activity. cine and botanical gardens for medicinal plants. In cases of protected areas, such as forest reserves and Uganda wildlife estates, collections are based on a set of conditions derived from national policy and the legislative Although the system for ABS in Uganda is still evolving, framework. For the exploration and collection of wild there are already some institutional mechanisms in place plant species related to crops such as rice (Oryza spp.) and for addressing technical, scientific, legal and/or trade is- cowpea (Vigna spp.), interested parties make a written sues in this area. The ABS regulations make provision for application to the Permanent Secretary or Director of the use of genetic resources for commercial or industrial pur- Research and Services Department in the Ministry of Agri- poses, and this is the entry point for the private sector as culture and Cooperatives. The applicant is required to pro- long as they conform to the requirements of the ABS regu- vide information on the purpose of the collection, species lations and other relevant laws. of interest, and scope of the project. However, no ‘benefits’ conditions have been placed on these collections, as the There is a Technical Committee on Biodiversity Conserva- Consultative Group on International Agricultural Research tion, with its Secretariat in NEMA, which can be used to (CGIAR) institutions are regarded as partners in develop- evaluate ABS proposals. Under the existing legislation, ment whose activities are assumed to have the potential some arrangements have been made relating to ABS. These to benefit the country. include arrangements between Ugandan and collaborating overseas universities, the National Scientific Research Entry into national parks for collection of plant materials Institutions and the Uganda National Council for Science requires a permit from ZAWA, but no conditions relating and Technology (UNCST). Some of the arrangements with to ownership, use and third-party transfer are imposed. government agencies and inter-governmental ones include Therefore, no obligations to the state or local communities for ABS requirements are taken into account. 4 Stool lands are lands controlled by tribal chiefs.

13 With respect to local access and management, the type of Forest Department has a process of obtaining access to for- land (State or Customary Land) dictates the type of system est products, but these steps do not encompass activities in for access, use of resources and benefit-sharing. Most for- research and development and conservation of forests. ests, wildlife reserves, wetlands, botanical and geological gardens and gene collections are under state control. The For fisheries, the government gazette and newspapers property rights regime determines the way in which ben- provide the general prior informed consent on the licenses efits accruing from biodiversity use are distributed. Histori- issued to the private sector and community groups. There cally, communal ownership of biological and other resourc- are areas where traditional authorities have control over es has been replaced by state and private ownership. specific fishing areas. However, current legislation does not provide for identification of where and how research Most of the existing protected wildlife and forest reserves and development activities may occur. Similarly, there were established during the colonial era on what was cus- are also no established procedures or legislation for tomary land. The Zambia Wildlife Act provides the Com- germplasm exchange, other than the need to abide by the munity Resource Board (CRB) with powers to negotiate, phytosanitary regulations aimed solely at safeguarding in conjunction with ZAWA, co-management agreements movement of germplasm across borders. with hunting outfitters and photographic tour operators; to manage the wildlife under its jurisdiction; to appoint 3.4 Benefit-Sharing Village Scouts to exercise and perform the duties of a Wildlife Police Officer under the supervision of a full-time Across the four countries, benefit-sharing is a feature of officer in the area falling under ZAWA’s jurisdiction; and to wildlife and fisheries management. Benefits are in most develop and implement management plans which recon- cases monetary for communities, through local commu- cile the various uses of land in ZAWA areas. Access to wild- nity and district boards. life resources and products is obtained through various access systems such as hunting licenses at local, national Botswana or district levels, or a special license. The process and most of the steps for obtaining access to wildlife resources are Botswana’s resource laws and commercial laws on intel- clear and consistently applied. However, the current steps lectual property rights fail to address benefit-sharing and do not always emphasize the development dimension of rules for obtaining PIC. research relating to wildlife. Ghana In addition to permits, concessions and licenses, plants breeder’s rights, certificates of origin and traditional The existing ABS-relevant legislation in Ghana does not knowledge (TK) registers are three interesting protection address benefit-sharing as associated with accessing ge- features in Zambia. The National Science and Technology netic resources. However, as noted earlier, genetic resourc- Council documents Indigenous Knowledge Systems (IKS); es can be vested with the state, subject to the use and/or plant breeders’ rights are rights given to farmers to help enjoyment by the owners of benefits derived from their them conserve the genetic diversity of crop varieties and exploitation, in accordance with the relevant statutory their wild relatives; and certificates of origin are usually and constitutional provisions;5 as obtains under the re- issued in the fisheries sector to would-be transporters of gime of stool lands. The Constitution outlines the follow- fish during the off-season as proof of where and when the ing formulation for sharing of stool lands revenues, which fish was sourced. The certificate of origin helps the Fish- may inform an ABS scheme: eries Department to enforce the fishing ban during the . 10% of the revenue accruing from the stool lands shall closed fishing period. These systems can be incorporated be paid to the office of the administrator of stool lands, into an ABS management system in Zambia. to cover administrative expenses; In Zambia, Prior Informed Consent (PIC) is addressed in . The remaining revenue shall be disbursed in the fol- wildlife management, where annual quotas are published, lowing proportion: and general consent on the annual quota for various types (a) 25% to the stool through the traditional authority of use. However, there are no legal rights or traditional na- for the maintenance of the stool in keeping with tional access policies established for indigenous and local its status; communities - though communities are consulted during the concession-awarding processes. For forest manage- (b) 25% to the traditional authority; and ment, the government’s gazette provides general prior in- (c) 50% to the District Assembly, within the area of formed consent on the concession issued and conditions. authority in which the stool lands are situated.

Mutually Agreed Terms for wildlife management are con- Uganda tained in various permits and licenses, and there is limited negotiation on what should be mutually agreed as the basic Uganda has a patents statute, dating from 1991, under terms are prepared by ZAWA. However, terms on custom- which a registrar awards patents for an initial period of ary use of knowledge related to genetic resources, innovations and practices of indigenous and local communities 5 See for example Article 20 of the 1992 Constitution which provides for prompt payment are largely missing from these regulatory documents. The of fair, adequate and effective compensation as a precondition for compulsory acquisition of land by the Government of Ghana (GoG) for public purposes.

14 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 property laws, with much more stringent enforcement provisions. However, there is limited information on the impacts of IPRs on conservation and sustainable use of biodiversity.

Arising through the community conservation and collaborative forest management programmes in Uganda, national parks share benefits with local communities. These benefits include: . Sharing of limited amounts of specified in-park resources 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 benefits. However, benefit-sharing is usually not included in the Mutually Agreed Terms in the agreements with users, but is rather included in a separate process in agreements 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 areas should assist communities through provision of social services - but these requirements are included in the bidding 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 wildlife-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 contribute 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 communities within two weeks after each quarter. Benefit-sharing mechanisms are elaborate, but the monetary benefits are inflexible (cannot be altered by partners). However, the current mechanisms do not include full cooperation in scientific research, technology development and other benefits derived from other commercial production ventures which use the wildlife resources. No conditions exist for the sharing of benefits that may arise from research or commercialization of resources with associated traditional knowledge, nor is there a system of awarding property rights to source communities or national institutions.

15 4. Country Studies

4.1 Botswana areas: (i) genetic resources relating to food security and human health; and (ii) traditional knowledge (TK) relating Botswana’s country report was prepared and completed to food security and human health. in November 2005 by Alfred Tsheboeng, Kulthoum Omari and Nancy Kgnengwenyan. In March 2008, Alfred Tshebo- While the Convention on Biological Diversity looks at ac- eng updated this study. cess to genetic resources and equitable benefit–sharing, SADC’s guidelines link genetic resources to food and hu- 4.1.1 Introduction man security. SADC has now broadened its focus so that it views Biological Resources as defined in the CBD. The is- This report outlines the results of desktop research on sues that have been recognized as key are: the modalities the access and benefit-sharing measures in Botswana in of how access should be conducted and granted, thus rais- light of the Bonn Guidelines. To portray the country’s ex- ing the need for effective measures that consider the is- perience and status in the implementation of the Bonn sues of ownership and proprietary rights; benefit-sharing Guidelines, the report highlights the measures already and associated contractual matters with consideration of undertaken, underway or planned to meet the provisions equity issues in commercial, research and other transac- of Article 15 of the CBD on Access to Genetic Resources and tions involving the access and use of biological resources; complementary provisions in other Articles. and the need for an effective institutional framework to ensure appropriate management. The study was conducted in 2005 up to November by three national consultants, and the report went through 4.1.3 Institutional Stakeholders the UNEP Peer Review Workshop process.1 The consultants were guided by terms of reference (TORs) and question- The Government of Botswana is responsible at the national naires developed by the Institute of Biodiversity and Bio- level for creating an enabling policy, legal and institutional technology Initiatives and Services (IBBIS) and UNEP. 2 environment for facilitating access to Botswana’s biological resources. The overall framework should allow for dif- The report covers an analysis of the institutional ABS frame- ferent options for negotiating benefit-sharing agreements work, a review of ABS activities and projects, an analysis of and modalities. This responsibility extends from the gov- the ABS-relevant legislation, an identification of legislative ernment’s overall mandate through its institutional arms gaps and recommendations to address the gaps. to conserve and manage the different biological resources in Botswana, including those found within the freehold 4.1.2 Background and communal land tenure systems.

Throughout Botswana’s development, its biological re- The Department of Environmental Affairs (DEA), in the sources have remained significant in the lives of its peo- Ministry of Environment, Wildlife and Tourism serves ples. However the absence of or inadequate policies for the role of focal point for the CBD. Within the DEA, the resource conservation, use and management and more stated function of the Policies and Programmes Division specifically effective policies on accessing and sharing of is coordination and monitoring of implementation of benefits from genetic resources and associated traditional multilateral environmental agreements (MEAs). This knowledge threatens the very existence of these resourc- creates uncertainty with respect to implementation of es. Indeed it has been recognized that there remains a the CBD obligations. The role of coordination assumes real, and in some aspects unexploited contribution, that that one or more other divisions or institutions are the country’s biological, genetic and associated traditional responsible for implementation, and that the role of knowledge can play in the improvement of living stand- DEA through the division is to coordinate the efforts of ards in Botswana. implementers. A structure needs to be developed which identifies the activities that must be coordinated. For Botswana, like many of the Southern Africa Development example, various institutions may be designated roles to Community (SADC) Member States, is at the initial phase address various thematic areas, and a structure developed of domesticating the Convention on Biological Diversity. as proposed in Box 1. As a member of SADC, Botswana is party to the SADC Guidelines and Protocols on Access and Benefit-Sharing of The type of biological resources accessed, and the purpose April 2005. The SADC guidelines propose two ABS priority of access, determines whether and which other institutions are involved in ABS management. For example, the 1 The UNEP Peer Review Workshop Report was held in December 2005 with the partici- Department of Wildlife and National Parks (DWNP) is pri- pation of the consultants. 2 In summary, the study involved the following tasks: (i) identification of ABS stakehold- marily responsible for animal biological diversity as well ers; (ii) a review of ABS regulatory and administrative arrangements and significant as other resources found in wildlife management areas, gaps; (iii) an inventory of current and proposed legislation relevant to ABS; (iv) an in- national parks, private game reserves and other such des- ventory of ABS projects; (v) liaising with government agencies and other facilities and assessing effectiveness of implementation of the Bonn Guidelines; (vi) identifying national ignated conservation areas. challenges and constraints for ABS arrangements implementation; (vii) participating in UNEP Peer Review Workshop; (viii) submitting final report. The Ministry of Agriculture is responsible for plant re-

16 sources, agro-biodiversity including veldt products and Botswana Vaccine Institute for the development of animal medicinal plants on state and communal land.3 vaccines for domestic animals, and is a key player in the access of animal biological resources for research purposes. Other departments and institutions include the Depart- ment of Agricultural Research and in particular the Na- The Department of Fisheries is involved in fisheries man- tional Plant Genetic Resources Centre, National Herbari- agement. um, University of Botswana. The National Master Plan for Arable Agriculture and Dairy Development (NAMPAADD) An analysis of the above institutions shows that there is has as one of its objectives the identification of veldt prod- a somewhat decentralized ABS institutional framework ucts, and researching these products with a view to devel- within Botswana. For access to wildlife and plants resourc- oping commercial exploitation strategies. es, responsibilities spread across various institutions. The extent to which these have incorporated the proposals in The Department of Forestry is another relevant agency the Bonn Guidelines varies. For example, to access these re- with responsibility for forest products - trees, timber, sources there are several ‘focal points’, diverging from the brushwood, firewood, poles, bamboo, slabs, chips, saw- preference of a single focal point that facilitates the provi- dust, plants, grass, reeds, thatch, bedding, creeper, fiber, sion of prior informed consent. Therefore, the focal agency leaves, fruits, seeds, roots, bark, resin, rubber, sap, charcoal, for access is unclear, especially where the targeted resourc- honey, wax, fungi, galls and earth.4 All these type of re- es fall within the management of several agencies. sources contain various components of biological diversity that can be subject to access. However loosely, the existing institutional framework does provide an access process, in some cases with specific The Crop Production Unit implements domestic agricul- procedures such as the requirements for permits. Even so, tural policies including those pertaining to indigenous or the government institutional framework is largely guided traditional varieties of crop seeds and their wild relatives. by specific legislation administered by specific agencies. Most, if not all, of this legislation was not developed with The Botswana College of Agriculture works on agriculture facilitation of implementation of the Convention on Bio- extension with the local farming communities, and on logical Diversity as an objective, let alone the implementa- maintenance of agro-biodiversity. tion of its ABS provisions in light of the Bonn Guidelines. It follows that the key elements of prior informed consent, The Department of Veterinary Services works closely with mechanisms for consultation with relevant stakeholders, legal certainty and clarity and a clear application proc- 3 Veldt refers primarily to wide-open rural spaces and in particular to certain flatter areas or districts covered in grass or low scrub. ess for ABS are not hallmarks of the current institutional 4 Galls or plant galls are proliferations and modifications of plant tissues and can be framework. caused by various parasites from fungi and bacteria, insects and mites.

Box 1 Proposed CBD National Coordination Structure for Botswana

ABS Institution Clearing House IAS Institution designated Institution designated designated

DEA Biosafety Institution National Coordination IK Institution designated (Policies & Programmes designated Division)

IPR, PIC, Product Development MATs etc

17 In addition to the governmental institutions responsible 4.1.4 Review of Existing Information on ABS Activities for activities that have or potentially have an impact on ABS management, there are also non-state actors. These The information available on ABS activities in Botswana is include non-governmental organizations involved in the fragmented in different institutions, and is not necessarily management of biological resources in an endeavor to as- ABS-specific. sist communities and communal organizational structures. Creation of Databases Key non-state actors in the NGO sector include those that work in the areas of wildlife, plant genetic resources, Management of genetic resources and access to them conservation and management of biological resources. is still relatively unconsolidated in Botswana and in the These include Kalahari Conservation Society (KCS), which SADC as a whole. There has been limited action to mature works closely with the Department of Wildlife and Na- the ABS management process to incorporate CBD’s ABS tional Parks, Veldt Products Research and Development principles into existing national frameworks. There is evi- (VPRD) and Thusano Lefatshe (TL). These latter two or- dence of the access aspects in some legislation; however, ganizations work directly with communities on the use as there is no central management body, there is no spe- of biological resources, including the harvesting of me- cific ABS data source. dicinal plants for exports, and propagation of indigenous plants for sale. At the regional and international levels, there are data sources such as ABS databases at the SADC Plant Genetic In relation to agro-biodiversity, the Permaculture Trust of Resources Centre, and Biodiversity International. Botswana (PTB), works with communities on biodiversity conservation and sustainable use, including the selection Botswana can draw lessons and information from these of crop varieties for arable agricultural activities. databases. Any central ABS activities data source in Bot- swana should include information on the following: There are also communally-organized institutions com- . Procedure followed for application for access; monly referred to as community-based organizations . (CBOs), which work with communities at grassroots levels. Specific use requirements; Such CBOs include Kalamare Development Trust, a com- . Specific resource accessed; munity development organization made up of traditional . The area from which the resource was accessed; doctors and other TK practitioners. . Type and conditions of consent; . Most of the NGOs work in collaboration with communities Institution responsible for facilitating access; that live on communal land or make use of its biological . The time of access; and resources. The NGO institutional structure appears not to . The mutually-agreed terms (MAT). include all of the ABS principles (as further expounded by the Bonn Guidelines). At times, there is some level of con- This information is useful for conservation and monitor- sultation and community involvement in access provision. ing of sustainable resource use. However, a robust regula- However, it is sparse, and does not follow the principles tory and institutional framework is needed to manage the of prior informed consent and negotiation of mutually- information effectively and to make optimal use of it. Ex- agreed terms. isting databases with information relevant to ABS activities could be adapted to capture specific ABS information. Other civil society players include the Botswana Chapter Alternatively, the Department of Environmental Affairs, of the African Renaissance (BOCARI), which focuses its ef- which collates information from various ABS stakeholders, forts on poverty and deprivation. To address the issues, the could create a separate database specific to ABS. A cen- Chapter has encouraged and is engaged in problem-solv- tralized database of this nature would facilitate easy ac- ing inquiry in the areas of agriculture and health, with sev- cess, relevance and accuracy of information. The database eral research projects on food procurement and medicinal should also contain ABS information sources such as: plants. The extent to which they have aligned their poli- . cies and strategies to the CBD is yet to be established. CBD and Bonn guidelines; . Expert rosters; There are other efforts outside of mainstream institution- . ABS working groups and institutions; al structures such as the Task Force on Indigenous Knowl- . Inventory of biological resources; edge System, which is seeking to be housed by the Minis- . Publications, case studies, research projects; try of Trade and Industry (MTI). The main objective of the task force is to establish an inventory of indigenous and . Legislation, policies; and traditional knowledge, and to assist in the protection of . Best practices on benefit sharing. intellectual property. Data access and sharing should be open to contributing The full list of institutions is somewhat extensive; howev- institutions, both national and international. However, er the uncoordinated activities of these departments are contributing departments should reserve the right to incidental to ABS, and do not necessarily embrace the ABS withhold sensitive data, for example on protection of rare principles of CBD. and endangered resources.

18 Capacity-Building evant sections of the CBD, relevant COP decisions and the questionnaires provided by the IBBIS and UNEP. The use Biological resources are fundamental to Botswana’s local of the criteria allowed for focus on legislation on relevant and national economy, and the well-being and culture of biological resource legislation. The analysis looked at leg- the people. Management of access to and benefit-sharing islation with the following characteristics: from these resources can enable communities using them to derive non-traditional benefits, and improve their live- 1. The intent of the legislation – the legislation is intend- lihoods and welfare, whilst at the same time conserving ed to regulate biological or genetic resources through the resources. Botswana has recognized that the greater provisions for their conservation, management, pres- the economic potential of a resource, the greater the need ervation, utilization, exchange or transfer; to establish the capability of its holders to manage and 2. The resources governed under the legislation - the leg- conserve it. islation regulates the method of sale, transfer of rights and exchange through the provision of specifications Resource conservation entails overhead costs and oppor- regarding transaction rights; tunity costs, which can be offset by sustainable use of the 3. The relationship with ABS - the legislation seeks to resource. Access and benefit-sharing agreements and re- confer ownership, custodianship or user rights of a bi- lationships between providers and users should, therefore, ological resource that can be the subject of or attracts develop through ethical consultations, facilitated by clear access and benefit activities; and policy, good business support and strong links to the markets. They should also provide incentives for re-investing in 4. The gaps and options for addressing them - the leg- resource conservation. Furthermore, to achieve a win-win islation is intended to implement at domestic level the CBD’s provisions on ABS or any other international for resource providers and users, all parties should be em- agreement that has relevant ABS components. powered though training and education on negotiation techniques, how to grant Prior Informed Consent (PIC), re- The second activity was to develop elements that could source management and other relevant skills. Policy-mak- be considered as necessary to qualify adequately a piece ers, natural resource managers, researchers, private sector of legislation as adequate or deficient in addressing ABS, actors, NGOs, and communities all need these skills, and based on the guidance of the CBD and the Bonn Guide- need to understand the spirit of the ABS provisions of the lines, as well as basic common legal principles found in CBD, and of the Bonn Guidelines. These actors should be various pieces of legislation and legal systems, on rights, offered short and long-term educational programmes, so their transfer or cessation. This underpinned the assess- they can be best prepared to negotiate benefits contracts ment of what constituted a legislative gap, and pertinent and to use biological resources in a sustainable manner. options to address gaps. The basic elements include: The depth of the training may vary according to the category of actor. However, at least introductory information 1. Specific implementation measures relating to access should be provided on: to genetic resources and procedures for benefit-sharing mechanisms; . The CBD and Bonn Guidelines; 2. The legislation establishes and empowers a specific . ABS national legislation and policies, and national ABS competent authority for managing ABS in the coun- principles; try, clearly specifying the rights and duties of others . Intellectual Property Rights (IPR); who may be involved, such as landowners and com- . Environmental economics; munities, in relation to the mandate of the compe- . Environmental law; and tent authority; . Indigenous Knowledge Systems. 3. The legislation contains procedures and steps to be 4.1.5 Analysis of Legislation Affecting ABS taken for securing access, e.g. submission of application; initial evaluation; determination/notification that the application is correct and complete; consulta- The project’s terms of reference called for an inventory of tion; public notice/participation; final evaluation; no- relevant legislation, taking account of the Bonn Guide- tification (and publication) of decisions and bases for lines, and the progress of the CBD Working Group on ne- decision; appeal procedures – appeal rights, time limit gotiations of an International Regime on ABS. This section and other requirements; offers an analysis of a desktop review of such legislation in Botswana. 4. The legislation has clarity regarding the procedures for applying for ABS rights; Methodology 5. The legislation provides specifics regarding application forms and application processes, accompanying In conducting the inventory, criteria for selection of the documents and other necessary information, and the relevant legislation and a list of the minimum elements timelines for processing of such applications; were developed. 6. The legislation provides a clear scope of the nature The criteria were drawn up using the Bonn Guidelines, rel- of the grant. This factor enhances legal certainty by

19 clearly defining the right granted, as well as enunciat- . Wildlife Conservation and National Parks Act No. 28 of ing mandatory provisions that must be included in the 1992 mutually-agreed terms (MAT); . The Agricultural (Conservation) Resources Act 7. The law provides for parameters regarding legitimate . Forest Act 38:04 expectations, and vested rights of the provider and the user, by setting out clear and specific statutory require- . The Town and Country Planning Act – Cap. 39:09 ments and limitations regarding subsequent chal- . Aquatic Weeds Control Act – Cap. 34:04 lenges, cancellation, alteration, repudiation, amendment or suspension of the ABS right after receiving . Tribal Land Act - Cap. 32:02 the initial authorization; . Deeds Registry Act 8. Given the nature of genetic resources, the legislation . Land Control Act provides clarity about the role of other bodies, processes and stakeholders in the ABS legislation; . State Land Act 9. The process and legal requirements for acquisition of . Fish Protection Act - Cap. 38:05 Prior Informed Consent (PIC) is contained in the legis- . Water Act lation, including those responsible for giving PIC. The legislation provides for clarity and certainty on the in- . Waterworks Act stitution or conduit mechanisms for acquiring legally- . Waste Management Act No. 15 of 1998 binding PIC, such as the basis for acquiring PIC, the pro- . cedure for notifying the people responsible for giving Local Government (District Councils) Act - Cap. 40:01 PIC that their input and consent has been requested, . Industrial Development Act - Cap. 43:01 and determinants that consent has been given; . Industrial Property Act 10. The legislation makes clear how it integrates with . other required permissions, permits, administration Public Health Act - Cap. 63:01 frameworks, officials, sectors and right-holders. A National Environmental Act has been drafted, within 11. The legislation articulates unequivocally exactly what which ABS issues could be captured as a chapter. The proc- is being granted under ABS provisions, and how the ess of developing this act is ongoing, and various studies permission may be limited or controlled in normal op- have recommended that ABS measures should be includ- erations. The rights of the provider and those of the ed as part of this law, as opposed to forming the basis of user are clearly stated; stand-alone ABS legislation. 12. The legislation has general provisions on what rights may be granted, limitations on the rights that must Land Use Laws always be imposed, limitations that may be imposed at the discretion of the authority, and rights that may Land use in Botswana is guided by the nature of the land be granted at the discretion of the authority; tenure system. Generally, to enter land to access resources the landowners’ permission is needed. However, access is 13. The legislation provides clarity on MAT, in terms of also subject to natural resources sectoral laws, which of- what can be done, what cannot be done and what is ten address the acquisition of resources in all types of land agreed on; tenure systems. Botswana land laws recognize three land 14. The legislation articulates third-party impact on the tenure systems. These are: ABS agreement, in other words the law states the con- . Tribal land;5 ditions and provisions under which affected citizens . or others have the right to challenge formally an ABS State land, held by the State; and agreement after it is final. The legislation further states . Freehold land, held under private rights. the basic procedural limitation period on appeal; and 15. The legislation states the rules on claims for non-com- Tribal Land pliance. Tribal land, which is the largest category in Botswana in A questionnaire was then applied to government and terms of area, is governed under the Tribal Land Act. This non-governmental agencies at a national workshop of provides for the establishment of the Tribal Land Boards, in stakeholders. which communal land is vested. It also defines the powers and duties of the land boards. This process creates a rela- Botswana does not have specific legislation on access to tionship akin to trusteeship between the land boards and genetic resources and benefit- sharing in the context of the communities who own the land. In other words, the the CBD. However, there are various pieces of sectoral leg- land boards hold the land in trust for the community, and islation with components of and relevance to ABS. These do not assume ownership of such land themselves. They include: ensure that the land is managed in a way that enables

5 Tribal land is also called communal land in other jurisdictions.

20 benefits to accrue to the community. The mandate given . The legal processes and procedures required to access to a land board is wider in scope than the mere designa- resources; tion and allocation of land for residential, commercial or . The key players, especially the communities in the area agricultural purposes. and how they interface with those seeking access and the land boards. This would also provide clarity on how The Act’s the definition of tribal land is: “land in a tribal to get PIC and primary persons giving consent; and area and subject to the provisions of the Mines and Min- erals Act, the Water Act and the Mineral Rights in Tribal . The institution responsible for negotiating the expect- Territories Act includes any interest in land and anything ed benefits on behalf of the community. which is either artificially or naturally attached to the land and which, by operation of the common law accedes State Land to it.” The State Land Act regulates state land. Except for the re- This definition is significant in considering the rights to sources found in state land within national parks and pro- the use of biological resources on communal land. Un- tected areas, and that regulated under other legislation, der common law, land is owned with whatever is found there is no mention of genetic resources. beneath or above its surface, save for the application of the Acts as discussed under the definition of land. The Act Private recognizes that a particular community does own the land collectively as well as the resources on it. The Act envisag- The Land Control Act regulates the transfer and ownership of es the application of customary law of the place where the private land. It does not mention access to genetic resources. communal land in question is found. However, the same Act does not give the traditional custodians of customary In all three tenure systems, the right to grant permission to law the power to administer such land, or the adminis- enter land for purposes of access would normally lie with tration of the natural resources found on it. A reading of the owner. In the case of un-alienated communal land, section 13 of the Act on the functions of the land boards, in the authority would presumably be with the appropriate relation to customary land tenure, indicates that all pow- land board, in the case of un-alienated state land it would ers which are or were vested in a Chief in relation to land lie with the Ministry of Lands, and in the case of freehold, are to be vested in the land boards. Broadly interpreted, the owner is directly responsible for granting or refusing this would include the administration and control of ac- access. Open-access land generally exists in Botswana, cess to and use of natural resources. except in freehold land, but access to genetic resources would be controlled through relevant resource legislation. Section 18 of the Tribal Land Act permits the land boards Tracking of ownership of alienated land is not difficult as to set aside land outside the grazing area, for the common it is usually registered by the Land Board, Department of use of the community (commonage), or for specified class- Surveys and Mapping or the Deeds Registry. es or categories of people within it. In practice however, there seems to be a void in communal areas as to who Town Planning should be responsible for the control of veldt products and other resources found in communal land. Furthermore, The Town and Country Planning Act covers the orderly de- land boards only sit occasionally to hear requests and velopment of land in towns through the District Councils, grievances relating to land allocation, and are not avail- and aims to preserve and improve their amenities. One able to deal with day-to-day affairs regarding the use of of the Act’s requirements is that government and private biological resources. development plans be accompanied by proposals for protection of the environment, including standards and op- The lack of management of resources in most communal erational guidelines for the intended land uses. Granting land affects not only plant natural resources, but also af- of permission to develop land and other powers of control fects soil, sand, gravel and stones. These materials are in over the use of land are provided for under this Act. Sec- high demand for domestic use, and especially for commer- tion 23 provides for the protection of trees and woodlands, cial consumption. In the absence of responsibility for non- whereas section 27 covers the protection of heritage sites. allocated areas, it is difficult to control the extraction of sand and gravel. Natural Resources Legislation The Tribal Lands Act has a bearing on access to genetic re- In Botswana, all natural resources are managed by a statu- sources and benefit–sharing, especially in areas not cov- tory authority, usually a government department, respon- ered by both the Wildlife and National Parks Act and the sible for administering legislation covering a specific sec- Forestry Act. Areas to be addressed include: tor, depending on the resource. . A specific legal mechanism for the Land Boards to en- Wildlife Conservation and National Parks Act sure that they have direct control over accessing activities, including the classification of resources under The intention of this Act is to make further and better pro- the commonage and communal open spaces; vision for the conservation and management of wildlife in

21 Botswana and to implement CITES in domestic law, as well cluding those for export; as any other international conventions on the protection . A fee structure for application of licenses; and of fauna and flora to which Botswana is party. It also provides for the establishment, management and control of . The circumstances for accessing live wild animals, national parks, private and other game reserves, sanctuar- through capturing or killing them, in privately-owned ies and protected areas. The Act covers protected animals, property. partially-protected animals, bird licenses, schedules on areas and types of animals and plant life that may not be Given the intention of the Act, there are gaps regarding hunted or harvested. ABS management. These include:

With respect to ABS, the Act provides: . No arrangements on direct access to genetic resources; . No arrangements on rights of the Authority and the . Conditions and requirements for granting of permission to person who accesses the genetic resources, concern- enter national parks, protected areas and game reserves; ing benefits for both parties; . Conditions for the granting of permission to remove . No system for traceability of uses of the genetic re- any object from the parks and protected areas; sources once they leave the parks or protected areas, . Conditions and requirements for the granting of per- to make tracking of benefits easier; and mission to kill, hunt, injure, capture or disturb any ani- . A lack of structure for the protection of knowledge mal, or the taking or destruction of any eggs; about genetic resources, held by the Authority or by . Requirements and conditions for the removal of any communities that could be used in negotiating ben- animal or part of an animal or any vegetation, dead efit-sharing options, including the mechanisms for or alive, from the areas that fall under the scope of transfer of that knowledge. the Act; The Agricultural (Conservation) Resources Act . Conditions for cutting, damaging or destruction of any tree or vegetation in a national park; The Agricultural Resources Act addresses access and man- . Conditions for destroying or defacing any object, agement of resources. It empowers the Agricultural Re- whether animate or inanimate, in national park; sources Board to manage “all resources on and below the soil of Botswana.” The Act is implemented through the . Rules regarding causing of damage to or disturbing Ministry of Agriculture, which creates appropriate policy any object of geological, archaeological, historical, eth- and regulations to manage and conserve biological re- nological or other scientific interest within a national sources. However, the Act still falls short of addressing park, including its removal; biological resources that are not destined for commercial . The prohibition of hunting or capture of any animal or export. This is a gap in the management and conservation any species or variety of animal unless licensed to do so; of biological resources, and affects the more economically- vulnerable communities, for which domestic consumption . Requirements and processes for applications for li- is the focus of management activities. censes to hunt, kill, harvest etc. in the national park and other protected areas; and In the context of ABS, the legislation provides for the . The statutory authority responsible for implementing development of regulations for the control of access to the Act – Department of Wildlife and National Parks. resources. One example is the requirement of permits for harvest and export of Devil’s claw (Singaparile) . The Act itself is not a direct response to the ABS provisions However, there are no mechanisms for benefit- sharing. of the CBD, and does not therefore address access to ge- Furthermore, the Act does not spell out the key require- netic resources in the spirit of the Convention. For exam- ments for PIC and other ABS processes, although the ple, it is silent on benefit-sharing arrangements. However, institutional framework for the administration of the it does contain important elements of legal certainty from Act is in place. the perspective of ABS, which include: Forest Act . Designated statutory authority responsible for entry into the national parks and game reserves; The Forest Act provides for the regulation and protection . Clear processes and forms for application of licenses of forests and forest products in Botswana. Forest prod- to enter the areas for purposes of acquiring animals, ucts include trees, timber, brushwood, firewood, poles, and therefore genetic resources, although genetic re- bamboo, slabs, chips, sawdust, plants, grass, reeds, thatch, sources are not the subject of the Act; bedding, creeper, fibre, leaves, fruits, seeds, roots, bark, resin, rubber, sap, charcoal, honey, wax, fungi, galls, earth . License conditions and rights, including their cancella- and other items that may be provided for by the regulation, waiver, repudiation and amendment of licenses tions. The focal authority is the Department of Forestry. and clear rationale for such changes; This Act has declared certain areas as being forests, and as . Clearly-stated conditions for selling live animals, in- being in these forests. There may be resources classified as

22 protected, and not subject to harvesting. The relationship prevent harm to human, animal and plant life, as well as with ABS is that the forest products are often accessed for to minimize pollution of the environment and to protect research and development. natural resources.

The major deficiencies of the Act with respect to ABS are: This Act is applicable to land-use planning, as there is a requirement to plan and zone land suitable for waste dis- . No clear procedure for access; and posal sites, as well as to zone land for different uses in a . Benefit-sharing is not addressed. manner that enables the control and collection of residential, industrial, hazardous and clinical waste (s.14). Aquatic Weeds Control Act The Act provides for the conservation of natural resources The Aquatic Weeds Control Act criminalizes the importa- and environmental protection through the prevention of tion of aquatic weeds into Botswana, and their movement pollution and contamination caused by unregulated and from one place to another within the country. The sole uncontrolled waste. In the planning and zoning of land, it intent of the Act is the management of weeds for better is necessary to identify areas where there is underground conservation, and it does not respond to ABS in the con- water, fragile ecology etc, so that they can be zoned for text of the CBD. those activities less likely to cause detrimental effects to the surrounding natural environment. The Act has no di- Fish Protection Act rect relevance to ABS.

This Act provides for the effective regulation, control, pro- National Museums Monuments and Art Gallery Act tection and improvement of fish and fishing in Botswana. The Act enables the Minister to make regulations on the This Act is important in that it protects objects or artifacts following: that are part of Botswana’s cultural, social and political heritage. This covers both past and present heritage. The . Imposing and prescribing conditions for the regula- Act is not ABS-specific. tion of fishing; . Registering all boats employed in fishing; Tourism Act . Determining the times and seasons at which the tak- The Act makes provision for the regulating of the tourism ing of any species of fish shall commence and cease; industry with regard to promoting its development and . The issuing of licenses and certificates of registration well-being. The Act covers requirements on: to persons authorized to take any species of fish; . Licensing of tourist enterprises; . Prescribing the fees to be paid, in respect of any license . Categorization of tourist enterprises; or registration issued; . Issuance of licenses; and . Providing for and regulating the description and form . of nets to be used in fishing and the size of their mesh- Grading of tourist enterprises. es, or the prohibiting of any special description of nets or meshes or any tackle, instrument or appliance that In relation to ABS, the Act does not provide for the regula- tends to impede the lawful taking of fish, or that is tion of access through setting standards, rule and regula- detrimental to the preservation or increase of fish tions on the behavior of tourists during their visits to wild- stocks; life management areas and similar locations. . Prohibiting, restricting or regulating the importation Industrial Development Act into Botswana of any live fish; . Prohibiting, restricting or regulating the sale of fish; The Industrial Development Act seeks to encourage and and control the orderly promotion and development of industry in Botswana. Covering the whole country, this legisla- . The Act also provides for the criminalization of the use tion appears to be confined to the manufacturing indus- of explosives, poison or noxious substances for the try, as opposed to other industries such as biotechnology, purposes of killing, stunning or disabling the fish. the development of medicinal plants etc.

