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Biopirates in the Kalahari?How indigenous people are standing up for their rights –

the experience of the San in Southern Africa

WI MSA

Biopirates in the Kalahari?How indigenous people are standing up for their rights – the experience of the San in Southern Africa

Publisher: Church Development Service – An Association of the Protestant Churches in Germany (EED)Ulrich-von-Hassell-Strasse 76, 53123 Bonn, GermanyTel.: +49 (0) 228 81 01-0, Fax: +49 (0) 228 81 [email protected], www.eed.de

Working Group of Indigenous Minorities in Southern Africa (WIMSA)H 8 Bach Street Windhoek WestP.O. Box 80733, Windhoek,Republic of NamibiaTel.: (+264) (+61) [email protected], www.wimsareg.org

Author: Uwe Hoering

Editorial staff: Jutta Bangel, Edgar Brüser, Michael Frein, Angela Krug (EED), WIMSA-Team

Translation into English: D. Shannon and M. Henschel, [email protected] Design: Büro für Gestaltung, Stuttgart, GermanyPrinted in Germany by J. F. Steinkopf Druck GmbH, Stuttgart

Photos: WIMSA/Axel Thoma: Cover, p. 4, 6, 9, 13, 15, 19, 22, 24;Richard Pakleppa: Cover, contents, p. 3, 12, 14, 21, 23; Peter Oszvald: p. 8; EED/Edgar Brüser: Cover, p. 5, 10, 17

November 2004

2 Introduction

5 Biopirates in the Kalahari?

5 The open-air free-for-all

6 The San: expelled and enslaved

7 Not enough land for game

9 Plant raiders

10 Domesticated Devil’s Claw

Land – the core issue

11 Who is WIMSA?

12 Disputed natural resources

14 H is for hope

15 The obligations of property ownership

16 The vital clue

17 An important model

18 Protesting their innocence

20 Counting their chickens

21 Competing locations

22 Clinching the deal

23 Money isn’t everything

Contents


Throughout the world, indigenous peoplesare struggling to assert their traditionalrights. They are demanding recognition of

their rights to land and cultural self-determina-tion. And they are defending themselves againstbiopiracy, against multinational corporationswho want to market plant-based raw materialsand knowledge developed over generations –without obtaining the people’s consent or giv-ing them any share in the profits. When thesecorporations also apply for patents, indigenouspeoples definitively lose any influence over theway their own traditional knowledge is com-mercialised.

What they want, instead, is to be able todecide for themselves whether to allow othersto exploit their knowledge and resources – and if so, when and how. “Surely picking fruitfrom other people’s gardens is illegal in Europe,too” they say. And Victoria Tauli-Corpuz,Director of Tebtebba, an EED partner which campaigns internationally for the rights ofindigenous peoples, comments: “It is unaccept-able to exploit our knowledge on the one hand,and ignore our rights on the other.”

The EED supports the development effortsof indigenous peoples in a variety of ways: bymeans of financial support, secondment ofprofessionals, and advisory services. And itcampaigns for international agreements to beformulated with the interests of disadvantagedgroups in mind – as it did at the Conference of the Parties to the Convention on BiologicalDiversity, held in February 2004 in Malaysia.The initial progress made on that occasion will, hopefully, help to reinforce the rights ofindigenous peoples when their plants and tra-ditional knowledge are turned into productsand marketed for profit by companies in theNorth.

This is what was done with the plant namedHoodia, which is native to Southern Africa. TheSan people have been using Hoodia for cen-turies to suppress hunger. It contains an activeingredient that overrides the natural appetite,and could become a best-selling slimming aidfor the overindulgent societies of the North. As

well as providing financial support to the San,the EED has seconded a development profes-sional to Windhoek, the capital of Namibia,to advise them on such issues as setting up theregional organisation, WIMSA (Working Groupof Indigenous Minorities in Africa).

In the struggle for their rights, the San haveachieved one important element of success.After the appetite-suppressing ingredient ofHoodia had already been patented, they man-aged to conclude an agreement assuring themof a share in any future profits generated by the slimming aid. Unfortunately, full recogni-tion of their rights to land and cultural self-determination was not part of the deal. Todaythe active ingredient of Hoodia belongs to theowners of patents and licenses, and is no longerowned by the San. They are very dependent on those who hold the patent, and hence theexclusive rights to the use of Hoodia.

To change this in future, international con-ventions must include binding guarantees toprotect indigenous people’s rights – againstviolations by their own governments as well asinternational corporations. At the same time,the San will need ongoing support in theirstruggle to assert their rights. Which is whatthis brochure hopes to inspire. Both endeav-ours will call for dogged determination. Successwill only come gradually, and rarely if ever will it be spectacular. But the efforts of the poorto stand up for their rights will not be in vain.

Monika HuberDirector International Programmes

Wilfried SteenDirector Development Policy and Domestic Programmes

Introduction

“We [the San] are delighted that a part of ourtraditional knowledge is being honoured onthis historic occasion. For us it is an occasion to celebrate. It is of critical importance to usthat CSIR has acknowledged our traditionalknowledge of the Hoodia as the source of in-formation that started the process leading tothe granting of the patent in 1995,” were thewords of Kxao Moses ‡Oma, the chairperson of the WIMSA Board, expressing the San com-munities’ satisfaction with the benefit-sharingAgreement signed in March 2003 between theSan and the South African Council for Scien-tific and Industrial Research (CSIR).

Above and beyond the finalised contractualclauses, the real quality of the agreement lay in the negotiation process itself: it featured various rounds of negotiations, lengthy discus-sions and a series of workshops in which a con-siderable number of San representative bodieswere involved. This procedure formed the veryessence of a capacity-building process, which

strengthened the San organisations and re-stored the confidence in their capabilities.

