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A ST230240 10/10/2012


Wednesday, 10th October, 2012

The Senate met at Half-past two o'clock p.m






THE PRESIDENT: May I remind hon. Senators to switch off their cell phones before commencement of business.



THE MINISTER OF JUSTICE AND LEGAL AFFAIRS (SENATOR CHINAMASA): I move the motion standing in my name that;

WHEREAS Subsection (1) of section 111B of the Constitution of Zimbabwe provides that any convention, treaty or agreement acceded to, concluded or executed by or under the authority of the President, with one or more foreign state, governments or international organizations shall be subject to approval by Parliament:

AND WHEREAS on the 30th of August 2011, Cabinet approved the ratification of the Swakopmund Protocol on the Protection of Traditional Knowledge and Expressions of Folklore within the framework of the African Regional Intellectual Property Organizations;

NOW THEREFORE, in terms of the subsection (1) of section 111b of the Constitution of Zimbabwe, this House resolves that the Swakopmund Protocol in the Protection of Traditional Knowledge and Expressions of Folklore within the framework of the African Regional Intellectual Property Organisations be and is hereby approved.

The Parliament of Zimbabwe is called upon in terms of section 111B of the Constitution of Zimbabwe, to consider the ratification of the Swakopmund Protocol on the Protection of Traditional Knowledge and Expressions of Folklore within the framework of the African Regional Intellectual Property Organization (hereinafter called "Swakopmund Protocol"

The African Regional Intellectual Property Organisation (ARIPO) is an African regional intergovernmental organisation on intellectual property matters established in terms of the Agreement on the creation of the African Regional Intellectual Property Organization of 1976 (generally referred to as the "Lusaka Agreement"). The organisation currently has 18 Member States including Zimbabwe and its Headquarters are in Harare.

Article III of the Lusaka Agreement outlines the objectives underpinning the creation of this intergovernmental organization. In terms of paragraph (a) of the Lusaka Agreement, one of the main objectives of ARIPO is, "to promote the harmonization and development of the intellectual property laws, and matters related thereto, appropriate to the needs of its members and of the region as a whole".

The Swakopmund Protocol was, therefore, concluded pursuant to the mandate of the Lusaka Agreement to which Zimbabwe is a party to.

The major objective of the Swakopmund is to legally protect and promote the economic and social exploitation of traditional knowledge systems and expressions of folklore for the benefit of holders of such traditional knowledge and traditional cultural expressions. This was born out of the realization that there has been rampant illicit exploitation of the traditional knowledge and expressions of folklore in the developing countries particularly within ARIPO Member States without any benefit accruing to the holders and owners of the traditional knowledge and the expressions of folklore.

ARIPO Member states adopted and signed the Swakopund Protocol in Swakopund, Namibia on the 4th of August 2010.

Mr. President, In terms of section 3 of the Protocol, contracting States are obliged to designate or establish National Competent Authorities which shall be charged with the duty of implementing and enforcing the provisions of this Protocol.

Section 14 of the Swakopund Protocol stipulates that the national Competent Authorities shall be entrusted to carry out awareness raising, education, guidance, monitoring and registration as well as dispute resolution as part of its tasks with a view to ensure effectiveness in the protection of traditional knowledge and expressions of folklore.

The Swakopmund Protocol will enter into force after the deposit of instruments of ratification or accession, as the case may be, by six Member States in accordance with section 27.

Cabinet, at its twenty fifth meeting held on the 30th of August 2011, approved the ratification of the Swakopmund Protocol. Zimbabwe, like most countries in Africa, is rich in traditional knowledge and traditional cultural expressions which have been practised by the local communities for centuries. It cannot be assailed that over 80% of the Zimbabwean population still relies on traditional medicines emanating from rich body of traditional medical knowledge. There have been many cases of western companies exploiting traditional medical knowledge for pharmaceutical research. An exemplary case involved the use by a Swiss university and US company of traditional knowledge about the medicinal use of the mutukutu plant in Zimbabwe, which has ingredients to treat fungal infections. The medicinal drug was claimed as belonging to the Western entities regardless of the source of the primary traditional knowledge. It must be noted that Zimbabwe is home to thousands of plant species that have medicinal use yet very little has been done to research and develop capacity. Protection is therefore required to obviate the incidences of biopiracy.