Environmental Protection Legislation Acquisition of Property Act

Waste Management Act This Act allows the acquisition of property for public and other purposes, and for settling the amount of any The Act establishes the Department of Sanitation and compensation to be paid. The scope of the Act covers Waste Management, and its functions in relation to waste rights relating to immoveable property and its leasing, management. It also provides for the planning, facilita- rights to use of public water, any servitude, or the creation and implementation of advanced systems for regu- tion of any servitude, any land granted or ceded to a lating the management of controlled waste, in order to corporation, company or person. The land in Tribal Ter-

23 ritories as defined by the Tribal Territories Act is exclud- 4.1.6 Gaps and Recommendations ed from this Act. The land laws in Botswana do provide direction as to The Acquisition of Property Act provides conditions under which agency or person is responsible for granting per- which the President may acquire any real estate property mission to enter land. However, these laws do not ad- (s.3)(1), and these are: dress the question of accessing resources. The common law system of land ownership applied in Botswana gives . In the interests of defense, public safety, public order, the owner of the land the power to grant permission for public morality, public health, town and country plan- others to use its resources. However, the use of those re- ning or land settlement; sources is not subject to the full rights of the landowner, where they are regulated and managed under the nation- . To secure the development or utilization of that or al resource laws. other property for a purpose beneficial to the community. The natural resource legislation was designed to meet the objectives of conservation and natural resource use, and It does not address the acquisition of intellectual property does not cover the key elements of ABS. The Wildlife and Na- or biological resources for public interest. All manage- tional Parks Act and the Agricultural Resources Act, provide, ment of intellectual property is addressed in the Indus- to a reasonable extent, structures, processes and procedures trial Property Act, and biological resources under specific for application to access resources, albeit not specifically ge- resource laws. netic resources. These two Acts provide a solid foundation on which to develop ABS legislation in Botswana. Public Health Act Benefit-sharing is not addressed by the existing legislation. The Act makes provision for public health concerns, including areas such as housing, trading places, sanitation, pro- The commercial laws on intellectual property rights fail tection of foodstuffs and water supplies, and the regula- to address the following important areas for negotiating tion of the use of cemeteries. The Act seeks to promote mutually agreed terms: personal and environmental health in Botswana. This involves advising and assisting local authorities concerning . Role and status of traditional knowledge; matters affecting public health. The Act is not of direct . Transfer of technology; relevance to ABS. . Confidential information; Mines, Quarries, Works and Machinery . Plant variety protection in the context of both private and traditional knowledge of plants; The intention of the Act is to provide for the safety, health . and welfare of persons engaged in prospecting, mining The obligation not to file a patent or other intellectual and quarrying operations, including any ancillary works, property without first seeking permission; and to make provision for the inspection and regulation . Sharing of patents between the person seeking access of mines, quarries, and works and of the machinery used and the providers of genetic resources; in them. Section 2 of the Act describes “quarrying” as: “the . Provisions on sharing of royalties and/or other benefits activity of obtaining or extracting, or attempting to ob- arising out of the use of resources and the intellectual tain or extract, any rock, stone, gravel, sand, clay or similar property rights; material for commercial or industrial use by any mode or method, or any purpose directly or indirectly connected . Restriction on permitted uses of the material trans- therewith or incidental thereto”. ferred; and . Rules on the criteria for PIC. This Act has a direct bearing on ABS, especially in the extraction of soils, but due to its intended objective, it does The main gaps identified are the lack of specific nation- not address ABS. al and institutional policy and legislation guiding ABS in Botswana. Because the legislation governing biological Commercial Laws resources and their ownership is not tailored to deal with ABS, it does not contain the necessary elements to meet Industrial Property Act the CBD’s objectives for access to and equitable sharing of benefits from genetic resources. The Act provides for the protection of intellectual property rights, and implements the World Intellectual Property No databases of ABS projects in Botswana were identified. Organization (WIPO) agreements on intellectual property. If they exist, they are rather elusive, with no clear protocol Among commercial laws, the rights not covered are trade for accessing or collating data. Protocols for data collation secrets and confidential business information, traditional and access should be clear, as some of the information knowledge and plant variety protection. may be commercially confidential.

24 Some of the projects do not reveal the owners of the bi- proposed legislation pertaining to ABS.6 The report also ological resources, what they stand to gain, or what will assesses the legal and administrative facilities against the become of project results or outputs. The projects and ac- Bonn Guidelines, and identifies the main challenges and tivities involving access to resources and/or use of intellec- constraints of Ghana’s ABS management.7 tual or traditional knowledge, in its various forms, should be negotiated under clear, basic minimum guidelines and 4.2.2 Social, Economic and Environmental Aspects of terms for all involved in the project. ABS Provisions in Ghana

The institutions and authorities involved in the projects All Ghanaians, and especially farmers, are primary manag- reviewed have no coordination mechanisms, especially ers and custodians of Ghana’s genetic resources. To iden- where the resources in question are managed by several tify the key stakeholders, activities and projects in Ghana, agencies in different sectors. the consultants conducted a desktop review and a questionnaire based-survey, participated in a mid-term review Botswana needs legislative responses for management, and the peer-review workshop. coordination and stakeholder participation. The legislation should guide those who wish to access resources by Institutional Stakeholders providing clarity and certainty on the following: Ghana’s ABS stakeholders can be grouped as: . The competent authority for a designated biological resource including, as appropriate, the access of infor- . Government organizations - various ministries; mation on the resource; . Departments, agencies, universities and research in- . The process that has to be followed to secure prior stitutions and other governmental organizations; informed consent from the relevant stakeholders/ owners; . Non-governmental organizations(NGOs) and community-based organizations (CBOs); and . The entity or entities (natural and judicial) that should be part of the negotiations for benefits arising out of . Other organizations implementing biodiversity-relat- the use of the resources; ed project activities in Ghana. . Vesting of ownership rights over a resource, or special Governmental Organizations knowledge about it; and . Parameters for benefits and institutional mechanisms The governmental organizations include the following for channeling them, including considerations for tax- ministries with ABS-relevant policy: es under the laws of Botswana. . The Ministry of Local Government, Rural Develop- ment and Environment (previously the Ministry of 4.2 Ghana Environment and Science (MES)); . Ministry of Food and Agriculture (MoFA); The report was prepared by several consultants in August . Ministry of Lands, Forestry and Mines (MLFM); 2005. The legal component was written by George A. Sar- pong, Faculty of Law - University of Ghana. The social, eco- . Ministry of Health (MoH); nomic and environmental components were prepared by . Ministry of Finance and Economic Planning (MFEP); Edwin A. Gyasi and Emannuel M. Attua from the University of Ghana. In March 2008, the report was updated by Eric . Ministry of Trade, Industry and Presidential Special Okoree the National Focal Point on ABS. Initiative (MoTIPSI); . Ministry of Education (MoE); 4.2.1 Introduction . Ministry of Fisheries; and The Ministry of Environment and Science and consult- . Ministry of Chieftaincy and Culture. ants from the University of Ghana completed this report in August 2005, and it then went through the UNEP Peer- Under the ministries there are state agencies which provide Review Workshop process. genetic resources services. These organizations include:

The report covers both the legislative and socio-economic . Departments, e.g. the Department of Parks and Gar- aspects of access and benefit sharing in Ghana. dens;

The socio-economic component identifies the ABS stake- 6 The legislation reviewed include protected area legislation, wildlife legislation, for- holders, and reviews existing ABS activities and projects. 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. Based on the terms of reference, the legal component cov- 7 The following agencies provided extensive information for this report: Centre for ers an inventory of current national, international, and 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).

25 . Environmental Protection Agency (EPA); and . The Animal Research Institute (ARI) under the CSIR, “undertakes research aimed at providing solutions to . Universities and research institutions: the University problems relevant to the livestock industry in Ghana, of Ghana – UG (Legon), Kwame Nkrumah University and to advise government through the CSIR on live- of Science and Technology – KNUST (Kumasi), and the stock production policy matters;” and University of Cape Coast – UCC (Cape Coast), which, collectively, host 11 departments and centres whose . International Water Management Institute, which tar- work relates to genetic resources. gets water and land management challenges faced by poor communities in Ghana. Foremost among the governmental organizations or state agencies are: Government agencies mainly provide material, knowledge or technology to farmers, academic and research institu- . The Plant Genetic Resources Research Institute, which tions, other government organizations, large-scale com- collects and conserves Ghana’s plants by both ex-situ mercial concerns and individuals. These materials, knowl- and in-situ methods; edge and technology are often collected without the prior . The Centre for Scientific Research into Plant Medicine consent of and sometimes without payment to the owner (CSRPM), which produces medicinal plants, conducts or holder. arboreta research and development, and isolates plant compounds; Other agencies include: . The Aburi Botanical Gardens, which “collects and pro- . Export Promotion Council (EPC), and Export Develop- motes the conservation and sustainable use of orna- ment and Investment Fund (EDIF) of the Ministry of mental and medicinal plants in Ghana;” Trade, both of which influence the situation concern- . The Centre for Biodiversity Utilization and Develop- ing genetic resources, by promoting the export of ment (CBUD), Institute of Renewable Natural Resourc- plants and plant products on a selective basis, espe- es (IRNR), Kwame Nkrumah University of Science and cially for the benefit of large-scale commercial inter- Technology (KNUST), whose mission is “to stimulate ests; and and promote efforts aimed at the judicious use of bio- . The Quarantine Division of MoFA and the Customs, Ex- logical resources of Ghana, by coordinating the identi- cise and Preventive Service (CEPS), which, among their fication of products of biodiversity and by facilitating other functions, regulate the import and export of ge- their production, processing and marketing, as well as netic resources. the development of marketable derivatives;” . The Crops Research Institute (CRI) of the council for Non-Governmental Organizations (NGOs) and Communi- Scientific and Industrial Research (CSIR), which seeks ty-based Organizations (CBOs) “to develop and disseminate environmentally- sound technologies for high and sustainable food and indus- There are four main NGOs and CBOs. Local traditional trial crop productivity and enhanced food security and authorities are responsible for the conservation of sacred poverty reduction;” groves and other such habitats, and are the most relevant for ABS management. The Ghana Wildlife Society (GWS), . The Cocoa Research Institute of Ghana (CRIG), un- promotes the conservation, protection, management and der the Ministry of Finance and Economic Planning, wise use of wildlife in all its forms (plants, animals and breeds improved cocoa varieties and promotes good their habitats), through conservation programmes and agronomic practices; community-based projects. Also having some relevance to . The Oil Palm Research Institute (OPRI), under the CSIR, ABS is the Heifer Project International (HPI) which, under conducts research into oil and coconut palm to gener- its mission slogan “Ending Hunger; Caring for the Earth”, ate and introduce new/improved technologies for in- works in partnership with local people on poverty-related creased production and better utilization of crops; issues and community development, especially through sustainable livestock management. . Forestry Research Institute of Ghana (FoRIG), which “conducts high quality, user-focused research that Other Stakeholders generates scientific knowledge and appropriate technologies, which enhance the sustainable development, There are two major internationally-funded projects which conservation and efficient utilization of Ghana’s forest have ABS relevance. They are: resources;” . UNEP-GEF-UNU project - PLEC (People, Land Manage- . The Biotechnology and Nuclear Agriculture Research ment and Environmental Change, renamed People, Institute (BNARI), under the Ghana Atomic Energy Land Management and Ecosystem Conservation), a Commission (GAEC), conducts research into the peace- project dedicated to the “development of sustainable ful use of nuclear energy for application to agriculture, management methods for conservation of biodiver- health and industry; sity by agrodiversity in agriculturally-used areas;” and . The Ghana Wildlife Department (GWD) is responsible . International Plant Genetic Resources Institute (IPGRI) for wildlife conservation in Ghana and wildlife man- - a Sub-Saharan project on conservation of landraces agement in protected areas;

26 with a focus on yams, Dioscorea spp., and rice, Glaber- 4.2.3 Gaps and Constraints rima spp., in Ghana. In Ghana, accessing genetic resources is relatively uninhib- Activities ited and thus faces several challenges..

Several plant genetic resources projects are implemented Social and Economic by the Plant Genetic Resources Research Institute (Plant- GRRI), Centre for Scientific Research into Plant Medicine Rural communities often give plant material and tradi- (CSRPM), Crops Research Institute, Cocoa Research Insti- tional knowledge on the use and management of these tute of Ghana (CRIG), Heifer Project International (HPI), resources without receiving payment. This is a challenge and PLEC-Ghana. Activities are carried out in: for conservation and benefit-sharing. . Agriculturally-used areas and landscapes; Another challenge is the erosion of local livestock genetic . Arboreta and herbaria; resources (notably cattle, goats and sheep breeds) arising . Protected areas; from the view that local is inferior to exotic. There has also been a decline in respect for sacred groves and totems, . Unprotected natural areas; and which were traditionally highly valued. . Experimental plots. There is a need for research into medicinal plants, identi- The projects are conducted without legal designation or fying the locations where they grow best, analysing the administrative regulations. Benefits arising from the ac- plant chemistry, and optimizing production. Ensuring tivities include: sustainability after project-based research is another con- stant challenge. . Conservation; . Limited proceeds from the sales of genetic materials, Other challenges include the need to: which may be used to supplement government sub- . Create public awareness of the value of genetic re- ventions; sources; . Plant medicines; and . Revitalize communal ownership of genetic resources . Training of staff and partners. at the local level; . Add value to genetic resources; and These benefits are shared with local individuals or communities, government agencies, and wider Ghanaian so- . Ensure that a larger section of society receives the ben- ciety. efits from the commercialization of genetic resources or value-addition products. Specific Projects Environmental Projects carried out by PlantGRRI include: Habitat loss is a growing threat to the conservation of ge- . Collection, characterization and conservation of germ- netic resources. Pressures include population growth, un- plasm of cereals, legumes, vegetables, roots and tu- sustainable land management practices and urbanization. bers, citrus and avocado, funded through the National Agricultural Research Programme (NARP) of the CSIR; Institutional and . Collection, characterization and conservation of leg- There is no overarching institutional and legislative frame- umes and wild fruits, through funding under the work for genetic resources management. The institutions AgSSIP programme. which deal with those resources, by default or through their mandates on resource management, do not focus on all PlantGRRI enjoys a range of capacity-building benefits aspects of access and benefit-sharing. The construction of from these projects including infrastructure enhance- such a framework could support conservation and increase ments such as office, residential building and laboratory social benefits. However, incentives and legal expertise are facilities, and provision of vehicles, equipment, chemicals needed if the appropriate legislation is to be created. and staff training. Capacity A major project undertaken by CRIG focuses upon cocoa germplasm collection, conservation, evaluation, To meet the challenges of ABS management, support from characterization and use. It aims to create the variation government, the private sector, research institutions and necessary for the breeding of genetically-improved cocoa. external agencies is needed. To clarify and develop the The principal benefit is continued availability of cocoa social and economic components of access to genetic re- germplasm required for breeding improved planting sources and benefit-sharing, Ghana needs to build capac- material. It is shared by research institutes, universities ity among the various stakeholders through training and and farmers. raising of awareness.

27 4.2.4 Analysis of Legislation universal, minimum standards of protection across the major fields of intellectual property, including patents, International and Regional Framework copyrights, trademarks, industrial designs, integrated cir- cuits and trade secrets. TRIPS obligations became binding Ghana ratified the Convention on Biological Diversity on on developed states in 1996, and for developing states 29th August 1994. Therefore, the CBD provisions on ABS and countries in transition, in 2000. Least Developed and the Bonn Guidelines should all guide the manage- States (LDCs) were required to implement TRIPS in 2006. ment of the country’s genetic resources. The agreement specifies the minimum substantive re- Several agreements of the World Trade Organization are quirements for various forms of intellectual property, relevant to ABS in Ghana. The Agreement on the Applica- and requires its members to adopt “effective” provisions tion of Sanitary and Phytosanitary Measures (SPS Agree- within their national laws to permit those whose IPRs are ment) was developed to ensure that countries apply meas- being infringed to enforce them (article 41.1). Although the ures to protect human and animal health (sanitary meas- TRIPS Agreement devotes only minimal attention to plant ures) and plant health (phytosanitary measures), based on varieties, its Article 27(b) (3) has done more to encourage an assessment of risk. Under this agreement, the Codex the legal protection of plant varieties than any other inter- Alimentarius is the main instrument for harmonization of national agreement. food standards. Codex is implemented in Ghana. The 1991 UPOV Act requires states to protect at least fif- The international instruments relevant to the animal teen plant genera or species upon becoming members sector are the WTO’s Agreement on Agriculture, the SPS of the Act, and to extend protection to all plant varieties Agreement and the Agreement on Technical Barriers to within ten years. A variety is eligible for protection if it Trade (TBT agreement). Along with Codex and the World is novel, distinct, uniform and stable. Once protection is Organisation for Animal Health, (OIE), the SPS Agreement granted, any person seeking to use reproductive or vege- identifies the International Plant Protection Convention tative propagating material of the variety for various pur- (IPPC) as the third source for international standard- poses must obtain prior authorization from the breeder.8 setting and, as such, the IPPC serves as the basis for the The 1991 UPOV Act requires national treatment, meaning harmonization of plant protection legislation. Apart from that whatever rights member states grant to their nation- international trade in plants, the 1997 text of the IPPC ad- als in their own plant variety protection law, they must dress other matters including: also grant to nationals of other member states. The Act . Cooperation and exchange of information on plant also contains a compulsory license provision, under which protection; a member may only restrict a breeder’s exclusive right if it is in the public interest. However, equitable remuneration . Harmonization of phytosanitary measures, including must be paid to the breeder whose rights are limited. a procedure to develop international standards; . Procedures for standard setting; The International Treaty on Plant Genetic Resources (ITPGR) addresses the nature and needs of the agricultural sector, . Modern phytosanitary concepts, such as pest risk and the major principles of contemporary international analysis; and environmental and biodiversity law.9 It also addresses . Designation of pest-free areas and the phytosanitary access to information related to plant genetic resources, security of export consignments after certification. and farmers’ rights. Non-confidential information regarding catalogues, inventories, technologies, The Food and Agriculture Organization (FAO) Pesticides results of research, etc. on plant genetic resources Management Guidelines are also relevant to ABS in Gha- should be available to contracting parties through the na, as they encourage responsible trading practices by as- global information system provided for in Article 17.10 sisting countries in establishing controls to regulate the Furthermore, the treaty provides for participation in quality and suitability of pesticide products, as well as the decision-making by interested stakeholders on various safe handling and use of such products. aspects of plant genetic resource conservation and use.

The Agreement on Trade-Related Aspects of Intellectual Under the ITPGR, the responsibility for realizing farmers’ Property Rights (TRIPS) and the 1991 Union Internationale rights, as they relate to plant genetic resources for food Pour la Protection des Obtentions Vegetales (UPOV Act), and agriculture, rests with national governments. In ac- prescribed for adoption under the WTO rules, are also rele- 8 These include: production or reproduction; conditioning for the purpose of propaga- vant to ABS. They contain comprehensive rules for member tion; offering for sale; selling or marketing; exporting; importing; or stocking for any of states regarding the protection of plant varieties. 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 The TRIPS Agreement requires WTO member states to pro- all countries. tect new plant varieties using patent rights, a sui generis 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 system of protection (that is, a system of its own kind) environmental matters related to plant genetic resources for food and agriculture,” with a or some combination. The agreement seeks to establish view to contributing to the sharing of benefits therefrom.

28 cordance with their needs and priorities, each party is en- possibilities arising from the growing use by external joined to take measures to protect and promote farmers’ interests of the biodiversity, knowledge and technolo- rights, including: gies of Africa’s local communities; . Protection of traditional knowledge relevant to plant . Safeguard the vital interests of Africans against the genetic resources for food and agriculture; negative consequences of globalization; and . The right to participate equitably in sharing benefits . Assist OAU Member States of the WTO to meet one arising from the use of plant genetic resources for of their obligations under article 27.3(b) of the TRIPS food and agriculture; and Agreement, without undermining the rights of their . The right to participate in making decisions, at the local communities. national level, on matters related to the conservation and sustainable use of plant genetic resources for food The Model Law complies with the obligations of the CBD and agriculture. to respect and maintain the innovate lifestyles of local and indigenous communities, as well as obtain their consent The ITPGR contains provisions for the sharing of mon- when granting access to their biological resources, knowl- etary benefits arising from the commercial use of plant edge, innovations and practices. It provides for benefit- genetic resources.11 sharing, prior informed consent and participation.

At the regional level, the Organization of African Unity Its core principles/provisions include: (OAU) produced the African Model Legislation for the . Food sovereignty and security (Articles: 15 on Access; Protection of Rights of Local Communities, Farmers and 26 and 33 on Farmers and Plant Breeders’ Rights); Breeders and for Regulation of Access to Biological Re- . sources, 2000 (African Model Law). The Model Law seeks State sovereignty and inalienable rights and responsi- to protect Africa’s common biological diversity and the bilities (Preamble, Article 21); livelihood system dependent on it. It proceeds on the . Value of indigenous knowledge (Preamble, Articles: 16 basis that the type of rights Africa needs are not those on community rights; 24,25,26 on farmers’ rights; 31 on rights that monopolize for commercial purposes, through plant breeders’ rights and 60 on institutional arrange- privatization, what belongs to the community, but those ments); rights that recognize and protect the lives of local com- . munities, including farming and fishing communities Full participation in decision-making (the Preamble, and indigenous peoples, their innovations, technologies Part I on objectives, Article 26 on farmers rights); 12 and practices. . Access to Biological Diversity and Genetic Diversity (Preamble, Part I on objectives; Part II on definition The Model Law is Africa’s reaction to conventional con- and scope; Part III on Access to Biological resources; cepts of intellectual property law. Today, individual prop- Articles: 3 on grant of access; 18,19, 20 and 21 on com- erty rights foster the commercial and industrial interest, munity rights; and 67 and 68 on enabling provisions); and are therefore too limited, conceptually, to accommo- . date traditional, cultural notions of ownership, recogni- Prior Informed Consent (PIC) (Part I on objectives, Arti- tion or protection of indigenous intellectual property cles: 1 on definitions, 5 on access to biological resources claims. Traditional concepts emphasize communal rights, and 18 on community rights). which last in perpetuity and are inextricably linked to all . Fair and equitable sharing of benefits (Preamble, Part other aspects of communal life. I on objectives; Articles: 12 on access to biological resources; 22 on community rights; 26 on farmers rights The Model Law is adaptable to Ghana in the sense that and 66 on institutional arrangements); it seeks to: . Plant Breeders’ Rights (Objectives, Articles: 2 on defini- . Prevent the disruption of Africa’s rural life and nation- tions and scope; 26(3) on farmers’ rights and Articles al food production systems by stopping present trends 28- 56 on plant breeders rights); that are threatening to erode seed and other planting . material, traditional medicinal plants, and natural fi- Prohibition of Patents on Life Forms (Preamble, Article bres and colours; 9 on access to biological resources); and . . Promote the continuation of the socially positive, cus- Gender Equality (Preamble, Part I on objectives; arti- tomary, community practices of sharing biodiversity cles: 5 on access to biological resources; 18 and 22 on and innovations, and to extend this sharing to the new community rights; 24 on farmers rights and 66 on institutional arrangements) (OAU, 2001). 11 A person who obtains a commercial profit from the use of genetic resources administered 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 The African Model Law, with the necessary modifications, 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- could therefore provide a basis for legislation on ABS in munities, farmers, and breeders, and for the regulation of access to biological resources. Ghana.

29 National Legislative Framework Enabling legislation has since been enacted to facilitate the creation of these bodies. Constitutional and Institutional Frameworks The Forestry Commission regulates, manages and utilizes forest and wildlife resources and co-ordinates related pol- Ghana’s 1992 Constitution has no specific ABS provisions. icies. The Fisheries Commission has similar responsibil- Some provisions of the Constitution, however, are relevant to ity. The National Development and Planning Commission, the subject, especially: Articles 11, 21, 36, 40 and 41 on sources established under Article 86 of the Constitution with of law in Ghana, right to information, respect for international responsibility for planning and land use, amongst its du- law and treaty obligations, and the safeguarding of the envi- ties makes proposals for the protection of the natural and ronment by the state and the citizenry. physical environment.14 The Water Resources Commission (WRC) was established by an Act of Parliament (Act 522 of Article 11 of the Constitution provides for sources from 1996) with the mandate to regulate and manage Ghana’s which laws on ABS arise. It provides that the laws of Gha- Water Resources and co-ordinate government policies in na shall comprise: relation to them. The Act stipulates that ownership and control of all water resources are vested in the President . The Constitution; on behalf of the people, and clearly defines the WRC as . Enactments made by or under the authority of the the overall body responsible for water resources manage- Parliament established by this Constitution; ment in Ghana. The Commission, which provides a forum for integration and collaboration of different interests, is . Any Orders, Rules and Regulations made by any person composed of the major stakeholders involved in the wa- or authority under a power conferred by this Constitu- ter sector. tion; . The existing law; and The District Assemblies are the cornerstone of the government’s decentralization policy. They are bodies corporate . The common law. 13 with perpetual succession entrusted with certain district

level functions. Functions include the development, im- Article 21 of the Constitution guarantees all persons the provement and management of human settlements and right to information. A Right to Information Bill is current- the environment.15 ly before Parliament for enactment. Various Ministries or Departments of State also address or Certain provisions of the 1992 Constitution address the ought to address biodiversity conservation, including ABS. environment. These include: Article 36 (10) enjoins the state to safeguard the health, . The Ministry of Local Government and Rural Develop- safety and welfare of all persons in employment, and to ment (MLGRD); establish the basis for the full deployment of the creative . The Ministry of Lands and Forestry (MLF); potential of all Ghanaians. This provision is of relevance within the context of safe working conditions. Article 37(9) . The Ministry of Food and Agriculture; enjoins the state to take appropriate measures to protect . Ministry of Fisheries; and safeguard the natural environment for posterity; and to seek co-operation with other States and bodies for the . Ministry of Chieftaincy and Culture; purposes of protecting the wider international environ- . The Ministry of Health; ment for mankind. . The Ministry of Justice; Every Ghanaian citizen must protect and safeguard the . The Ministry of Trade; environment under Article 41 (k). . The Department of Wildlife; The Constitution also makes provisions for the creation of . Customs, Excise and Preventive Service; and certain bodies to address biodiversity conservation along . sectoral lines. These are: The Environmental Protection Agency (EPA). This is the major environmental body with responsibility for the . The Lands Commission; management and protection of the Ghanaian envi- . The Forestry Commission; ronment. It is entrusted with advisory, research, coordinating and enforcement powers.16 . The Fisheries Commission; and the . Water Resources Commission. 14 See 1992 Constitution Arts 258, 269; Forestry Commission Act, 1993 (Act 453); 13 The common law of Ghana shall comprise the rules of law generally known as the Fisheries Commission Act, 1993 (Act 457). common law, the rules generally known as the doctrines of equity and the rules of custom- 15 Section 10(3) (e) of the Local Government Act, 1993 (Act 462). ary law including those determined by the Superior Court of Judicature. …, “Customary 16 On this see, G. A Sarpong, “Environmental Law from the Ghanaian Perspective”, law” means the rules of law which by custom are applicable to particular communities “Paper presented at the Program of African Studies, North Western University, Illinois, in Ghana. April 12, 2000).

30 In line with the decentralization policy, under the EPA Act, registration of pharmacists, the regulation and control 1994, there is provision for the establishment of offices of of the practice of pharmacy, the distribution of phar- the Agency in the regional and district capitals. The En- macies in the country, the licensing of premises for vironmental Assessment Regulations further strengthens pharmacies and related matters; the enforcement powers of the EPA. 17 4. Food and Drugs Law (PNDCL 305B) (as amended by LI 1652, which establishes Environmental Impact Assess- Food and Drugs (Amendment) Act 1996 (Act 523). This ment in Ghana, is a comprehensive piece of legislation Act prohibits the sale of unwholesome, poisonous or that deals with procedures and other matters appertain- adulterated food. It makes it an offence for any person ing to EIAs. to sell or offer for sale such foods; 5. The Local Government Act, 199323 - Under the Local Health Care Government Act, District and Metropolitan Assem- blies are responsible for the development, improve- There are several relevant pieces of pre-independence health ment and management of human settlements and care legislation in Ghana. These include legislation on: the environment in the district or metropolis; 1. Public Health and Sanitation: The Mosquitoes Or- 6. Traditional Medicines Practice Act 2000 (Act 575) dinance18 - provides for the destruction of mosqui- - The Act establishes the Traditional Medicine Prac- toes. It authorizes Sanitary and Medical Officers to tice Council whose object is to promote, control and enter upon any premises between the hours of 6am regulate traditional medicine practice. Among the and 6pm to take immediate steps to destroy mosquito functions of the Council are standards setting, issu- larvae; and render any accumulation of water unfit for ance of certificates to duly registered members and mosquito breeding; the licensing of premises for practice, determination 2. The Infectious Diseases Ordinance19 - provides for the and enforcement of code of ethics. Other functions prevention of the spread of infectious and contagious of the Council are to advise the Minister responsible diseases and generally for purposes connected with for health on matters relating to and affecting the the control of diseases of a communicable nature; practice of traditional medicine; to collaborate with the appropriate agencies for large-scale cultivation 3. Quarantine Ordinance20 - to prevent the introduction of medicinal plants and for the preservation of bio- of diseases into Ghana and the transmission of diseas- diversity; and es from Ghana to any other country; and

21 7. Centre for Scientific Research into Plant Medicine 4. Towns Ordinance - provides for the better regulation of towns and for the promotion of public health. Decree 1975 (NRCD344) - The Act establishes a centre for scientific research into plant medicine whose Post-independence statutes on public health include: functions include: the conduct and promotion of scientific research relating to the improvement of plant 1. The Criminal Code, 1960 - A major post-independence medicine; ensuring the purity of drugs extracted from legislative enactment that addresses public health plants; collating, publishing and the disseminating 22 and sanitation concerns. The Criminal Code criminal- the results of research and other useful technical in- izes certain offences like nuisance, trespass and dam- formation; and establishing, where necessary, botani- age to property; cal gardens for medicinal plants.24 2. Ghana Aids Commission Act 2002 (Act 613) - estab- 25 lish a Commission to formulate a national HIV/AIDS Town and Country Planning policy; and mobilize, control and manage resources available for the achievement of its objectives and The following enactments provide the legal basis for plan- monitor their allocation and utilization; foster link- ning in Ghana. ages among stakeholders; promote issues relating to . The 1992 Constitution; research, documentation and dissemination on HIV/ . AIDS etc; The Local Government Act, 1993; . 3. Pharmacy Act 1994 (Act 489) - establishes a Pharmacy The National Development Planning Commission Act, 26 Council, and provides for its functions relating to the 1994; . 17 Act 490. The National Development Planning (System) Act, 18 Cap 75: Owners or occupiers of such premises may be ordered to do so by the said 1994; 27 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- 23 Act 462; see pages 31-35 et. seq. for a comprehensive review of the Act. vention of the law attracts a fine of twenty - five pounds or imprisonment for a term not e 24 These two Acts are of particular relevance to ABS. exceeding three months. 25 See Cap 84. This part of the report draws on G.A. Sarpong, “The Legal Framework 19 Cap78 for Participation Planning: Final Report on Legal Aspects of Land, Tenure, Planning 20 Cap 77 and Management, (FAO; 1999). 21 Cap86. 26 Act 479. 22 Act 29. 27 Act 480.

31 . National Building Regulations, 1996.28 3. Ghana Export Promotion Council Decree 196932 - The Decree establishes the Export Promotion Council; The 1992 Constitution provides for a decentralized system 4. Export Development and Investment Fund Act 200033 of local governance and administration, with District As- - The Act establishes a Fund known as the Export De- semblies as the centre of policy.29 The Constitution also velopment and Investment Fund to provide financial establishes the National Development Planning Commis- resources for the development and promotion of ex- sion (NDPC) which, inter alia, is charged with the responsi- port trade; and bility for advising the President on development planning, 5. Ghana Investment Promotion Centre (GIPC) Act, 1994 policy and strategy; and has the power to make proposals - The Act re-establishes the Ghana Investment Promo- for the development of multi-year rolling plans; protection tion Centre (GIPC) as an agency of Government for the of the natural and physical environment and even devel- encouragement and promotion of investments and to opment of the districts of Ghana. revise the laws relating to investments. The object of the GIPC is to encourage and promote investments in The National Development Planning (System) Act, 1994 the Ghanaian economy. 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 Biodiversity and Biodiversity-Related Legislation development planning system.30 This is a tripartite arrangement comprising: There is no single Act for the implementation of the CBD. However, legislation in several sectors touches on the is- . District level – District Planning Authorities; sue of biodiversity and genetic resources. . Regional level – Regional Coordinating Councils (RCCs); and Forestry . National level – Ministries, Departments, Sector Agen- There are various pieces of forestry legislation. These in- cies etc. clude - The Forestry Ordinance of 1951; the Forest Protec- tion Decree of 1974; the Trees and Timber Decree of 1974; Both the Local Government Act, 1993 and the NDPC (Sys- the Timber Resources Management Act of 1997, and the tem) Act, 1994, designate the District Assemblies as plan- Forestry Commission Act, 1999. Fire control is covered by ning authorities. As planning authorities, District/Metro- the Control and Prevention of Bush Fires Law of 1983, re- politan Assemblies have wide-ranging functions under placed by a 1990 enactment. The Wetlands Management the aforementioned Acts. They are entrusted with the per- (Ramsar Sites) Regulations, 1999, (LI 1659) addresses Gha- formance of any planning function under any enactment na’s Treaty obligations under the Ramsar Convention. for the time being in force. These pieces of legislation do not satisfactorily address Trade the issues of biodiversity or ABS. There is no legislation on access and benefit-sharing, technology transfer or insti- The Ghanaian trade regime does not specifically address tutional arrangements for ABS. However, as in the case of ABS. However, it contains several pieces of legislation of gold and timber, genetic resources can be vested with the relevance to ABS. state, subject to the use and/or enjoyment by the owners of benefits derived from their exploitation, in accordance 1. Business legislation in Ghana includes the Registration with the relevant statutory and constitutional provisions; of Business Names Act 1962 (Act 151), Incorporated Pri- 32 NLCD 396: The functions of the Council include: (i) promoting, assisting and de- vate Partnerships Act 1962 (Act 152), Companies Code veloping exports in any manner which the Council considers necessary or desirable; (ii) 1963 (Act 179), Bodies Corporate (Official Liquidations) to obtain information on all products with export potential and to determine the extent Act 1963 (Act 180), Banking Law 1989 (PNDCL 225), Fi- 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 nancial Institutions (Non-Banking) Law, 1993 (PNDCL fairs in Ghana and overseas and to arrange for the attendance at foreign trade fairs where 328), Securities Industry Law 1993 (PNDCL 333), and the 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 Insurance Law 1989 (PNDCL 227); them; (vi) to create interest in, and goodwill for, Ghanaian products by promotional ac-

31 tivities, which may include advertising, exhibiting and providing information about such 2. Export and Import Act 1995 - The Act revises the law products; (vii) to make available expert advice and assistance to Ghanaian businessmen relating to external trade and provides conditions for concerning export procedures, credit and collection arrangements, shipping documentation, marine insurance and similar matters; (viii) to assist similarly foreign visitors com- the optimum development and efficient conduct of ing to Ghana to examine business opportunities involving “made-in-Ghana” goods; (ix) Ghana’s export and import trade; 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 exporters; (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- 28 LI 1630. seas markets; (xiv) to apply for, and to receive in Ghana or elsewhere any trade marks, 29 1992 Constitution; Arts. 240-255. licences, protections or concessions and in relation thereto, to do all such things as the 30 S.I Council considers necessary or desirable for the development of exports. 31 Act 503 33 Act 582

32 as obtains under the regime of stool lands. 34 Under article Animals 267(6) of the Constitution, stool land revenue is disbursed as follows: For management of wildlife and livestock in animals in Ghana, there are the Animals (Control of Importation) Or- . 10% of the revenue accruing from the stool lands shall dinance, Diseases of Animals Act, 1961, and the Local Gov- be paid to the office of the administrator of stool lands; to cover administrative expenses; ernment Act, 1992. A Draft Meat Inspection Law is under consideration for adoption. Conflicts and overlaps in the . The remaining revenue shall be disbursed in the fol- enforcement of the law amongst the veterinary services lowing proportion: department, district assemblies and Food and Drug Board (a) 25% to the to the stool through the traditional au- characterize this regime. The laws also do not incorporate thority for the maintenance of the stool in keeping the Office Internationale des Epizooties standards, which with its status; are the norms or benchmarks on animal health and diseases.