Since the inception of the Working Group of Indigenous Minorities in Southern Africa(WIMSA) – a regional San advocacy and net-working organisation – representative bodiessuch as the WIMSA board, the South Africanand Namibian San Council, the San Cultureand Education Committee and the KhweLanguage Committee were appointed. Exceptfor the latter, all San bodies and the WIMSAannual general assembly (AGA) played a cru-cial role in the decision-making process lead-ing to the Hoodia benefit-sharing agreement.At the 2002 AGA – WIMSA’s highest officialorgan – the San delegates from Angola, Nami-bia, Botswana and South Africa decided thatany benefits deriving from the Hoodia will beshared equally by all of the broader San com-munities in all countries in which they live.Furthermore they mandated the South Afri-can San Council (SASC) and WIMSA’s legal

How indigenous people are standing up for their rights 3

Impoverished and

oppressed: the San in

Southern Africa

advisor, Roger Chennells, to negotiate with the CSIR on behalf of all San communities.The first round of negotiations resulted in the signing of a memorandum of understandingbetween the two parties. Between the first and second round of negotiations a workshop on benefit-sharing options and strategies washeld and attended by representatives of all relevant San bodies, government and CSIR officials. The subsequent series of meetingsbetween the SASC and CSIR led to draft agree-ments and eventually to the final version ofa benefit-sharing agreement.

After the signing of the agreement the San’slearning process did not come to a halt. InOctober 2003, San representatives from Bots-wana, Namibia and South Africa met and drewup a joint proposal for the apportionment offuture profits from the agreement: 70% shouldgo to development projects and 30% shouldcover the administration of the San Councils.The suggestions were discussed at the 2003WIMSA annual general assembly and unani-mously approved.

Through the truly concerted efforts ofthe San representatives from Angola, Namibia,Botswana and South Africa to put the agree-ment to effective use, the San in general con-tributed to both a sense of unity and a regainedpride in their traditional knowledge and intel-lectual property.

The WIMSA teamWorking Group of Indigenous Minorities in Southern Africa



For once, the Kalahari Desert is green. InFebruary and March, heavy and prolongedrain fell, after three years of drought. The

tall grasses, the creepers with pink, yellow andwhite blossoms, and the fresh foliage of camel-thorn trees and other kinds of acacia brieflybelie the fact that, for most of the year, this is a hot and sandy wasteland, a hostile environ-ment where little can survive. Scanning the surroundings intently, her eyes riveted to theground, Magdaleen Steenkamp strides betweenthe clumps of grass. Suddenly she stoops, andscoops out three or four handfuls of sand touncover a small tuber, the colour and size of

a new potato. To her well-trained gaze, just afew tiny cracks in the sandy soil advertise thepresence of a buried Kalahari truffle. Despite itsunassuming appearance, this edible fungus is a local delicacy, baked in hot ashes or boiled insalted water. Magdaleen, a member of the‡Khomani San tribe, cheerfully admits that hergathering expeditions have also brought herface-to-face with a puff adder more than once.

The open-air free-for-allThe great outdoor superstore where Magdaleen‘shops’ for supplies is on three levels: the base-ment, where buried delicacies like the truffles

Biopirates in the Kalahari?

Bush, semi-desert and

savannah – the habitat

of the San

are found; the ground floor, with bushes, grass-es and creepers; and the upper level, the tree-tops, including camel-thorns, other overhang-ing acacias, towering primeval baobabs andfruit-bearing marula and manketti trees. Onevery level, food is there for the taking – roots,cucurbits, beans, tubers, honey, seeds andleaves. The delicatessen section stocks treefungi, morama nuts and mopane worms. Inthe drinks department – vitally important in asemi-arid region with low and erratic rainfall –there are water-storing succulents and tubers,fruit juices and melons, but also seeds to makecoffee, leaves for tea, and sugary berries forstronger liquor. Elsewhere there are tobaccoplants and horn for whistles, a range of cos-metics, and a full complement of hardware and

construction materials like wood, clay andgrass; there are tools, string made from plantfibres, and extra-hard wooden digging sticks.For the home, huge baobab fruits make watercontainers; grass and palm can be turned intobaskets and wild cotton into pillows. There iseven a small department for toys, jewellery,amulets and musical instruments, like rattlesmade of chrysalis cases, seed necklaces andbracelets, and ostrich-egg bowls.

The huge open-air pharmacy carries a widearray of medicinal plants and tonics, like theanti-inflammatory Harpago, or Hoodia to givesustenance, strength, motivation and staminafor the hunt. Close by, watch out for the poisoncabinet, where deadly nerve poisons made frombeetle larvae and roots are side by side with thematerials for quivers, bows and arrows. Andeverything is free. You just have to find it – andknow how to use it.

In the months after the rainy season, thestore is fully stocked. The longer the drought,the more the risk that certain items will go ‘outof stock’. Then the menu becomes increasinglypoor. But even in September or October, fruitsand nuts can still be found, along with rootsand tubers which stay fresh under the ground

for months. And there isalways something fromthe live meat counter:kudu, eland antelope,springbok or warthog.

The San: expelled and enslavedOnce the ‡Khomani,Khwe, !Kung, Hai||om,Ju|’hoansi and other Santribes were hunters andgatherers, with the free-dom of the entire territorybetween the Atlantic, theCape and the IndianOcean. They are known to be the most ancient

inhabitants of SouthernAfrica. Their languagecontains distinctive click-ing sounds, which arewritten down with sym-bols such as !, || or ‡. Inthousands of rock paint-

ings, some dating back over 20,000 years,they recorded scenes of daily life and hunting,hunters with bows and arrows and a multitudeof wild animals, possibly as a tribute to thegods.

The first incursions into the region weremade by nomadic pastoralists, African Bantutribes from the north. From the mid-17th cen-tury, they were followed by European explorers,adventurers and colonialists. Portuguese voy-


Their livelihoods depend

on their skills as trackers,

hunters and gatherers


agers landed in the west and the east, the Dutchand the English in the south. The Germans,as latecomers to colonialism, made their markwith a brief but bloody period of occupation inGerman South West Africa, present-day Nami-bia. From the coasts, these groups advanced to-wards the continent’s interior, on their quest forland, water, and mineral resources – there wererich pickings of diamonds, semi-precious stones,gold, copper and uranium.

The San (or ‘Bushmen’, the derogatory namegiven to them by settlers) were driven off theirland, away from their ancestors’ graves andtheir sacred sites, and enslaved. At times theywere hunted like animals and murdered. Theyhad their names, their languages and their culture taken away, and replaced with Christiannames in Afrikaans or English. The apartheidlaws in South Africa forced them to concealtheir identity. Today there are only around100,000 San left, probably less than one-tenthof the indigenous population in the pre-colonial era. Half of them live in Botswana,36,000 in Namibia, and a few thousand ineach of Angola, South Africa, Zambia andZimbabwe – a dwindling minority everywhere.Nowadays very few are allowed to hunt liketheir forebears, with the exception of twothousand Ju|’hoansi in the Nyae Nyae Con-servancy in Tsumkwe District near the Bots-wanan border.

