Developing guidelines for the protection of indigeneous knowledge under agreement establishing the African Continental Free Trade Area

Abstract

This study examines the efficacy of protecting indigenous knowledge within the context of the African Continental Free Trade Area (AfCFTA) Agreement. It examines the efforts aimed at establishing a robust legal and policy framework within the AfCFTA to foster African economic development. Although the Protocol to the Agreement Establishing the African Continental Free Trade Area on Intellectual Property Rights (IP Protocol) has been adopted, there is yet to be an annex on indigenous knowledge, traditional cultural expressions, and genetic resources. Therefore, this study proposes guidelines and a structured framework to guide the development of this annex. As a desktop (doctrinal) research, this study examines international, regional, and national legal frameworks, best practices, case law, and academic literature on the protection of indigenous knowledge. Grounded in a combined biopiracy, IP, and, free, prior, and informed consent (FPIC) conceptual framework, this study develops an "Integrated Indigenous Knowledge Protection Theory," which justifies the adaptation of the conventional IP regimes and developing a sui generis regime for indigenous knowledge protection. This approach encapsulates the incorporation of the IP regime, indigenous peoples’ rights, customary rules, and administrative and institutional framework for protecting indigenous knowledge. To achieve the study objectives, the thesis explores the propriety of using trade agreements, particularly the AfCFTA Agreement, to protect indigenous knowledge. It then examines the approaches adopted in existing international and national legal, policy and practices on the protection of indigenous knowledge. From this, the study proposes useful guidelines and effective structure for the Annex to the IP Protocol. Ultimately, this study advances the argument that a comprehensive framework that balances the economic exploitation of indigenous knowledge and the associated resources, with the rights indigenous people/communities have over these resources will effectively guide policy and lawmakers towards developing a framework that will ensure the protection of indigenous knowledge for the actualisation of the objectives of the AfCFTA Agreement.