(b) 25% to the traditional authority; and Plants (c) 50% to the District Assembly, within the area of authority of which the stool lands are situated. Plant management is guided by: the Pesticides Manage- ment and Control Act, 1996; Prevention and Control of Any ABS regime in Ghana should cater for individual, cor- Pests and Diseases of Plants Act, 1965; and the Environ- porate and other institutional interests. mental Protection Agency Act, 1994. A draft Plant Quar- antine Act, prepared under the auspices of the FAO that Marine seeks to implement the IPPC, is yet to be enacted. The legislation on pesticides needs updating in keeping with the Article 269 of the 1992 Constitution provides for the es- implementation of the Persistent Organic Pollutant (POPs) tablishment of the Fisheries Commission. The Maritimes and Prior Informed Consent (PIC) conventions. Zones (Delimitation) Law (PNDCL 159) gives force and effect to the United Nations Convention on the Law of the Game and Wildlife Sea, following its ratification by Ghana in 1986. A new Fish- eries Commission Act, 2002 (Act 625) which replaces the No specific enactments have been passed to bring CITES, earlier Fisheries law of 1991, is a comprehensive piece of the CBD or the Algiers Convention into domestic Gha- legislation on fisheries, in line with the requirements dic- naian law. The principal enactment is the Wild Animals tates of UNCLOS. However, the Fisheries Regulations, 1979, Preservation Act, 1961 and its subsidiary regulations: the the subsidiary legislation on the subject, is outdated, and Wildlife Conservation Regulations, 1971, and the Wildlife needs to be updated in line with the new parent enact- Reserve Regulations, 1971. In relation to these interna- ment. On marine pollution, the Oil in Navigable Waters tional instruments, the laws are scattered, complex and Act, 1964 is also outmoded, and does not cover the inter- characterized by low fines for violations; and there is no national and regional instruments on marine pollution. specifically designated scientific authority for the implementation of CITES. Foods Wetlands Food-related legislation in Ghana includes: . Food and Drugs Law, 1992; The principal enactment governing wetlands is the Wild Animals Preservation Act, and its subsidiary Regu- . Food and Drugs (Amendment) Act, 1996; lations as variously amended. The Wetlands Manage- . Draft Food and Drugs Regulations, 2000; ment (Ramsar Sites) Regulations, 1999, (LI 1659) which . Standards Decree, 1973; seeks to regulate activities in six wetlands, supple- ments this legislation. . Standards (Amendment) Decree, 1979; . Ghana Standards (Certification Mark) (Amendment) Intellectual Property Rights Rules, 1992; and . Ghana Standards Board (Food and Drugs and other A number of act relating to IPR exist on the statute books. Foods) (General Labelling) Rules, 1992. They do not, however, address ABS. The legislation in this area includes the Patents Act, 2003 (Act 657), the Trade Marks The Food and Drug Board and the Ghana Standards Board Act, 2004 (Act 664) and the Copyright Act 2005 (Act 690). are the two main agencies responsible for food control and safety - however the mandates of both agencies have The Patents Act is in four parts. Part I provides definitions various conflicts. Ghana subscribes to all the provisions of for patents and inventions, and then proceeds to delimit Codex, and the Focal Point for the country is the Food and the scope of patent protection. It also outlines the proce- Drugs Board. dure for application for the registration of a patent, the requirements for patent protection, right of priority, grant of 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 patent and rights conferred by patent. Part II is on Utility acquisition of land by GOG for public purposes. Model Certificates, part III on International Applications

33 under the Patent Cooperation Treaty and part IV on Gen- After reviewing the various pieces of legislation, this report eral Provisions. 35 concludes that any new, comprehensive policy of legislation on access to genetic resources and benefit–sharing in The Trade Marks Act provides for the protection of trade- Ghana should include: marks and for related matters. . Principles, objectives and definitions; The Copyright Act, 2005 replaces the old Copyright Law, . Scope of Application and the legal status of genetic re- and brings the provisions on copyright and the Copyright sources; Office in conformity with the Constitution. It outlines . Institutional arrangements to determine and enforce which works are eligible for copyright and hence copyright access; protection, and provides that copyright shall not extend to ideas and concepts. 36 The Act also provides for economic . Access determination procedures; and moral rights of authors, duration of copyright, permit- . Enforcement: sanctions, penalties, identification and ted uses of copyright, copies of sound recordings, mechan- monitoring, conservation arrangements; ical reproduction rights of composers and protection of performers and broadcasters. It establishes the National . Financial issues; and an Folklore Board whose function includes the administra- . Appeals process. 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- 4.3 Uganda ministration of copyrights. Under the guidance of the National Environment Man- Draft legislation, the Protection of Plant Varieties Bill, 2002 agement Authority (NEMA), this report was prepared in seeks to implement the UPOV in consonance with Ghana’s November 2005 by Apophia Atukunda, an environment obligations under the WTO Agreements; it has yet to be- and natural resources management specialist; Charles come law. The draft could benefit from the progressive Mugoya, an entomologist and biotechnology and biosafe- provisions of the OAU African Model law, and the Draft ty specialist; and Aggrey Rwetsiba, Senior Monitoring and Model Legislation on Safety in Biotechnology. Research Coordinator at the Ugandan Wildlife Authority. In April 2006, the report was updated by Ogwal Sabino Meri Francis of NEMA, the National Focal Point on ABS. 4.2.5 Gaps and Recommendations 4.3.1 Introduction This detailed inventory has shown that in Ghana, there is no specific legislation on ABS corresponding to the CBD This report is an analysis and synthesis of information on provisions, the Bonn Guidelines or other international Uganda’s Access to Genetic Resources and Benefit Sharing instruments. However, certain pieces of legislation could (ABS) climate, since the development of the Bonn Guide- provide useful guides for the implementation of ABS legis- lines. Information for the study was gathered through lation in Ghana. They include the Office of the Administra- interviews with key stakeholders, literature review, work- tor of Stool Lands (OASL) Act, 1994, the Ghana Investment shops and analysis of the responses to questionnaires. Promotion Centre Act, 1994 and the Centre for the Scien- Two national review workshops were convened in Ugan- tific Research into Plant Medicine Decree, 1975. da, in August and September 2005. The National Environ- ment Management Authority (NEMA) coordinated and The OASL provides a formula for the sharing of stool land supervised the preparation of the report. NEMA is the revenue between the stool, the traditional authority and Government institution that coordinates the implementa- the District Assembly within the area of authority in which tion of the Convention on Biological Diversity (CBD). Three the stool lands are situated. Benefit-sharing from access- national short-term consultants were hired by NEMA to ing genetic resources can adopt or adapt this formula. prepare the report. It was completed in November 2005, and underwent the UNEP Peer Review Workshop process The Ghana Investment Centre Promotion Act, which pro- in December 2005. vides a regulatory framework for foreign direct investments into Ghana, can be used to deal with ABS agree- The report provides a brief background on Uganda’s ABS ments with foreigners. Of direct ABS relevance are the regime in light of the Bonn Guidelines. The policy, legal Traditional Medicines Practice Act which, among other and institutional measures on ABS are outlined, along things, enjoins the Traditional Medicine Practice Council to with a detailed inventory of the multilateral agreements collaborate with the appropriate agencies for large-scale which affects ABS in Uganda (also including those to cultivation of medicinal plants and for the preservation which Uganda has not acceded). This is followed by an of biodiversity; and the Centre for the Scientific Research inventory of the relevant regional agreements. The legal, through the Plant Medicine Decree, 1975, which establish- policy and institutional measures for ABS are outlined, es a centre for research into plant medicine and botanical even though most of these measures are under numerous gardens for medicinal plants. ministries and agencies. The emerging issues of biopiracy 35 Washington, June 19, 1970. and intellectual property rights (IPR) are also discussed. 36 Act 690

34 The economic benefits from Uganda’s biodiversity are dis- Even before the ratification of the CBD, Uganda already cussed, along with the use of incentive measures for the had a network of protected areas aimed at conservation sustainable use of biodiversity. of wildlife and forestry resources. The need to regulate access to the country’s genetic resources, and to ensure eq- Although Uganda has designated its national focal point uitable sharing of benefits, led to the development of The for the Clearing-House Mechanism (CHM) as NEMA, in- National Environment (Access to Genetic Resources and formation management has yet to be consolidated. The Benefit Sharing) Regulations, within the framework of the constraints on this process are therefore analyzed, and National Environment Act Cap 153. The ABS regulations options for information delivery are provided. In addition were approved by Government in May 2005, and are now to these concerns, Uganda also faces various capacity con- being implemented. straints in implementing ABS measures in keeping with the Bonn Guidelines. The critical capacity needs include 4.3.3 Methodology public education and awareness, information acquisition and management, technology development, sustainable The consultants conducted interviews with key stakehold- national financing, support for ex-situ conservation, and ers, literature reviews, workshops and questionnaire anal- development of effective partnership for management ysis. The stakeholders included government ministries, de- of Uganda’s genetic resources. Recommendations are dis- partments and agencies involved in the conservation and cussed for further reforms in the policy and institutional management of biodiversity, or whose policies impact on framework, more efforts at in-situ and ex-situ conservation, biodiversity. Research institutions, academia, NGOs (both streamlining information management strategies, capac- local and international), Community Based Organizations ity development including diversification of the funding (CBOs), the private sector and representatives of local gov- base, and adoption of appropriate mechanisms geared at ernments and communities were also consulted. community mobilization. 4.3.4 Analysis of Legislation, Policies and Strategies 4.3.2 Background ABS-Relevant International Agreements Uganda is a country of exceptional diversity and varied habitats, because of its position in the zone of overlap At the international level, the main multilateral environ- between the East African savannah and the West African mental agreements that have provided the fundamental rain forests. It is ranked among the top ten countries in principles to Uganda’s ABS regime are: the world in terms of animal and plant diversity, and spe- . cifically, diversity of mammalian species. Uganda includes Convention on Fishing and Conservation of the Living part of the Albertine Rift Area of Regional Endemism - a Resources of the High Seas (1958) - Uganda was not th Peistocene forest refugium. signatory to this convention but ratified it on 14 Sep- tember 1966; The environment and natural resources sector is the ba- . African Convention on the Conservation of Nature and sis for Uganda’s economic and social development. It is Natural Resources (1968) - This convention has a broad accepted that all three aspects of development, (environ- coverage. It has specific provisions on ecosystems, hab- ment, social and economic) must be in balance in order to itats and species. The convention was adopted under have effective economic growth. Uganda’s biological re- the aegis of the Organization of African Unity and was sources make a significant contribution to the well-being a replacement for the 1933 London Convention on the of humanity, both in terms of goods and services. For these preservation of fauna and flora in their natural state. biological resources to be sustained and the benefits equi- This convention is essentially an in-situ conservation in- tably received, a mechanism is required. strument for fauna and flora. Uganda signed it on 15th September 1968 and ratified it on 30th November, 1977; With the signing and ratifying of the CBD in 1992 and 1993 respectively, Uganda initiated the process of institut- . Convention on Wetlands of International Importance ing measures for its implementation. In line with this, the Especially as Waterfowl Habitat (Ramsar) (1971) - National Biodiversity Strategy and Action Plan (NBSAP) Uganda signed the convention on 4th March 1988 and was developed. It was approved by the NEMA Board of Di- ratified it on 4th July 1988; rectors, and has been submitted to the Cabinet for final . Convention Concerning the Protection of the World endorsement. However, implementation of the sectoral Cultural and Natural Heritage (1972) - Uganda ratified strategies is already under way by the relevant Govern- the Convention on 20th November 1987; ment departments and agencies. Uganda has appointed NEMA the principal Government agency for the manage- . Convention on International Trade in Endangered Spe- ment of the environment, and the Ministry of Water and cies of Wild Fauna and Flora (CITES) (1973) - Uganda Environment (MoWE) as the National ABS Focal Point.37 ratified the Convention on 18th July 1991 and acceded to it on 16th October 1991; 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. . Convention on Migratory Species of Wild Animals Ecuru Julius, Uganda National for Science and Technology, Plot 3/5/7 Nasser Road, P.O. Box 6884 Kampala is the ABS-CNA. (1979) -- Uganda has neither signed nor ratified this convention;

35 . United Nations Convention on the Law of the Sea vironmental Impact Assessment (EIA) guidelines to guide (1982) - Uganda signed this convention on 10th Decem- the three countries in environmental management. These ber 1982 and ratified it on 9th November 1990; are the instruments that will guide ABS across the region. However, the environmental protocol is not detailed . Convention on Biological Diversity (1992), and Bonn enough in this aspect and may need to be taken further, Guidelines on Access to Genetic Resources and Fair with guidelines developed in this regard. and Equitable Sharing of the Benefits Arising out of their Utilization (2002) - Uganda signed the conven- Intergovernmental Authority on Development (IGAD, 1986) tion on 12th June 1992 and ratified it on 8th September 1993; Uganda is a member of IGAD, which is a successor to the . The Cartagena Protocol on Biosafety (2000) - Uganda Intergovernmental Authority on Drought and Develop- signed the Cartagena Protocol on 24 May 2000 and ment. Created in 1986 to coordinate development in the ratified it on 30th November 2001. Horn of Africa, IGAD was shaped around the mandate of drought and desertification issues, but has since expand- . The United Nations Framework Convention on Climate ed to cover other issues related to regional security and Change (UNFCCC) (1992) - Uganda signed and ratified political dialogue. the Convention in June 1994 and September 1997 respectively; Common Market for East and Southern Africa (COMESA, 1993) . Lusaka Agreement on Cooperative Enforcement Oper- ations Directed at Illegal Trade in Wild Fauna and Flora Uganda is a member of COMESA. The establishment of (1994) - This agreement focses on conservation of wild COMESA was geared towards contributing to economic species. It also has provisions relating to effective ap- integration of Africa and aimed at eventually establishing plication of preventive laws. Its objective is to reduce an economic community for the whole of Africa. COMESA and eventually eliminate illegal access for trade in boosts cross-border activities including trade in eastern wild fauna and flora, and to set up a permanent Task and southern Africa. Force for this purpose. Uganda signed the agreement on 8th September 1994, and deposited the instrument Other Regional Initiatives Involving ABS for ratification on 12th April 1996; . United Nations Convention to Combat Desertification Uganda is also a member of other regional cooperation in those Countries Experiencing Serious Drought and/ organizations including the Nile Basin Initiative (NBI) and or Desertification Particularly in Africa (1994) - Ugan- the Kagera Basin Initiative (KBI). The NBI aims to achieve da signed the agreement on 21st November 1994 and sustainable socio-economic development through equi- deposited the instrument for ratification on 25th June table use of and benefits from the common resources of 1997; the Nile Basin. The KBI, on the other hand, aims at promoting integrated development of the Kagera River region, . The International Treaty on Plant Genetic Resources through cooperation in the areas of agriculture, energy, for Food and Agriculture (2001) - Uganda ratified the transport and telecommunication. treaty in March, 2003; and . The World Trade Organization (WTO) Agreements - National Legislative and Policy Instruments Relating to ABS Uganda signed the TRIPS agreement in January 1995. Union for the Protection of Plant Varieties (UPOV) is a The Government of Uganda (GoU), as well as the stake- set of two agreements (1978 and 1991) which provide a holders in the field of natural resources management, has framework for protecting the rights of ownership for placed more emphasis on biodiversity conservation than Plant Varieties including the exchange of seeds among on access and benefit–sharing, or technology transfer and farmers. Uganda has not acceded to any of the UPOV IPR for biological conservation innovations. This is reflect- agreements. Uganda acceded to the WIPO Convention ed through the laws, policies and national programs that in October 1973, and the Patent Cooperation Treaty have been developed and implemented over the years. (PCT) in February 1995. There are several policies and legal instruments aimed at ABS-Relevant Regional Agreements service-provision and establishing more accountability in the field of environment and natural resources management. Uganda’s macro-economic policies provide for the The relevant regional agreements which affect ABS in integration of environment and natural resources man- Uganda include: agement in poverty-eradication strategies. They also provide for decentralization of planning and management East African Community (EAC) functions for natural resources, and encourage private- sector participation. The EAC is the regional intergovernmental organization of Kenya, Uganda and Tanzania. It seeks to widen and The Constitution of the Republic of Uganda (1995) deepen cooperation among the partner states in political, economic and social fields for their mutual benefit. The Uganda’s Constitution provides for environmental man- EAC has developed the environment protocol and the En- agement at different levels. It requires Uganda to promote

36 sustainable development and public awareness related to proposals to amend this Act to bring it in line with Ugan- land, air and water resources management. It also pro- da’s international commitments. There is a general feeling vides for sustainable use of Uganda’s natural resources to that it should be repealed and replaced with the Industrial meet the development and environmental needs of the Property Bill (2001). This need arises from a multiplicity of nation, and prevent damage and destruction to land, air developments in intellectual property law on the interna- and water resources resulting from pollution and other tional scene, including a number of treaties and organiza- causes. Sections XIII and XXVII and Article 237(2) specifi- tions to which Uganda is now signatory. In line with this, cally provide for the protection of natural resources by the there is the Patents (Amendment) Bill, 2000, aimed at State on behalf of the people. amending this statute to give effect in and by Uganda, to the provisions of the Patent Co-operation Treaty signed in The Constitution empowers government to hold in trust Washington in 1970. and protect natural lakes, rivers, wetlands, forest reserves, national parks and any land to be reserved for ecological The Investment Act (1991) and touristic purposes. This calls for the development of comprehensive mechanisms for sustainable natural re- The Investment Act, among other activities, provides for sources management. These constitutional provisions the establishment of the Uganda Export Promotion Board. provide the general legal and policy framework for biodi- One of the roles of the Board relevant to ABS is to promote versity conservation and ABS. bio-trade development. Under this activity, the board offers market entry support for selected companies han- The Plant Protection Act (1964) dling products for culinary, medicinal and pharmaceutical use. A five-year project under this activity was developed This law regulates the introduction of exotic plants and in 2004. microorganisms into the country. It does not, however, directly support biotechnology research and development The National Agricultural Research Organization (NARO) for the production of genetically modified crops, nor does Statute (1992) it provide mechanisms for minimizing the risks of involun- tary gene transfers or for managing the risks involved in Among other measures, the NARO statute provides for the biotechnology research and development. The Act would handling of all genetic resources. It establishes NARO as a therefore require amendment in order to bring it up to body corporate under the Ministry of Agriculture, Animal date, to counter wrongful introductions and transfers of Industry and Fisheries (MAAIF), to ‘undertake, promote, alien genetically modified organisms (GMOs) resulting and co-ordinate research for crops, livestock, fisheries and from biotechnology research and development. forestry, and to ensure dissemination and application of research results.’ The national botanical gardens are en- The National Agricultural Research Organization (NARO) trusted to NARO, and one of their functions is to maintain has prepared, through wide stakeholder consultations specimen collections, to assess species of potential medic- including national workshops, a Draft National Policy on inal interest, and also to prescribe conditions and respon- Plant Genetic Resources for Food and Agriculture. The sibilities of collectors before, during and after collection. overall objective of the national policy on plant genetic resources for food and agriculture is to ensure the conserva- National Drug Policy (1993) tion, sustainable use and management of those resources for food and agriculture in Uganda, while optimizing their The policy provides a framework for implementing the Na- full potential in contributing to the government’s major tional Drug Statute (1993) that provides a regulatory frame- development goals of food security, poverty eradication work for the importation, administration, handling, sale and and improvement of people’s livelihoods. other matters pertaining to drugs, including herbal drugs. The policy provides for the institutional, administrative and The policy provides for interventions directed at the con- management mechanisms for handling of drugs. servation, sustainable use and equitable sharing of benefits arising from the use of these resources. NARO has The Agricultural Seeds and Plant Act (1994) submitted the draft policy to the Ministry of Agriculture, Animal Industry and Fisheries for adoption, and thereafter This Act provides for the regulation and control of plant it will be submitted to the Cabinet for approval. A draft and variety multiplication, marketing and import, among bill on Plant Genetic Resources for Food and Agriculture is other things. It provides for the promotion, regulation and now under preparation. This will be the legal instrument control of plant breeding and variety release, multiplica- for implementing the policy on Plant Genetic Resources tion, conditioning, marketing, importing and quality as- for Food and Agriculture, and will include issues on collec- surance of seeds and other planting materials, plus other tion of germplasm. related matters.

The Patents Act Cap 82 The Uganda National Environment Management Policy (1994) This Act provides for the granting, registration, and protection of patents. It also provides for the registration and The National Environment Management Policy provides protection of IPR in patents and utility models. There are guiding principles for environment management in Ugan-

37 da. It is a framework policy broadly addressing manage- for early warning and or emergency response to any ac- ment of all matters relating to environment and natural tivities or events which present imminent grave danger. In resources in Uganda. It also establishes a centralized coor- the case of danger to diversity, this ministry is expected dination mechanism for environment management. The to work in partnership with the ministries responsible for National Environment Management Act, Cap 153, is the environment management and biodiversity conservation. umbrella legislation on environmental matters, providing At present, apart from those targeting wildlife veterinary the framework for sectoral laws, policies and administra- interventions there are no particular mechanisms in place. tive structures. It sets the stage for effective environmen- Limitations to EIA implementation include: political inter- tal management through its provision for coordination ference in the EIA process, which results in development in and monitoring mechanisms. Among other things, it pro- biodiversity-rich areas and limited district and communi- vides for conservation of biological resources in-situ and ty-level public participation in the EIA process. ex-situ, and management of access to genetic resources and benefit-sharing. The weakness with this policy is the The National Policy for the Conservation and Management lack of clear institutional linkages necessary for sustain- of Wetland Resources (1995) able development. This policy targets sustainable management of the bio- The National Biodiversity Strategy and Action Plan (2002) logical and socio-economic values of wetlands. These wetlands are held in trust by Government for the people. The This is a CBD-derived instrument, which provides guidance policy provides for environmental impact assessment, refor legal, policy and institutional reforms necessary for the search and information dissemination, and promotes joint planning, conservation and sustainable use of biodiversity. international action. It also gives some basic guidance on Its goal is to enhance biodiversity conservation, manage- access to wetland resources. The National Environment ment and sustainable use and fair sharing of the benefits (Wetlands, River Banks and Lake Shores Management) arising from such use at all levels. The NSABP is before Regulations, 2000, were developed to reinforce this policy. Cabinet for final approval by Government, but implementation of the strategies is under way. NEMA plans to re- The Uganda Wildlife Policy (1995) view the NBSAP to ensure it addresses some of the new and emerging issues on conservation and sustainable use This policy resulted in the Uganda Wildlife Act, Cap 200. of biodiversity, for example biofuels and climate change. It provides for the management of wildlife resources for The NBSAP has a life-span of 10 years, with a major review ecological, economic, aesthetic, research and scientific at the end of 5 years. and educational benefits. The Wildlife Act gives the legal framework for management of wildlife. It promotes wild- The Environmental Impact Assessment Regulations (1998) life conservation through sustainable management and use. The Act introduces community-based management of The EIA process is integrated in Uganda’s overall environ- resources. It is of direct relevance to ABS, and offers strate- ment policy. Uganda accords high ranking to issues related gies for control of access to wildlife resources and mecha- to EIA. This is evidenced through development of the ap- nisms for sharing of benefits from wildlife management. propriate mechanisms i.e. the regulations, the guidelines and the Code of Conduct for practitioners. The institution- Decentralization Policy (1997) al system is also in place to ensure effective implementation of EIA. This includes having gazetted environment The Decentralization Policy provided the basis for develop- inspectors with powers and duties clearly provided for in ment of the Local Government Act. It provides for decen- the National Environment Act. Government has also put tralization of administrative mechanisms to ensure com- in place the National Environment (Conduct and Certifica- munity-based governance. It gives the basis for devolving tion of Environmental Practitioners) Regulations, 2003, to natural resources management to the local government ensure professionalism among the environmental practi- level. The weakness with this policy is with the implemen- tioners. The EIA practitioners are all registered, and their tation rather than the content. There is inadequate aware- activities are coordinated by NEMA through a technical ness of the values of genetic resources, and not enough in- committee on environment impact assessment which has formation available on many aspects of the CBD and other its secretariat in NEMA. related environmental conventions. This Act empowers local governments to take responsibility for service delivery, Under the National Environment Act, all development and promotes participation of the local people in decision- projects that are likely to cause significant impacts on the making. It enhances community benefits and cost sharing environment must undergo an EIA. The national EIA guide- from management of environmental and natural resourc- lines do not specifically cater for transnational dialogue, es. Local Environment Committees at Local Councils II and but they can be used to undertake this activity. The East III are responsible for planning and executing sound envi- African Community Guidelines address the transbound- ronmental management. ary effects of project development, and requires States to notify each other in case of imminent grave danger, or The Land Act (1998) damage to biodiversity across the borders. Uganda has a ministry responsible for disaster preparedness. It is this This Act guides all issues related to land management. It ministry that is charged with developing mechanisms provides for tenure, ownership and management of land

38 in Uganda. The Act imposes a duty on land owners and It also fails to address cross-border issues relating to the managers to manage the land in accordance with other management of water resources. legislation, for example the National Environment Act, the Forestry and Tree Planting Act, the Uganda Wildlife The Poverty Eradication Action Plan (PEAP) (2000) Act, etc. This plan is intended to provide a framework for govern- The Penal Code Act 1964 as amended (1998) ment planning and policy development in all sectors. It is a macroeconomic development framework, first developed This Act has several provisions, which help to deter unau- in 1997, which aims at integrating science and technology thorized handling of natural resources. Section 309 of the into the poverty eradication programs. ABS issues are a Act, for example, provides deterrent measures against component of the second pillar of the PEAP (production, any person who sets fire to or otherwise destroys or dam- competitiveness and incomes), and are aimed at bringing ages any standing trees, saplings or shrubs, whether in- about social and economic development as well as cultural digenous or not. and political transformation through the use of Uganda’s genetic resources. National Water Policy (1999) The Plan for Modernisation of Agriculture (PMA) (2000) The policy aims at management and development of Uganda’s water resources in an integrated and sustain- The PMA is a central element of Uganda’s poverty eradica- able way. It does not recognize the ecosystems approach, tion strategy. It is targeted at enabling the rural popula- and ignores ABS issues in water resources management. 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 occurring 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 breeding and plant variety protections; (iv) Human genetic resources; and (v) Approved research activities intended for educational purposes by Ugandan institutions recognized by the competent authority, and which do not result in access to genetic resources for commercial 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.

39 through changing from subsistence to commercial agri- tively more tolerant to disease and environmental stress. culture. Modernising agriculture will result in increased The Act requires formulation and enforcement of regula- production for food and for sale. The PMA also targets im- tions and guidelines relating to breeding, processing of se- proved farmer access to knowledge, improved seed, and men and other genetic materials, storage distribution and other relevant information that will lead to production of use in the public and private sector. more high-value crops that sell well in the market. Agricul- tural production is based on genetic resources, both wild National Forest Policy (2001) and domesticated. The PMA will thus rely on effective access to agrobiodiversity. This provides for the conservation of biodiversity and the need to involve communities and private owners in the The National Science and Technology Policy (2001) management of forest resources within protected areas (PAs) and outside. The policy has a bearing on the collec- The National Science and Technology Policy, 2001, provides tion of medicinal plants within forest reserves. The policy for a mechanism to guide the prudent use of science and is the basis for development of the Uganda Forestry and technology for sustainable development. It envisages the Tree Planting Act, 2003. This is the main law that regulates development of a national institutional framework for forest management. It provides for the conservation and regulatory administration, and for research and develop- sustainable management of Uganda’s forest resources for ment. It caters for the promotion of an enabling environ- the benefit of the people, and promotes sharing of ben- ment for the creation of partnerships between the private efits derived from them. The law focuses on forestry, and and the public sectors for the development of products for does not provide for other fragile ecosystems found within biotechnological applications. forest reserves e.g. wetlands. In addition, the Act does not provide clear incentive measures for forest protection on There is no specific national policy on IPR, although the private and community land. National Science and Technology Policy provides for its formulation. What could be referred to as the national policy The National Fisheries Policy (2003) may only be taken from various pieces of legislation, as well as from government policy statements. Part of the The policy goal is increased and sustainable production of policy pertaining to IPR may be, by implication, also read fish, contributing to the government’s development policy in international conventions and treaties to which Uganda for poverty reduction and food security. The policy provides is a signatory, like the TRIPS agreement. for cross-border harmonisation of fisheries management in shared waters. It recognises the importance of biodiver- The Uganda National Council for Science and Technology sity, and requires designation of breeding areas for fish and (UNCST) was established under the UNCST Statute of other aquatic biodiversity, where strict controlled access is 1990, as a corporate body within the Ministry of Finance, observed. It provides for decentralisation and community Planning and Economic Development. It oversees involvement in fisheries management. Under this policy, scientific research and technology developments. The the Fisheries Sector Strategic Plan caters for the creation UNCST policy of 2001 clearly states that research and of a national network of Beach Management Units for technology development policy is the responsibility improved management of the fisheries resources. There of the relevant ministries. The Council is charged with is no clear linkage with the enforcement of the National rationalising the integration of science and technology Environment Act Cap 153, and also lacks clear linkages with in socio-economic development. It was established to be other sectoral policies on issues related to conservation of the machinery that the government uses to advise itself biodiversity and control of access to genetic resources. on all matters relating to scientific and technological activities necessary for the proper development of the The National Tourism Policy (2003) country. The UNCST is the statutory body that coordinates the biotechnology policy development process. Art. The principles of eco-tourism and community benefit fea- 3(a) of the Statute requires the Council to advise and ture greatly in this policy. The aim for tourism develop- coordinate the formulation of an explicit national policy ment is to ensure that it provides a medium for poverty on all fields of science and technology, and in this regard, reduction, both at local community and national levels. It biotechnology. The Council therefore is the principal policy provides a mechanism for sustainable use of genetic and body charged with providing guidance and direction to cultural resources for economic development. The policy sectoral institutions in matters concerning science and is not clear on institutional arrangements at the different technology. levels for its effective implementation. It does not recog- nise other sectoral policies, and is silent about impact as- The Animal Breeding Act (2001) sessment of tourism activities on genetic resources, cultural values and traditional practices of local communities. This Act sets up the National Animal Genetic Resources Centre and Data Bank to promote the regulation and con- The National Agriculture Policy (2003) trol, marketing and generally dealing in animal and fish genetic materials. The Act regulates the implementation This policy is very much related to environment manage- of the national breeding policy, and promotes the development through promotion of land-use practices that con- ment and use of animal genetic resources that are rela- serve and enhance land productivity. It recognises land as

40 a natural resource for agriculture, and that land use has in its Comprehensive National Development Framework. implications on biodiversity conservation through direct It provides for the sensitisation and advocacy for IK, docu- impacts on soil, water and living organisms, which farm- mentation, research, validation and dissemination, com- ers depend on for agricultural production. The agriculture mercialisation and industrialisation, capacity-building, policy does not make provisions for conservation of agri- and resource mobilisation for IK. cultural genetic resources in the fragile ecosystems. It also ignores the ecosystem approach in achieving sustainable Traditional Medicine Practice Bill agriculture, and does not emphasise linkages with the Na- tional Environment Act in controlling the negative effects This bill seeks to establish a Council to regulate the prac- of agricultural practices. tice of traditional medicine, to register practitioners and license practices. The Draft National Biotechnology and Biosafety Policy The international legal framework on ABS as highlighted With support from the UNEP/GEF project on the devel- above provided Uganda an opportunity to assert sover- opment of national biosafety frameworks, Uganda has eignty over her genetic resources, and to facilitate access been able to draft a comprehensive framework aimed at and equitable sharing of the benefits arising from their promoting the safe use of biotechnology to address eco- use. Thus, Uganda has over the years sought to fulfil her nomic, social and environmental problems. Under this international obligations to Multi-lateral Environmen- framework, a national biotechnology and biosafety policy tal Agreements through amendment of existing secto- is being prepared. The draft policy has been submitted, but ral laws, for example those on wildlife, forestry, fisheries, has yet to receive approval from government. wetlands, agriculture, tourism etc., to include provisions on access to genetic resources and benefit–sharing. The The Draft Biosafety Regulations enactment of the National Environment Regulations on The regulations contain provisions on risk assessment, Access to Genetic Resources and Benefit sharing in 2005 risk management, unintentional release and emergency was aimed at guiding and facilitating the implementation measures, identification, labeling and exports of GMOs of ABS within the mainstream policy and legal framework or products of GMOs, among others. The draft regula- across the relevant sectors of government. tions were anchored on the Uganda National Council for Science and Technology Act. A closer scrutiny of the Act, 4.3.5 Institutional Arrangements for ABS however, revealed that it did not provide for some important biosafety functions, e.g. powers to mount inspections The institutional set-up for biodiversity conservation in and enforcement of field trial experiments. The idea was Uganda is rather complex and incoherent, with many dif- therefore dropped, and now efforts are under way to enact ferent players operating at different levels of manage- a new biosafety bill instead of proceeding with the current ment. These include government agencies (central and lo- regulations. A draft bill has been prepared and this will be cal), non-governmental organizations (NGOs), civil society presented to Government for approval after the Biotech- and community-level institutions. Some of the key institu- nology and Biosafety Policy is approved. tions are briefly described under this section.