Although the San still live on their ancestralland, they have lost control over it and its natu-ral resources, which were taken over both bythe colonisers and by today’s intruders. Some of the San became herdsmen on livestock farms,for meagre food and primitive lodgings. Othersbecame servants. Often they ended up as bonds-men, similar to slavery. A few of them made useof their talent for tracking: their abilities werein demand by the army of the South Africanapartheid regime. They helped track down thefighters of the Namibian liberation movementSWAPO. In Namibia, this role is held againstthem to this day, and used as justification forthe continuing discrimination they suffer, eventhough members of other ethnic groups suchas the Ovambo or the Herero also collaboratedwith the white South Africans.

Not enough land for game“This will do,” thought the Boer settlers, aftertrekking inland with their ox-carts for weeks onend. The savannah must have grown drier andsandier, more barren and more monotonous bythe day, and they named the place where theyfinally reached a halt Vergenoeg, “far enough”.Today the 300 kilometres from Windhoek toVergenoeg, close to the Botswanan border, canbe covered in three hours. For the most part,the land is as flat as a skillet. But the plains arebroken up by scattered hilly ridges, scouredsmooth by wind and rain. The knee-highBushman’s grass glistens gold in the sun likeflax, rippling in the wind like an ocean of sandwith small green islands of scrub, dwarfed bytowering camel-thorn trees and other acacias.The dead straight road is lined with never-ending fences to the left and right. Every fewkilometres a farmstead looms into view, withbarns, pens, and a wind turbine for the bore-hole. They have strangely German names, likeLoreley and Heimat. Locally, Gobabis District is known as Cattle County.

Today Vergenoeg is a communal farm. Thegovernment bought it back from its white own-ers for a princely sum, and the 6000 hectareswere split up into a number of ‘posts’. But when the land was allocated, most San familieswho live here came away empty handed. Onlythose who owned cattle or, failing that, sheepand goats, stood a chance. But most San had no livestock, not even chickens. So all they gotwas a small plot where they could put up a hut out of sticks, corrugated iron and mud,with shutters made of rusty tin. Outside, two or three dilapidated donkey carts are parked in the shade of a few trees. Someone has triedto mark out flowerbeds with stones, but there is not enough water.

Frits Kamte has proudly written his name inlarge letters on the wooden door, and beneathit, ‘Councillor’. Next door he has improvised an office out of wooden stakes and corrugatediron, equipped with a few threadbare campingchairs. Frits Kamte and his deputy, AugustusJacobs, have been elected as the representativesof the San in Vergenoeg, but the authoritieshave yet to recognise them. So among otherthings, they may not take part in meetings ofthe Land Board Committee which is respon-sible for land allocation.

The only work available is as a day laboureron one of the farms. Or the odd opportunity to perform in an exotic dance troupe at thenearby tourists’ lodge. The older people, likeFrits and Augustus, receive a small pension of 250 Namibian dollars a month, equivalent to 35 euros or 43 US dollars. Without state

food assistance, nobody here could make endsmeet. The trouble is, access to the great open-air superstore is barred by the fences of privatefarms. What is more, the livestock eat theshelves pretty bare.

Livestock farms and fences have also reducedwild animal populations. The ostriches, oryx


With the land that farmer David Blaine bought,years ago, he acquired some bizarre rock for-mations that look like rugged towers, stackedup by giants. On these rocks, some time later,he discovered drawings – of eland, springbok,and hunters with bows and arrows. Now heearns a living not just from his cattle, butfrom lucrative “Bushman Rock Art”: a smallshop sells “San Art” – necklaces, pictures, carv-ings. But the descendants of the original “rockartists”, now farm hands living in dilapidatedhuts, see not a penny of the money.

What David Blaine is doing in a small way, thegovernment of South Africa tries to do on amuch grander scale. In the summer of 2002,the South African San Council was shocked to discover that the construction of the Didima

Museum in theDrakensberg dis-trict, one of theworld’s largestopen-air rock artgalleries and aUNESCO World Heri-tage Site, was near-ing completion –and the San had noteven been consult-ed. Petrus Vaalboi,chairman of the SanCouncil, consideredthis a “grave insult”.Just in time, the go-vernment manageda volte-face: it helda series of negotia-tion workshops withthe San, and PetrusVaalboi would beinvited to speak atthe opening cere-mony. Since then,

the San have been the acknowledged ownersof South Africa’s “rock art”, and scientists havebegun to take its interpretation seriously.

Music, paintings or sculptures: at every turn,there is callous and tasteless marketing of theSan’s cultural heritage – and even of the Santhemselves. Yet they alone receive none of thebenefits.

In the meantime, at least one safeguard hasbeen introduced: in a change from the past,filmmakers, authors, researchers and journal-ists now have to sign an agreement acknowl-edging the intellectual property rights of theSan. Only after that can they ask their ques-tions and make their films.

San Art


antelopes and elephants that remain, in nation-al parks and on private game farms, are re-served for the tourists and hunters who will pay large sums of money for a kill. To eat meatonce in a while, the only option is poaching.“What else can we do, if our wives and childrenwant meat to eat?” says Frits Kamte in self-justification, “Hunting is our tradition, our culture.”

Plant raidersYet the San of Vergenoeg are sitting on buriedtreasure: gamagu, or Harpago. Augustus scrapesaway the sandy soil to expose one side of thetaproot of an unprepossessing creeping plantwith dark pink blossoms, which seems to groweverywhere. Carefully he then follows one ofthe horizontal side roots. After twenty or thirtycentimetres it thickens into a distended tuber.This is the plant’s store of water, to tide it overthe rainless season. The San have used it forgenerations as a homespun remedy for inflam-mations, pain and fever, a locally grown ver-sion of aspirin that is also very effective against dyspepsia. Cut into slices and dried, it is chewed or made into an infusion. The othername for gamagu, ‘Devil’s Claw’ comes from its black woody seed capsules which have long, pointed barbs.