Mr. President, The Parliament of Zimbabwe is, therefore, called upon to approve the ratification of the Swakopmund Protocol on the Protection of Traditional Knowledge and Expressions of folklore within the framework of the African regional intellectual Property Organization.

I thank you, Mr. President.

SENATOR CHITAKA: Thank you Mr. President. I rise to commend the Government through the Minister of Justice and Legal Affairs, for bringing this protocol to the Senate for ratification. When I saw this protocol in my inbox, it was very thick. Members who bothered to read it saw that it was a very thick document; which is appropriate because the thickness of the document is a reflection of the amount of wealth of knowledge that these traditional societies posses. So, it would not have been proper to bring us a very thin document Minister. At least the protocol is living up to what it is supposed to protect.

I actually did not realise what ARIPO was until I started reading this protocol. Now I understand. My call to the Government is yes, we have a very good protocol which is long overdue. I think this continent and this country lost a lot of indigenous knowledge which were externalised by the colonial masters then and I would like to ask the Government what it is doing to get some of those artifacts that were taken out of this country and exported. I think I will refer to one very emotive one about musoro waChingaira. What are we doing about that? Are we letting these murderers and looters to keep the priced head of Chingaira, for how long? We must stand up and reclaim what is due to us. I also understand the Zimbabwe Birds were eventually returned but I understand there are some that are sitting somewhere out there again. I think the Government must make strenuous efforts to ensure that all cultural artifacts due to this country are returned. We do not have to buy them. They are our property and I know there are several other countries that have made very successful bids to get their artifacts returned.

I also come to the localisation of this protocol. It is no use for us to ratify this protocol if it is not going to be domesticated. We need to domesticate it so that we can then arrest those Swiss people or whoever comes to steal our knowledge from here. As a protocol, if it stays as a protocol like this, we will not be able to protect that knowledge. A protocol is just intentions, but until we domesticate it and translate it into our local law, we will still continue to lose traditional knowledges to those looters. I think some of you have seen the film called 'Tomb Raiders.' It is a film but what it depicts is very real. We have to take our history and our knowledge very seriously. We also have some Acts or statutes on our books which are against traditional knowledges. I will refer to one particular one called the Witchcraft Suppression Act. That Witchcraft Suppression Act should have been repealed or drastically amended a long time ago. We are trying to westernise our culture. We know there is witchcraft. It is a part of our culture and that is why most of us go to n'angas, to spirit mediums and all sorts, but we have this silly outdated piece of legislation put there by those people who thought we were savages, so they wanted to civilise us and suppress our so called witchcraft. So, hon. Minister, in the next session of Parliament I hope you bring us an amendment to the Witchcraft Suppression Act. I thank you.

THE MINISTER OF JUSTICE AND LEGAL AFFAIRS (SENATOR CHINAMASA): Mr. President, I want to thank Senator Chitaka for his contribution and I want to advise him never to be intimidated by the size of a document and I hope that, notwithstanding the size, he took time to go through the document. Let me begin, Mr. President, by updating hon. Senators on what ARIPO is about. Maybe before I do that, let me just say a few remarks about what Intellectual Property Law is. Intellectual Property Law is that branch of the law which seeks to protect the creativity inventions of persons. These are copyrights of property organizations. We do so in the auspices of the world body headquartered in Geneva called the World Intellectual Property Organization.

I thought I should give that background information so that we are all on the same page. Now, coming to the specific matters that you raised Hon Senator, I want to say that from the outset that currently the law does not protect traditional knowledge. This is a new direction that a new development in the area of Intellectual Property Law, previously and currently it is not protected. Expressions of cultural expression are not protected. In other words, currently your Jerusalem Dance is not protected and the whole effort is to try to get there.

A lot of the songs that we have grown up to learn the tunes, the music - all that is not protected and the effort here is to seek to protect. So, it is a new area and we are not clear exactly how we are going to travel that new path but we thought that we should begin that protection and begin it now. Especially in the area of medicinal knowledge, a lot of scientists come. They will ask our n'angas and they will follow them into the bush and as they dig up a root here, they pluck a leaf there, they take a bark of a tree and they ask what are you using this for? I am using it for anti-malaria.