The Draft National Biosafety Guidelines Government Agencies The guidelines are aimed at protecting individuals, the community and the environment through minimising po- Ministry of Water, Lands and Environment tential hazards associated with new applications of biotechnology. The areas covered by the guidelines include This ministry has several departments and divisions, some genetically modified micro-organisms; genetic transfor- dealing with biodiversity conservation. mation of plants and animals; production and deliberate (i) The National Forest Authority (NFA); or accidental release of micro-organisms, plants, animals The major goal of this agency is sustainable man- and products derived from rDNA; provision of risk assess- agement of Central Forest Reserves to optimize their ment and risk management mechanisms including moni- economic, environmental and social functions and toring; and DNA technology in vaccine and pharmaceutical contribute towards poverty reduction. The NFA also products development. The absence of explicit mention of targets supply of high quality forest products and product development in the guidelines does not deter ac- services on a contractual basis. The NFA mission ad- tivities and partnerships geared at product development dresses in-situ forest conservation while providing for and commercialization since these would fall within the harnessing of benefits from forest products for local ambit of support for biotechnology development. communities and other interested parties. The Draft Indigenous Knowledge (IK) Policy (ii) National Environment Management Authority; This Authority is the coordinating, monitoring and This policy calls for recognition of the value of IK in em- supervisory body for environment management. It powering local communities, and urges government to covers both green and brown issues of environment adopt and support national IK efforts and incorporate IK management.

41 (iii) The Wetlands Inspectorate Division, housing the Na- c) To maintain stable functioning relations between tional Wetlands Programme; the living and non-living parts of the environment, The aim behind this programme was to develop the through preserving biological diversity and respecting policy for wetlands management, and later to estab- the principle of optimum sustainable yield in the use lish measures for its implementation. of natural resources; d) To reclaim lost ecosystems where possible, and reverse Ministry of Local Government the degradation of natural resources and well as establish adequate environmental protection standards This ministry is charged with overall coordination of local and to monitor changes in environmental quality; and government policy and supervision of local authorities; the decentralized functions related to natural resources man- e) To require prior environmental assessments of pro- agement are the preserve of the lower Local Councils. posed projects, which may significantly affect the environment or use of natural resources. Ministry of Tourism, Trade & Industry Uganda National Council for Science and Technology This is the government ministry responsible for development of trade, tourism and wildlife-related enterprises. The UNCST is the government agency charged with coor- The MTTI is also responsible for CITES, and management dination and monitoring of all research within the country. of World Heritage sites. Within this ministry is the Ugan- This includes bioprospecting, and research related to bio- da Tourist Boar,d charged with promotion of tourism, the diversity conservation. Its remit therefore includes access Uganda Wildlife Authority (UWA) for wildlife conservation, to genetic resources. and the Department of Antiquities charged with preservation of Uganda’s cultural heritage. The Council is linked to different sectors through its specialised technical committees (STCs) on agriculture and The Ministry of Finance, Planning and Economic Development allied sciences, health sciences, physical sciences, natural sciences, industrial and engineering sciences, and the This is the institution responsible for developing and im- social sciences and humanities. STCs are policy organs of plementing financial and economic development policies. the Council, whose function is to report to, recommend to Within this ministry is the Uganda Investment Authority and advise on all science and technology policy matters in which is trying to sell investment opportunities, including their respective sectors. but not limited to agriculture, forestry and mineral resources, while the National Planning Authority is developing “Vi- The National Biosafety Committee is the national admin- sion 2035”, to guide the development process in Uganda. istrative arm of the UNCST on matters concerning bio- The vision will be pursued and operationalised through a technology and biosafety. Its main function is to provide focused, comprehensive national development planning technical advice to government, especially with regard to framework, characterized by the following key elements: the continued assessment of risks and benefits associated with the production and/or application of biological ma- a) All stakeholders agree to the principle that future terials produced in laboratories, and those occurring in development plans are formed within the context of nature, and to maintain links with biotechnology institu- Vision 2035. The development philosophy behind any tions through institutional biosafety committees. national plan is to be clearly articulated. The government will determine the approval procedure for all Ministry of Agriculture, Animal Industry and Fisheries development plans, and gazette the timelines for developing all statutory plans; and This ministry is responsible for development of agriculture, b) Three successive and well focused 10-year Perspective the livestock industry and fisheries. Within the ministry National Development Plans with appropriate targets, is the Phytosanitary Division, responsible for monitoring monitorable indicators, implementation strategies and controlling movement of plant genetic resources, and and Monitoring and Evaluation systems. control of alien and invasive species.

For a better Uganda to live in, the vision recommends that Makerere University environmental degradation is to be tackled in a holistic manner, in order to ensure both economic and environmental sus- The university has a number of faculties, institutes and tainability; Uganda will aim at the following, among others: departments that carry out training in natural resources management. These include the Makerere University In- a) To use and conserve the environment and natural re- stitute of Environment and Natural Resources (MUIENR), sources of Uganda equitably and for the benefit of with a mandate for training and research in all aspects both present and future generations, taking into ac- of environment and natural resources management, the count the rate of population growth and the produc- Faculty of Forestry and Nature Conservation, and Faculty tivity of the available resources; of Agriculture. The Department of Botany, besides train- b) To conserve the cultural heritage and use the environ- ing and carrying out taxonomic and ecological research, ment and natural resources of Uganda for the benefit houses the Makerere University Herbarium, the de facto of both present and future generations; National Herbarium, an important resource for taxonomy

42 and an inventory of plant diversity. The Department runs 1. Decentralization of natural resources management an undergraduate program in Ethnobotany, which relates has a damaging effect in many cases. The focus of the it closely to issues of ABS among the communities. Other local governments is establishing money-making ven- relevant universities include the Mbarara University of Sci- tures without adequate analysis of their impacts on ence and Technology (MUST), with its Institute of Tropical the natural resource base. There is also a lack of tech- Forest Conservation. nical skills at this level, leading to poor management of the genetic resources; Non-Governmental Institutions 2. Lack of a legal framework and policy on biosafety and biotechnology. The policy has been in draft form since There is an increasing number of environment-related 2003, and the process of developing the policy started NGOs operating at different levels of management in in 1999; Uganda. At the international level are - Cooperative for As- sistance and Relief Everywhere, Inc (CARE), World Vision, 3. Inadequate integration of biodiversity concerns in the Lutheran World Federation, the International Union national and district development planning and im- for the Conservation of Nature (IUCN), the World Wildlife plementation, and into macro and micro economic Fund (WWF) and the African Wildlife Foundation. At the policies; national level, NGOs include the Uganda Wildlife Society, 4. Inadequate capacity to implement the various policies Wildlife Clubs of Uganda, Environment Alert, Joint Energy and Environment Project, Nature Uganda, and ECOTRUST. in a harmonized manner. This has led to weak coordination mechanisms amongst all the stakeholders within NGOs have played active roles in implementation of the the various sectors, especially among governmental various international conventions, and fulfilling the re- institutions and other players in the implementation quirements of national legislation. They have been par- of the Bonn Guidelines; ticularly involved in promoting community participation 5. Environment and natural resources (biodiversity) con- and empowerment in sustainable natural resource man- cerns are usually ignored or paid inadequate attention agement, and ensuring access to its benefits. In carry- in planning at all levels of government; and ing out their various roles, the NGOs have come across a number of challenges, including a weak coordination and 6. Weak infrastructural and institutional capacity for re- networking system, unclear operational linkages with search and information management. governments at central and local levels, competition for financial resources, and short time-frames within which 4.3.6 Biodiversity in Uganda and Tools for Conservation certain projects have to be implemented, as dictated by the availability of donor funding. This section describes the diversity which is the focus of access, and what creates the need for appropriate Cultural institutions in Uganda have historically played a policies. leading role in management of genetic resources. Although this was somewhat diminished with the creation of a cen- Uganda is an important country for biodiversity conserva- tral government, and the abolition of some institutions, tion, with seven out of eighteen phytochoria (geographic they do still have the potential to play a key role in managing various aspects of control of access to genetic resources, areas with relatively uniform plant species composition) and protection of indigenous knowledge from biopiracy. in Africa, and it has one of the highest levels of biological diversity on the continent.38 More than half of all Af- rican bird species occur in the country, and Uganda is the Biotechnology Research second-richest in terms of mammal species, following the Democratic Republic of Congo, and the ninth rich- The key institutions involved in biotechnology research est in the world. This is quite remarkable for a country in Uganda are Makerere University (Departments of Crop of Uganda’s size. Conservation of biological diversity has Science, Biochemistry, Animal Science, Veterinary Parasi- been largely in-situ, centred at species and ecosystem tology and Microbiology, the Institute of Environment and levels largely in protected areas, with limited attempts at Natural Resources, and the Medical School); the NARO, in- ex-situ conservation. cluding its research centres at Kawanda and Namulonge; the International Network for the Improvement of Banana and Plantain; and some private companies, for example Ecosystem Diversity MedBiotech Laboratories. These institutions are conducting research involving rDNA, but have yet to embark on The major natural ecosystems are forests and woodlands, transformation work in the area of transgenics. 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 Constraints and Challenges woodlands together cover approximately 50,000 km2, of which a quarter is protected as Central or Local Forest Re- Uganda’s policy and institutional set-up has a number of challenges: 38 Davenport TRB and Matthews R.A (1996). Biodiversity Reports. Vol 1-33. Uganda Forest Department, Kampala.

43 serves, and the remainder lies in wildlife-protected areas role here. Agro-biodiversity therefore includes not only a or on private lands. variety of species, but also many ways in which farmers can exploit biological diversity to produce and manage The major types of forest are high altitude moorland and crops, animals, and land in Uganda. Despite the fact that heath, high altitude forests, medium altitude forests and indigenous plants are well-adapted to the environment wooded savannah. Woodlands and savannah are of two and require low inputs, there has still been limited research types: the Combretaceious and Butyrospermum. They range to determine their potential contribution to human and between woodlands where woody species form a single livestock needs. Because modern agriculture requires high layer, with a relatively short closed canopy that is under- inputs, some exotic crops have become too costly to pro- lain by a more or less continuous grass layer, through duce by the majority of farmers, and this has significantly wooded savannah where the canopy is more open and the reduced food security in the country. grass layer continuous, to grass savannah, where trees are generally absent.39 Important steps were taken from the 1960s onwards to collect and conserve forage germplasm (mainly grasses) Wetland ecosystems constitute those areas with impeded at Namulonge Agricultural Research Station, Makerere drainage, swamp forests, papyrus and grass swamps. In University Faculty of Agriculture at Kabanyolo and Serere Uganda this category includes lake-associated wetlands, Agricultural Research Station. The National Gene Bank for river or flood plain associated wetlands, and a system of Agro-biodiversity has been established at Entebbe, within small, unconnected units dependent on water from sur- the Ministry of Agriculture, Animal Industry and Fisheries. rounding uplands without outlets. According to NEMA It is run by NARO. Exotic accessions of grasses and legumes in 2002, wetland ecosystem coverage is estimated at ap- have also been collected as a means of increasing the ge- proximately 12.5% of the country’s total land surface, with netic resources base. These materials have been conserved 30,000 km2 of Uganda under seasonal or permanent wet- mainly in fields, ex-situ facilities or gene banks. lands. Up to 17% of the country’s surface area is covered by open water, including five major lakes -- Victoria, Albert, Genetic Diversity Kyoga, Edward and George -- about 160 minor lakes, an extensive river system, groundwater and rain harvest in dams Genetic characterization of populations of both wild and and ponds. These aquatic systems are usually fringed with domestic species is at a relatively rudimentary stage in extensive wetlands or swamps. Uganda. Various breeding experiments are conducted in a number of agricultural research institutes that include Information on soil and underground biodiversity is still Namulonge for cotton, potato and cassava; Kawanda for relatively low. A number of studies that have been con- horticultural crops and banana; and Serere for cereal crops ducted focus mainly on the importance of soil biodiversity and livestock. A micro-genetic laboratory was established to soil productivity, as the most crucial factor for agricul- at MUIENR with a view to training local researchers in ge- tural practices. There is a need to understand better the netic characterization, helping to facilitate genetic studies complex interactions between the biotic and abiotic com- of wildlife, crop and domestic animal genetic studies. ponents of soil. Uganda is an agricultural country and is dependent on its soil, creating strong arguments for soil It is evident that even before the capacity for advanced biodiversity conservation. genetic studies is acquired, large-scale introduction of improved varieties of both plants and animals is bound Species Diversity to have an adverse effect on indigenous varieties. Thus it is important that the genetic attributes of indigenous Uganda is very rich in species diversity for various catego- breeds and varieties are preserved, before they are com- ries of flora and flora. The country is estimated to have 210 pletely eroded by hybridisation and other forms of genetic species of dragonfly, 98 amphibians, 1,245 butterflies and manipulation. 4,552 vascular plants. The total number of mammal species in Uganda is currently estimated at 345.40 In-situ Conservation

Agro-Diversity Uganda’s biodiversity conservation efforts within protected areas are guided by the Wildlife Act, Cap 200, and This encompasses many types of biological resources tied the National Forestry and Tree Planting Act 2003. These to agriculture, including crop species/varieties, livestock two legislative frameworks contain provisions for guiding and fish species, soil organisms in cultivated areas and bio- access to biological resources. Regulations concerning in- logical control agents for crop and livestock pests. Cultural situ biodiversity conservation date back to the 1920s. The practices and local knowledge of biodiversity play a vital initial target was protection of forests, but this was later followed by legislation for game preservation in the 1930s, 39 Langdale-Brown, O. and Wilson, J (1964). The vegetation of Uganda and its bearing and that for national parks in the 1950s. 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- In an effort to boost biodiversity conservation, Uganda ex- lished. 3. Davenport T. (1993). An annotated checklist of butterflies of Uganda. The panded her network of national parks by upgrading 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 protection and conservation status of six forest reserves East Africa. East African Natural History Society, Nairobi. in the 1990s. These include Semliki, Rwenzori Mts., Kibale,

44 Mgahinga Gorilla, Bwindi Impenetrable and Mt. Elgon. This practices in the formal management of agricultural was mainly done to address the then emerging threats to genetic diversity. the PA system due to over-harvesting of timber from these natural forests, and to halt threats from encroachment Ex-situ Conservation and other forms of unsustainable use. The National Environment Act requires the prescription During the past 30 years, many of Uganda’s protected of measures for ex-situ conservation of biological diversity. areas were severely encroached, and their wildlife popu- This is to be done via development of guidelines for the es- lations drastically eroded through illegal hunting and tablishment and operation of germplasm banks, botanical habitat destruction. This led to a decline in the number gardens, zoos, animal orphanages etc. Ex-situ conservation of large mammal species, for example the rhino, Derby’s is also encouraged on private land, e.g. for conservation of eland, and the bongo. Some others, such as the roan an- domesticated and wild relatives of crops that benefit so- telope, are in a precarious state. In an attempt to ensure ciety, medicinal plants etc. The wildlife policy provides for protection of all representative ecosystems, Uganda un- wildlife ranching or farming on private land. This provision dertook a protected areas assessment program from has, however, remained largely unimplemented. 1997, which resulted in some changes to the PA system, approved by Parliament in 2000. Uganda has some centres for ex-situ biodiversity conservation, but the country does not yet have an inventory of The existing legal framework for biodiversity conservation the existing institutions including their respective ex-situ provides for conservation both inside and outside PAs. The collections. The National Agricultural Research Organiza- development of the plan was coordinated by NEMA under tion (NARO), based in the agriculture ministry, acts as the the Ministry of Water Lands and Environment. The NBSAP focal point for collections for microbial genetic resourc- targets a number of issues that promote conservation of es. Other institutions with some collections include the biological diversity, including wetlands conservation and Makerere University Institute of Environment and Natu- management, and EIA of projects and programmes likely ral Resources. to have an adverse impact on biodiversity. For plant genetic resources, the Focal Point is also NARO. There have been also several attempts at sustainable de- It runs the Botanical Gardens, based in Entebbe, and the velopment in “buffer zones” adjacent to PAs. The main tar- Seed Bank at Kawanda Agricultural Research Station. Mak- get here is to ensure conservation of critical ecosystems erere University has a Herbarium and Botanic Garden. The that exist outside formal protection, through education Herbarium holds plant collections dating back to 1946, and awareness, and through identification of benefits that and serves as the National Herbarium. can be derived from conservation. The Focal Point for animal genetic resources is also within In addition to these measures, regulations have been introduced, under the umbrella legislation relating to envi- MAAIF, and some of the institutions with collections in- ronment, wildlife and forestry, for wildlife use rights and clude NARO, the Uganda Wildlife Education Centre, the to manage degraded fragile ecosystems such as river- Makerere Museum, Ziwa Ranch for rhinos and Ngamba Is- banks, lakeshores and hilly and mountainous areas. Access land housing chimpanzees. There are other depositories of to the genetic resources outside PAs is controlled through genetic materials scattered in some higher institutions of Uganda’s ABS regulations. learning and research facilities, but there is no organized central databank with records of the various numbers of There are a number of constraining factors for in-situ con- live or sterile specimens. servation efforts: Ex-situ conservation is constrained by: . Absence of guidelines for implementation of many sections of the legislation, e.g. selection and establish- . Inadequate facilities; ment of new PAs, declaration of species to be protected; . Inadequate guidelines and lack of comprehensive reg- . Limited capacity to prevent, assess and manage the ulatory measures; risks posed by alien invasive species; . Insufficient capacity to manage ex-situ or on-farm ge- . Inadequate systems for protection and promotion of netic resources; and indigenous knowledge and practices for the conserva- . Lack of information about existing facilities across the tion of biological diversity. This is coupled with inade- country. quate mechanisms for providing information, leading to communities being uninformed about their rights; 4.3.7 Access to Uganda’s Genetic Resources and . Inadequate capacity-building for effective manage- Associated Benefits ment of PAs and for conservation of biodiversity outside the PA network; and Uganda’s rich biodiversity base forms a key part of future . Lack of technical capacity and expertise to understand, sustainable economic development and growth. The gross promote and incorporate indigenous knowledge and economic output attributed to biological resources, i.e. fish-

45 eries, forestry, tourism, agriculture and energy sectors, is materials for a wide range of products, which are used for estimated to be in excess of Ushs 820 billion (approximate- subsistence, income and employment purposes. According ly US$ 546.6 million) a year.41 Further research reveals that to Emerton and Muramira (1999) the direct economic ben- biodiversity supports economic output indirectly through efits of Uganda’s biodiversity were estimated at more than secondary inputs such as ecosystem services and functions UShs 823 billion / year (approximately US$ 548.6 Million/ that maintain human production and consumption. These year). This figure measures only the total direct value of bi- indirect benefits are worth at least Ushs 300 billion (ap- odiversity, as there is insufficient data to determine the full proximately US$ 200 million) a year. Biodiversity, therefore, value of biological resources – it is therefore based on only makes a significant contribution towards Uganda’s nation- a small proportion of the complete resource. Estimated al sustainable development and poverty alleviation goals. values of some components of biodiversity are given in Box 3, showing a total value close to the 1999 estimate. Many of the sectors targeted for future economic growth depend directly on biological resources and ecosystems. Biodiversity conservation also maintains a diverse pool of Box 3 Estimated Values of Various Components of genetic resources available for future developments and Biodiversity applications, some of which may not yet be known. These may contribute to the further development of tourism and Estimated values/ Year Components of biodiversity leisure activities, and the use of resources for a wide variety (million US$) of agricultural, industrial, pharmaceutical and medicinal Non Wood forest products 44 applications. Total wood products 115.3 The ABS regulations are in place, and Guidelines for Ac- cessing Genetic Resources in Uganda were prepared in Wildlife tourism 17.3 July 2007. The government plans to carry out training of Fisheries 271.3 stakeholders at the national and local level, including local communities, on the use of the guidelines. Although Papyruses from wetlands 4 the system for ABS in Uganda is still evolving, there are already some institutional mechanisms in place for ad- Source: The Draft National Biodiversity Strategy and Action Plan. dressing technical, scientific, legal and trade issues in this area. There is a Technical Committee on Biodiversity Con- servation, with its Secretariat in EMA that can be used to Fisheries and associated industries provide annual export evaluate ABS proposals. earnings of US$ 600 million, of which US$ 240-460 million is paid directly to fishers.42 This provides a per capita Under the existing legislation, some arrangements have income in the range of US$ 90-270 p.a.43 been made relating to ABS. Some of the arrangements are between Ugandan and external collaborating universities Ecosystems and their component species generate a wide and the UNCST, and others between national scientific re- range of indirect benefits, including soil erosion control, search institutions and UNCST. Some of the arrangements catchment protection, carbon sequestration functions with government agencies and intergovernmental ones of natural forests, woodlands, bush lands and grass- include transboundary collaborative programs around the lands, and water retention and purification functions of Central Albertine Rift and the Mt. Elgon Ecosystem. wetlands. While the quantified value of these services is almost UShs 300 billion a year (US$ 193m), Emerton & There is a wide range of benefits that can be obtained from Muramira (1999) caution that the total indirect value of Uganda’s biodiversity that can be shared at local, national, Uganda’s biodiversity is likely to be far higher than this. regional and international levels. This could be in the form These include annual estimated values of US$98.6m for of direct, indirect and/or existence benefits. The incentives forest catchment protection and erosion control services, for biodiversity conservation in place in Uganda are in form US$3.5m for wetland water purification, and US$46.3 Mil- of programmes geared towards facilitating and enabling lion for carbon sequestration by forest woodlands, bush equitable access and benefit sharing of genetic resources. lands and grasslands.44

In accordance with Article 11 of the CBD, Uganda is obliged Uganda’s biodiversity’s option and existence benefits are to ensure economically and socially sound measures in extremely large. Maintaining a diverse range of biological the form of incentives to conserve biological diversity, and resources and ecosystems therefore allows for possible fu- use its components sustainably. Some incentives are direct ture uses and developments for recreational, pharmaceu- cash or in kind. Other incentives to conserve biological di- tical, industrial and agricultural purposes. Biodiversity is versity are indirect, and can be service or socially based. 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. Biological resources provide a wide range of direct eco- 43 World Bank (1996). Kenya, Tanzania, Uganda, Lake Victoria Environmental Manage- nomic benefits. This is through provision of a source of raw ment Project. Project Document, June 1996. Washington DC, USA: Global Environment Facility, The World Bank. 41 Emerton, L. (1999). Community-based incentives for nature conservation. IUCN 44 National Environment Management Authority (2002). State of environment report Eastern Africa Regional Office, Nairobi, Kenya. for Uganda.

46 ABS Implementation Projects in Uganda enhancing economic opportunities through better conservation and use of natural resources. Benefit-sharing as envisaged in the CBD is a relatively new concept to many actors in the area of biodiversity conser- Rights Equity and Protected Areas Project vation, although sharing of benefits has been practised in Uganda since the 1950s. The current approach has been This project is funded by CARE and was started in 2003. It implemented in a few cases, largely under the new innova- operates around Queen Elizabeth National Park, providing tive conservation and resource management approaches advocacy on community rights to resource access, use and such as community conservation and collaborative forest equitable sharing of costs and benefits of conservation. management. The experiences gained under these initiatives could provide broader understanding of the issues The International Gorilla Conservation Program involved, and good building blocks for practical ways of re- alising the third objective of the CBD, relating to equitable This programme started in 1991 and focuses mainly on sharing of benefits. eco-tourism promotion, ecological monitoring, community participation / benefit-sharing, capacity-building of Based on different categories of ABS projects, and in or- park staff, and a small grants scheme in and around MGNP der to ensure appropriate and sustainable ABS measures, and BINP. It also promotes transboundary natural resourc- a number of programmes were established and imple- es management in the Virunga area. mented, or are being implemented in various districts and parts of the country to catalyse and facilitate imple- The Netherlands Development Organization mentation. This organization has various projects targeting the re- Box 4 gives a case study of benefit-sharing from genetic duction of negative impacts caused by local communities, resources with local communities around Bwindi Impen- through strengthening of capacity of district authorities etrable (BINP) and Mgahinga Gorilla (MGNP) National for natural resources management. It operates in 13 dis- Parks in Uganda. tricts in Uganda.

Some of the lessons learned from this initiative include: The United Organization for Batwa Development in Uganda . There are diverse interest groups ranging from local This organization began in 2000 and works with commu- community to global community; nities outside Echuya Forest Reserve. It helps to represent . The natural resources base is small; and the Batwa’s concerns to stakeholders across the area, and improve participation of the Batwa in various economic . The parks have no buffer zone around them, and as a development programs. result incidences of crop raiding, encroachment and problem animals are likely to increase - this could The WWF Rwenzori Mountains Conservation and Environ- cause big conflicts that would affect implementation mental Management Project of multiple use programs. This project began in 1990 with the aim of strengthening Other initiatives with ABS elements include: management of Rwenzori Mountains National Park. It focuses on enhancing financial viability, sustainable use of The Budongo Forest Community Development Organization park resources, effective communication between the park and communities, increased capacity of local government This began in 2000 with a primary strategic focus of sup- for environment management, watershed management port for community conservation, education, alternative and landscape restoration, and transboundary natural re- income generation, promotion of collaborative forest sources management. management, tree planting and energy saving. The Mt. Elgon Regional Ecosystem Conservation and De- Enhancing Livelihoods of Local Communities Dependent on velopment Program Echuya Forest This programme developed as a regional approach to This programme began in 2004 and was implemented management of the Mt. Elgon transboundary ecosystem by Nature Uganda, and various local partners. The project that straddles the Kenya-Uganda border. In order to ensure was developed to enable communities to gain benefits by continued and sustainable benefit and services provided claiming their rights to manage the natural resources in by the ecosystem both directly to the local community on and around Echuya and to influence forestry policy. either side and beyond, it was recognised that an ecosystem and regional approach was essential. PRIMEWEST Constraints to Access to Genetic Resources This started in 2004, and operates in and around protected areas in Western Uganda. Activities include initiating The control of access to water, cultural sites, medicinal collaborative forest management, conflict resolution, and plants, firewood and a number of non-timber forest prod-

47 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.

Revenue Sharing Figures for BINP and MGNP

Gorilla Income Financial Year 20% Share for BINP 20% Share for MGNP Uganda Shillings

14,404,790 4,742,331 2000-2001 1,451,310,686 0.99% 0.33%

15,781,217 5,118,335 2001-2002 1,812,609,563 0.87% 0.28%

30,285,423 12,455,495 2002-2003 2,448,332,566 1.24 0.51%

38,439,584 9,450,034 2003-2004 2,920,457,683 1.32% 0.32%

Source: UWA Financial Records, 2004.

48 ucts in PAs has resulted in conflict with local communi- Incentive Measures for Indigenous and Local Communi- ties and the private sector. These communities regard the ties’ Sustainable Use of Biodiversity resources within the PAs as belonging to them, and thus demand free and unlimited access. On the other hand, Traditional knowledge tends to be collectively owned, and the private sector demands certain resources, for example takes the form of stories, songs, folklore, proverbs, cultural timber, minerals and game, for economic gains. Harvest values, benefits, rituals, community laws, local language, of these resources from PAs would require strict regula- and agricultural practices, including the development of tion and monitoring. It would also require baseline studies plant species and animal breeds. Developed from experience gained over the centuries and adapted to the local to determine sustainable levels of off-take. All this is cur- culture and environment, traditional knowledge is trans- rently unaffordable. Other challenges to access to genetic mitted orally from generation to generation. Traditional resources include: knowledge is mainly of a practical nature, particularly in . Uncontrolled access to genetic resources, especially the fields of agriculture, fisheries, health, horticulture and outside the PA system; forestry. Today there is a growing appreciation of the values of traditional knowledge by modern industry. Many . Lack of alternatives to resources found within Pas; widely-used products such as plant-based medicines and . Inadequate public awareness and training on the val- cosmetics have their origins in traditional knowledge. ue of genetic resources; Other valuable products based on traditional knowledge include agricultural and non-timber forest products, as . Low levels of monitoring and research, resulting in in- well as handicrafts. sufficient information for decision-making in controlled access to genetic resources. A growing respect and interest for traditional knowledge in Uganda has led to the adoption of certain procedures. 4.3.8 Analysis of Issues and Capacity Gaps Some indigenous knowledge systems have been incorporated into the national development plans. Mechanisms Incentive Measures for Sustainable Use of Biodiversity have been designed to integrate traditional healing systems in modern healthcare delivery services. According to Uganda has for some time now realised the need for using WHO (2002), traditional medicine is still used as the first economic instruments to encourage good environmental line of intervention in primary healthcare by approximate- practice, while at the same time improving economic per- ly 60% of Uganda’s people. Traditional birth attendants work together with government physicians to provide formance and international competitiveness. There has healthcare services in rural areas. Traditional and Modern been an effort to ensure that the current policies cater for Health Practitioners Together against AIDS and other Dis- provision of incentives for environmental management. eases (THETA), an indigenous NGO, has been working with The use of the International Treaty on Plant Genetic Re- traditional health practitioners since 1992. THETA has mo- sources for Food and Agriculture provides incentives for bilised and comprehensively trained over 2,000 tradition- access to genetic resources from outside the country. A al healers in 12 districts of Uganda. The training is aimed number of measures have been discussed by government at building the capacity of traditional healers to integrate at various levels, although they have not been comprehen- counselling and care for HIV/AIDS and other sexually sively analyzed, nor have many of them been adopted for transmitted diseases with their routine practice, and to implementation. These include: reach out to their community with preventive strategies. The Network on Medicinal Plants and Traditional Medi- . A revenue-sharing program in wildlife protected areas cine, Uganda Chapter, based at the National Chemo- in which 20% of the revenue from gate collection is therapeutics Research Laboratory, is a programmatic and shared with peripheral communities. The funds go to collaborative platform that offers the opportunity for all community-based projects; stakeholders in medicinal plants and traditional medicine . Regulated access and use of some selected resources to share information and experience on their respective following the benefit-sharing policy, where communi- activities. It also aims at harmonising their approaches ties adjacent to PAs, through negotiated agreements, and methodologies, and working together to develop projects that promote the conservation and sustainable, have controlled access to certain resources in desig- safe, and effective use of medicinal plants and herbal nated areas, for example access to water, cultural sites, products, as well as the integration of traditional medi- medicinal plants, firewood and a number of non-tim- cine in public health services. ber forest products; . Collaborative forest management, in which commu- The government is in the final stages of developing a Na- nities adjacent to forest reserves reach collaborative tional Policy on Traditional and Complementary Medicine. agreements with the National Forest Authority to The policy will be crucial in defining the role of traditional gain access to forest resources from designated areas medicine in the national health care delivery systems. or zones, and participate in their management; and It will also ensure the creation of regulatory and legal mechanisms for the promotion and maintenance of good . Community-based eco-tourism, capacity-building and practice, and protection of indigenous traditional knowl- small grants scheme. edge on medicine. The government is also finalizing the

49 Traditional Medicine Bill, which will regulate the practice as the control of biopiracy is concerned. The Patent Stat- of traditional medicine and bring it to nationally and in- ute 1991, the major legal regime for IPRs in Uganda, does ternationally acceptable standards. not provide adequate protection for genetic resources, and therefore the provisions relating to ABS need to be re- The Ugandan government has also adopted the develop- viewed and strengthened. In addition, this statute needs ment, efficient absorption, adoption and commercialisa- to be publicised and instruments for implementation of tion of indigenously-developed appropriate technolo- the ABS provisions developed by the relevant institutions. gies as the cornerstone for increased productivity in the economy. Potential indigenous agricultural practices such However, the development and application of incentives as pest management systems, soil fertility management is constrained by: practices and control of livestock worms and ticks have . been incorporated in crop and livestock farming systems. Inadequate priority at national level to undertake pol- Micro-entrepreneurs have also set up cottage industries icy research and analysis that would stimulate discus- for producing drugs from local herbs, some of which are sions to incorporate incentive measures for biologi- used to treat diseases associated with HIV/AIDS and oth- cal diversity conservation in the national investment er ailments. framework; . The lack of effective participation of the private sector Biopiracy and IPR in providing incentives for the protection of biological diversity; and An operating system that allows people to gain benefit from their knowledge and their resources would provide . An underdeveloped intellectual property rights system. incentives for conservation of genetic resources. Ugandan laws on intellectual property were drafted during colonial Information Management times, from the 1890s until 9th October 1962, when Ugan- da gained independence from British colonial rule. Under It is the mandate of the Uganda National Council for Sci- section 32 of the patents statute of 1991, the Registrar of ence and Technology (UNCST) to coordinate all research Patents awards patents for an initial period of 15 years, activities in Uganda. This is done in collaboration with with a possible five-year extension if a request is made the various sectoral agencies, which do the actual coordi- one month before expiry of the original term. The Uganda nation within their sectors. For example, the mandate for Law Commission has drafted upgraded intellectual prop- agricultural research is delegated to NARO to undertake, erty laws, with much more stringent enforcement provi- promote and co-ordinate research on crops, livestock, fish sions. The draft bill is before parliament for consideration and forestry, and ensure dissemination and practical ap- and approval. plication of results from this research.

Limited general information exists regarding the impacts Existing Information Centres of IPRs on conservation and sustainable use of biodiversity. Uganda has not been spared the problem of biopiracy, and There are a number of institutions currently involved in the existing laws rarely act as deterrent to this problem. research and training, related to biodiversity conserva- This is especially true in relation to local communities and tion and sustainable use. The research institutions include their traditional knowledge of herbal medicines. There universities e.g. Makerere University (Makerere University has been direct and indirect misappropriation of biologi- Institute of Environment and Natural Resource, Faculty of cal and genetic resources and traditional knowledge from Agriculture, Faculty of Forestry and Nature Conservation, Uganda for a long time. This is done by researchers, and by Faculty of Science etc) and MUST’s Institute of Tropical bioprospectors in the guise of researchers. Forest Conservation and other tertiary institutions, agricultural research institutes and some NGOs. These insti- There are a number of negative impacts of IPRs on bio- tutions undertake both basic and applied research. Only diversity conservation, specifically in the area of agrobio- a few of them, including MUIENR, have elaborate data diversity. This is especially true of the tendency for agri- banks targeting management of information related to cultural diversity to be homogenised, and for native and Uganda’s genetic resources. The Makerere University Her- traditional crops to be displaced. Concern has also been barium holds a lot of information on the country’s flora, expressed about the increasing concentration of IPR on although mostly in raw form. genes and improved seeds in the hands of a few international companies. The challenge is to devise regulations Some of the government agencies have carried out some that would turn biopiracy into “bioprospecting”. This re- research activities and have data relevant to ABS. NFA has quires finding the middle ground in which the financial carried out inventories on forestry biodiversity and timber and scientific resources of biotechnology companies are in natural forests. The Fisheries Resources Research Insti- exploited not only to their own benefit, but also to that of tute is in the process of developing a biodiversity atlas for the communities from which these companies prospect. Lake Victoria and the satellite lakes, while the Wetlands Inspectorate Division has a wetlands biodiversity report. Although some steps have been taken to protect access The Export Promotion Board has a lot of data, especially to genetic resources and manage biodiversity through on agricultural exports, and UWA has a Management In- Uganda’s ABS regulations, there is still a lot to do as far formation System with data on wildlife resources and

50 PAs in general. The Budongo Forest Project has extensive able development. information on genetic resources and the communities that use them. This facility is proposed to be the research However, more effort is needed to enable Uganda to access institute for Makerere University’s Faculty of Forestry and advanced technologies for environmental management, Nature Conservation. and to share benefits of access to genetic resources, infor- Databases are being developed, but there is need for per- mation exchange and human resources capacity-building sonnel and standards to capture relevant data. NEMA is and development, including improved regional coopera- charged with the responsibility for coordinating environ- tion especially on transboundary issues. Uganda, through mental information networks to provide cross-sectoral its Commissions for United Nations Education, Scientific linkages. and Cultural Organisation office, among others, operates a number of technical and scientific cooperative programs The Clearing-House Mechanisms (CHM) with other countries. The cooperation addresses general aspects of science and technology with special emphasis Although Uganda has designated its national focal point on environment, agriculture, health and social sciences. for the CHM as NEMA, it has no operational CHM. Part of The Man and Biosphere Program has so far designated the reason for this is that there are no resources directly two PAs: Queen Elizabeth (1979) and Mt Elgon (2005) as committed for the development and implementation of Man and Biosphere Reserves. A number of ABS activities the CHM by the country. Manpower is lacking, facilities are have been undertaken including: inadequate and there is lack of resources for coordinating . Small mammal research; information acquisition. Consequently, the development of national capabilities through exchanging and dissemi- . Inventory of large mammals and their potential use nating information on experiences and lessons learned in (Biosphere Reserves for Biodiversity Conservation implementing the Bonn Guidelines is rather limited. Inter- and Sustainable Development in Anglophone Africa institutional coordination is still very weak, although an Project); Environmental Information Network (EIN) has been es- . Fisheries resources research; tablished, targeting a few institutions within the environment and natural resources sector. From this EIN collabo- . Studies of resource use by local communities, prob- ration, areas of biodiversity concern have been mapped for lem animal management and food security; some districts by MUIENR. . Fire as a management tool; and Information Management Gaps . Monitoring tourism activities and their impacts on ecosystems.45 1. Lack of a national system for information management and exchange that captures all the relevant data There are piecemeal measures to facilitate transbound- from different sectors and institutions carrying out re- ary access to or transfer of appropriate technologies that search in related to ABS; make use of genetic resources, and do not cause signifi- 2. Lack of capacity to manage information systems and cant damage to the environment. These include establish- networks for ABS; ment of UNCST with its committees; award of scholarships 3. Inadequate funding for research and training, unco- in the relevant areas and establishment of an Innovation ordinated research priorities across the sectors, and Fund at UNCST. lack of technical and administrative capacities to use research findings in management decision-making; Uganda, in order to engage sensibly in biotechnology, needs to build up a critical minimum level of competence. 4. Limited information on below-ground biodiversity, This is particularly true in those aspects of biotechnology amphibians, reptiles, small insects, agro-biodiversity that show greatest relevance for future long-term devel- and other areas of genetic diversity; opment.46 5. Inadequate uptake of resource valuation mechanisms to feed into government’s decision-making processes; Comprehensive measures are in place at the institutional and level to promote joint ventures between the private sector and public institutions, that facilitate access to, joint 6. Inadequate number of professionals in taxonomy, development of, as well as transfer of technology (includ- applied ecology, biotechnology, conservation biology, ing biotechnology). These include development of general anthropology, environmental economics and environ- legislation e.g. the Investment Act, Forest Act and other mental law. sectoral policies.