Without the San, probably nobody wouldever have realised that, hidden in its side roots,the nondescript ground-covering plant with

the bizarre seed capsules produced a substancewith such varied medicinal effects. But dur-ing fighting with the Herero resistance, G. H.Mehnert, a soldier with the German colonialtroop, happened to observe how a San healercured an injured opponent, and made himdivulge his knowledge about Devil’s Claw.

Since then its fame has spread to naturaltherapy clinics and health food shops through-out the industrialised world, especially inEurope. One early advertisement went so far as to say: “Through the ages the black witchdoctors have been familiar with the health giving effects of Harpago-Tea. Their secretshave now been discovered by science.” Patentswere registered for the extraction and process-ing of the active ingredients. In the last decadeespecially, demand has exploded. Today Nami-bia is the largest supplier: in 2002, exports ofmore than 1,000 tonnes of Harpago generatedthe equivalent of around 5 million US dollars.The most important market is Germany, whereHarpago is considered the cure for rheuma-tism and the third most frequently used naturalremedy of all. However, packets of Harpago Tea from the natural remedy company, Salus,one of the market leaders in the health foodshop sector, give no indication of how Devil’sClaw was discovered, nor any information onits Southern African origins.

Although gamagu grows in abundance inand around Vergenoeg, for all the rapturousacclaim for its miraculous properties, the Sanreap very few benefits from its commercial success. Even if they know how to apply for the necessary permits to harvest and ship it, itis very difficult for them to manage the pro-cess unaided. Or they do not have the money to deliver the product to the exporters them-selves, in order to cut out the greedy middle-men. Often they get only three or four Nami-bian dollars for a kilo of dried tubers, a merefraction of the prices paid by consumers inEurope. For the harvesting season betweenMarch and October, profiteers sign up groupsof collectors who will work their fingers to thebone for no payment other than food anddrink. To increase profits, the parent tuber isoften dug out at the same time, destroying thewhole plant.

Devil’s Claw:

an unobtrusive

desert plant

with spectacular

medicinal effects

Domesticated Devil’s ClawRising demand, excessive use, and expandinglivestock herds have led to a situation where the supply is becoming scarce in certain regions.Fears that Harpago might be threatened withextinction led German Friends of the Earth(BUND) to apply, in the year 2000, to have itincluded on the list of endangered plant speciesprotected under CITES, the Convention onInternational Trade in Endangered Species ofWild Fauna and Flora. This would have placedrestrictions on trade, so Namibia and SouthAfrica were quick to quash the initiative.

However, the venture also made it clear thatif there was to be any further expansion in thepromising market for natural remedies, thesupply would have to be put on a sustainablefooting. Therefore several companies, includ-ing Salus, tried to domesticate the wild plantgamagu and to propagate it from seeds, offsetsor in the test tube – a far from easy under-taking. So far the most successful methodinvolves warming the seeds in a solution, theingredients of which are a closely guardedsecret. This outsmarts the germination-

inhibiting mechanismthat is common indesert plants.

However, as culti-vation starts to becomea practicable possibili-ty, high levels of invest-ment will be required:in laboratory facilities,greenhouses and irriga-tion systems, suitableagro-ecological condi-tions, and technicalexpertise. Such condi-tions are most likely to be achieved on large,commercial farms.These are better able to satisfy the buyers’many demands simul-taneously: reliabledelivery, consistentquality, a stable con-centration of activeingredients, and purity.But in that case, theSan who gather Devil’s

Claw in the wild would not get a look-in: oneof their few sources of income would be lost.

That does not affect the San alone: it putsNamibia’s market-leading position underthreat. In neighbouring South Africa, farmershave already begun to grow Devil’s Claw com-mercially. Farmers in Peru, Turkey or Moroccocould follow suit. If competition heightens,the supply could be increased enough to forceprices down. Effectively, remarks Dave Cole of the non-governmental research centreCRIAA in Windhoek, “the expropriation ofthe rights of the original providers of tradi-tional knowledge regarding Devil’s Claw willhave been completed,” – a process begun over a hundred years previously by a Germancolonial soldier named Mehnert. The only winners would be the commercial farming andpharmaceutical sectors.

Land – the core issueHence, argues Dave Cole, the San as the tradi-tional users must be enabled to participate inthe economic opportunities offered by the cul-tivation of Devil’s Claw. For example, research


Land-use plans should

safeguard the San’s

settlement and hunting

rights


It was a significant step, at the beginning ofthe 1990s, when deputations from differentSan groups in Southern Africa came togetherfor the first time to discuss the issues andproblems affecting their lives, and their futureperspectives. The San, living in small kinshipgroups without marked hierarchical structuresand organised largely on egalitarian principles,had never mounted any coordinated resistanceto the centuries of progressive land theftwhich had forced them into the inhospitablemargins of the Kalahari. But now they began to discuss collective representation of theirinterests. At the two development conferencesheld in Windhoek in 1992 and Gaborone in1993, delegates of the San called for an organisation of their own to be established.Only after the United Nations had declared a“Decade of Indigenous Peoples” in 1994 andnumerous studies had explored the situationof San communities and brought them intothe public eye, their time had finally come: in1996, the “Working Group of IndigenousMinorities in Southern Africa” (WIMSA) wasbrought into being.

In the meantime, membership of the networkwhich is a registered public-benefit organisa-tion has grown to 30 San organisations fromAngola, Botswana, Namibia and South Africa.WIMSA’s work is coordinated by a centraloffice in the Namibian capital of Windhoek.Once a year, delegates from all the memberorganisations meet up at a general assemblyto define goals and priorities for their work.These meetings are used for planning meas-ures in the fields of basic and further training,ownership and promotion of culture, securingland tenure and natural resources, defendinghuman rights, HIV/AIDS education and the con-tinued development of representative bodies.

Since it was founded eight years ago, WIMSA’sactivities have constantly expanded and thefirst successes are now being registered. Forinstance, WIMSA facilitated a programme thatsupports the San in documenting their oral traditions, as a means of boosting their aware-ness of the value of their own culture. WIMSAis also helping the San to protect their intellec-tual property, such as their knowledge about

the therapeutic effects of traditional medicinal plants, and their own personal rights in theface of all those who want to exploit and pro-fit from San knowledge and culture. To safe-guard their ownership rights to free commu-nal land, inhabited by the San for generations,WIMSA arranges legal assistance, lobbies theresponsible government offices and mobilisessupport from the general public through inten-sive work with the media.

