Constitutional Protection of Intellectual Property in Kenya

The Pre-2010 Constitution of Kenya did not capture concerns on innovation and IP. In that Constitution, sections 70 and 75 capturing the Bill of Rights provided substantive property guarantees limited to real property as opposed to technological innovations, cultural innovations and IP. Its spirit however prohibits discrimination against illiterate innovators. Today, land, as real property, plays less significant role in development and global competitiveness. Therefore, ICT like software, the internet and e-commerce; new materials like fibre optics and super conductors and biotechnology and environmentally sound technologies are the key contributors to development.

In the new Constitution, there is a paradigm shift. The Constitution expressly protects IP, innovation and technology transfer. For the first time in Kenya’s history, IP norms have been constitutionalised. First, Art. 260 (c) includes IP in the definition of “property. Secondly, Art. 40 (5) obliges the State to support, promote and protect the intellectual property rights of the people of Kenya. In the same breath, Art. 69(1) (c) and (e) mandates the State to protect and enhance intellectual property, traditional or indigenous knowledge of biodiversity and the genetic resources of the communities and protect genetic resources and biological diversity.

Under Art. 11(1), the Constitution recognises culture as the foundation of the nation and as the cumulative civilization of the Kenyan people and nation. And mandates the state to promote all forms of national and cultural expression through literature, the arts, traditional celebrations, science, communication, information, mass media, publications, libraries and other cultural heritage; recognise the role of science and indigenous technologies in the development of the nation; and promote the intellectual property rights of the people of Kenya.

Parliament is also mandated to enact laws to ensure that communities receive compensation or royalties for the use of their cultures and cultural heritage. Legislation should also be passed which recognise and protects the ownership of indigenous seeds and plant varieties, their genetic and diverse characteristics and their use by the communities of Kenya.