Technology Transfer and Cooperation In Uganda, biotechnology research and development is still largely in the public domain. The private sector’s involve- The Uganda Constitution (1995), the National Environmen- tal Act Cap 153 (1995) , the Land Act (1998), the PEAP and 45 A full inventory of technical and scientific cooperative programs in Uganda is main- the PMA and the ratification of the CBD, all address issues tained by UNCST of sustainable development with particular emphasis on 46 Ecuru J. and Asiimwe P. (1999). Foundations for biotechnology policy making pro- ensuring a healthy environment and promoting sustain- cesses in Uganda. Paper prepared for “Biotechnology and Public Policy” training curse under the BIO-Earn programme, organized by the African Centre for Technology.

51 ment is small. The private firms engaged in biotechnology Measures have been developed to promote and encourage activities are: Med-Biotech Laboratories, and the Centre for research, which contributes to the effective conservation Research in Infectious Diseases. Recently, another centre, and sustainable use of genetic resources and their deriva- Agro Genetics Labs, has been established mainly for tissue tives. Research systems are in place, priority areas for re- culture work. There is a need to attract the private sector search have been identified, the enabling policies and in- to participate more in the area of ABS. The ABS regulations dependent researchers are available to carry out research make provision for use of genetic resources for commer- on biodiversity conservation. cial or industrial purposes, and this is the entry-point for the private sector as long as they conform to the require- These measures require resources to facilitate implements of the ABS regulations and other relevant laws. mentation. The problem has been that despite consider- able training undertaken and the management systems Public Awareness and Education and Local Communities developed, facilities are not available for management- oriented research, and the funded research topics do not There have been efforts to raise public awareness and de- match existing needs and priorities for information. The veloping education programs on environment and natural need for a national system for information management resources management. Although there has been some and monitoring is still outstanding. There is inadequate level of publicity on radio and TV, the target audience is capacity on the use of indicator species for monitoring generally urban with minimum rural impact. ecosystem dynamics.

Some collaborative programs have been undertaken in the In-situ and Ex-situ Conservation Efforts area of communication, education and public awareness with international organizations, including the Global As discussed previously, there has been a lot of effort to- Environment Facility (GEF) and UNEP. Other efforts have wards in-situ conservation, and not as much towards de- been geared towards international tourism exhibitions velopment of ex-situ facilities. There are inadequate na- and international documentaries, for example the Discov- tional and local capacities to enhance the effectiveness ery Channel documentary spearheaded by the President. and functions of PA networks as well as implementation of sustainable PA management strategies through Despite these efforts, the level of public awareness both in forest and wildlife corridors and ecological restoration rural and urban areas is still very low as far as the require- when needed. In addition to this, there is limited capac- ments of the CBD and the Bonn Guidelines are concerned. ity to assess and manage the risks posed by alien inva- For example, rural communities are not aware of the legal sive species on ecosystems and habitats, as well as a lack instruments that exist to protect their indigenous knowl- of capacity to restore and manage degraded ecosystems edge from biopiracy, and do not know about the control at district levels. The capacity for ex-situ conservation is measures for access to genetic resources. mainly hampered by the lack of the required resources to undertake the necessary programmes. In addition, There is also a lack of concerted national strategies, pro- there is a need to develop a national strategy targeting grams and plans to empower indigenous and local com- ex-situ conservation, and to improve coordination of the munities and build their capacities for management of current efforts. ABS. The local communities with the genetic resources need to be empowered to manage them in line with cur- Legal Capacity rent international developments. The capacity of communities to organize themselves is very weak. They lack There is need for legal capacity-building at all levels of the ability to negotiate for their rights and protect their management. ABS is relatively new, and there is a gap in indigenous knowledge from unscrupulous resource users the ability to handle legal issues related to access and com- and are often cheated. There is a lack of knowledge of the munity rights. ABS requires many legal agreements and legal framework for accessing genetic resources at com- once implemented, there is expected to be a lot of litiga- munity level. The community needs to be organized in as- tion. There is therefore a need to bridge the legal capacity sociations and trained so that people are aware about all gap amongst institutions and private practitioners. Recog- issues relating to ABS, and are able to negotiate effectively nising this capacity gap, Makerere University has started with any interested individuals or companies that want to an undergraduate environmental law course which can access their genetic resources or utilize their traditional include ABS elements. knowledge. There is also limited capacity to develop and apply economic tools for biodiversity conservation, mak- Sustainable Financing ing it financially attractive to local communities, and to provide economic incentives to them in order to promote Financial resources are the key to all successful manage- sustainable use of genetic resources. ment. Without the required resources, even though the necessary legislative and institutional framework may be Research and Monitoring in place, management of ABS will not succeed to the required levels. There is thus a need for finances to develop A number of capacity-building programs have been im- the country’s capacity in the areas already identified in plemented in this area, including some related to training. the report.

52 4.3.9 Recommendations for Uganda’s ABS Regime . Provision of incentive measures for both in-situ and ex- situ conservation. Policy, Legal and Institutional Framework Information Management There are gaps in the policy, legal and institutional frameworks, which have resulted in weak coordination mecha- NEMA prepared a proposal for setting up a CHM in 2005, nisms among government institutions responsible for the and submitted this for funding under the enabling activity implementation of the ABS framework. Coordination can of GEF. This activity is still a priority for Uganda, and has be improved at both the institutional and systemic levels been included for funding from Uganda’s RAF allocation. through: NEMA is the CHM National Focal Point, and thus the CHM will be set up in NEMA once funds have been secured. . Policy and legal reforms aimed at harmonization; Guidelines for participation in and sharing of informa- . Identification and strengthening of the existing link- tion with stakeholders will be developed to ensure proper ages, networking and collaboration mechanisms management of information. among the various institutions; This centre will go beyond the requirements of the CBD, . Provision of incentives for team building and coordi- and will also house information on other environmen- nation among institutions; tal conventions and other relevant environmental and . The guidelines on ABS need to be developed as a natural resources data. It can produce knowledge tools matter of priority. These should specify what is to be to assist in decision-making and develop mechanisms for shared, how it is to be shared and whom to share it standardising data, building on what the EIN developed with. The mechanisms for dissemination of the guide- by NEMA has attained. The EIN will help in information lines need to be well thought out and implementation exchange as a stopgap measure while the capacity to es- well planned; tablish the CHM is built. As the CHM is established, resources should be identified for information acquisition. . The IPR policy should be harmonised with existing pol- For example, there is a need to acquire information on icies and legislation and its implementation strength- available benefits and their value – quantifying and valu- ened; and ing the genetic resources . The decentralization policy has to be reviewed in respect of the capacity of the local governments to man- Strengthening Capacity Building age ABS. In order to formulate and effectively implement a national access and benefit-sharing regime, Uganda urgently In-situ and Ex-situ Conservation requires the necessary capacity. This should be drawn from a wide range of disciplines with skills in the legal and There is a general lack of awareness of the need to con- policy aspects, as well as scientific and technical issues, serve biodiversity. This has led to unsustainable utilisation IPRs, and local communities’ roles and rights in an access of genetic resources, especially outside of PAs. This prob- regime. There are a number of areas that should be given lem is exacerbated by poor institutional linkages both at some special attention: planning for natural resources and policy and implementation level. Some of the legislation ABS at lower levels of management, e.g. community level, is also weak, and the punitive measures that are in place sensitisation of customs officials on ABS, and identification do not act as a strong deterrent to illegal activities, and do of species. not control unsustainable use. This calls for: Although there has been some effort at local and na- . Strengthening the institutions to implement the ex- tional levels, Uganda lacks the capacity to develop and isting policies; market her bio-products both on the national and inter- . Development of the required guidelines that are need- national markets. In addition, there is a lack of awareness ed to implement the various provisions of the Wildlife as to what kind of market exists for certain products, and Act and the Forestry and Tree Planting Act; a general absence of negotiating skills. There is a need to develop this kind of capacity, and to provide information . Development of capacity for management and resto- on existing markets at these two levels. Although the Ex- ration of degraded areas; port Promotions Board has initiated a project targeting . Public awareness to provide knowledge about the val- this area, this project is limited to a few companies and ue of conserving genetic diversity, and strengthening needs to benefit all interested companies and the local the mechanisms that have been developed to control communities. access to genetic resources; Funding Base and Mechanisms . Development of mechanisms for control of alien invasive species; Limited budgetary sources of funding to support imple- . Finalising development of mechanisms for provision mentation of ABS are available in Uganda. The amounts of incentives for sustainable conservation of genetic available nationally, and the funds so far obtained from resources; and international agencies have been inadequate to facilitate

53 effective development of the ABS regime. This has been 4.4.2 Background largely due to the weak funding base and the inability by the government to develop an innovative funding mech- Biological resources are the primary source of livelihoods anism. However, there are opportunities for mobilizing and economic development in Zambia. Its gradual loss, as resources from the government and the CBD-affiliated a result of a number of factors, represents a silent emer- agencies like UNEP/GEF, among others. gency that threatens to undermine efforts to eradicate poverty and achieve sustainable development. Community Mobilization Zambia, as with other developing countries with extensive To a limited extent, there is good environmental govern- biodiversity and associated traditional knowledge, does ance practice at community levels through use of tradi- not obtain a fair share of the benefits derived from the use tional knowledge and practices for ABS. However, concert- of genetic resources for the development of products and ed efforts are needed for: their derivatives, such as pharmaceuticals and cosmetics. . Strengthening linkages between formal government In order to address Zambia’s increasing loss of biologi- institutions and traditional practitioners; cal diversity, the Government of the Republic of Zambia . Promoting use of traditional knowledge and practices (GRZ) developed the National Conservation Strategy (NCS) and incorporating their values in ABS mechanisms; in 1985. In 1994, this was replaced by the National Envi- ronmental Action Plan (NEAP), which provided updated . Undertaking ABS capacity-building programmes for information on environmental policy actions for tackling community and civil society organizations at grass- key environmental issues, including wildlife resource de- root levels; and pletion, deforestation, land degradation, air and water pol- . Identifying, supporting and implementing community lution and inadequate sanitation. The NEAP’s overall ob- based initiatives for in-situ conservation. jective was to integrate environmental issues of concern into the social and economic development planning process of the country. The principles, on which the NEAP was founded, include rights of citizens to a clean and healthy 4.4 Zambia environment and the participation of local communities and the private sector in natural resources management. The authors of Zambia’s country report were: Excellent Hachileka – IUCN Zambia Country Representative; Davy In 1999, Zambia developed the National Biodiversity Strat- Siame – Chief Natural Resources Management Officer; and egy and Action Plan (NBSAP) as a master plan to meet the Gershom Chilukusha – Acting Director General of Zambia objectives of the CBD, following the country’s signing and Wildlife Authority. In April 2008, Excellent Hachileka up- ratification of the Convention in 1992 and 1993 respective- dated the report. ly. The NBSAP addresses six goals, each with strategies addressing a number of issues including the concept of Ac- 4.4.1 Introduction cess and Benefit Sharing, in recognition of the important role communities play in biodiversity conservation. Zambia’s Ministry of Tourism, Environment and Natural Resources through the Department of Environment and In addition, Zambia is party to various international environmental conventions such as the Convention on Wet- Natural Resources completed this country study report in lands, the United Nations Convention to Combat Deser- January 2006. The report was written by three consult- tification (UNCCD), the United Nations Framework Con- ants who submitted earlier drafts of the report, which vention on Climate Change (UNFCCC), the Convention on underwent a national review and the UNEP Peer-Review International Trade in Endangered Species of Wild Flora Workshop process in December, 2005. and Fauna (CITES) and the Convention for the Protection of World Cultural and Natural Heritage (CPWCNH). To fulfil the terms of reference, the consultants conducted a desktop review, interviews, a national consultative work- The country has, over the years, developed and imple- shop, participated in the UNEP Peer-Review Workshop and mented a number of Action Plans that include commu- developed criteria to identify relevant legislation nity-based natural resources management (CBNRM) programmes, with elements of ABS, with a view to creating The report provides a summary of existing ABS arrange- partnerships with local communities in management of ments in Zambia; reviews programmes, projects and activ- biological resources in sectors such as forestry, wildlife, ag- ities with ABS elements; highlights the relevant resources riculture, and fisheries. management policies and legislation; and analyzes the government legal and administrative capacity for the It is the responsibility of Zambia as a party to the CBD to implementation of ABS measures as guided by the Bonn regulate and control access and negotiate benefit-sharing Guidelines. The final section of the report identifies the for genetic resources obtained from the country, and en- challenges to the implementation of ABS measures as rec- sure that the CBD’s ABS objectives are realized. The study ommended by the Bonn Guidelines, and provides recom- provided an opportunity to initiate processes to develop a mendations for future action. national ABS regime (ABS law and policy) or strategy for

54 promoting implementation of ABS arrangements, in order munities and the state agencies that have the overall to achieve conservation, sustainable management of bio- mandate of managing them. CBNRM is the most com- logical diversity and equitable development. mon arrangement in the country implementing some ABS elements. 4.4.3 Methodology 2. Intellectual Property Rights / Patents The study was undertaken using a combination of meth- Intellectual Property Rights / Patents have gained rec- ods including literature review, interviews, and two con- ognition at most forums, and are also recognised in the sultative workshops at national and regional levels. CBD. The main stakeholders are the private sector and indigenous people. Technologies developed by the pri- 1. Literature review vate sector are in most case patented. But the concern This study is largely a desk-top review. The literature is now largely for locally-adapted technologies used by reviewed included existing legislation, policies, strate- local people for centuries. In most cases these technologies and administrative arrangements for ABS at na- gies are not patented and are sometimes misappropri- tional level and the relevant CBD documentation on ated. The National Science and Technology Council is in ABS such as Articles 8(j), 10(c), 15, 16 & 19, as well as the the process of documenting Indigenous Knowledge Sys- Bonn Guidelines. tems (IKS).

2. Interviews 3. Permits, Concessions and Licenses Interviews were conducted with staff representing key Access to most of the genetic resources in the coun- stakeholder institutions and organizations involved in try is through the issuing of permits, concessions and ABS. These provided information, which was used to licences by competent national authorities to individu- validate the information from the literature search as als or institutions. These are generally accompanied by well as providing primary data for the task. a set of regulations, and failure to comply may lead to

the withdrawal of the permit, concession or license. 3. Consultative workshops The consultative workshop, in October 2005, was or- 4. Farmers and Breeders’ Rights ganised to seek input by a wider range of stakeholders Plant breeders’ rights are rights given to farmers to including those not interviewed. The draft report was help them conserve the genetic diversity of crop vari- presented to the workshop, and the stakeholder com- eties and their wild relatives. This is usually achieved ments and contributions were incorporated into the through the following activities at national level: second draft of the report. . Conducting a field survey to determine the distribu- 4. Peer-review workshop tion and availability of traditional crop varieties and The second draft of the report and the other outputs their wild relatives; were presented at a peer-review workshop involving . Identifying threats to traditional crop varieties; case study teams from Botswana, Ghana, Kenya, Ugan- da and Zambia. The peer-review comments and contri- . Developing a database on available crop genetic di- butions have been incorporated into this final report. versity and their wild relatives; and . 4.4.4 Programmes with ABS Elements Setting priorities and determining strategies for the conservation of crop genetic diversity and their wild relatives. There are various past and on-going initiatives with ABS elements being implemented in Zambia, through community-based natural resources management (CBNRM) 5. Certificates of Origin programmes, intellectual property rights/patents, permit Certificates of Origin are usually issued in the fisher- systems, concessions, licensing, and breeders’ rights. All ies sector to would-be transporters of fish during the these arrangements provide access and opportunities for off-season as proof of where and when such fish was the generation of benefits mainly from use of genetic re- sourced. The certificate of origin helps the Fisheries sources, and less from use of traditional knowledge and Department to enforce fishing bans during the closed other innovations related to various genetic resources. The period. existing ABS arrangements in Zambia are: On-Going Projects, Programmes 1. Community-Based Natural Resources Management Programmes (CBNRM) 1. Environmental Protection and Natural Resources Man These have been piloted in Zambia since the 1980s, agement Programme especially in the wildlife sector. Forestry and fisheries The Environmental Protection and Natural Resources have also adopted the CBNRM approach in the man- Management Programme is a capacity-building pro- agement of these key economic resources. The CBNRM gramme funded by the UNDP for the period 2002- programmes have been designed to ensure local com- 2006. The programme seeks to enhance managerial munity participation in the management of resources, capacity for environmental protection and sustainable and the sharing of benefits between the affected com- management of natural resources, as well as for coor-

55 dinating the implementation of environmental inter- The Component has several sub-programmes, the key national conventions to which Zambia is a party. The ones of which include the following activities: project specifically focuses on the following: . Enhancing and sustaining natural resource use; . Environmental policy formulation that includes support to civil society organizations and commu- . Providing specific options for the most vulnerable nities, to enable their effective participation in the groups; policy formulation process. The policy, which has yet . Improving community mechanisms for resource to be adopted, places emphasis on the participation management and enforcement; of local communities in natural resources management and for them to derive direct benefits; . Development of an innovative model for community management of GMAs, and an associated system . Enhancing and enforcing knowledge management, for simple and practical performance monitoring of enforcement and communication tools for environ- community institutions in CBNRM; mental protection and natural resources management; and . Development of models for private sector involvement in awareness-raising and training, and pio- . Strengthening existing institutional mechanisms neering of a mechanism for sourcing investment for enforcement of environmental standards and and service-provision in support of sustainable ru- the sustainable management of natural resources ral livelihoods.; in the MTENR, ZAWA, Environmental Council of Zambia (ECZ) and the Zambia Meteorological De- . Strengthening the skills and institutional perform- partment (ZMD). ance of selected community institutions (CRBs and VAGs); 2. Natural Resources Management (NRM) Component, . Generating experience among District Agencies Special Environmental Assistance (SEA) and Local Government authorities in supporting The Natural Resources Management (NRM) Component and collaborating with CRBs and VAGs; is a 3-year program which began in January 2005 with support from the Royal Danish Embassy (RDE). It builds . Facilitating dialogue and consultations between from on the CBNRM Project in Mumbwa District, which Government and Civil Society stakeholders through started in 2001, and ended mid-2006. The Component the Natural Resources Consultative Forum; and takes into account the abundance of natural resources . Capacity building within ZAWA on a demand-driven in Zambia, the crucial reliance of the rural people on basis that focuses on local staff located in the target the use of natural resources, and the need to enhance areas, primarily targeting specific roles of ZAWA in the income generation potential of these resources to CBNRM, e.g. wildlife monitoring of CBNRM / CRBs. address poverty (in line with the Poverty Reduction Strategy Paper (PRSP), the NEAP and the Millennium 3. Provincial Forestry Action Programme (2000-2005) Development Goals). The Component focuses on re- The Provincial Forestry Action Programme (PFAP) imple- sources of the five Game Management Areas (GMAs) mented Joint Forest Management (JFM) in open areas around Kafue National Park, and the income generated and local forests of four provinces of Zambia -- namely from from them through nature tourism and safari Luapula, Copperbelt, Central and Southern. The initia- hunting, and the potential for sustainable use of for- tive sought to increase the responsibilities, rights and estry and fisheries resources. The Component empha- share of benefits accrued from natural resource usage sizes capacity-building for local institutions - Commu- in order to improve livelihoods of local communities. nity Resource Boards (CRBs) and Village Action Groups (VAGs) - to protect and manage natural resources, as Local communities living adjacent to the open areas well as building capacity at district and central govern- can cut and collect any forest produce for their con- ment levels (particularly the capacities of NRM-related sumption, but are required by law to obtain permits to institutions) to improve the experience, dialogue and extract and offer for sale forest products. In protected capacities of communities to develop local income op- areas, access to any forest produce is through a permit tions and manage natural resources. from the Forestry Department or JFM committee. The JFM guidelines propose a 60% allocation of the ben- The development objective of the component is to reduce efits accrued for government, whilst local communities poverty through sustained NRM, and the immediate ob- acquire 40%. This rationale of sharing benefits is based jectives are: on the notion that the forest estates lie on government . Enhanced income opportunities and resource man- lands on behalf of the State. Activities in these JFM ar- agement in target areas; eas include the following: . Testing and sharing of innovative approaches and . Development of forest management plans; partnerships in NRM and poverty alleviation; and . Environmental education and public awareness; . Improved capacity of government and civil society . Promotion of use and research of non-timber forest institutions to support sustainable NRM. products;

56 . Promotion of sustainable charcoal production and The project aims to update information, which would beekeeping; and assist the Department to plan and manage the land resources on a sustainable basis. The activities to be . Promotion of use and research of medicinal plants. undertaken include: For international trade, a timber export license after fulfill- . Developing and strengthening the capacity of nating the required conditions, such as evidence of a sustain- ural resource management institutions to collect, able source of raw materials in form of a forest concession compile, process and disseminate reliable and up- area with the required timber processing equipment and to-date information on land use to policymakers qualified labour force, is required. and other land use specialists in an integrated approach; and 4. Forest Resources Management Project (2002 – 2008) . Establishing long-term land-use monitoring sys- The Forest Resource Management Project (FRMP) is tems and supporting purchase of forest inventory implemented in North-Western and Luapula Prov- equipment. inces. The project aims to increase the incomes of the poor who are dependent on forest resources. This 7. Wildlife Sector goal is both short-term through increased productivity and more efficient marketing, and long-term by Community Based Natural Resources Programme maintaining production activities at levels that do The wildlife sector leads in CBNRM activities in Zambia, not deplete the forest resources. The project focuses both in terms of community involvement in the manage- on the following: ment process, and the sharing of benefits between the . Knowledge and capacity-building on appropriate state and the local communities. The Zambia Wildlife Au- harvesting and production technologies, leading to thority (ZAWA) is responsible for the management of 19 improved harvesting, processing and marketing of National Parks and 34 Game Management Areas, which forest products; together, account for about 30% of the country’s land area. . Natural resources planning and development of eco- These are protected areas where communities live side by nomic activities related to extraction and process- side with wildlife. Both consumptive and non-consump- ing of broad range of forest products; and tive use of wildlife occur in GMAs. The local communities living in GMAs and the ZAWA share the revenues. The Na- . Community development in forest areas and sus- tional Parks and Wildlife Act 57 of 1968 established nation- tainable income generation. al parks, leading to the displacement of local people with little or no compensation. 5. Forestry Component of the Rural Water Supply and Sanitation Project (RWSS) Since the 1970s, illegal wildlife harvesting has been a The Ministry of Local Government and Housing is exe- serious concern for Zambia. The National Conservation cuting the Rural Water Supply and Sanitation Project. It Strategy (NCS, 1985) and the National Environmental Ac- is implemented in five districts of the Central Province tion Plan (NEAP, 1994) both recommended increased par- namely Chibombo, Mkushi, Mumbwa, Kapiri-Mposhi ticipation of local communities in wildlife management and Serenje. One component addresses the protection to reverse the negative trends, and emphasized the need of water catchments. The project is community-based to address poaching. The National Parks and Wildlife Act, and adopts a demand responsive approach to the ex- 1991, ushered in provisions of community participation in pressed needs of the communities. wildlife management, that was absent in the 1968 Wildlife Act. Community-based Integrated Resource Development The project supports the following activities in catch- Committees (IRDCs) were then established to facilitate ment areas: community involvement in wildlife management. . Seed collection and production of seedlings; From around 1983, the then Department of National . Establishment of village nurseries to support refor- Parks and Wildlife Services (NPWS) pioneered conserva- estation of degraded areas of the river catchments; tion programmes of co-management of wildlife resourc- . Establishment of woodlots at household level, com- es. The Administrative Management Design (ADMADE) prising of fuel wood and fruit trees; and Luangwa Integrated Resource Development Project (LIRDP) were implemented as conservation programmes. . Community sensitization; and The ADMADE was implemented in 20 GMAs, while LIRDP . Capacity-building. now known as South Luangwa Area Management Unit (SLAMU), was implemented in the Lupande GMA, bor- 6. Integrated Land Use Assessment Project (2005-2010) dering the South Luangwa National Park. In return, local The Integrated Land-Use Assessment Project is be- communities received financial benefits to improve living ing implemented by the Forestry Department in col- standards. The programmes sought to alleviate poverty in laboration with the Agriculture, Wildlife, Fisheries and the local communities, as poverty was the primary driver Survey Departments, and the Central Statistics Office. of wildlife reduction in the Luangwa Valley.

57 The communities received 80% of wildlife revenues gener- Generally, game ranches are distributed throughout the ated in the Lupande GMA during implementation of the country, with the highest number along the line railway LIRDP. These communities decided the use of their wild- line between Chisamba and Mazabuka. life revenues. The remaining 20% was divided as follows: chiefs received 6%; the former Area Development Com- Commercial farmers who switched from livestock and mittees (ADCs) 4%; and as a contingency, 10% awaited the crop production to game ranching established most of the development of effective and accountable higher-level in- initial ranches. Attempts by indigenous Zambians to enter stitutions that could begin to manage the resource. the industry tend to end at the ecological survey stage - most are constrained by the prohibitive costs of fencing Game Ranching and procurement of animals from existing ranches. Game ranching is the keeping of wild animals on private land. This is a relatively new land-use practice in Zambia The primary objective of private game ranches is income compared to other countries in southern Africa, particu- generation. The major economic enterprises on the ranches larly South Africa and Zimbabwe. Its development in Zam- are non-consumptive (i.e. eco-tourism) and consumptive bia has been fragmented. The concept of private wildlife use (trophy hunting, live sales, venison production).48 The estates began in the 1950s and 1960s in the communal ecotourism facilities are under-developed at most ranch- hunting areas and protected game reserves. The practice es. Safari hunting is the most lucrative form of wildlife use, halted due to lack of infrastructure in the wildlife estates but it is constrained by the lack of the most sought-after to support mass production of red meat (venison) and animal species by trophy hunters: African buffalo, lion and high product delivery cost to the urban markets. The es- leopard. The market for live animals and trophies is still tablishment of the first game ranch in 1979 led to a game relatively small. Low-priced illegal bush meat undermines ranching revival in the early 1980s. The industry gained the profitability of venison from the game ranches. momentum in the early 1990s. Game ranching has since grown from 10 ranches in 1989 to 43 operating ranches in The Director-General of ZAWA receives game ranching ap- 2000. The total area under game ranching by 1997 was 134 plications, and then initiates an ecological survey. The sur- 146 ha (i.e. 134 Km2).47 vey assesses the suitability of the proposed ranch in terms of stocking rates, grazing capacities, water availability, The Government of Zambia supports game ranching be- species suitability and other parameters required to keep cause of its biological and socio-economic importance. animals in captivity (keeping game in fences according to The industry is a critical ex-situ conservation strategy that viable species and populations). When the areas meet the may enhance the conservation of threatened and endan- criteria, applicants receive provisional authority to keep gered animal species. Game ranches have the potential to wild animals in captivity, allowing the investor to begin in- take the hunting pressure off the Game Management Ar- frastructure construction such as fencing and water points eas (GMAs) with their depleting wildlife, which have little in areas where there is no natural or perennial water sup- or no opportunity to regenerate. These game areas supply. Investors receive final authority only upon completion plement the game stocks of depleted protected national of infrastructure development. This allows the applicant parks and GMAs. Secondly, game ranching is an important to operate a game ranch upon obtaining certificates of source of revenue, employment, food security and food ownership and permits to keep wild animals in captivity diversity. A well-developed game ranching industry can for the animals under their custody. in fact contribute to alleviating poverty, especially among resource-poor rural communities. Game conservancies involving local communities are new to Zambia. Recently, local communities in Mazabuka and To facilitate the development of game–farming, the gov- Bangweulu area began community-based game ranching ernment put in place an ad hoc arrangement through a with the support of the private sector and non-govern- statutory instrument, Statutory Instrument 66 of 1993, mental organizations (NGOs). that is still in force. The Government then provided the initial stock of game - animals either captured from state The Zambia Wildlife Authority has since developed guide- Protected Areas (PAs) or resident fauna on the fenced prop- lines for conducting ecological assessments for the estab- erties. In both cases, the Government offered the animals lishment and management of game ranching in Zambia. at 50% the ruling animal fees for the resident hunting Private game ranchers receive certificates of ownership for fraternity. According to Siamudaala (1997), 1730 animals the wild animals on their ranches. The Authority releases were captured from Protected Areas - Kafue, Lochinvar updates to guidelines and regulations on keeping animals and Blue Lagoon National Parks and the Chikuni sector on game farms to which the certificates are subject. There of the Bangweulu Area between 1990 and 1994. By 1997, are no mechanisms to share benefits arising from game there were about 3762 animals of various species resident farms with local communities. on game ranches. 8. Fisheries-Based CBNRM Programmes Even though the Fisheries Act does not provide for com- 47 1. Siamudaala, M., Nambota A.M et. al (2003). An Overview on the development munity-based natural resources management, the Fisher- 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 48 Zieger, U. and Cauldwell, A. (1998). Wildelife ecology and management. Practical Tourism, Chilanga, Zambia. aspects for Zambia game ranches. Business print center, Pretoria.