In close consultation with the Legal AssistanceCentre in Namibia and Ditshwanelo, theBotswana Centre for Human Rights, WIMSAalso intervenes in human rights violationsaffecting the San. One of the most seriouscases in which WIMSA and other organisationsassisted the San in the fight for their ancestralland was the Botswanan government’s expul-sion of 2,200 San from the Central KalahariGame Reserve. According to the governmentthe San were getting in the way of the area’sdevelopment into a National Park with astronger emphasis on tourism. Now the gov-ernment must account for its actions in court.

Who is WIMSA?

S IMBABWE

Harare

Pretoria

Windhoek

500 7500 250km

Luanda

SOUTH AFRICA

NAMIBIA

ANGOLA

GaboroneBOTSWANA

1000

San settlementareas

should not be geared solely towards commer-cial production, but also explore ways of im-proving the yields of gamagu grown in the wildon communal or state-owned land. Higher,more consistent yields, could improve the gath-

erers’ income.“Then the benefitswould be sharedout more equi-tably,” thinks DaveCole. Howeverthere are consider-able barriers to beovercome: freelyavailable land,‘communal land’,is scarce, and com-petition to use it isgrowing.

On the map ofNamibia hangingon the wall in theWIMSA office inWindhoek, only a few white patch-es remain, eventhough the countryis sparsely populat-ed, with fewer thantwo million peopleinhabiting an areaone-and-a-halftimes the size ofFrance. Around 40 percent of itconsists of farm-

land, a dense tapestry of small squares, eachseveral thousand hectares in size, connected by a network of good roads. A further 40 per-cent are protected reserves such as the NamibDesert, the exclusion zone for diamond miningand a few large national parks such as SkeletonCoast and Etosha Pan. The rest is communalland, as in Otjinene and Tsumkwe Districts;the latter until very recently was still officiallyknown as ‘Bushmanland’. These are theremotest regions in the country’s interior, alongthe Botswanan border, or in the North West.

The team from Windhoek which WIMSAsent to Tsumkwe District West has convened a meeting of the !Kung-San. In July 2003, afterlengthy wrangling with the government, a

9,000-square-kilometre area of this region was finally declared a ‘Conservancy’. This stepaccords limited rights to San groups to exploitthe game and other natural resources as ameans of generating income. In order to safe-guard game stocks from decimation as a result,and to protect the environment from degrada-tion, joint work will be undertaken to draw upand agree a land-use plan for San settlementsin the new N‡a Jaqna Conservancy.

The first step is to take an inventory. Whereare the huts located? Where are there waterholes and vegetable gardens? How much gameis left? After that, discussions take place onwhich areas should be used for agriculture andas pasture, and which should be reserved asforest and for the collection of ‘bushfood’. TheMinistry of Environment and Tourism has provided experts to help the WIMSA team,which also includes San people, to demarcatethe borders with satellite positioning and toplot precise maps. When it comes to ensuringsustainable use, “community control is betterthan government control,” says EED profes-sional and WIMSA coordinator Axel Thoma.

Already the !Kung-San in the district ofTsumkwe West are mulling over plans for thefuture. Once the game population in the N‡aJaqna Conservancy has recovered, and bearingin mind the rock paintings in the nearby hills,there is potential for attracting tourists to theregion. Then they could set up a small lodge to accommodate them. In addition, Devil’sClaw and other plants could “generate incomeon a broad scale,” believes Axel Thoma. Usefulexperience already exists. In Vergenoeg forinstance, with advice from WIMSA and theNamibian Centre for Research-Information-Action in Africa (CRIAA), gamagu has beenharvested for several years without destroy-ing plant stocks. Direct marketing eliminates middlemen and results in better payment. Forsmaller quantities there is now even a processfor organic certification. The ‘organic’ marketniche holds out the prospect of higher prices,giving an incentive for sustainable use and thechance of reversing the downward spiral of lowprices and undue exploitation.

Disputed natural resourcesThis concept of sustainable resource use sounds like the ideal solution for giving both


Water – a source

of conflict


humans and nature a better outlook for thefuture in the sensitive environment of theKalahari. It combines environmental protec-tion, food security and exploitation rights,allowing the San to uphold their traditionalway of life, at least to a certain extent. They can take what they need from nature’s open-air superstore, but also have money and tieswith the market economy.

Nevertheless, in Bubi se Pos, one of the settlements where the WIMSA team is work-ing on a land-use plan, a heated dispute is inprogress. Two Herero men are disrupting themeeting, insulting and threatening the team,intimidating the San and holding up the pro-ceedings of the gathering with their endlesstirades. The Herero do not want a conservancy,let alone land-use plans which limit the amountof pasture available for their livestock. Theypoint out their tradition as livestock herders.The beef cattle bring them good money. Andexport, to South Africa for instance, generatesconsiderable foreign exchange for the state.

Herero and Ovambo people from the fewfertile, and therefore heavily populated, regionsin the north are encroaching onto more and

more of the communal land. They persuade orbribe local chiefs to allocate land to them. Orthey ask San groups to let their livestock haveaccess to their water supply. Little by little, thenumbers of cattle coming to the waterholecreeps up. Soon the San no longer have enoughwater for their own needs. Cattle and goats donot confine their grazing to ‘Bushman’s grass’;they devour anything edible they can find.Then bushfood becomes scarce, so does build-ing material, and so do medicinal plants likeDevil’s Claw. Resources are insidiously expro-priated. A cow in the Kalahari is like a bull in achina shop.

In some regions this dispute over land andwater, the conflict between San, Herero andOvambo, between Devil’s Claw and T-bonesteak, nature and profit, has already ended inconfrontation. Occasionally it is taken to itsultimate conclusion with firearms against bowsand arrows. More often than not, the San comeoff worse. Then they might resort to the ‘zerooption’: deliberately torching the Bushman’sgrass – no pasture, no livestock, no Hereros, noconflict.Land in the Kalahari –

a vehemently disputed

resource

H is for hope“We need land and education,” says PetrusVaalbooi, Chairperson of the South African San Council, “in order to safeguard our rightsand our traditions.” A native succulent plantcould help them to achieve this: Hoodia, a cac-tus-like plant which the ‡Khomani San call!Kkhoba. If everything works out, it could earnthe San a lot of money. Then, instead of weav-ing baskets, working as day labourers or danc-ing to entertain tourists, they could buy land,give their children a good education, and revivetheir native language and their culture, once in perfect harmony with nature but now indanger of dying out. After years of oppression,discrimination and dispossession of theirrights, Hoodia might hold out the hope of abetter and happier future.