So, what they do is they will take that leaf, root or bark and go to do some research. That is the research I was referring to where a US entity with a university used the knowledge that they have gathered and they produced a drug to fight fungal diseases. What we are saying is that we would need to have that protected but the challenges are many apart from financial. The challenges that I see immediately are that say in the area of traditional medicinal knowledge is that our people will not divulge their information. But, what we hope to do is that resources permitting, we hope to encourage them to register first before they divulge or to divulge in a scientific way to the registration office so that once that knowledge is registered, it then gets the protection. If it is not registered, there is no protection.

So, that basically is something that we hope to achieve when this Protocol is fully operational. At the moment we really have no much expertise in this area. We are going to have to feel our way as we go about this major task. Equally, with respect to artifacts and so on but let me say that artifacts like the Zimbabwe Bird will come under expressions of folklore but current sculptures, any sculptor who makes a sculpture, already has a copyright in that sculpture and automatically it is already protected. It is like you are writing a book. Similarly, any person who can be identified as a source of a song - if you compose your song, the music and so forth, you automatically have a copyright and you can basically sue whoever copies that right.

But, a lot of the music of the West, I will not mention names here but some of the dances typical of say Michael Jackson were choreographed around African dances but he choreographed and then improved and then made those dances almost unique to Michael Jackson. Yet, the source could have been an African dancer either in the Congo or in Zimbabwe or in South Africa but then improved to create the sort of dances that we associate with Michael Jackson.

With respect to domestication, yes we will try. Certainly, internally we do not have the expertise but we will draw the expertise from ARIPO and also from the World Organisation. They will give us guidelines on how to go about setting up our structures and also how we should try to domesticate it in the law for instance how do we get Jerusalem protected? How do we get registered? So we have to put in a mechanisms and institutions to be able to do that. Mbakumba, how do we get it registered as a dance, as a choreographed dance? We will need to work out those and come up with something that protects the creativity.

You mentioned something about the Witchcraft Suppression Act. I need to advise you that it was repealed a long time ago but we repealed it, updated and I think more like along the lines that you mentioned and put it in the criminal court. So, clearly, if you point out so someone that he is a witch, it is defamatory but you must prove it. If you prove it, then it is not defamatory. Then you cannot be prosecuted and there are various ways that you can I am sure prove and establish that someone is a witch.

If someone is found with a human hand among his tools of trade, that could be good proof that that person is a witch. If you are able to catch someone opening up a grave and eating its contents, that could also be another proof but you have to prove it. So, just do not point to a person and make unfounded accusations and hope to get away with it. It is defamatory and in fact it destroys. Many families have been destroyed by unfounded accusations. Generally you find that these accusations are carelessly banded against people who are wealthier in the community than others. They rise every morning work hard and then people say why is he doing better than we are - he must be a witch? He is making us work in his fields during the night - things like that.

If you make that accusation you must be able to show that people were made involuntarily to go and sakura in the field at night without their knowledge. If you are able to establish that and prove, then you can get away with the allegation when you point it against a witch but I want to say this to Senator Chitaka, clearly, witchcraft is not wisdom that we want to protect. The evilness is not something that we should seek to protect. That power to do supernatural harm to others should not be protected surely. So, I would not consider it as one of the issues that we should want to protect under traditional knowledge - no.

What we want to protect under traditional knowledge is for instance, traditional medicinal knowledge about which part of a plant cures what disease. That we should protect. In other words knowledge of traditional herbal medicine by traditional medicine people, that we should protect but the supernatural power to cause harm to others, we should take a deep view of such knowledge. We do not want it in our society clearly.

Mr President, I think I have done justice in response to the contribution made by Senator Chitaka and I therefore move that the Swakopmund Protocol be and is hereby approved.

Motion put and agreed to.

On the motion of THE MINISTER OF JUSTICE AND LEGAL AFFAIRS , the Senate adjourned at Three Minutes past Three o'clock. p.m. until Tuesday, 15th November, 2012.


Last modified on Tuesday, 19 November 2013 11:50
Senate Hansard Vol. 21 SENATE HANSARD - 10 OCTOBER 2012 VOL. 21 NO. 49