58 ies Department has implemented, out of eight fisheries ment Capacity component helped to develop a con- areas, four community-based fisheries management areas sistent and enforceable body of environmental leg- at Mweru-Luapula, Bangweulu, Kariba and Zambezi. The islation. Under the CEMP, communities developed programme on Lake Kariba, the Zambia/Zimbabwe SADC Community Environmental Action Plans (CEAPs). Fisheries Project, focuses on research and joint manage- This was piloted in nine districts, then applied in an ment of the fish resources in the lake. Of the four areas, additional seven districts; the Lake Kariba model of fisheries co-management, initi- . Environmental Education and Public Awareness: ated in the early 1990s, is the best developed. It involved The component raised public awareness on envi- the relocation of people into bigger village units to fa- ronmental matters through media, modification of cilitate easy provision of services such as schools, clin- selected school curricula and support for commu- ics, clean drinking water and organization structure for nity initiatives in environmental education; fisheries management. The fishing area was zoned, with the Area Chief acting as head of all the zones. A Village . Pilot Environmental Fund: There were two financing Headman heads each zone. Staff of the Fisheries Depart- windows: (i) a community- based initiatives fund to ment provides secretarial services to the Village Fisheries establish an incentive framework for community Management Committees. District Authorities pay the involvement in projects identified under CEMP; and committees for collecting fish levies on their behalf and in (ii) the Pilot Environmental Fund (PEF) that funded addition, they collect some revenue from the conveyance studies to develop strategies to respond to environ- license that the committees administer on behalf of the mental emergencies and to undertake environmen- Fisheries Department. tal impact assessments; and . Environmental Information Management: The com- The Village Fisheries Management Committees are made ponent provided a forum to facilitate the exchange up of the fishermen, traditional leaders and other key of information between agencies and provided stakeholders such as representatives of local traders, fish information to public and private sector decision traders and fish transporter. makers. Past Programmes with ABS elements At the national level, a National Environmental Steering Committee (NESC), made up of line ministries, commu- 1. Environmental Support Programme nity representatives and the private sector, managed The Environmental Support Programme (ESP) was an the programme. At the local level, District Environmen- initiative implemented by the Ministry of Environment tal Committees in pilot districts were part of the exist- and Natural Resources (MENR) between 1998 and 2003. ing District Development Coordinating Committees. It was prepared as a means of managing and mitigat- ing the key environmental problems and related insti- 2. Environment and Natural Resources Management Pro- tutional and legislative constraints identified by the gramme National Environmental Action Plan of 1994. The pro- The Ministry of Environment and Natural Resources, gramme involved various stakeholders in programme from 1998 to 2001, implemented an Environment and formulation in order to build a sense of ownership, and Natural Resources Management Program (ENRM). The to facilitate easy implementation. The programme also program sought to strengthen Zambia’s national capac- sought to support the government’s strategy of poverty ity to manage the environment and natural resources reduction within the framework of economic growth, at community level by supporting the implementation and the protection of the environment and natural re- of the ESP. There were two pilot programmes focused sources at national and local levels. At the national lev- on enhancing environmental management at district el, the programme sought to strengthen institutional and community level. The specific program objectives and regulatory frameworks, while at community level were to: it sought to strengthen local institutions and empower communities to achieve sustainable development. . Pilot a Community Environmental Management Programme to develop mechanisms for involving The major activities included: communities in environmental planning, decision- making and implementation; . Institutional Strengthening and Legal Framework: The component sought to implement an effective . Pilot community-based sustainable natural re- institutional and regulatory framework for envi- sources management programmes for improving ronmental protection and natural resources man- rural livelihoods; and agement. It built capacity in MENR and the Envi- . Build capacities among various stakeholders and fa- ronmental Council of Zambia (ECZ). A community cilitate the implementation of CBNRM programmes environmental management program (CEMP), built through training, information dissemination and into the component, facilitated demand- driven de- networking, community-oriented policy and insti- velopment in support of environmental protection tutional support, coordination support and through and better use of natural resources in rural and ur- support to strategic national programmes. ban communities. A Legal Framework and Enforce-

59 The ENRM program had the following major activities: 4. Zambia Forestry Action Plan The Zambia Forestry Action Plan (ZFAP), initiated in . Preparation of participatory integrated resource 1987, provided a national framework for sustainable management plans; forest planning and management to enhance the contribution of the forest sector to Zambia’s development, . Preparation of Community Environmental Action and especially to address the concerns of communities Plans (CEAPs); and other forest resources stakeholders. The ZFAP proc- . Training of local community representatives and ess enabled the MENR to review the forest policy and district staff; the Forest Act. The ZFAP objectives were: . Preparation of materials for dissemination; 1. To develop capacities at national, provincial, dis- . Preparation of a resource manual on community trict and lower levels to support forest sector policy, structure; planning, education, training, research and extension; . Conducting a baseline study on community understanding of legal roles, rights and responsibilities in 2. To improve the welfare of both rural and urban com- CBNRM; munities through equitable gender participation in sustainable management and use of resources; . Preparation of the National Biodiversity Strategy and Action Plan (NBSAP); and 3. To provide on a sustainable basis, society’s requirements for forest products including sawn timber, . Support to enhanced community participation in fuel wood, poles, folder and non wood and minor forest management. forest products; 4. To increase the contribution of the forest sector to 3. Natural Resources Management the national economy through the generation of The Natural Resources Management project was im- employment and export of forest products; plemented between 2002 and 2004 in Mumbwa district. The project covered Mumbwa and later Namwala 5. To conserve forest ecosystems and biological diver- GMA and the Kaindu open area. The project aimed to sity through sustainable management, to benefit increase the capacity of rural communities to manage both present and future generations; their natural resources (land, water, forests, wildlife and 6. To protect major watersheds; and fish) productively. There was an emphasis on assisting local communities to identify, formulate and imple- 7. To support sustainable agricultural production and ment activities with the assistance of local supporting enhance food security through improved land hus- agents and through linkages between local communi- bandry, including strategic and local level land use ties and government agencies. planning, increased soil fertility and reduced land degradation. The Natural Resources Management project included the following activities: The ZFAP process involved the following components: . 1. Creation of awareness on ecologically and economi- Indigenous Forest Management and Biodiversity cally sound management practices; Development; . 2. Collection of social and environmental baseline Forestry Industries and Non Wood Products; data; . Farm Forestry/ Agro forestry Tree and Forest Produc- 3. Extension and dissemination of information on tion; natural resources legislation; . Wood-fuel Energy Development; and 4. Training in sustainable management practices for . Forestry Education and Training Development. agriculture, wildlife, forestry and fishing; 5. Mapping of land use potential and elaboration of The Forestry Policy, (1998), was the key outcome of the land suitability maps; ZFAP process. Implemented almost parallel to the ZFAP process was the Provincial Action Plan (PFAP), which in- 6. Preparation of simple land use action plans; volved local communities and other stakeholders in for- 7. Improving food security; estry planning. The Plan was implemented in Copperbelt, Luapula and Central provinces of Zambia, and later in the 8. Enhancing income generation activities among lo- Southern province. cal communities; and 9. Strengthening of a sustainable institutional frame- 5. Forestry Support Programme (2003-2004) work and capacity to support community natural The Forestry Support Programme (FSP) sought to re- resources management. structure the Forestry Department into an autonomous, self-financing organization with a legal and in-

60 stitutional mandate for sustainable management and al Focal Point, a full time Project Officer, and a National use of forest resources in partnership with local com- Steering Committee (NSC). munities and the private sector. The programme: The Programme sought to: generate knowledge and . Reviewed the current forest policy, legislation and information for effective regional collaboration in man- administrative framework pertaining to the managing invasive species and applying ABS principles; cre- agement and conservation of forest resources in ate a policy and legal environment to promote effective the country; regional collaboration in managing invasives and ap- . Contributed to the creation of an enabling environ- plying ABS principles; establish sustainable financing ment for sound economic development of the for- mechanisms for managing invasive and applying ABS estry sector; and principles; and advocate a common regional approach . Carried out costing of the new institution, Zambia to the conservation and sustainable use of biological Forestry Commission (ZAFCOM) and analysed the resources. implications for transforming the current Forestry 4.4.5 Legislation and Additional Policies Department into a Forestry Commission.

6. Community Based Natural Resources Management As Zambia has many national and international legal (CBNRM) Programme (1999 – 2004) frameworks addressing various elements of ABS, criteria A Community Based Natural Resources Management for the selection of the legal frameworks for analysis was (CBNRM) Programme was implemented under the necessary. The criteria included: Cooperative League of the United States (CLUSA) in . Legislation and policies with a focus on specific natu- Mumbwa, Katete and Petauke districts. The focus of ral resources / resource sectors; the programme was on raising farmers’ incomes and . Legislation and policies with elements of ABS; and alleviating poverty, through improved production and marketing of agricultural and forest products, and . Legislation and policies covering key natural resources small enterprises development. The programme devel- including wildlife, forestry, agriculture and fisheries. oped pilot forest management sites to demonstrate its approach to community-based forest management. The legislation analysis was undertaken using the Bonn The programme focussed on the following activities: Guidelines, relevant CBD Articles and decisions on ABS. . Strengthening community groups and group-based Each of the selected pieces of legislation, policies, strate- enterprises in selected target areas, through acqui- gies and programmes was assessed by identifying com- sition of skills and knowledge; plementarities, gaps and strengths in ABS aspects of the legislation against the specifics of the guidelines. They . Improving living standards and the effective man- were also assessed for their contribution and effectiveness agement and conservation of Zambia’s forests and in promoting or realizing the objectives of ABS arrange- agricultural areas; and ments, namely poverty alleviation, development, technol- . Identifying, initiating and managing economic ac- ogy transfer, conservation, sustainable use of biological tivities of forest and agricultural lands in a sustain- resources, protection of traditional knowledge and equi- able way. table sharing of benefits.

7. Southern Africa Biodiversity Support Programme (SABSP) There are 32 pieces of legislation relevant to environment The Southern Africa Biodiversity Support Programme and natural resources management in Zambia. The Min- (SABSP) is a regional programme involving 10 South- istry of Tourism, Environment and Natural Resources is ern Africa Development Community (SADC) countries, responsible for providing policy guidance on matters of namely Zambia, Zimbabwe, Botswana, Malawi, South tourism, environment and natural resources development. Africa, Lesotho, Swaziland, Namibia, Angola and Mozam- The country has over the years developed a number of sec- bique. Launched in September 2000, the 5-year SABSP toral policies in the wildlife, forestry, water and environ- sought to conserve and sustainably use the region’s ment sectors, and some strategies to address the national biodiversity. The SABSP was subsequently reviewed, and environmental challenges and to meet international ob- now focuses on Invasive Alien Species (IAS) and Access ligations. Some of the notable strategies are; Zambia For- and Benefit Sharing (ABS). The programme was execut- estry Action Plan (ZFAP), the Provincial Forestry Action Plan ed by SADC and funded by the United Nations Develop- (PFAP), the National Biodiversity Strategy and Action Plan ment Programme (UNDP) /Global Environment Facility (NBSAP), the National Environmental Action Plan (NEAP), (GEF), while The International Union for Nature Conser- the National Conservation Strategy (NCS), and the Nation- vation Regional Office for Southern Africa (IUCN – ROSA) al Action Plan on Desertification (NAP). served as technical adviser to the project. In Zambia, the Ministry of Tourism, Environment and Natural Resources To provide for a mechanism to implement the Convention (MTENR) through the Environment & Natural Resources on Biological Diversity (CBD) to which Zambia became a Management Department (ENRMD) coordinated the party on 28 May 1993, the National Biodiversity Strategy implementation of SABSP activities through the Nation- and Action Plan was prepared in 1999. The NBSAP came

61 up with six goal areas, namely: ed in various parts of the country all seek to reduce environmental degradation and to improve the livelihoods of . Ensure the conservation of a full range of Zambia’s the local communities. natural ecosystems through a network of protected areas of viable livestock; The origins of CBNRM can be traced to the Natural Re- sources Act, Chapter 315, of the Laws of Zambia of 1962, en- . Conservation of the genetic diversity of Zambia’s crops acted to establish a Natural Resources Board and Natural and livestock; Resources Tribunal, and to provide for the preparation and . Improve the legal and institutional framework and enforcement of conservation plans in designated areas. human resources to implement strategies for conser- The Act, 1970 - provided for the establishment of District vation, sustainable use and equitable sharing of ben- and Provincial Natural Resources Committees, drawn from efits from biodiversity; both the public and private sectors. The Natural Resources Act, 1970, replaced the Natural Resources Act, 1962. The . Sustainable use and management of biological re- Natural Resources Tribunal provided a forum for aggrieved sources; persons to seek redress. The District and Provincial Natural Resources Committees provided general supervision over . Development of an appropriate legal and institutional the natural resources of the district and province, coordi- framework and the needed human resources to mini- nated and reviewed plans for their conservation, wise use mize the risks of the use of GMOs; and and improvement. The committees were established un- . Ensuring the equitable sharing of benefits from the der the authority of the Minister, and could be dissolved by use of Zambia’s biological resources. the Minister. The enactment of the Environmental Protec- tion and Pollution Control Act (EPPCA) in 1990 led to the Sector Specific Legislation repeal of most parts of the Natural Resources Act except for Parts IV, V and VI that relate to conservation and improvement of the natural resources, control of bush fires The legislation that has guided the implementation of and conservation plans. The demise of the Department of the projects, programmes and activities with ABS ele- Natural Resources in 1997 resulted in the Natural Resourc- ments are: es Act being orphaned as it no longer had an institutional structure to implement its provisions. Lands Act Cap 184 of 1995 The Environmental Protection and Pollution Control Act The Lands Act, Chapter 184 of the Laws of Zambia of 1995 (EPPCA) No. 12 of 1990 established the Environmental governs land management in Zambia. The Act states that Council of Zambia (ECZ). The EPPCA is the principal envi- all land in Zambia is vested in the President on behalf of ronmental management legislation in Zambia. The Envi- the people of Zambian people. Land is in two categories, ronmental Council of Zambia advises Government on en- namely state and customary land. On state land, the Com- vironmental protection and pollution control and ensures missioner of Lands is responsible for the alienation of land that formulated environmental regulations are adhered to would-be developers through a leasehold arrangement to. In 1997, Environmental Impact Assessment regulations to a maximum period of 99 years while Traditional Author- were established. Most projects now undergo an EIA be- ities (Chiefs) are responsible for land allocation on custom- fore implementation. ary land. Granting of title on customary land is only possible with the prior consent of the Chief and the local authority Wildlife Legislation in the area where the piece of land is been sought. The National Parks and Wildlife Policy, 1998, and the Zam- The state plays a major role in biodiversity conservation bia Wildlife Act Cap 312, 1998, provide for the conserva- in Zambia given that the majority of forests, wildlife re- tion, protection and management of wildlife resources in serves, wetlands, botanical and geological gardens and Zambia. From the lessons of the ADMADE and LIRDP pro- gene collection are under state control. The property rights grammes, the Zambia Wildlife Act established the Zam- regime determines the way in which benefits accruing bia Wildlife Authority (ZAWA) after the transformation of from biodiversity use are distributed. Historically, commu- NPWS, and made specific provisions to facilitate the par- nal ownership of biological and other resources has been ticipation of local communities in wildlife management. replaced by state and private ownership. Most of the exist- The Act provides for the establishment of Community ing protected wildlife and forest reserves were established Resource Boards (CRBs) along geographic boundaries con- during the colonial era, upon what was customary land. tiguous to chiefdom in any Game Management Area or The premise was that the Government could share the an open area. The CRBs are democratic local institutions, benefits more appropriately. However, over the years the made up of seven to ten representatives elected by the lo- communities which live adjacent to protected areas suffer cal community; one representative of the local authority the negative consequences of environmental degradation in the area and a representative of a Chief in whose area a and uncompensated biodiversity erosion. The marginali- CRB has been established. The Chief in whose area a CRB zation of local communities has led to over-exploitation has been formed is a Patron of that particular board. Ap- of resources by these communities. The community-based plications to establish a CRB are made by the traditional natural resources management programmes implement- leadership to ZAWA, which then facilitates the holding of

62 elections. CRBs provide the link between ZAWA and the lo- policy on fisheries is currently absent as fisheries are con- cal communities. sidered to be a sub-sector of agriculture, and as such the sector is covered under the national agriculture policy. The The Boards seek to improve community involvement in national agriculture policy provides for the provision of law enforcement, wildlife monitoring, quota setting and a legal framework for community participation in shar- the implementation of community projects. The Zambia ing the responsibility for better management of aquatic Wildlife Act, 1998, mandates the CRBs to: resources and the building of capacity among stakeholders in the fisheries subsector. Although the department of . Negotiate, in conjunction with ZAWA, co-management fisheries is engaged in CBNRM activities, there is no pro- agreements with hunting outfitters and photographic vision in the Fisheries Act for co-management of the fish tour operators; resources with local communities. Efforts are, however, . Manage the wildlife under its jurisdiction, within quo- underway to review the Act in order to bring it in line with tas specified by ZAWA; current national and international approaches to natural . Appoint village scouts to exercise and perform the du- resources management. There is also a Draft Fisheries Bill ties of a wildlife police officer, under the supervision of from 1998 which is awaiting parliamentary enactment. a wildlife police officer in the area falling under ZAWA’s The Bill provides for community involvement in fisheries jurisdiction; management. . In consultation with ZAWA, develop and implement Forest Legislation management plans that reconcile the various uses of land in areas falling under ZAWA’s jurisdiction; and The Forest Act, 1973, and the Forest Policy, 1998, guide the . Perform such other functions as ZAWA may direct or forestry sector. The 1973 Act removed provisions from delegate to it. the 1941 Forest Act that had empowered local and rural authorities to issue orders for the management of the In return for their participation in the management of forests, and their exploitation and for them to realize a the wildlife resource, communities receive a share of direct financial benefit. The shift is a factor in increased revenue arising from consumptive utilization of wildlife encroachment and deforestation. in their respective areas. The current agreed ratios are listed in Box 5 below. The National Environmental Action Plan, 1994, identified deforestation as one of the five main areas of environmental concern to Zambia. Subsequently the Zambian Govern- Box 5 Communities’ Revenue Sharing Ratios in Zam- ment prepared the Zambia Forestry Action Plan (ZFAP) of bia in Wildlife Management 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 Hunting Fees Concession Fees need for the involvement of local communities in forest management and for the communities to share benefits Chiefs (Patrons) 5% Chiefs (Patrons) 5% arising from their participation in forest management through a programme known as Joint Forest Manage- Local communities Local communities ment (JFM). In addition to promoting JFM the 1999 Forest (CRBs) 45% (CRBs) 15% Act provides for the establishment of the Zambia Forestry Commission (ZAFCOM) as an institutional structure to replace the Forestry Department. ZAWA 50% ZAWA 80%

4.4.6 Stakeholders and Institutional Capacity

Local communities should use these public funds for local This section looks at the existing and some proposed legal community-agreed, socio-economic development projects and administrative arrangements in the wildlife, fisheries, such as schools, health centres and feeder roads. Guide- forests and agricultural sectors, and assesses the institu- lines on the use of community funds have since been pre- tions’ capacity to administer and implement the Bonn pared and agreed with the communities. Guidelines. Gaps in meeting the Bonn Guidelines in the legal and administrative arrangements for ABS implemen- Safari hunting outfitters, awarded hunting concessions in tation are identified. Game Management Areas, have made specific pledges to develop areas where they operate. The pledges are in the form of Institutions that manage access and benefit sharing proc- social and economic infrastructure and wildlife protection. esses should be competent, i.e have the full legal mandate, knowledge, skills and expertise in the application of the Fisheries Legislation 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 The Fisheries Act Cap 314, 1974, provides for the conser- accordance with the Bonn Guidelines. vation and protection of aquatic biodiversity. A specific

63 Zambia’s legal and administrative machinery for the im- 1. General provisions: meeting the objectives of the plementation of the Bonn Guidelines is embedded within guidelines; the legal, policy and institutional framework for the im- 2. Roles and responsibilities in access and benefit-sharing: plementation of the country’s overall CBD obligations as national focal point, competent national authority; articulated in the National Biodiversity Strategy and Ac- tion Plan. This is largely according to legal and statutory 3. Participation of stakeholders; obligations and mandates accorded to relevant biodiver- 4. Steps in the access and benefit sharing: overall strat- sity management State Departments and Institutions egy, identification of steps, prior informed consent; within the Ministry of Tourism, Environment and Natural Resources and in each natural resource sector. 5. Mutually agreed terms: basic requirements for mutually agreed terms, indicative list of mutually agreed Stakeholders terms, benefit sharing, type of benefits, timing of benefits, distribution of benefits, mechanisms for benefit The Box below provides a list of various stakeholders that sharing; and are involved in ABS arrangements and administration in 6. Other Provisions: incentives, national monitoring and Zambia. reporting, means for verification, settlement of disputes, remedies. Institutions The assessment looked at the key management institu- The criteria for assessing the institutions’ capacity to ad- tions that are responsible for genetic resources and evalu- minister and implement the Bonn Guidelines are the fol- ated their competence, capacity and effectiveness in im- lowing broad areas of the Bonn Guidelines on ABS: plementing each one of these criteria.

Box 6 ABS Stakeholders in Zambia

Institution Roles

Government Institutions Ministry of Tourism, Environment and Natural Policy, Co-ordination Resources (MTENR) Community Based Natural Resources Management Forestry Department (FD) Programmes, Joint Forest Management and Research Co-management programme on Community Based Department of Fisheries (DoF) Natural Resource Management, research Department of Water Affairs (DoWA) Policy, water rights, water resources management Ministry of Science, Technology and Vocational Policy, co-ordination Training (MSTVT) Ministry of Justice (MoJ) Policy and legislation Ministry of Local Government and Housing Decentralization, coordination, policy (MoLG&H) 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 Conservation of heritage sites (NHCC) Zambia Agricultural Research Institute (ZARI) Farming systems, plant genetic resources, research, IPRs Semi-Autonomous Bodies Enforcement of Environmental Impact Assessment Environmental Council of Zambia (ECZ) Guidelines

64 Community Based Natural Resource Management, Zambia Wildlife Authority (ZAWA) research Policy development for Science & Technology, indig- National Science & Technological Council (NSTC) enous technical development programmes National Institute for Scientific and Industrial Research and development, IPRs Research (NISIR) Academic Institutions Training of trainers, research, dissemination, infor- University of Zambia (UNZA) 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) Community Based Organizations (CBOs) Community Based Natural Resources Manage- Community Based Natural Resources Management, ment and Sustainable Agriculture (CONASA) Joint Forest Management, co-management Community Based Natural Resources Manage- JFM, CBNRM, co-management ment (CBNRM) Forum Community Based Natural Resources Management, Community Resource Boards (CRBs) Joint Forest Management, co-management Local and Indigenous People Traditional Leaders Allocation of land, settlement of disputes Local NGOs Wildlife Environmental Conservation Society of CBNRM, training of trainers, advocacy Zambia (WECSZ) Zambia National Farmers Union (ZNFU) Plant breeders rights, sui generis systems Environmental Conservation Association of Zam- Advocacy, CBNRM, training of trainers bia (ECAZ) International NGOs World-Wide Fund for Nature (WWF) CBNRM, training of trainers, advocacy International Union for Nature Conservation CBNRM, TBNRM, training of trainers, advocacy (IUCN) African Wildlife Foundation (AWF) CBNRM, TBNRM, training of trainers, advocacy MS Zambia CBNRM, training of trainers, advocacy Private Sector Muzama Trust CBNRM, certification of forest products Kaloko Trust CBNRM Kasanka Trust CBNRM Associations Traditional Healers Practitioners Association of Research on use of traditional medicines Zambia

65 Ministry of Tourism, Environment and Natural Resources Wildlife Sector – Zambia Wildlife Authority

The Ministry of Tourism, Environment and Natural Re- The Zambia Wildlife Authority (ZAWA) is the principal sources (MTENR), which includes the Forest Department, institution for wildlife management in the country. It is Zambia Wildlife Authority (ZAWA), National Heritage a statutory body as established by an Act of Parliament, Conservation Commission (NHCC) and the Environmental No.12, 1998. ZAWA’s mission is to contribute to the pres- Council of Zambia, is a key Government institution in en- ervation of Zambia’s heritage, ecosystem and biodiversity vironmental management in Zambia. Other Government for present and future generations through conservation institutions include: the Ministry of Lands, Ministry of Ag- of the country’s wildlife. The Zambia Wildlife Act provides riculture and Cooperatives (which includes the Fisheries for the current management of wildlife. The Act outlines Department), Ministry of Local Government and Housing, ZAWA’s responsibilities concerning protected areas man- Ministry of Energy and Water Development, Ministry of agement and regulation. The Act provides for protected Mines and Mineral Development and Ministry of Finance species, licensing, entry in wildlife protected areas, man- and National Planning. agement planning requirements for national parks and game management areas, and enforcement of wildlife- The MTENR is responsible for the formulation and im- related activities for compliance with international agree- plementation of policies related to the protection of the ments, including the CBD. environment, pollution control, conservation and rational exploitation of natural resources on a sustainable basis, ZAWA as such serves as the central government author- for the benefit of present and future generations. It is also ity for tendering concessions, setting hunting quotas, responsible for all aspects related to the role of Govern- issuing hunting licences and monitoring and enforcing ment in tourism and tourism development. The Ministry is hunting and wildlife management in the GMAs. ZAWA’s the government focal point on matters of the Convention functions in relation to ABS are the establishment, con- on Biological Diversity, and is therefore a key institution trol and management of Game Management Areas in the management of the genetic resources of the coun- (GMAs) as well as the sustainable use of wildlife and the try. MTENR has a department of Environment and Natural effective management of the wildlife habitat and GMAs, Resources that co-ordinates the implementation of ABS in so as to enhance the benefits of the GMAs both to local communities and to the wildlife estate. GMAs are man- the country, and is the CBD National Focal Point and Na- aged in partnership with local communities through tional Competent Authority. The Department spearheads Community Resource Boards, which are registered lo- all initiatives for biodiversity conservation by provid- cal institutions to manage wildlife in GMAs. ZAWA has ing policy guidance and general supervision. In addition a GMA directorate that manages wildlife in partnership MTENR has a Planning and Information Department that with local communities. It has three other directorates spearheads policy formulation, and ensures that Cabinet namely, Conservation, Research and Commercial Services adopts the policies for Tourism, Environment and Natural that cater for implementation of its mandate as the stat- Resources. The Department is also mandated to develop utory body responsible for wildlife management in the information systems, disseminate information and moni- country. Therefore, in terms of structures and mandates, tor the implementation of programmes in the Ministry. ZAWA is set up to spearhead the implementation of ABS Though this Department is responsible for policy formula- in accordance with the Bonn Guidelines. tion, it has no legal expertise and may therefore, without outsourcing, not comprehensively handle aspects of ABS 1. General Provisions: Meeting the Objectives of the

and community rights over resources. Guidelines Through its Directorates, ZAWA has the institutional The MTENR has the legal and institutional mandate to and administrative machinery to implement ABS meet the objectives of theBonn Guidelines and serves as measures and meet most of the objectives of the Bonn the National Focal Point and indeed the Competent Na- Guidelines. Through the CRBs and community based tional Authority for ABS in Zambia, through its work of wildlife management programmes, ZAWA contrib- co-ordinating the wildlife, forest and fisheries sectors. The utes effectively to the conservation and sustainable major constraint is the lack of an operational Clearing- use of wildlife resources. It provides capacity-building House Mechanism for effective sharing of information to communities in CRBs through its GMA Directorate to all stakeholders on various aspects of ABS. While the and other NGOs. By promoting and effecting sharing MTENR is the de facto Competent National Authority, it of wildlife generated revenues with communities, the has limited capacity as a Ministry, and may call upon oth- private sector and government, ZAWA is contributing er Ministries such as the Ministry of Justice to effect some to poverty alleviation and is indeed supportive of the of the requirements and provisions. realization of food security in rural areas, and provision of social services such as health care through commu- Specific sectoral departments and institutions under the nity projects funded by wildlife dividends to communi- MTENR carry out the mandates of the ministry in their dai- ties. However, there are many obstacles to meeting ad- ly activities – for example, the wildlife and forestry sectors equately all the objectives of the Guidelines. The objec- through the Zambia Wildlife Authority and the Forestry tive - to promote the adequate and effective transfer Department respectively. The capacities of these institu- of appropriate technology to developing countries and tions are discussed in detail below. Zambia in particular, is not adequately met. Currently,

66 the transfer of technology is largely limited to promo- spearheading the promotion of this goal through its tion of commercial interests by the users and less on CBNRM programme in GMAs. conservation and sustainable use. Additionally, the lack of adequate funding limits taxonomic research. Identification of Steps ZAWA has established steps in the process of obtain- Contributions to poverty alleviation, food security, ing access to wildlife resources and products through health and cultural integrity are often lacking. Under various access systems, such as local national hunting the system of Community Resource Boards, discussed license, district hunting license, and special license. earlier, communities receive a 50% share of hunting li- The process and most of the steps for obtaining access cense revenues. There are questions as to whether the to wildlife resources are clear and consistently applied. sharing of revenues is fair - both between ZAWA and However, the current steps do not always emphasize the CRBs - as well as between CRBs and VAGs, and the activities in research concerning wildlife management community. and development.

2. Roles and Responsibilities in Access and Benefit-Shar- Prior Informed Consent ing: National Focal Point, Competent National Authority Prior Informed Consent is addressed by ZAWA. It pub- Various sesctor institutions share the responsibility lishes annually quotas for the following year to pro- for ABS in Zambia. The Zambia Wildlife Authority has vide general consent on the annual quota for various wildlife resources related roles and responsibilities as utilization types. The notice includes timing and dead- provided in the Zambia Wildlife Act, 1998. ZAWA can lines for various types of wildlife use, and specifies the therefore be considered as a National Focal Point and uses for which consent is granted and the permitted Competent National Authority on matters of ABS re- uses in accordance with mutually agreed terms. In the lated to wildlife management. ZAWA has continuously case of the wildlife utilization licenses issued, the type reviewed its policy, administrative and legal frame- and numbers of wildlife species for which access is work to ensure that ABS arrangements comply with granted, period and duration of access granted and the the Bonn Guidelines. geographical area are specified. In the case of hunting concessions or permits, information is specified on the ZAWA’s community empowerment programme, types of benefits - including pledges to be obtained by through the sharing of benefits from wildlife use with local communities. The procedures for obtaining ac- the communities through the CRBs, is a major attempt cess permits or licenses are transparent and open to in Zambia towards ensuring fair and equitable shar- all interested parties. ing of benefits. As the providers of wildlife resource products, ZAWA supplies these resources as the sole There are efforts to involve all relevant stakeholders - legal national entity. All restrictions on wildlife access however, there is limited actual and genuine participa- enforced by ZAWA are as provided for in the Zambia tion and consultation in the award of hunting conces- Wildlife Act, and hence there is no room for arbitrary sions. Secondly, there are no legal rights or traditional restrictions on the wildlife resources. national access policies established for indigenous and local communities, though communities are consulted 3. Participation of Stakeholders during the concession awarding processes. There is no ZAWA through its CBNRM programme has developed guidance on traditional knowledge associated with systems of engagement with various stakeholders in- wildlife resources. Some procedures for obtaining prior cluding the private sector, CBOs, NGOs and communi- informed consent in wildlife use are not adequately ties. As such, a wide range of stakeholders are consult- addressed by ZAWA. These include the identification ed and their views taken into account when determin- of where the research and development will take place ing access, negotiating and implementing various ABS and information on how any research and develop- arrangements and Mutually Agreed Terms and Agree- ment activities will be carried out. Research contribu- ments in Benefit Sharing. All stakeholders do partici- tion by resource users is generally not taken into ac- pate in the development of various national strategies count in the prior informed consent procedures. and programmes through various forums such as in the on-going process of developing the Wildlife Based Even though the PIC system in ZAWA is not as elabo- CBNRM Policy. rate as outlined by the Bonn Guidelines, there is a system that can be improved by incorporating all the basic 4. Steps in the ABS: Overall Strategy, Identification of principles and elements of the prior informed consent. Steps and Prior Informed Consent 5. Mutually Agreed Terms Overall Strategy Zambia does not have an overall access and benefit Basic Requirements for Mutually Agreed Terms sharing strategy; however, one of the goals of the Na- Mutually Agreed Terms are enshrined in the wildlife tional Biodiversity Strategy and Action Plan is equita- legislation, administrative and policy measures. For ble sharing of benefits accruing from the use of the ZAWA these are contained in the various permits and country’s biological resources. ZAWA is in this regard licenses. Therefore, there is limited negotiation on

67 what should be mutually agreed, as the basic terms The distribution of benefits is through CBNRM pro- are prepared by ZAWA. The indicative list of the mutu- grammes in ZAWA, is largely limited to communities ally agreed terms is well represented on the various li- and leaves out other stakeholders contributing to con- censes and permits. However, terms on customary use servation and sustainable use of wildlife. Benefits are of genetic resources related knowledge, innovations distributed, based on predetermined percentages that and practices of indigenous and local communities are largely arbitrary and not based on various benefici- are largely missing from the MATs on these regulatory ary contributions to the management of wildlife. Cur- documents. rently the distribution of benefits from wildlife use is limited to ZAWA and the local communities. The dis- Indicative List of Mutually Agreed Terms trict local authorities, NGOs, academic and research ZAWA has addressed most of the items on the indica- institutions are excluded, even though they too con- tive list of Mutually Agreed Terms in the Bonn Guide- tribute to sustainable use of wildlife biodiversity. The lines. For example, under the CBNRM programme, utilization ratios for the community funds are also benefit-sharing is addressed. The conditions, obliga- predetermined in the guidelines for use of community tions of various stakeholders, procedures and mecha- wildlife revenues as follows: wildlife protection (45%), nisms of benefits are all well articulated in the CRBs socio-economic development projects (35%) and CRB and ZAWA agreements in line with the Zambia Wild- administration (20%). life Act. However, there are weaknesses on issues of capacity building in conservation and sustainable use Benefit-sharing mechanisms are elaborate, but the and on ascertaining whether the knowledge, any in- monetary benefits cannot be altered by the parties. novations and practices of indigenous people are be- However, they can agree on the non-monetary ben- ing respected in the agreements and their enforce- efits. In the case of Concession Agreements, they are ment. This is mainly because the formal agreements part of the prior agreements within the signed con- do not as yet incorporate indigenous technologies and cessions at the start of the commercial production practices in legal wildlife utilization types. agreement. The sharing mechanism varies, depending on whether it is revenue from hunting licenses or con- Benefit-Sharing cession fees. The current mechanisms do not include Benefit-sharing in ZAWA covers conditions, obliga- full cooperation in scientific research, technology de- tions, procedures, distribution and types of benefits. velopment and other benefits derived from commer- However, it is usually not included in the Mutually cial production using the wildlife resources. Agreed Terms in the agreements by users, but is rather included in a separate process in agreements with 6. Other Provisions: Incentives, National Monitoring and the communities with whom the revenue is shared. Reporting, Means for Verification, Settlement of Dis- In other words, while the Zambia Wildlife Act, 1998 putes, Remedies does not indicate that the private sector utilizing resources in communal areas should assist communities through provision of social services, these Incentives requirements are included in the bidding processes The CBNRM programme in GMAs is designed as an infor concessions to operate consumptive and non- centive package for local communities to support con- consumptive safaris. servation and sustainable use of wildlife resources in the country. However, the extent to which the benefit The ZAWA arrangement in wildlife utilization GMAs is sharing schemes provides incentives that foster effi- mainly monetary shares of wildlife-generated revenue cient allocation of benefits is questionable. The use of from license fees and a few joint ventures. Non-mon- markets and valuation methods to allocate benefits etary benefits are in-kind contributions according to as incentives for conservation needs further appraisal. pledges made by the users in the case of Safari hunting. Obstacles to conservation and sustainable use of wild- A number of tour operators collaborate and cooperate life include unrealistic fines for offenders. in, and contribute to education and training as in the case of Kapani Lodge and Yosef Primary School in Mfu- Accountability in Implementing Access and Benefit we. Non-monetary benefits have also been in the form Sharing Measures of institutional capacity building through support to To promote accountability in ABS, ZAWA and the CRBs anti-poaching activities by tour operators as is the case use reporting systems for shared revenues where in- with Conservation Lower Zambezi in Lower Zambezi formation disclosure is possible. There are guidelines national Park. Other non-monetary benefits in wildlife on the use of community funds accrued from wildlife include general contributions of the sector to the local management for CRBs. These guidelines specify the economies especially through provision of employment use of funds including infrastructure development, to local people and taxes to Local Authorities. water supply, transport, wildlife protection and training. In addition, all CRBs provide quarterly financial The timing of delivery of benefits particularly to local and activity reports to ZAWA and audited accounts of communities is well stipulated. Community Resources the funds received. Lack of capacity and other social Boards disburse funds to the local communities within cultural barriers undermines the effectiveness of this two weeks after each quarter. mechanism.