This promising turn of events is usually told as a ‘good news’ story, along the followinglines: once there was a time when the ‘Bush-

men’ of Southern Africa used Hoodia to staveoff their hunger and thirst during huntingexpeditions. One day, scientists came alongfrom the South African statutory researchcouncil, the CSIR. They pinpointed and patent-ed the active ingredient, without asking theSan. The British company Phytopharm ob-tained the exploitation rights to P57, and theAmerican pharmaceutical group Pfizer wasawarded a production licence. The poor peo-ple’s cure for hunger looks set to earn fat prof-its as an appetite suppressant for the wealthybut overweight: used fresh in salads, as a slim-ming drink, or a fat-busting pill. Luckily, the‘biopirates’ were caught in the act. The SouthAfrican San Institute, WIMSA and the work of a committed lawyer, everything turned outfor the best: the San were given a share in theincome from the patent. “Doomed culture ofthe South African Bushmen saved by the phar-maceutical industry” the German television


Benefit SharingThe South African San Council and the CSIR negotiated and entered into a Memorandum of Understanding during March2002, in terms of which the parties agreed, inter alia, that

• The San people are custodians of an ancient body of traditio-nal knowledge and cultural values, related inter alia to humanuses of the Hoodia plant, resulting from their interrelatednesswith nature in all its forms, over the ages.

• The CSIR acknowledges the existence and the importance of the traditional knowledge of the San people, and the fact that such body of knowledge, existing for millennia, predatedscientific knowledge developed by Western civilization over the past century.

• The CSIR and the San Council, representing the San people inSouthern Africa, and in anticipation of the commercial success of the patents covering the technology related to productsderived from the Hoodia plant, committed themselves to a process of negotiations, in order to arrive at a comprehensivebenefit-sharing agreement between themselves as primary parties.

The Hoodia succulent


news reported gleefully. And they all lived hap-pily ever after...

The obligations of property ownershipBut the real story is far more complicated,and raises any number of questions and prob-lems.

For instance, whose property is the uniquebiodiversity of the Kalahari and SouthernAfrica, of which Kalahari truffles, Devil’s Clawand Hoodia are merely a few examples? TheSan may be the most ancient, but are not theonly group today with knowledge of the effectsof Hoodia and countless other plants. AndSouth Africa is not the only country in whichthey grow. The answer has a commercial value,because natural resources, including geneticresources, contain vast potential for exploita-tion. According to estimates from the WorldHealth Organization (WHO) for example,medicinal plants supply 70 percent of the rawmaterials for modern medicines. And withmodern biotechnology and genetic engineer-ing, the pharmaceutical and food industrieshave new tools for isolating and synthesisingactive ingredients, and for genetically modify-ing plants.

Most indigenous peoples and traditionalcommunities have no concept of individualownership of nature. Likewise, for the mostpart, their traditional knowledge about it isshared and made available to all. In industrial-ised countries, natural diversity was long

considered to be the ‘heritage of mankind’,meaning that it belonged to everyone – or no-one. Collectors, researchers and breeders haverepeatedly set out to scour nature’s bounty,which is most abundant in certain countries of the South. However, when they turned aprofit from their ‘discoveries’, as they did withDevil’s Claw, the countries of origin and thepeople living there were left with little to showfor it.

A clampdown on such practices came in the form of the Convention on BiologicalDiversity (CBD), passed in 1992 at the UnitedNations ‘Earth Summit’ in Rio de Janeiro.For a start, it clarifies the matter of ownershiprights. Under the Convention, each country of origin is assigned national sovereignty overits own biodiversity. This gives governments the right to rule on the use of flora and faunaoccurring within their own territory. It coversnot only whole plants and animals, but also allparts of them, including their genetic material.

By the same token, the Convention makesgovernments responsible for taking action toprevent the rapid loss of biodiversity, and forregulating the use of natural resources so thatall exploitation – whether by national or for-eign research institutions or companies – is on a sustainable basis. Profits from the use ofbiodiversity must be divided equitably amongstakeholders. For instance, they could be sharedbetween a pharmaceutical company and thecountry of origin.

Profits from the use

of biodiversity must be

shared equitably

Known as ‘benefit sharing’, this also has beextended to indigenous peoples and traditionalcommunities, because their ways of life andtraditional patterns of use, including the culti-vation of plants and breeding of animals, havecontributed to the conservation and develop-ment of diversity. Added to that, their knowl-edge, experience, and traditions can be helpfulto bioprospectors. Just as the San have an in-fallible eye for the plants they gather and the

game or people they track in the bush, so theyoften give researchers vital clues about useful –and highly profitable – properties of nature.Just as they did with Devil’s Claw a centuryago. So, once again, the San’s abilities as track-ers are in demand.

The vital clue“There, look – and here, a really big one!”With boundless energy, Petrus Vaalbooi pacesacross the stony hillsides on the edge of theKalahari National Park. The knee-high Hoodiaplants are somewhat like stacked-up zucchini,firm and dark green. Except that they are farfrom smooth, with their prickly spines andlengthwise grooves. Petrus Vaalbooi cuts offa finger-length tip and scrapes off the spines.“In the old days, on the hunt, we didn’t need to eat anything else for days on end,” he says,and takes a bite as if to underline the point.

The farm on which Petrus Vaalbooi andother ‡Khomani families live was the propertyof white livestock breeders until a few yearsago. After the apartheid regime ended, thehuman rights lawyer, Roger Chennells, nego-tiated a land claim on behalf of the ‡Khomaniwith the new South African government. Thepetition, based on new land laws, asserted therights of the South African San to their old“hunting and gathering grounds”. With Roger’sassistance, the ‡Khomani were successful andthe government subsequently handed over sixfarms to the San which had previously beensold by their white owners: 38,000 hectares oftheir forefathers’ lands. Moreover, they havespecial permission to go gathering in the near-by Kgalagadi Transfrontier Park. In other coun-tries, though, the San are still struggling to havetheir ancestral land rights recognised.

