In our previous blogpost here, we discussed an agreement between Kenya Wildlife Service (KWS) and global biotech firm Novozymes A/S entered into in May 2007 entitling Denmark-based Novozymes to access and exploit for commercial purposes genetic resources, enzymes and micro-organisms within national parks, national reserves and other protected areas within Kenya.
In a recent media report, Chief Administrative Secretary in the Ministry of Environment William Kiprono has urged the Baringo County government to ‘demand full disclosure of all the money from the royalties deal.’ Kiprono reportedly said that the micro-organisms collected from Lake Bogoria ‘should have been of great benefit to the community’ and that ‘the county government should revisit to see if the amount paid to the community living around the lake is commensurate with the billions of shillings the bio-tech industries are getting from the enzymes.’
Readers of this blog may recall that in Mombasa High Court Petition No. 15 of 2010 Mulungusi Muthembwa Mutunga v Managing Director, Kenya Wildlife Service & 2 Others, the petitioner alleged that the Novozymes-KWS agreement violated Articles 42, 69 and 70 of the Constitution which relate to environmental rights and natural resources. As such, the petition sought the following orders from the court:
‘(a) An order to declare that the continued existence of the agreement violates and threatens the Petitioners Constitutional rights as enshrined in Article 42 of the Constitution as read together with Articles 69 and 70 of the Constitution and is to that extent unconstitutional, invalid, null and void, and order to nullify the same.
(b) A consequent order to declare that the continued access and exploitation of genetic resources, enzymes and microorganisms within Kenya’s National reserves and other protected areas by the 2nd Respondent [Novozymes] is unconstitutional, to restrain the 2nd Respondent or its agents from continuing with the said access and exploitation of genetic resources as aforesaid.
(c) An order to compel the 3rd Respondent [National Environmental Management Authority] to take measures to stop or discontinue the operation of the agreement between the 1st Respondent [KWS] and 2nd Respondent [Novozymes] and any activities stemming from the said agreement.
(d) An order to compel and direct the 2nd Respondent [Novozymes] to revert all and any commercial/financial benefits derived under the agreement to the people of Kenya by providing an account of the same and remitting the entire sum of benefits to the National Environmental Trust Fund.’
In this connection, it must be noted that Article 69 (1)(a) (e) and (h) mandates the State to ‘ensure sustainable exploitation, utilisation, management and conservation of the environment and natural resources, and ensure the equitable sharing of the accruing benefits; protect genetic resources and biological diversity; and utilise the environment and natural resources for the benefit of the people of Kenya.’
As fate would have it, the petition was subsequently withdrawn against all the respondents before it was heard on the merits, and the only question left for determination was the costs for the petition which arose between the petitioner and the 3rd respondent, National Environment Management Authority (NEMA). While NEMA argued that it ought not have been enjoined as a party in the suit, the petitioner argued that KWS and Novozymes had failed to apply for an Access Permit from NEMA as required by the mandatory provisions of Regulation 9 (1) of the Environmental Management and Coordination (Conservation of Biological Diversity and Resources Access to Genetic Resources and Benefit Sharing) Regulations 2006.
In arriving at its determination, the judge stated as follows:
‘From the pleadings and affidavits before the Court, even without deciding the merits of the case, I have not been persuaded that in filing the suit, the petitioner had no reasonable cause of action against the 3rd respondent or that the petition was frivolous or otherwise abusing the process of the court so as to deny him the protection of public interest consideration in the order on costs.’
For our purposes, it is important to note that in Kenya any person who intends to access genetic resources, whether naturally occurring or naturalised in Kenya, needs an access permit for genetic resources with a certificate from National Commission for Science, Technology and Innovation. The process of obtaining a permit involves a multi-agency engagement and Prior Informed Consent and Benefit-Sharing as may be applicable.