68 Monitoring and Reporting weakness of the CRBs is based on their close connec- Communities and the private sector are involved in tion with ZAWA. Funding from revenue sharing with monitoring and with ZAWA Wildlife Officers, they en- ZAWA is unpredictable, and they are not individually sure compliance with the license or permit for wildlife. registered CBOs, but can be established and disman- There is little research and stakeholder property rights tled according to the Wildlife Act. Their collective ca- are not established by legislation; therefore it is uncer- pacity and negotiating power is weak, and this makes tain whether wildlife access links with research or de- it impossible for them to claim their entitlements velopment priorities or whether there is any concern in line with the provisions of the wildlife legislation. for local community rights. In some instances, wildlife Transparency and accountability is inadeqauate at utilization quotas are set without current animal cen- most levels - between CRBs and ZAWA, and Village sus information. Area Groups, or between farmers and their Village Ac- tion Groups (VAGs). The VAGs are unable to prevent Means of Verification local elite from dominating CRBs. There is no system of voluntary certification, mainly due to lack of awareness of the Bonn Guidelines and The concept and practice of CBNRM as a major strat- there is no legislation informed by the guidelines. egy for ABS implementation has become of great strategic importance and an essential part of contempo- Settlement of Disputes rary wildlife management in Zambia. However, ABS, The Mutually Agreed Terms as reflected in various through CBNRM programmes in the wildlife sector has licenses and also the legal system, provides for arbi- in the main, been integrated into the strategies, func- tration arrangements agreed upon in the producer/ tions and culture of ZAWA. This challenges ZAWA’s user agreements, which may include penalties and are ability to become an effective National Authority for stipulated in these contractual agreements. The Hunt- ABS in the wildlife sector. ing Concession Agreement between ZAWA, the Lo- cal Community and the Safari Operators provides for ABS implementation through CBNRM needs to be events of default and corresponding penalties includ- regarded and taken as an important strategy for ing termination, which are legally binding. the Zambia Wildlife Authority to achieve its wildlife conservation objectives. The envisaged end point of Remedies ABS implementation should be to gain the apprecia- There are measures that may be taken as remedies un- tion, understanding and ultimately the commitment der the Zambia Wildlife Act No.12, 1998, and Subsidiary of communities to take responsibility for the con- Statutory Instruments for regulating and administer- servation of the wildlife and all biological resources ing access and benefit sharing in the wildlife sector. occurring on their land. If ABS measures were imple- One such example is the Zambia Wildlife (Elephant) mented in line with the Bonn Guidelines, it may help (Sport hunting) Regulations, 2005, which regulates reduce the financial and management commitments the hunting of elephants for sport. While all such proof ZAWA to conserve the nation’s wildlife and provisions exist, the obstacles to effective application are tected areas. usually a result of limited infrastructure or human resource capacity within ZAWA. While ZAWA has implemented environmental education and extension services through the CRBs, it is still Capacity Assessment lacks relevant, caring, transparent, and quality services ZAWA’s Directorate of GMAs is responsible for the for the communities. The activities make little con- coordination and implementation of ABS principles tribution to local level socio-economic development within the Authority’s CBNRM programmes. However, objectives such as joint venture partnerships, job crea- the staffing of the Directorate does not have repre- tion, small business creation and direct material ben- sentation at the lower levels of the organization as is efits from wildlife utilization both consumptive (hunt- the case with other Directorates such as Conservation ing) and non-consumptive (tourism). An ineffective Directorate. Therefore, while elaborate government le- problem animal control (PAC) programme remains a gal and administrative machinery exists, the capacity source of conflict between wildlife management and of ZAWA to enforce and implement these provisions other community land uses and affects communities’ is limited and remains a major obstacle in effectively appreciation of wildlife. implemting ABS measures. The Boards (CRBs), lack appropriate legal and institu- As the main community institution in wildlife man- tional backing for devolution to manage the wildlife agement, CRBs are charged with a number of man- resources in their area. This limits the extent to which dates and responsibilities, but typically lack institu- ZAWA should fully delegate resource use/manage- tional negotiations and resource monitoring capacity. ment rights and responsibilities to communites. The There is a need to support institutional strengthen- Boards lack capacity and legislative support to man- ing within these and related areas to ensure that age decision-making on resource utilization and the CRBs develop as democratic, transparent and capable collection of revenues (hunting fees, lodge royalties institutions that are able to support the ABS process etc) directly from the resource users. locally. Both the wildlife management strength and

69 ZAWA has been unable to effectively monitor and ments contained in the Policy and Act, including ABS proc- evaluate their projects over the past 20 years. Few esses. The district level has several activities, and those re- programmes have undertaken baseline surveys on at- lated to ABS include providing extension services that pro- titudes, knowledge, awareness, living standards and mote ABS processes to local communities, private sector wildlife/ecological conditions. A monitoring and eval- and interested parties in the district, collecting revenues uation system that goes beyond donor or government realized from sale of forest products and building capacity reporting would facilitate ABS processes. of local communities.

Attempts at CBNRM have neglected to build the ca- Ex-situ forest resources conservation collections include pacity of ZAWA to support the local boards. While botanical gardens and the Forest Research Herbarium. some revenue from resource utilization in GMAs trick- The Munda Wanga Botanical Garden located in Chilanga les to CRBs, the communities have to manage and contains various flora and plant specimens. There are four utilize their natural resources without technical and herbaria in Zambia, the largest being the Forest Herbarium financial support. Even ZAWA faces a shortage of op- located in Kitwe. It was established in the 1930s in Ndola. erational funds, thus CBNRM is secondary to ZAWA’s It houses about 55,000 Zambian plant specimens almost immediate priority of developing its enforcement ca- all 6,400 indigenous plant species found in Zambia. These pability. In fact, this shortage of operational funding herbaria contain collections of duplicate voucher speci- has necessitated that ZAWA retains 50% of hunting mens of wild plant species after original plant specimens revenues from GMAs leaving donors, NGOs and com- were collected. The Forest Herbarium has specific infor- munities somewhat aggrieved. mation, herbarium notes, and vegetation descriptions at ecosystem and district levels. This information is im- ZAWA currently has only limited expertise in taking on portant for forest management and conservation. There the role of the regulating and monitoring agency with- are botanical reserves of important Zambian vegetation. in specific ABS processes, and lacks experience in the These are small areas of woodland or forest with repre- implementation of the Bonn Guidelines. Capacities to sentative vegetation of a particular part of the country. facilitate and implement ABS in ZAWA are limited, and They are important for comparative studies of vegetation there is need to build necessary capacities at all levels. affected by various change processes and for monitoring However, the longer it takes to successfully establish, changes in plant diversity. This has become critical, due functional, fully empowered and accountable CRBs and to the high levels of deforestation estimated at 800,000 VAGs that accrue meaningful benefits on a sustainable hectares annually. basis from wildlife utilization, the greater the risk of the eventual demise of all wildlife resources in the GMAs. 1. General Provisions: Meeting the Objectives of the Guidelines Forestry Sector – Forestry Department The Forest Department through the Extension Serv- ices Division at the provincial and district levels, has The formal and informal sectors are both involved the institutional and administrative machinery to im- in forestry and management. Planning, coordina- plement ABS and meet most of the objectives of the tion and monitoring of legitimate activities are the Bonn Guidelines. responsibility of the Forest Department. It manages and conserves forest resources to meet national and However, revenue-sharing arising from use of for- local demand for timber and other forest products est resources, decentralization of licensing to com- and services. It is empowered to control and manage munities and the structure of the forest fees are key all gazetted forest areas (a total are of 9.6% of Zam- problems areas of community based forest manage- bia), and trees and forest produce on non-gazetted ment based on the 1973 Forest Act. The Act does not forest land (60% of the country). The Department re- include the concepts of participatory, collaborative or searches forests and forest products and offers a na- joint forest management. At its enactment, the gov- tional forest extension service. There are five special- ernment policy objective was to vest the ownership, ized divisions - Beekeeping, Forest Products Research, control and management of all trees and forest pro- Forest Research, Management Division, Extension and duce on Zambian land in the State, with this power Regions / Provincial Division. exercised on behalf of Government by the Chief Con- servator of Forests. The Act does not have an enabling The Department has representation and functions at provision for the transfer of ownership of forests. Un- national, provincial and district levels. At the national der the Lands Act, 1995, a person may acquire land but level the activities are - formulation and review of the not natural resources, oil, or the mineral resources on forest policy and co-ordination of its implementation, it. They are vested in the State and the State reserves enforcement of rules and regulations, preparing and rights of re-entry. ensuring effective implementation of various ABS related agreements. At the provincial level, the func- Unfortunately, the Forest Act No.7, 1999, which pro- tions include providing policy implementation guide- vides for community involvement, in forestry manage- lines to districts, coordinating and monitoring policy ment has not come into effect because of financial, implementation and forest management activities, legal and administrative huddles. A further legal com- ensuring effective implementation of various agree- plication is that even in the Forest act No.7, 1999, Joint

70 Forest Management is only allowed in Local Forests 3. Steps in the Access and Benefit Sharing: Overall strat- and a number of other substantive provisions of the egy, Identification of Steps, Prior Informed Consent Act already require amendments. Therefore, most of the objectives of the Bonn Guidelines in line with Arti- Overall Strategy cles 8j, 10, 15-21 are not being met in the forestry sector. Zambia does not have an overall access and benefit- There has been limited capacity building for ABS and sharing strategy, however the goals and objectives technology transfer is specific for enhancement of ca- of the National Biodiversity Strategy and Action Plan pacities to harvest efficiently and effectively with little support conservation, sustainable use and the eq- or no support to conservation and sustainable use of uitable sharing of benefits accruing from the use of forest resources. the country’s biological resources, including forests. The declaration of Joint Forest Management Areas 2. Roles and Responsibilities in Access and Benefit- under Part V of the Forest Act No. 7 of 1999 provides Sharing: National Focal Point, Competent National the legal framework for future ABS in the forest sec- Authority tor. The Forest Department through the Provincial The roles and responsibilities in forest management Forest Action Programme (PFAP) promotes this goal in Zambia with the Forestry Department, as provided through its Joint Forest Management Initiative that for in the Forest Act of 1973 and the new Forest Act will be implemented when the new 1999 Forest Act No.7, 1999. is in force.

The Forests Act No.7, though not fully implemented, Identification of Steps is a positive development. It embraces some of the The Forest Department has laid a process of obtain- Bonn Guidelines by providing for the participation ing access to forest products as provided for in both of local communities, traditional institutions, NGOs, the 1973 and 1999 Forest Acts through issuance of li- and other stakeholders in sustainable forest man- censes and conditions of licenses. These may include agement. This has in turn broadened the legal provi- sawmill licenses, pit-sawing license, casual license and conveyance licenses. The process for obtain- sion for more institutions to be involved in sustaining access to forest resources is well identified and able forest management and allows for different consistently applied where resources and capacities roles and responsibilities to be performed by various exist. However, these steps do not encompass activi- stakeholders. However, the Forestry Department re- ties in research, development and conservation of tains most of the planning, regulatory and manage- forests by parties that acquire access agreements to ment roles and responsibilities for forest manage- use the forests. ment. The Department therefore performs the roles and responsibilities of the National Focal Point and Prior Informed Consent Competent Authority in all forest related access and The Forest department uses various public communi- benefit sharing issues. cation media including the government gazette to provide the general prior informed consent on the conces- Participation of Stakeholders sion issued and conditions. The Public Notices include The implementation of the Bonn Guidelines remains the geographical area of concession from which forest erratic due to the non-enforcement of the Forest Act products are to be harvested and the timing of the No.7 of 1999. Though elaborate, institutional and harvest as well as the tree species to be harvested. The administrative arrangements are in place at various procedures for obtaining access permits or licenses are levels for implementation of ABS through joint for- transparent and open to all interested parties. Under est management, the participation of stakeholders is the Joint Forest Management Programme, an area can still impeded by limited implementation of the em- be declared a Joint Forest Management Area only with powering Act (Forest Act No.7, 1999). However, under the consent of the local community. The basic princi- the Joint Forest Management in the new Act, the Lo- ples of prior informed consent are fully provided for cal Forest Committee will have the powers to develop in the arrangements for future ABS implementation in and implement in conjunction with the Forest Com- the forest sector. mission, management plans for the joint forest management area and to negotiate in conjunction with The Forest Department is the Competent National Au- the commission co-manage agreements with other thority for PIC at national, provisional and local levels stakeholders. as mandated by the Forest Act. However, under current access arrangements, the involvement of stake- In the process of preparing management plans, holders is minimal as the Forest Department has the consultations will be carried out with holders of sole responsibility for granting such consent though in rights in the area, committees in the area and the consultation with local communities where access to local community in such an area. This will certainly concessions is involved but with limited transparency. provide a window for stakeholder participation in Similarly, the approval and involvement of holders of sustainable forest management as required by the traditional knowledge and innovations in granting of Bonn Guidelines. prior informed consent is not done and there are no established legal rights of local communities associat-

71 ed with forest resources being accessed or where tra- When the New Forest Act of 1999 is in effect, a system ditional knowledge associated with forest resources is of benefit sharing is likely to be implemented. For now, being accessed and exploited. no benefits are distributed to communities or any other stakeholder other than the government through Most procedures for obtaining PIC as outlined in the the Forest Department. However, the distribution of Guidelines are met, except for identification of where benefits to communities and other stakeholders is research and development should take place and in- the core concept in the proposed Joint Forest Manage- formation on how such research and development ment arrangements. may be affected. While permission to access forest resources may not necessarily mean permission to ac- In the provisions of the New Forest Act of 1999, funds cess associated knowledge and vice versa, there is no payable for use of forest resources within a Joint forest capacity to enforce this important aspect in all access Management Area will be paid into the Fund set up by provisions. the Forest Management Committee. The money from the fund should meet technical and administrative 4. Mutually Agreed Terms services costs. The proposed benefit sharing mechanism under Joint Forest Management is not flexible Basic Requirements for Mutually Agreed Terms as it proposes preset percentages and does not take The various permits and licenses contain the MATs into account technology development and scientific and there is limited negotiation of the terms as these research contributions by various stakeholders. are standard. The minimum MATs are weak on issues of IPRs, traditional knowledge, research and develop- 5. Other Provisions: Incentives, National Monitoring and ment. Reporting, Means for Verification, Settlement of Dis- putes, Remedies Indicative List of Mutually Agreed Terms The indicative list of the mutually agreed terms is in Incentives the various licenses and concessions. However, terms The Joint Forest Management programme provided for on knowledge, innovations and practices of indige- in the Forest Act, 1999, recognizes that forest resourc- nous and local communities are largely missing from es play an important role in local people’s livelihoods; the MATs except under the provisions of Forest Man- therefore, the programme would encourage local com- agement Committees. munities to manage forests in a sustainable way. How- ever, the extent to which the benefit-sharing scheme Benefit-Sharing will provide incentives that will foster efficient alloca- Under the Joint Forest Management Programme, tion of benefits will only be ascertained when the pro- benefit-sharing is fully addressed as one of the mutu- gramme is implemented fully. Even so, the proposed ally agreed terms. The Forest Act, 1999, outlines the incentive system does not effectively mitigate against conditions, obligations of various stakeholders, proce- perverse incentives, and no specific mention of use of dures and mechanisms of benefit sharing in terms of valuation methods and markets to promote conserva- percentage of the revenues payable in respect of dif- tion and sustainable use of forests is made. In fact, the ferent licenses for Joint Management Areas. However, Forest Act, 1999, provides for license fees, and abolishes benefit-sharing is not included in the access licenses the fixing of prices for forest products in line with Gov- and may be negotiated separately by the parties. ernment policy of a free market economy. This does not promote economic valuation of forest products, which The future arrangement under Joint Forest Manage- is useful in determining realistic market prices for for- ment is that license fees and other revenue including est products. Inclusion of a wide range of incentive donations, will be paid to a Joint Management Area measures prior to the commencement of Joint forest Fund established by the Forest Management Commit- Management will be necessary if the Bonn Guidelines tee. This will mainly be in monetary terms rather than are to be met in the implementation of ABS policies in in-kind. It is envisaged, that concessionaires may make the forestry sector. non-monetary contributions to community social infrastructure and to the local economies through crea- Joint Forest Management will only provide the desired tion of employment for the local people as well as in incentive if participating communities receive rev- taxes to Local District Councils. enues from their forest management activities. This has been a sticking point in the wildlife management The timing of delivery of community funds will de- ABS experience in the country. pend on when the license or concession fees are payable by the commercial producers of forest products. Accountability in Implementing Access and Benefit However, under the current Forest Act of 1973, only Sharing the Forest Department can receive funds from forest The Forest Department and subsequently the Forest resources. This aspect of the Bonn Guidelines has not Commission will implement the financial provisions been met but it is provided for under the Joint Man- for Joint Forest Management as provided for in the agement Area Fund. Forest Act, 1999. Under this provision, a Joint Forest Management Committee will be required to, a not

72 later than one hundred and eighty days after the end Capacity Assessment Statement of a financial year, submit to the local community and The Forestry Department structures are insufficient in the Forest Commission an audited balance sheet, an key areas such as planning, monitoring and evaluation, audited statement of income and expenditure and a extension and finance - all of which are important for report concerning its activities during the financial access and benefit mamagement. year. This however, will require building of the capacity of the local communities and Joint Forest Manage- The research in forests and forest products is at a near ment Committees to implement the accountability stand still due to shortage of specialized research of- measures. ficers, lack of funding for research and inadequate equipment and infrastructure for research. It is there- Monitoring and Reporting fore difficult to try new innovative sustainable forest The overall monitoring and evaluation of forest re- management strategies including use of the Bonn sources is the responsibility of the Management Divi- Guidelines in the design and implementation of ABS sion of the Forest Department in line with Forest Area arrangements in the forest sector. Management Plans. The involvement of communities in management of forests, particularly in Joint Forest Forestry extension is important in Zambia given the Areas, will provide a good monitoring and reporting high incidence of deforestation, soil degradation, fuel system, as the communities will be direct beneficiar- wood shortages and poverty. Extension work is even ies from forest resources utilization through revenues more important for implementation of ABS related accruing from their use. projects and programmes. However, Forestry extension work can best be described as invisible due to a In addition, concession license holders are also respon- number of constraints and challenges. These include: sible for monitoring of the resource in the concession- shortage of trained extension staff with the neces- designated areas under the supervision of the Forest sary skills particularly in ABS; inadequate extension Department. The Forest Act No.7, 1999, also introduces facilities, materials, funds and equipment; and lack in Part XI for regulation of export and import struc- of incentives for both the extension staff and com- tures for forest produce - a crucial aspect in monitor- munities. ing timber shipments from Zambia and the introduction of foreign species. Any serious attempts to implement ABS with its principles, in line with the Bonn Guidelines, in sustainable Means of Verification forest management and especially community forest- There are no specific national legal instruments with ry, depends on a fully functioning and effective exten- ABS provisions informed by the Bonn Guidelines. There sion programmes. There is need to build the capacity is also no system of voluntary certification. The Uchi of the Forestry Department, communities and other Mukula Trust attempted certification and eco-labeling stakeholders in extension work. of timber and honey but this has since failed due to lack of capacity and commitment by various stake- The monitoring and evaluation capacity in the Depart- holders to meet the certification requirements. ment is limited. There are many weaknesses in forest planning, monitoring and evaluation. These include Settlement of Disputes the absence of an overall monitoring and evaluation Parts XIII and IV of the Forest Act No.7, 1999, provides plan at various levels, lack of reliable data on forest for arbitration if arrangements agreed upon in produc- resources and utilization and the lack of mechanisms er agreements are not able to address such disputes. and systems to transfer responsibility to local commu- This may also make use of the penalties stipulated in nities under the Forest Act of 1973 which is still being contractual agreements in line with Parts XIII and XIV enforced. of the Forest Act using provisions for law enforcement, forest offences, penalties and forfeiture. Provisions for Traditional Institutions/ District Councils appeal also exist in case of unfair or unsatisfactory Most forests are on traditional land and administered settlement of any disputes. by the Chiefs and their headmen and women. The traditional management of forests is based on custom- Remedies ary laws where rights and decisions about use of for- The remedies under the Forest Act, 1999, include stat- est products originate from the Chief and are granted utory instruments for regulating access such as the to their people. Commercial operators have to seek de-gazetting of a national or local forest area. A statu- permission to operate from the Chief. However, all tory instrument may also be issued to assign control revenue goes straight to the central treasury, without and management of a local forest to a local commu- benefiting the local communities. nity, traditional authority or a Joint Forest Manage- ment Committee. Other restrictions on access to for- District Councils should participate in the manage- est products may be effected through the granting of ment of forest resources outside reserves, especially rights, titles and other restrictions as provided for in on resource utilization, and the gazetting of forests. Part IV of the Forest Act No. 7, 1999. They should be consulted by the Forest department before granting commercial licenses in areas outside

73 the forest reserves with an entitlement to receive 20% new Act will also provide for conservation, manage- of license revenues. The councils rarely receive these ment and sustainable utilization of fisheries resources. funds due to theie lack of capacity to engage. It will further provide for the registration of fishermen, their boats, fishing gears and fish farmers, licensing of The traditional and local (district) institutions involved fishing and development of aquaculture. The current in forest management are administratively weak in Bill has an important provision to enhance benefits terms of financial systems, records and accountability from fishery areas to surrounding local communities. below the minimum expected standards to deal with The provisions of the Bill are conducive for implemen- access and benefits sharing matters in forestry. tation of ABS in line with the Bonn Guidelines. The general situation for ABS in the forestry sector is that there are serious legal and policy constraints, lack The Bill provides for establishment of a Fisheries Serv- of capacity, lack of funds, limited technologies and in- ice that shall take necessary steps and measures to adequate information systems. Unless these are ad- ensure sustainable management and development of dressed, the implementation of ABS will not help in fisheries and rational exploitation and conservation biodiversity conservation, sustainable use and poverty of fish stocks in fishery waters and do all such things alleviation in the country. necessary, including implementation of ABS measures to achieve this purpose. The further establishment of various divisions will help in enabling the Fisheries Fisheries Sector - Fisheries Department Services to implement its functions in aquaculture, capture fisheries, research and extension work. The The Fisheries Department is a sub-sector department un- general principles of management provided in Part II der the Ministry of Agriculture and Co-operatives with Section X of the Bill promotes utilization of the coun- representation at national, province and district levels. try’s fish resources and aquaculture development to The Department coordinates development of commercial achieve ecological balance and economic growth by fishing, controls fishing and conservation, and facilitates way of practical and accountable stakeholder partici- capacity building among stakeholders. pation in sustainable fisheries management. The Department’s structure involves Capture Fisheries and Aquaculture with subdivisions in Fisheries Management, Despite the lack of enabling legislation for ABS imple- Extension, Research and Training. The Department has mentation in the Fisheries sector, a few CBNRM pro- the capacity to promote the ABS processes and policies grammes with some elements of ABS have been and through its fisheries co-management programmes. are being implemented in anticipation of the enactment of the new Act. These include the SNV-Zambia 1. General Provisions: Meeting the Objectives of the initiated community-based fisheries management Guidelines programme in Luapula province, which is operation- The Fisheries Department structure provides a frame- al in the Luapula River, Lake Mweru and Bangweulu work for sustainable fisheries management and im- swamps fisheries. The second documented initiative plementation of ABS principles. The Fisheries policy is the Lake Kariba Community fisheries management based on the subsisting Fisheries Act Chapter 200, programme initiated with funding from the SADC 1974, does not include the local communities within project whose funding was from the GTZ - German or near fishing areas as key fisheries management Technological Cooperation. This initiative is operat- stakeholders. The Fisheries Act No. 21, 1974, was specif- ing under the Fisheries Department along the shores ically enacted to provide for the development of com- of Lake Kariba. The local management structures in mercial fishing through the control of fishing, licensing and payment of levies, registration of fishermen the Lake Kariba fisheries are Village Management and boats, protection of certain areas and restrictions Committees (VMCs) at the fishing village level, Zone on fishing methods. This Act therefore, does not pro- Management Committees (ZMCs) at Chiefdom level vide for multiple stakeholder community participa- and the Inter-Zonal Management Committee (IZC) tion in fisheries management and benefit-sharing as covering the whole lakeshore from Sinazongwe to all control and licensing/levying is through the Fisher- Siavonga. ies Department. These programmes face legal and policy constraints and A draft Fisheries Bill, currently cited as the Fisheries Act, the provisions of the Bill are weak on the following: 2001, which will come into operation upon issuance . of a statutory order, is under legal review. This Act will Provision of targeted capacity building to different repeal and replace the Fisheries Act Cap 200 , 1974, es- ABS related management structures; tablish the Fisheries Service and the Central Fisheries . Transfer of technology appropriate technology for Committee, to provide for the establishment of Fisher- enhanced conservation and sustainable use of fish- ies Management Committees, Fisheries Zonal Manage- eries; ment Committees and Fishing Village Management Committees and to control fishing in the country. The . The Clearing-House Mechanism as a mechanism for

74 cooperation among parties in ABS; ing funds. There is need for a fisheries specific policy with provisions for ABS implementation in order to . Taxonomic research; and ensure that all steps in the Bonn Guidelines are consid- . Protection of traditional knowledge and practices of ered. The fisheries programme does not mention ABS indigenous and local people. management as a component of its plans to achieve CBD implementation. 2. Roles and Responsibilities in Access and Benefit- Sharing: National Focal Point, Competent National Identification of Steps Authority There are fisheries management systems and proc- The Fisheries sector is a sub-sector under Agricul- esses under the current Fisheries Act for obtaining ac- ture where ABS implementation has been minimal cess to fisheries resources. These steps include those and the application of the principles has been prob- prescribed in obtaining various licenses for access for lematic. The Agricultural Sector Policy for 2001 –2010, undertaking fishing or engaging in aquaculture. Ap- advocates increased fish production while promoting plications for various licenses should be made to the the sustainable utilization of fisheries resources. The Director using prescribed forms. The licenses confer proposed fisheries sub-sector policy seeks to achieve exclusive rights to harvest the products of the aquac- sustainable fisheries management objectives, among ulture facility or fishery water within a specified area. which is the institutionalisation, through legal reform, The steps and procedures are as provided for in the of community participation in the management of legislation but do not include research and fisheries the country’s aquatic resources and capacity building development activities which are critical in creating through provision of techniques in post harvest han- conditions that facilitate environmentally sound ac- dling, processing and market information to all those cess to fishery resources. involved in fish industry. These provisions provide the platform for the Fisheries sector to undertake roles Prior Informed Consent and responsibilities in access and benefit-sharing as The Fisheries Department uses the government ga- the National Focal Point and Competent National Au- zette and newspapers to provide the general prior in- thority. However, there is urgent need to complete formed consent on the licenses issued to the private further policy and legislation reviews to ensure com- sector and community groups. However, some of the pliance with Article 15 of the CBD. basic principles for prior informed consent such as the consent of relevant stakeholders such as indigenous 3. Participation of Stakeholders and local people (under current commercial fishing The proposed Agriculture Policy on the fisheries sub- circumstances) is not adhered to. The Department, sector recognizes consultations with stakeholders as as a Competent Authority may determine such allo- an important component of a successful ABS regime. cations of access with minimal consultation. This is The few community based programmes being im- partly because there are established legal rights of plemented institutions such as Fishing Village Com- local communities in association to fishery resources mittees, Fishing Area Committees and Zonal Fishing that may be accessed in such a manner. This is par- Committees, which provide avenues for private sector, ticularly so in areas where traditional authorities have community and traditional leadership participation control over specific fishing areas such as lagoons as in sustainable fisheries management through ABS aris the case in the Western Province of Zambia under rangements. All these stakeholders however, need ca- the Barotse Royal Establishment. Other procedures for pacity building for active involvement in various ABS obtaining prior informed consent not fully addressed arrangements. in the current and proposed legislation and practice are: identification of research and development activi- 4. Steps in the Access and Benefit Sharing: Overall strat- ties necessary; and where and how such activities may egy, Identification of Steps, Prior Informed Consent take place.

Overall Strategy 5. Mutually Agreed Terms There is no overall strategy or policy for ABS implementation in Zambia despite f equitable sharing of Basic Requirements for Mutually Agreed Terms benefits accruing from the use of the country’s bio- The MATs in fisheries management are as contained logical resources being a goal of the National Biodiver- in the various permits and licenses, as such, there is sity Strategy. The provision for establishment of Zone limited negotiation on what is to be mutually agreed, and Village Fisheries Management Committees in the as these are set legally and therefore not negotiable. Fisheries Bill provides for local community participa- The indicative list of the mutually agreed terms is tion in the monitoring and enforcement of fishing represented on the various licenses and conditions. regulations, drawing up fisheries management plans, However, the aspects on knowledge, innovations and collection of fisheries license fees, fines and charges practices of indigenous and local communities are on behalf of the Fisheries Service. The Zone Fisheries largely missing from the mutually agreed terms on Management Committees are also mandated to rec- the regulatory documents, as the legislation in force ommend establishment of fishing villages and revolv- does not provide for broader stakeholder participa-

75 tion. The other omission is on matters of Intellectual the Fishing Committees where these exist. The provi- Property Rights for the traditional knowledge of the sion in the Bill for the involvement of fishers in man- local communities, and research and fisheries devel- agement of fisheries in their Villages, Areas and Zones opment findings by various institutions. provides a platform for monitoring and reporting on fisheries management. License holders, including Benefit Sharing community groups and the private sector have an ob- The current benefit-sharing arrangement focuses at ligation and incentive to monitor fish stocks and other improved conservation and sustainable use of the fish- conservation related matters in their areas of opera- eries with less emphasis on direct community benefits tion but can only be effective with oversight from the in the form of dividends or community shares of rev- Fisheries Department. The Bill specifically empowers enue. Moneys go to the various institutional organs to the Minister to make fishermen keep records of infor- meet conservation and sustainable use requirements mation relating to fishing in the commercial fishing for the fishery area. areas. The challenge again is on implementation and supervision by the fisheries sector. In community fisheries, the Zone Fishing Committee has revolving funds provided for in the Fisheries Bill. Means of Verification There are no concrete means of verification on whether The timing of delivery of community funds is not well the ABS principles as promoted by the Bonn Guidelines articulated or specified due to the lack of a fisheries are considered due to the lack of a specific national le- specific policy or programme for benefit sharing. How- gal instrument and institutional arrangements with ever, funds may be paid into the Fishery Management such provisions or mandate. Area Fund at any given time. Settlement of Disputes The Revolving Fund should be used primarily for fish- The legal framework provides options for settlement eries management. Mechanisms for benefit sharing of disputes, whereas, in areas with local management are between the Fisheries Department and the differ- institutions in place, other consultative mechanisms ent Fisheries Committees on a case-by-case basis. to resolve disputes exist such as through traditional leaders. Most disputes include cancellation or suspen- 6. Other Provisions: Incentives, National Monitoring and sion of licenses for regulation contraventions. In the Reporting, Means for Verification, Settlement of Dis- Bill, where a license has been cancelled, the person ag- putes, Remedies grieved may appeal to the Minister not later than 60 days after receipt by him or her of the notice of cancel- Incentives lation, suspension or refusal. The community-based fisheries management programmes provide communities with revenues for Remedies reinvestment in fisheries management related infra- The remedies under the Fisheries Act and Bill are to structure and activities aimed at improving fisheries secure sustainable fisheries resources. These include conservation, harvesting, processing and marketing. prohibited fishing methods such as use of explosives, The availability of such revenues provides an incen- electrical fishing devises and any other equipment tive for the local communities and the private sector that does not conform to the standard prescribed fish- to support sustainable fisheries management. There ing gear and the same applies to trade in such prohib- is need to incorporate in the final Bill, well-designed ited gear by any person in the country. Other remedies economic and regulatory instruments directly related include restrictions and prohibition for introduction of to ABS to foster efficient allocation of benefits, use of any fish species that is not native, importation of any valuation methods as a tool to provide information to live fish and translocation of live fish from one fishery stakeholders involved in ABS and the creation and use to another. Fisheries Officers enforce these restrictions of markets as an effective way of achieving conserva- and prohibitions, as remedies to threats to sustainable tion and sustainable use of fish resources. fisheries management. Unfortunately there is no human capacity to enforce these remedies. Accountability in Implementing Access and Benefit Sharing Capacity Assessment Statement The establishment of community institutions such as The Fisheries Sector has sufficient structures and in- Fishing Village Committees, Fishing Area and Zonal stitutional arrangements to implement various sus- Committees Area provides structures for accountability. tainable fisheries management programmes. How- The committees are accountable to their constituency ever, the sector is constrained by limited financial and for implementation of management plans and other human resources to implement its mandates. Many administrative arrangements. These structures can en- provisions of the current Act and Bill for law enforce- sure that ABS policy implementation is accountable. ment and sustainable management practices are not enforced due to lack of personnel in most of the major Monitoring and Reporting fishery areas. The major constraint of course is the lack Monitoring and evaluation of fishery resources is the of enabling legislation. With the Bill having been in ex- responsibility of the Fisheries Extension Division and istence for over 12 years now without being enacted

76 into law, the capacity of all stakeholders to advocate, Botanical collections of wild plant species for taxo- review and amend the Act is lacking. nomic and other scientific studies by scientists (local and foreign), are some of the officially-known bio- Given this scenario, it may not be possible to implement prospecting activities relating to local genetic resourc- ABS principles based on the Bonn Guidelines in the fore- es. Although the objectives of bioprospecting in Zam- seeable future unless necessary support is secured. bia are to collect specimens for taxonomic and biosys- tematics studies, plant parts capable of regeneration Agriculture Sector-The Ministry of Agriculture and have also been sampled and taken out of the country Cooperatives through the National Plant Genetic Re- for other purposes. sources Programme (NPGRP), Bioprospecting and SADC Gene Bank There are no clear procedures for obtaining permits to collect plant genetic resources from Zambia by foreign The management of agricultural biological resources, such as crops and fisheries falls under the Ministry of collectors. However, the collector is required to submit Agriculture and Cooperatives. The Ministry of Agricul- a written request and receive approval before enter- ture and Cooperatives has a number of Directorates ing the country and undertaking the collection. There and Sub-divisions. These include Research and Spe- is no special permit and granting of permission is by cialist Services, Extension Services, Land-use Planning way of a letter of reply, which normally encourages Division, and the Fisheries sub-sector. The National the applicant to be in the company of local counter- Plant Genetic Resources Programme, established in parts and reminds the applicant of the need to leave 1989, within the Department of Research and Special- duplicate samples of the collected genetic resources in ist Services, is the National Focal Point institution for the country. There are no specified penalties for failure agricultural biological resources. to obtain a letter or for violating the conditions of the letter, as the permission granted is purely an adminis- Agro-biodiversity as defined by the CBD refers to the trative matter. variability among living organisms associated with cultivated crops, domesticated animals and the eco- The foreign institutions collaborate with local institu- logical complexes of which they are part. Agro-biodi- tions either through a memorandum of understanding versity in Zambia is assessed within the context of the (MOU), in the case of a project running over a period of major agro-ecological regions and farming systems. time, or through a letter of application to the head of the concerned institution in case of a one-time activ- In Zambia, about 85% of the rural population depends ity. In the cases involving protected areas, such as for- on agricultural production. Access to agro-biodiversity est reserves and wildlife estates, collections are based resources is through the use of genetic material collected through research, restocking and bio-control. on a set of conditions derived from national policy and Benefit-sharing of genetic material is through seed legislative framework. multiplication where farmers are provided with seeds from research, which they grow and market - the crop One such institution that has undertaken botanical or seeds. Continued research aimed at crop develop- collections for botanical studies through a collaborative ment and improvement is necessary for increased and project is the Missouri Botanical Gardens of the sustainable crop production. Availability of these crop United States of America. This was executed through genetic resources can only be guaranteed if deliberate a MOU signed with the Ministry of Agriculture measures for their efforts are in place. through the National Plant Genetic Resources Centre. These explorations and collections were undertaken Zambia has a wide range of genetic material in the between 1993 and 1997 covering the whole country, form of cultivated plant species, their wild relatives, and were targeted at collecting herbarium specimens and useful wild plant species as well as farm animal ge- of wild plant species. Duplicate voucher specimens netic resources. The crop and animal genetic resources were left with the local herbarium at Mt. Makulu consist of mainly traditional varieties and breeds that Research Centre. No conditions regarding ownership, have evolved over generations through human and use and distribution were applied as it was assumed natural influences. Zambia has also benefited from ex- that only herbarium specimens would be collected otic genetic resources, which have enhanced the local and taken out of the country. This was before the germplasm and facilitated the development of higher Bonn Guidelines. performing varieties.