Hoodia’s hunger-suppressing properties had first come to the attention of the SouthAfrican army. Soldiers out on patrols with Santrackers saw how they could keep going fordays without eating any food, other than Hoo-dia. On learning of this, the CSIR set aboutconducting a systematic search for the activeingredient. If they help to separate the wheatfrom the chaff or to find the proverbial needlein a haystack, such leads are invaluable. Theysave time that would otherwise be wastedexploring blind alleys during systematic labo-ratory research – and that reduces costs.


Brokering a consensusThe Convention on BiologicalDiversity (CBD) regulates theprotection and sustainable useof biodiversity and equitable distribution of the benefits. Astep forward was made in April2002 at the negotiations on theimplementation of the Conven-tion. In the “Bonn Guidelines”,principles and practical proce-dures were established inter-nationally for accessing geneticresources and, in return, for ben-efit-sharing with countries of origin and local and indigenouscommunities. These are volun-tary arrangements, however, andcompliance with them is uncer-tain.

At the next opportunity, there-fore, at the World Summit forSustainable Development inJohannesburg in September2002, the Group of Like-MindedMegadiverse Countries demand-ed that internationally bindingregulations on benefit-sharingbe worked out within the Con-vention framework. In response,further negotiations were ini-tiated at the 7th Conference ofthe Parties to the BiodiversityConvention held in February2004 in Kuala Lumpur. The prob-lems yet to be resolved arenumerous. For instance, whetherindustrialised countries could be bound by greater obligationsto control biopiracy and to pun-

ish offenders. Or what shape abenefit-sharing arrangementmight take if a genetic resourceoccurs in several countries, as in Southern Africa. It is alsoimportant for local communitiesand indigenous peoples to beallowed to make decisions onaccess and benefit-sharing, inrelation to their own geneticresources and traditional knowl-edge. Many representatives ofNGOs reject such negotiationsoutright. They fear that they willultimately lead to the all-outmarketing of natural resources,and pave the way for biopiracyin the guise of protection of biodiversity. Others, in turn, takea pragmatic approach and workto strengthen the interests ofindigenous peoples and localcommunities within the Conven-tion framework.

In Kuala Lumpur, irreconcilabledifferences between the indus-trialised and developing coun-tries led, as so often, to theestablishment of a working party.It will present its report by thetime of the next conference in2006. So it will take some timeto put binding commitments inplace to prevent multinationalcorporations from helping them-selves to the genetic resourcesand traditional knowledge ofthe South, without offering pay-ment or obtaining consent.


Which brings us to the next question: whatis an appropriate, equitable or fair share in theprofits, whether for the San or any other pro-vider of indigenous knowledge? How muchcredit should be given to the scientific achieve-ment, and how much to the contribution oftraditional knowledge?

An important modelSixty million rand were invested in Hoodiaresearch, the CSIR contends; a sizeable stake toplace on such a risky outcome. According toRoger Chennells, the lawyer facilitating thenegotiations between the San and CSIR, thisissue gave rise to some hard-nosed negotiating.But finally, in March 2003, the agreement onbenefit-sharing was signed. As a result, theCSIR recognises the San as owners of the tra-ditional knowledge, as well as the significanceof that knowledge to the research. By the sametoken, it insists that isolation of the active in-gredient was its own ‘discovery’, which it was

legitimately entitled to patent. Under the agree-ment, the San become business partners andreceive six percent of the royalties paid by Phy-topharm to the research council for productscontaining the active ingredient P57. “So as anegotiator, I feel it ended fair for both sides –equally happy and equally unhappy,” says RogerChennells. The negotiations were made moredifficult by the fact that, internationally, thereare few comparable agreements to refer to.In any case, says the lawyer, depending on the success of the enterprise, six percent could be “a hell of a lot”.

For Rachel Wynberg from the South Africanenvironment and development organisationBioWatch, however, the amounts seem likechicken-feed – “a miniscule sliver of a large,well-iced cake.” She means that the San onlyreceive a share of the CSIR’s fee, not a share in the profits, let alone the revenues, from the product itself. What is more, they have toundertake not to make their knowledge about

The benefit-sharing

agreement puts the San

on a ‘business partner’

footing with research

institutes and companies

Hoodia available to any other commercialusers. Nevertheless, even Rachel Wynberg seesthe agreement between the CSIR and the San as a “historic breakthrough”.

Indeed, many other indigenous groups andholders of traditional knowledge have been left empty-handed. With a cancer drug calledVincristine made from the Madagascar peri-winkle, the American corporation Eli Lillymade annual revenues of 100 million US dol-lars. So far, the countries of origin have seennot a cent of it.

Protesting their innocenceAccusations of attempted biopiracy were alsolevelled at the CSIR, one of Africa’s leadingresearch institutions. The patent only came tolight thanks to alert NGOs, and even thenlargely by chance, four years after the exploita-tion and marketing rights had been licensed to Phytopharm in 1997. The ethno-pharma-ceutical company which proudly claims “tohelp tribal people to profit from their know-ledge,” made a statement that, based on infor-mation from the CSIR, the San people had died out long ago, so it would be impossible to share future profits with them.

This provoked outrage, not just from theSan but from the international community.So in the end, the CSIR had no choice but tonegotiate a benefit-sharing arrangement withthe San. After all, South Africa had ratified the Biodiversity Convention. The amicableagreement, certain critics say, does no morethan legitimise the theft of the San’s intellec-tual property after the fact. At best, it is a verylenient punishment. Imagine if a thief could get away with his crime as long as he gave hisvictim a few percent of whatever the receiverpaid him for the stolen goods.

In contrast, the CSIR does not see itself as a biopirate. Petro Terblanche is director ofthe Bio/Chemtek division in charge of bio-prospecting. She rejects the accusation out of hand. “We thought about benefit-sharingright from the outset,” she asserts. “But first we wanted to wait and see whether our re-search would be really successful.” In view ofthe high risk of failure, it would have beenwrong to awaken false expectations.

