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Protection for Oral Literature in Kenya’s Proposed Traditional Knowledge Bill

Discussions around oral literature in Africa in most cases refer to the African cultural tradition of transmitting culture from one generation to the next through folk tales, songs, proverbs and poetry. The primary purpose being to teach the listener important traditional values, morals and livelihood techniques. Oral literature is not unique to the African continent, but where other countries have been able to preserve and protect their oral literature, very little has been done on the African continent to reduce the exploitation of this important tradition.

Oral literature has been an important aspect of Kenya’s history, with oral traditions and indigenous knowledge being passed down through most if not all Kenyan tribes. The Protection of Traditional Knowledge and Traditional Cultural Expressions Bill 2015 currently before the National Assembly, aims to protect inter alia, oral literature.

The Kenyan Constitution in recognising “culture as the foundation of the nation and as the cumulative civilization of the Kenyan people and nation”, provides that Parliament shall enact legislation to ensure that communities receive compensation or royalties for the use of their cultures and cultural heritage. It also requires the state to protect and enhance intellectual property in, and indigenous knowledge of, biodiversity and the genetic resources of the communities” . The Bill aims to give effect to these provisions.

It provides protection for Traditional Knowledge (TK) and Traditional Cultural Expressions (TCE). The definition of TCEs includes any “forms, whether tangible or intangible, in which traditional culture and knowledge are expressed, appear or are manifested, whether verbally as in case of stories, epics, legends, poetry, riddles; other narratives; words, signs, names, expressions by movement, including dances, plays, rituals or other performances”. This would cover various forms of oral literature.

Those wishing to make use of TCE’s will have to get prior informed consent from the relevant traditional owners, and will be required to credit these owners or the geographical area from which the TCE arises in the course of use. Furthermore, the use must be compatible with fair practice, and the use must not be offensive to the relevant community (section 18(2)).

The Bill sees the creation of the National Traditional Knowledge Authority (NTKA), which shall have the responsibility of implementing the Bill. Section 12 of the Bill requires prior authorisation before various acts may be carried out in relation to the TCE, including reproduction, publication, broadcast, translation and adaptation. Authorisation must be attained from either the holders of the TK or the NKTA if the holders so wish.

While these provisions aim to protect TK and TCE’s from misappropriation and misuse, it appears that they also have the potential to stultify the natural flow and growth of oral literature, whose survival depends on its being shared and kept alive in the collective imagination of communities.

For more information on this kindly contact Philippa Dewey

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