Over the years, these genetic resources have been sub- The other activity related to bio prospecting of genet- jected to different pressures and threats leading to ic resources is the exploration and collection of wild some loss of valuable genetic diversity. The main fac- plant species related to crops such as rice (Oryza spp.) tors contributing to the loss of this diversity include and cowpea (Vigna spp.). Interested parties make a the introduction of high yield crop varieties and ani- written application to the Permanent Secretary or mal breeds over a number of years, clearing of large ar- Director of the Research and Services Department in eas for agriculture and other developments, recurring the Ministry of Agriculture and Cooperatives. The ap- droughts and land degradation through soil erosion plicant is required to provide information on the pur- and overgrazing. pose of the collection, species of interest, and scope

77 of the project. There is a requirement that external the proper identification and classification of institutions seeking to apply to undertake bio-pros- germplasm. pecting activities need to partner local counterpart institutions that must become part of the collecting Seed samples are maintained in triplicate. The active expeditions - mainly to ensure that duplicate sam- sample is maintained in several small distribution ples of the collected genetic material are left in the bags and is used for research and other activities. country. However, no conditions have been placed on The base collection sample is for long-term conserva- these collections as the Consultative Group on Inter- tion whose storage is guaranteed for use even by fu- national Agricultural Research (CGIAR) institutions ture generations whilst the base safety duplicate is a are regarded as partners in development, whose ac- backup against unforeseen events like wars or natural tivities are assumed to have potential to benefit the disasters that might damage the collection at SPGRC. country. No conditions or regulations exists for the sharing of benefits that may arise from research or commerciali- Entry into national parks for collection of plant mate- zation of such materials in terms of indigenous knowl- rials requires a permit from ZAWA, but no conditions edge or local knowledge or even property rights from relating to ownership, use and third party transfer are the source communities or national institutions for imposed. Therefore, no obligations to the state or lo- that matter. cal communities for ABS requirements are taken into account. Similarly, there are also no established procedures or legislation for germplasm exchange, other than Collections of plant material for medicinal purposes by the need to abide by the phytosanitary regulations both locals and outsiders have largely been conducted aimed solely at safeguarding movement of germ- privately and unofficially from Zambia’s Protected Ar- plasm across borders. In fact, individual breeders and eas due to lack of effective monitoring. researchers outside the country are reported to have exported germplasm material without the knowledge The lack of institutional, technical capacity for proper of the Ministry of Agriculture and Cooperatives as the maintenance, ineffective monitoring and supporting Competent National Authority. legislation, has led to the loss of all duplicate samples and an inability to follow-up on samples taken out of For species whose mode of propagation is vegetative the country for results or possible benefits. rather than germplasm (seed), field gene banks have been established where clones of sweet potato, cas- Some germplasm accessions collected by the National sava, and similar crops are planted in small plots. Plant Genetic Resources Programme, established in 1989, have been distributed to both local and external On-farm conservation is promoted to support and institutions with the requirement that the recipient build farmers’ ability to manage plant genetic resourc- institutions provide feedback on research undertaken es conservation while improving farmers’ livelihoods. to the releasing institution. No other conditions are placed on the distributed genetic resources apart from 1. General Provisions: Meeting the Objectives of the the need to share research results. Guidelines The Ministry of Agriculture and Cooperatives through The SADC Plant Genetic Resources Centre (SPGRC), the National Plant Genetic Resources Programme based in Lusaka, was established to preserve indig- (NPGRP), provides an institutional arrangement that enous plant genetic resource material, the natural could support or promote the objectives of the Bonn crop heritage of the region, which is a prerequisite Guidelines. The Ministry does not have a national infor establishing successful plant breeding material stitution since the NPGRP is only a programme and and, increasing agricultural production. Phase I (1988 not an institution. – 1992) focused on the development of regional and national programmes, establishment of the neces- The lack of specific legislation, regulations or strin- sary facilities, and training and to undertake an in- gent conditions for access to germplasm, leaves the ventory of available genetic resources. The other key genetic resources vulnerable to abusive exploita- functions include: tion. This is compounded by the lack of control and . Advise and support SPGRC staff in initiating the collec- monitoring of the importation and exportation of tion in field gene banks or In situ maintenance, char- genetic resources (germplasm). There is a lack of con- acterization, documentation and dissemination of the ditions and regulations for the sharing of benefits vegetative propagated plant genetic resources; of research other than the research findings and no benefit-sharing from the revenues arising from the . Advise and support the SADC Member States in es- use of biological resources and local and indigenous tablishing communication between the regional knowledge or innovations from the source commu- gene bank network and its users of plant genetic re- nities or institutions. No legal framework exists on sources material, researchers and plant breeders; and Plant Variety Protection (PVP) for the protection of . Inventory of botanic competence resources for plant varieties. There are also no policies or laws that

78 specifically addresses the farmers’ rights in the coun- a written request and receive approval before entering try. However, the Agriculture policy has mechanisms the country and undertaking the collection, there is which take into account the rights of farmers and fa- no special permit and permission is by way of a letter cilitate their active participation in the conservation, of reply. The local communities living around genetic utilization of genetic resources and possible sharing resources being accessed may not even be informed of benefits that may accrue. prior to collection.

There are no laws in place that address the rights of 5. Mutually Agreed Terms local communities to control access, ownership and utilization of genetic resources. However, such provi- Basic Requirements for Mutually Agreed Terms sions exist in the current draft policies and legislation The poor and inadequate provisions and processes for (Forest Act and Draft Fisheries Bill). access to agricultural and other germplasm, points to a lack of legally binding mutually agreed terms in the The current institutional and administrative arrange- regulation of exploitation of such genetic resources ments are inadequate and the benefits from com- and any premise for benefit sharing. mercialization of results of research and indigenous knowledge on genetic resources are not guaranteed. Benefit Sharing The sharing of research findings is the only require- 2. Roles and Responsibilities in Access and Benefit- ment on benefit sharing. However, there is no sharing Sharing: National Focal Point, Competent National of benefits from commercialization of genetic resourc- Authority es resulting from bio-prospecting and from related The Agricultural sector policy for 2001–2010 advo- traditional knowledge exploitation. The collectors of cates for increased crop production while promoting germplasm are, for example, not obliged to share any the sustainable utilization of crop genetic resources. benefits that may accrue from developments out of However, the policy does not take into full account the the research findings. Bonn Guidelines. There is also no long-term National Authority for overseeing the access and results of ac- Only research findings may be shared with the source cess to genetic resources. institutions. Any other benefits that may arise are not guaranteed for the country or institution or local com- 3. Participation of Stakeholders munity. The implementation of ABS measures, in light of the Bonn Guidelines remains erratic mainly due to the- With the current poor monitoring and follow up on lack of an agricultural biodiversity legal provision for samples collected, due to lack of institutional and sci- broader stakeholder participation in the management entific capacity, the local or counterpart institutions of the genetic resources. do not follow up research findings in most cases. Thus, research findings may not return to the country, even 4. Steps in the Access and Benefit Sharing: Overall Strat- when the duplicate samples sometimes go missing. egy, Identification of Steps, Prior Informed Consent There are no clear mechanisms for sharing of research Overall Strategy findings. Even though the NBSAP aims for the equitable sharing of benefits accruing from the use of the country’s 6. Other Provisions: Incentives, National Monitoring and biological resources, this is not the case where agricul- Reporting, Means for Verification, Settlement of Dis- tural germplasm is involved. A sector specific strategy putes, Remedies on ABS is required given the significance of the agricultural sector. Incentives There are no incentives for communities under the Identification of Steps current provisions other than the benefits of access to There are no clearly established steps and procedures research findings for participating institutions though for obtaining access to germplasm for bio-prospecting such benefits may not translate into monetary or the or other purposes other than the need to abide by the non-monetary benefits of capacity building or train- phytosanitary regulations for the sake of ensuring ing. There is no specific law that allows patenting of safe passage of germplasm across borders and not for plant varieties while there is no other form of protec- ensuring equitable sharing of benefits arising from tion that may lead to benefits related to genetic re- the use of the germplasm. sources access and exploitation.

Prior Informed Consent Accountability in Implementing Access and Benefit Prior Informed Consent is ad-hoc in nature and ad- Sharing ministration as there are no clearly established pro- There is no real accountability in the arrangements as cedures for obtaining permits to collect plant genetic duplicate samples go missing and violation of require- resources from Zambia by local and foreign collectors. ments for access to collect germplasm are left unpun- Furthermore, while the collector is required to submit ished as no legally binding permits are issued.

79 Monitoring and Reporting sought to improve community livelihoods. There re- Monitoring of access and the results of such access is mains no holistic enabling legal framework for effec- poorly monitored. In some cases germplasm is taken tive implementation of the access and benefit-sharing out of the country without the knowledge of the au- concept, as an incentive for sustainable management thorities. Follow-up is up hazard and not guaranteed. of biological resources in an integrated cross-sectoral Verification means are not elaborate and no institu- manner in the country. tion has such a mandate. . No overall access and benefit sharing strategy at the Settlement of Disputes national level There are no set procedures for settlement of disputes While one of the goals of the National Biodiversity since no legally binding permits or license conditions Strategy and Action Plan is to ensure “equitable shar- exist. ing of benefits from the use of Zambia’s biological resources”, the country has no overall strategy on ABS. Future Scenario The current sectoral nature of existing initiatives with The Ministry of Agriculture and Cooperatives through elements of ABS has resulted into having no authorita- the Seed Control and Certification Institute (SCCI), has tive institution for spearheading a holistic framework, a draft Bill on Plant Variety Protection. The draft Bill let alone the implementation of a well-coordinated incorporates the Breeders’ Rights, Farmers’ Rights and ABS regime in the country. The NBSAP has 3 objectives the regulation of access to plant genetic resources. It related to ABS. These are: to develop and adopt a legal is therefore, hoped that once the Bill is enacted into and institutional framework, which will ensure that law, some of the legislative gaps for ABS implementa- benefits are shared equitably; to provide education tion of will be filled. in natural resources management; and utilization for the traditional establishment and local stakeholders The Ministry of Science, Technology and Vocational as well as to train local stakeholders in entrepreneur- Training is spearheading the development of a Na- ship skills to maximize benefits from natural resourc- tional Biotechnology and Biosafety Policy and Legisla- es management. These objectives have not fully been tion. This legal and policy framework will help in the achieved and require some dedicated capacity build- protection, control and management of potential risks ing activities. While the NBSAP does recognize the in posed by biotechnology to animals, human health need for equitable sharing of benefits from the use of and the environment. the country’s biological resources, there has been no concerted efforts to undertake the actions identified Zambia, through the Department of Research and for realizing the ABS objectives. Specialist Services in MACO, is also participating in a global Biodiversity International project aimed at . Inadequate access to and transfer of technology for strengthening capacity for policy development for conservation and sustainable use from the developed ABS arrangements in genetic resources. world Currently, transfer of technology is primarily for im- 4.4.7 Constraints and Challenges proved, efficient and effective harvesting of genetic resources for which access is granted to users from de- There are a number of challenges and constraints to the veloped countries and not for improved conservation implementation of ABS principles as guided by the Bonn and sustainable use necessarily. Little attention has Guidelines. been given to empowering local communities to add value to local products. The trend has been the remov- The major constraints are: al of genetic material and taking it to the developed world for value adding with little or no direct benefits . The lack of an enabling legal and policy framework to from the products or knowledge resulting from the support ABS use of such resources. Several initiatives have been implemented that directly or indirectly address the ABS objective of the . Limitations in generation of scientific, socio-economic CBD. However, this has been done sectorally, through and documentation of indigenous and traditional various Community-Based Natural resources Man- knowledge on genetic resources agement Programmes, particularly in the wildlife and There are insufficient funds for research in genetic forestry sectors. The effectiveness of the programmes resources for which access is being granted and limi- is varied, but most have been adversely affected by tations in exchange of information, as there is no op- unfavourable legal and policy frameworks, particu- erational National Clearing-House Mechanism. There larly with respect to access and control of the natural have been no extensive or complete inventories of resources, and subsequent sharing of benefits arising most of the genetic resources available in the coun- from their use. For example, The Zambia Wildlife No. try. Selected inventories in selected areas are through 12 Act, 1998, while providing for the establishment of project funding while using different methods, which Community Resource Boards, does not provide them make comparison or series data analysis extremely with a legal status that may allow them to make de- difficult. cisions on resource use and sharing of benefits. Simi- larly, the Forest Act,1973, precludes communities to . Current and recent technical and scientific cooperation access and commercial utilization of forest resources. is largely for piloting of ABS initiatives without target- Consequently, a Joint Forest Management Programme ed research on issues underpinning such ABS pilots

80 A lack of scientific guidance in the design and imple- also needs a share of the revenues to meet its opera- mentation of benefit sharing mechanisms has made tional costs. it almost impossible for communities to realize the incentives for conservation. Technical and scientific co- 4.4.8 Recommendations for a Draft Action Plan operation targeted at the development and strengthening of the national capacity in human resources and There are several actions which can promote the imple- institutional development related to ABS is minimal. mentation of the third objective of the CBD. These include: . Inadequate provision of financial resources for the . Establish a legal and policy framework that promotes country to meet its obligations to the CBD on ABS the development and implementation of national law Zambia is preoccupied with economic development and policies on ABS; and poverty alleviation in its resource allocation to various sectors of the economy. Without urgent finan- . Develop an overall ABS strategy, and adequate capac- cial support from the developed world, Zambia will be ity in developing appropriate policies and legislation not be able to apply the Bonn Guidelines and meet its and implementation of the principles for equitable obligations to the CBD, for even where there is politi- and fair sharing of benefits arising from use of ge- cal will and capacity, most of the constraints emanate netic resources. Capacity-building is required in prior from the lack of financial resources to implement informed consent procedures, negotiation of ABS ar- strategies and programmes. rangements, awareness building, implementation, monitoring and enforcement of existing ABS arrange- The major challenges include: ments, value adding to resources, taxonomy, and valuation of biodiversity; . Lack of full understanding of the concept of Access and . Developed countries can provide and facilitate access Benefit Sharing and transfer of appropriate and affordable technology In most cases CBNRM is misconstrued as synonymous relevant to the conservation and sustainable use of to access and benefit-sharing, while many key aspects Zambia’s genetic resources. Developed countries can of ABS are absent in a number of CBNRM projects and also support the negotiation of an international re- programmes. There is need, therefore, to build capacity gime that is pro-poor; among all stakeholders and actors in the understanding and implementation of ABS mechanisms and ar- . Promote joint research arrangements between de- rangements particularly in dealing with protection veloped country institutions and local institutions for of traditional and indigenous knowledge, intellectual documentation of indigenous and traditional knowl- property rights, negotiation of ABS arrangements and edge on genetic resources, which is necessary for ef- their enforcement. fective conservation and sustainable use of genetic resources. Where such information has been deposited . Lack of awareness and appreciation of the utility of in developed country, repatriation of such information Bonn Guidelines in the natural resources management should be facilitated; sectors of wildlife, fisheries and forestry even among . Invest in ABS-related research. Experiments and pilots planners, policy makers and natural resources manage- without sound scientific inputs are often inappropriate, ment staff costly and ineffective in providing incentives for conser- There is a lack of awareness among most stakehold- vation, sustainable use and in alleviating poverty; ers and especially communities on the importance of ABS as a tool for improved natural resources manage- . Increase financing to: ment mainly due to lack of information on best prac- 1. Enact appropriate legislation; tices and success stories of such initiatives from elsewhere. Awareness building is required on the concept, 2. Establish appropriate institutions; its importance and value in poverty alleviation. There 3. Build necessary capacities to undertake research is need to build awareness at various levels including and effectively exchange information; and among politicians, government bodies, the public, the private sector and local communities. 4. Build awareness, understanding and the capacity to implement ABS arrangements / principles and the . One other major challenge relates to power relations Bonn guidelines such as prior informed consent, ne- between local communities and the State; gotiation, implementation, valuation, monitoring While communities should be given access and con- and enforcement. 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 relations with the local communities where the benefits from wildlife utilization in various categories of land use shared between the community and ZAWA leading to lower benefits to the local community as ZAWA

81 5. Challenges, Towards and Action Plan, Lessons Learned, Project Impacts and Conclusion

At the Peer Review Workshop in December 2005, the 4. Building national technological capacities: Technology countries involved in this project identified the common transfer and support must be mobilized, to strengthen challenges faced in developing and implementing national national capacity to add value to genetic resources, and access and benefit-sharing policies in keeping with the to undertake research and biotech activities within the Bonn Guidelines. Several recommendations were made as country. There has been some reliance on North-South to the way forward for the countries to achieve the third transfer -- the challenge is to create an environment objective of the Convention at the national level. for South-South transfers as well. This would involve strengthening the existing intra-regional and sub-re- 5.1 Challenges gional cooperation policies, which are currently weak, and creating lateral links between such policies. The challenges include the need to: raise awareness of ABS principles; maintain institutional capacities; link ABS 5. Addressing the lack of ABS policy and increasing capac- and poverty alleviation; build national technological ca- ity to implement existing policies: The appropriate pacities; address the lack of ABS policy and increase capac- legislative, policy and institutional space for ABS man- ity to implement existing policies; engage local and indig- agement and implementation must be identified and, enous communities; monitor and enforce ABS agreements where necessary, created. in user and provider countries. 6. Engaging local and indigenous communities: Communi- 1. Raising awareness, identification and participation of ties should be involved in the development and imple- stakeholders: In each country, there is limited aware- mentation of legislation, policy and projects affecting ness, at all levels, of ABS principles. This has inhibited their resources and traditional knowledge. the development of effective regulations, and management of resources. Existing resource management 7. Monitoring and enforcing ABS agreements in user and programmes do not have a holistic approach to ABS. provider countries: National and international commit- The challenge is to identify the relevant and potential ment must be secured to ABS governance structures, stakeholders, and to raise the awareness of politicians, sustainable use and adding value to biological and ge- government bodies, the private sector, indigenous and netic resources. local communities, and especially research organizations, about ABS principles and components such as An additional challenge is to improve and increase taxo- prior informed consent, mutually agreed terms, bene- nomic research, biodiversity assessments and economic fit-sharing and technology transfer. valuations, and information management and sharing.

2. Sustainability of national institutional capacities: 5.2 Towards an ABS Action Plan Institutional capacity to develop and implement a Several steps were identified as critical for all countries to comprehensive ABS system is quite a challenge, as undertake, if they are to develop and implement ABS poli- existing natural resource management institutions cies. These action points are: are already constrained in their ability to implement their mandates fully. Capacity to deal with related 1. Further implementation of the Convention on Bio- issues such as protection of traditional (indigenous) logical Diversity, in harmony with other biodiversity- knowledge, intellectual property rights, negotiation related multilateral, sub-regional and regional en- of resource access and ABS agreements, and monitor- vironmental agreements. Biodiversity conservation ing and enforcement, are all limited in terms of the and sustainable use should be mainstreamed across number of trained personnel, funding to implement all sectors at the national level, and where natural re- related activities and the availability of up-to-date source management is decentralized, at community technology to improve efficiency. These issues, often levels. This can be achieved by: systemic, will require some budgeting creativity, rationalization of available resources, creative private- . Reviewing and updating biodiversity strategies public sector partnerships, and international and re- and action plans, and where appropriate develop- gional support. ing sub-national points of action; 3. Linking ABS and poverty-alleviation: ABS must be . Including ABS as a priority area for funding in na- made relevant to anti-poverty objectives, including tional development programmes and for other the realization of the Millennium Development Goals, purposes; and in addition to meeting the biodiversity loss reduction . Adopting or adapting regional, sub-regional and targets, taking into account the Addis Ababa Princi- model legislation on ABS, and reviewing the les- ples and Guidelines for the Sustainable Use of Biodi- sons from countries with advanced ABS policies versity. and projects.

82 2. Promote a broader understanding and appreciation of training forums on specific ABS issues and areas for ABS principles; priority focus; and promote participation in interna- 3. Adopt an agreed glossary of terms and harmonization tional or regional training, and visits or secondments of terminology at local, national, sub-regional, region- to countries with advanced ABS management struc- al and global levels; tures and projects; 4. Develop national policy, ABS legislation and imple- 13. Conduct scientific and technical cooperation pro- mentation guidelines; grammes, and provide technology support to neighbouring countries, including the transfer of relevant 5. Establish and strengthen national institutional frame- biotechnology, research partnerships and secondment works for ABS by: of scientists; . Promoting the roles of the National Focal Points 14. Promote and invest in research and development for and Competent National Authorities; both South‑South and North‑South joint ventures, . Encouraging collaboration amongst the various within and between provider and user countries; CBD-related focal points and between other bio- 15. Document and integrate traditional knowledge, inno- diversity-related focal points; and vation and practices of relevance to ABS in key sectors . Conducting a more detailed inventory of national such as agriculture and health; institutions dealing with or handling ABS issues, 16. Develop guidelines for handling confidential or sensi- their awareness of ABS principles and objectives tive information such as traditional knowledge and set out by the CBD, and their actual practices. business information; 6. Conduct an inventory of past, current and proposed 17. Develop national or sub-regional toolkits and modali- projects with ABS components, and identify the finan- ties for strengthening and implementing intellectual cial needs and benefits of such projects; property rights across multilateral environmental 7. Conduct environmental impact assessments of the agreements; ABS arrangements already undertaken, ongoing or 18. Create checks to monitor compliance with and en- planned, and providing: forcement of prior informed consent, mutually agreed . Status and impact reports on specific (and target- terms and material transfer agreements in respect of ed) biological resources; ABS at the national level (also needed at international and regional levels); . Status and impact reports on the ecosystems supporting those resources; 19. Establish and maintain programmes for in-situ conservation and for maintenance of ex-situ facilities; . Impact reports on indigenous and local communities. 20. Provide support to the Convention on Biological Diver- sity on the negotiation of an international ABS regime; 8. Conduct periodic valuations of biodiversity resources, especially in areas designated or targeted for bio- 21. Establish a multidisciplinary roster of experts on ABS prospecting; at national, sub-regional and regional levels, and peri- odically update the roster in the clearing‑house mech- 9. Promote the sustainable use of biodiversity and for- anism; mulate positive incentive measures to promote and optimize ABS arrangements. Countries can develop a 22. Restore degraded areas of important biological re- code of conduct in the light of international and resources; gional principles, to ensure national sustainable use of 23. Cooperate on the transboundary movement and biodiversity; management of genetic resources, with standardized 10. Identify ABS stakeholders - i.e. governmental organi- measures and a mechanism to ensure cross-border zations, community-based organizations, non‑gov- compliance and enforcement; ernmental organizations, the private sector and civil- 24. Support community-based activities with financial society organizations - and strengthen cooperation and technical resources from identification through between them, with a view to creating incentives for to implementation; and the development and implementation of ABS meas- 25. Develop toolkits and guidelines on how regulations ures and projects; and policies are to be implemented by providers, us- 11. Establish and maintain national information man- ers, researchers and others. agement and information exchange mechanisms, and extend the roles of such national clearing-house mechanisms, including national biosafety clearing- 5.3 Lessons Learned houses established for the CBD’s Biosafety Protocol (possibly including information and reports to other From the experience of undertaking detailed country Conventions); studies, several lessons for ABS policy development and implementation were learned. They include: 12. Provide capacity-building for human resources development, including national workshops, seminars and 1. Stakeholder identification and participation is essential

83 as a basis for any ABS policy development, and to un- biodiversity would encourage conservation and sus- derstand the true ABS climate of the country tainable use An all-inclusive approach ensures that available In the four countries, poverty alleviation and economic information, concerns and perspectives from a wide development are key objectives of most sectoral poli- spectrum of individuals, communities, institutions cies, and have also been identified as an objective of and organizations – through various forums at any national ABS regime. national, district and local levels – are captured and taken on board in ABS policy development and Valuation of targeted resources and ecosystems (and envisaged agreements. The information captured also associated traditional knowledge), and identifi- at the forum should be presented in clear language cation and quantification of potential benefits to be to decision-makers at various relevant levels, and derived from the use of these resources, can create an convey to all stakeholders the significant outcomes impetus for conservation and management. However, of their participation. Simple definitions should methodologies for carrying out these valuations have be used, and ABS misconceptions cleared up early not been applied and are poorly understood in most in any consultations --especially misconceptions countries. This has had an impact on various natural re- about the types and timing of benefit-sharing, and source sectors, especially wildlife and fisheries, and will about the provision of prior informed consent. This also impede ABS management. Currently, the values, process fosters agreement on the basic principles benefits and costs of use of natural resources hardly and definitions that will help guide the development feature in national accounts (to some extent wildlife and monitoring of ABS arrangements, and increase resources are reflected). Valuation reports can capture opportunities for future collaboration and cooperation and present: in ABS and other ventures. . The quantity and types of benefits to be derived 2. Formal national legislative and administrative meas- from use and conservation of, research into, and fa- ures are important for clarity and establishment of cilitating access to genetic resources; mandates A formal national legal and administrative ABS struc- . The “investment” or opportunity costs incurred by ture, with empowered national focal points (ABS NFPs) the country and local communities in terms of con- and national competent authorities (ABS CNAs), is servation over the years; and likely to lead to better, more effective and more efficient implementation and monitoring of ABS arrange- . The projected “investment” or research and devel- ments. Such a national framework and policy, based opment cost involved to bring a product to the mar- on transparency, accountability and good governance, ket (e.g. in the case of pharmaceutical research and would create the environment for ABS projects which drug development). embrace the principles of prior infomed consent, mutually-agreed terms and benefit-sharing. It would Such costs and benefits could then be duly reflected also lead to greater awareness of the complexities of and considered in the equitable benefit-sharing the issues within national institutions. In addition, arrangements elaborated by the relevant entities at these legal structures, by giving legislative credibility the national and local levels. The results of valuation and authority to the ABS issues, would support main- can also inform prioritization of conservation, streaming and inter-sectoral collaboration and co- sustainable use and access activities. This can lead operation, incorporation of local, indigenous and tra- to promotion of particular resources (and possibly ditional knowledge systems and intellectual property associated traditional knowledge) for bioprospecting, rights, and would support links with the scientific and thus increasing the likelihood of successful screenings. NGO communities. Where information is incomplete, the precautionary approach may be applied, to avoid adverse impacts on 3. Private sector engagement brings business perspec- the ecosystem and local communities dependent on tives and practicalities to ABS policy design and imple- the resources. mentation The private sector’s role in ABS is widely acknowl- 5. Trained and knowledgeable personnel – researchers, edged. Its engagement can be at various entry points. natural resource managers and community leaders – At the stage of developing policy, private companies who are aware of the ABS process and principles, are can identify criteria of use for the ABS framework, give important in both development and implementation perspectives on cost/benefit parameters, and suggest of ABS policies formulas for benefit-sharing. Once the system is estab- This involves training and awareness-raising in lished, the private sector can create partnerships with key areas, including: ABS law and policy options; government and research groups, transfer technology monitoring and evaluation; the principles of PIC and and train local scientists, and undertake bioprospect- procedures for granting it; negotiation of MATs and ing activities. Corporate social responsibility activities benefits; technology awareness, research methods, can support biodiversity conservation, sustainable use documentation and value addition chains. and ABS arrangements. 6. National Biodiversity Strategies and Action Plans 4. Valuation of components of the genetic resources of (NBSAPs), which incorporate sustainable use, facilita-

84 tion of access to genetic resources and links conserva- was submitted to acting national clearing-houses for tion and poverty alleviation, help to promote the con- wider access, and is being built on since the close of the cept of ABS early in biodiversity management plan- project. This inventory also allows for closer monitoring ning, and allow later development of ABS policies to of the projects to ensure the principles of ABS are applied, progress more smoothly and to provide lessons for the design of ABS policy and The NBSAPs are important tools at the national level administrative arrangements. (and potentially sub-national levels) for biodiversity mainstreaming in various sectors, and revising these The NBSAPs and other action plans underwent some review strategies to incorporate ABS helps to raise the profile to identify their relevance to ABS management. In all cases, and acceptance of the issue in policy circles and with the countries identified the need for greater incorporation stakeholders. Introducing ABS within the NBSAP of ABS issues into the NBSAPs, or development of specific allows it to build on synergies achieved between: (i) ABS strategies and action plans. Even though these the NBSAP (often conservation-focussed) and other actions were neither time-specific nor costed, several of sector strategies such as Traditional Knowledge, them have been undertaken, or are being addressed by Land Tenure, Health, IPRs, MDGs, Poverty Reduction the countries to a varying extent. and Climate Change; and (ii) regional or subregional environmental and technology transfer programmes, The analysis of administrative and policy arrangements and science and technology policies. allowed countries to identify where there were institutional overlaps, and in which institutions ABS may be 7. Predictable financial allocation and project support couched. Stakeholders and policy-makers recognized that stabilizes ABS policy development and implementa- some elements of ABS, and especially benefit–sharing, tion, awareness-raising and training can be found within existing programmes such as wild- Resources from rationalization of country life management, even if the term ABS has not been used. programmes, donor support, GEF allocations and The concept of benefit-sharing was not considered new UNEP/UNDP regional and country projects and for communities – however, the types of benefits derived research programmes, should be planned so that from ABS programmes may be different or additional activities do not contradict one another, but tackle to the types currently being received from wildlife and various aspects of ABS management and development. fisheries management. Some of the formulas for bene- Funding for training of taxonomists, research and fit-sharing and community resource management have screening, in-situ and ex-situ conservation, valuation, been proposed as a basis for negotiation of ABS mutually- reduction of biodiversity loss, sustainable use, agreed terms. community natural resource management, trade, and protection of international property rights and The countries also recognized the need for national traditional knowledge, can all support ABS activities action, as well as involvement in the negotiation of an and planning. international regime on access and benefit-sharing. To contribute to these negotiations, countries have agreed 5.4 Project Impacts to share at an international level the lessons they have learned, the constraints identified and points for action. The project made a significant impact in the countries, This will take place through workshop events and both during and after the time when it was undertaken. presentations at international and regional meetings, Activities at the national level catalyzed multi-stakeholder publication of the country studies, and submission of dialogues and raised awareness of the principles of access the country reports to the CBD secretariat for wider to genetic resources and benefit–sharing, and of the distribution and further analysis. Bonn Guidelines. Most countries convened two national stakeholder workshops and conducted surveys with 5.5 Conclusion stakeholders. For Uganda, the stakeholder workshops also presented an opportunity to promote and review Overall, for most of the countries to derive benefits from emerging ABS regulations and guidelines. an ABS policy, South-South collaboration is needed – neighbouring countries with varying degrees of technology The project raised the awareness and profile of the roles (genomics and even synthetic biology), research capability of National Focal Points and Competent Authorities on (use of bioinformatics tools), shared resources and ABS, and their nomination was raised as a point of action traditional knowledge, and similar governance structures by the countries. Since the project was implemented, the can collaboratively add value to their resource use, and countries have now appointed ABS National Focal Points improve their innovation capability. Further investigation and submitted names to the CBD Secretariat (for example, into the capabilities and opportunities for research groups, Uganda in March, 2008). conservation facilities and universities should be carried out, including the potential for joint projects with industry, The project launched inventories of projects and and across sectors such as food and agriculture, industrial programmes with ABS elements, and identified national development and traditional pharmaceuticals. and private institutions, CBOs and NGOs which undertake ABS-relevant activities in each country. This information For policy-makers and ABS management institutions in the

85 countries, the challenge is to design a system that is agile The countries covered by this project are keen on national and clear, and which balances the goals of conservation action, however likely it may be that the negotiations on and poverty alleviation with the needs and operation styles an international regime on access to genetic resources of the research and business communities. To encourage and benefit-sharing will overtake national ABS policy North-South and even South-South business collaboration development and implementation in most developing and investment, the countries must revisit their investment countries. The negotiations do and can provide impetus for climate so that user countries and bioprospectors can national awareness and action. This report demonstrates undertake local activities with relative confidence. Science that countries are taking steps to understand the ABS issues, governance and innovation policies should be clear and raise awareness amongst stakeholders, and understand supportive not only of basic education, but of research in their national climate and where an ABS policy space can basic and applied sciences at university level, and should be created. By nominating focal points, responding to advance technologies by independent research groups requests from the Convention’s secretariat, and providing with clear ethical guidelines. These policies should aim to case-studies, countries are demonstrating a commitment facilitate, and should recognize that scientific discovery by to fulfilling their obligations, and a willingness to promote its nature is often unexpected, even if it may have been dialogue based on mutual understanding of provider and driven by associated traditional knowledge. user climates. What may appear as a somewhat sluggish approach to national action on ABS and genetic resources Sensitivity to cultural norms, such as traditional access may in fact be creative lateral thinking. to forest resources, and the acquired knowledge of local, indigenous and traditional communities, is especially Developing countries, and these four countries in particular, important when considering both the ‘access’ and perhaps recognize that removing the causes of limited ‘benefits’ components of ABS policies. Countries may wish national implementation of the CBD’s third objective, to identify specific areas which are open to bioprospecting, often systemic due to sectoral organization of resource and create specific polices for such areas (e.g. national management, is a tremendous and lengthy undertaking, parks, wildlife reserves, forests etc). which will need to respond to increasing and varying national, international and regional demands. There are associated complex issues such as ownership, legal provenance - whether certificates of origin or licenses Rather than removing all of the the constraints to the for collections and transfers agreements - which should management of access to genetic resources and the fair also be considered by the countries using criteria such as and equitable sharing of the benefits arising from access to practicality and cost- effectiveness. and use of genetic resources, it appears that the countries are seeking a way forward even though the constraints The widespread misconception of unlimited benefits from remain. Uganda’s way has been to develop specific ABS provision of access to resources should be clearly resolved regulations and guidelines, whereas the other countries at national and local levels, and the danger of overselling may adopt an innovative mix, using existing structures potential benefits to galvanize national action should be and policies to implement national ABS measures and avoided. achieve the Convention’s third objective.

86 Annex 1 Note Developed by IBBS and UNEP to Support Country Cousultants

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 inthis 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.

87 Annex 2 Questionnaire 1 Developed by IBBIS and UNEP to Assist National Consultants

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:

Year Year Implementing Designated Treaty Remarks Signed Ratified Ministry/Agency Focal Point/Contact Person

Focal Point for CBD: (a) Convention on Biological Diversity Focal Point for CHM: (CBD)

Focal Point for BCH: (b) The Cartagena Protocol on Competent Authority: Biosafety

(c) Convention on Scientific Authority: International Trade in Endangered Management Authority: Species of Wild Fauna and Flora

(d) The Convention on Wetlands (RAMSAR)

(e) The FAO’s International Treaty on PGR for FA

(f) The World Trade Organization (WTO) TRIPS’s Agreement

(g) World Intellectual Property Organization (WIPO)

88 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

5. Has your country or any institution in the country undertaken or participated in any bilateral or multilateral 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/NO

7. Has your country put in place any institutional (administrative/technical) mechanism(s) for addressing technical/ scientific, legal or trade issues in the area of Access to Genetic Resources and Benefitt Sharing e.g.

(a) Technical/Scientific Committees to evaluate ABS proposals (b) Legal Expert Committees for drafting contractual arrangements on ABS (c) Technical/trade/economic valuation committees (d) National Guidelines for ABS.

89 Annex 3 Questionnaire 2 Developed by IBBIS and UNEP to Assist National Consultants

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:

90 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

91 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

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

92 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

93 (ii) Statutory Policy or Subsidiary Legislation

(iii) Policy and Administrative Measures

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

(ii) Statutory Policy or Subsidiary Legislation

(iii) Policy and administrative measures

94 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 _____

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 _____

95 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 _____

96 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?

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

97 (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)

98 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

99 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

100 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

101 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 (Yes/No) between tourism and biological_____ diversity?

(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

102 D. IMPLEMENTATION OF ARTICLE 11 INCENTIVE 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 Measures Review 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

103 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)

104 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

105 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

106 PART III: ADDRESSING ISSUES REGARDING IMPLEMENTATION OF OTHER ESSENTIAL 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

107 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

108 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

109 (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

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

110 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

111 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

112 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

113 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.

114 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

115 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

116 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

117 E. IMPLEMENTATION OF ARTICLE 12 RESEARCH 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

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

118 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?

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)

Please specify

119 PART IV ADDRESSING ISSUES OF ENVIRONMENTAL IMPACT ASSESSMENT, INFORMATION EXCHANGE, PUBLIC AWARENESS AND PARTICIPATION

A. IMPLEMENTATION OF ARTICLE 13 PUBLIC 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

120 (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

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

121 120. 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