But this explanation has one serious flaw.The CSIR had not obtained the San’s “PriorInformed Consent” (PIC) for the research intothe active ingredient, the patent registration,or the licensing of marketing rights to Phyto-pharm. Thus it breached a central and


Hardly anyone would classify Colombia,Kenya or Indonesia as some of the rich-est nations in the world. But they are –they belong to the “megadiverse” groupof countries with the greatest abundance of plants and animals. The 12 countries,including heavyweights such as China,Brazil, South Africa and India, are hometo over 70 percent of the world’s bio-diversity. The Group of Like-MindedMegadiverse Countries first teamed up in February 2002 in Cancún, Mexico. Byjoining forces they hope to bring theircollective weight to bear in their deal-ings with industrialised countries and big business. With more equitable shar-ing of the benefits of their genetic re-sources, they could boost their own development. They do not want to bemere suppliers of raw materials. Insteadthey hope that technology and knowl-edge transfer will put them in a positionto capitalise on their resources them-selves.

One of the most important priorities is to prohibit biopiracy, the theft of geneticresources. In their Declaration of Can-cún, they demand that countries shouldonly authorise a patent if reliable evi-dence is provided of the origins of bio-logical source materials, and “prior in-formed consent” (PIC) has been obtainedfrom the indigenous or local population.

As the megadiverse countries forcefullyunderline, the traditional knowledge andcultures of indigenous and local commu-nities are vital in the conservation andsustainable use of biological diversity.

And they undertake to support thesecommunities in translating their knowl-edge into economically viable projects.

Alliance of MegadiverseCountries


elementary principle ofthe Convention on Bio-logical Diversity. It was a case of LIC rather thanPIC, jokes Roger Chen-nells, meaning “LateInformed Consent,”obtained from the Sanafter everything had beensettled. “At first we werevery angry when weheard that we had beenrobbed,” agrees VictoriaGeingos, a Hai||om Sanwoman at the WIMSAheadquarters in Wind-hoek. “Now at least wecan be glad we will getsomething out of it.”

Possibly though, itcould have been more.“The Hoodia drug hasthe potential to be SouthAfrica’s first blockbusterdrug, and this shouldhave all been sorted outbefore the patent wasawarded,” says RachelWynberg, critically. Thatwould also have put theSan in a far better bar-gaining position. Andthey would have had theopportunity to say “No”,if commercial use werein conflict with their religious or cultural traditions.

The patent registra-tion itself leaves themwith very little say in such matters. It gives theCSIR and Phytopharm the sole right to makedecisions. The San can only wait and hope thatthere will be something in it for them in theend. Supposing that straightforward exploita-tion rights had been licensed to several compa-nies, such an arrangement would have giventhem much more scope to negotiate and exertan influence.

In any case, it is debatable whether the patentregistration by the CSIR was actually legal. Toqualify for a patent, the innovation has to be

an ‘invention’, not just the ‘discovery’ of a sub-stance that occurs in nature. The CSIR wrigglesout of this dilemma by insisting that isolatingand identifying the active ingredient was itsown original scientific achievement, and thuspatentable, despite the San’s help.

On the other hand, Roger Chennells is sure“we could have filed a suit against the patentregistration.” But it would have been “very stupid” he says, justifying the decision not tocontest the patent. It would have meant lengthyproceedings with an uncertain outcome. It is

The active ingredients of natural resources belonging to indigenous peoples

may not be patented and marketed without their consent

quite possible that the San would have endedup with nothing to show for it. “To criticise theSan for signing the agreement is like criticisinga drowning person for accepting a hand to savethem from drowning.”

Joram | Useb, the deputy WIMSA coordina-tor and member of the Hai ||om tribe, is struckby another important aspect: the agreementwith the CSIR taught the San to “make in-formed decisions about their intellectual prop-erty and eventually win their right to benefitfrom the marketing of that property.”

Counting their chickensPetrus Vaalbooi, Andries Steenkamp, SusannaWitbooi and other San representatives fromSouth Africa, Namibia and Botswana havegathered in Plaatfontein near the South Africandiamond centre of Kimberley. They have plentymore questions: What is a patent anyway? Doesthe CSIR have the right to patent the active in-gredient? They cannot comprehend how any-one can be allowed to own and privately profitfrom collective knowledge that is available toeveryone. “Why doesn’t the CSIR go fifty-fiftywith us?” asks Lappies Naftal, a Khwe from theCaprivi Strip in the far north of Namibia. AndCollin Tsima from Botswana objects to being

treated “like the junior partner”. In his view,the patent makes the traditional keepers ofknowledge “invisible”.

Plaatfontein, the venue for the meeting,was once a private farm but a few years ago itwas handed over to the several thousand Sanwho had served in the South African army. Itnow houses a centre for !Xun and Khwe artsand culture, among other facilities. The meet-ing is to discuss the establishment of the Hoo-dia Trust. The trust’s role will be to manageand distribute the money that accrues to theSan. It will have trustees from the CSIR andWIMSA as well as the San Council.

The very thought of the potential windfall“made us break out in a cold sweat,” says AxelThoma, because the figures being tossedaround to begin with were astronomical. By2006, some estimates say, the diet market couldbe worth two billion British pounds, and as a natural remedy, Hoodia would have an enor-mous competitive advantage over syntheticcompounds. A million dollars a year for theSan would not be out of the question. “Thatcould very easily lead to corruption,” says AxelThoma, explaining his original disquiet. “A fewmake themselves rich, while the poor commu-nities out there get nothing.”


Two systems are battling out theirdifferences in the international arena:benefit-sharing versus patenting,TRIPs versus ABS, an unequal tug-of-war over the use of biodiversity andgenetic resources.

TRIPs, the Agreement on Trade-Relat-ed Aspects of Intellectual PropertyRights was agreed by the World TradeOrganisation (WTO). It commits allgovernments to implement minimumstandards for patenting, modellingthemselves on the industrialisedcountries. Strictly, only the rights toone’s own inventions can be protect-ed. No evidence is needed of wherethe original materials and ideas camefrom, and nor do benefits have to beshared. In the view of many critics,

TRIPs creates a conflict betweenpatenting and the protection of indi-genous knowledge. Indirectly, it isadvancing the cause of biopiracy.

The dispute is also a tug-of-war bet-ween two international organisations.At the WTO, the countries of theindustrialised world have alwaysbeen most influential. At the UnitedNations (UN), however, the countriesof the South have more chance ofmaking their majority count. The UNConvention on Biological Diversity(CBD) has placed a trump in thehands of governments in the South,by giving them sovereignty over theirgenetic resources. But the Conven-tion’s regulations on access and benefit-sharing (ABS) have proved

somewhat ineffectual in comparisonwith patent law. And unlike the WTO,the countries who are parties to theconvention have no means of punish-ing violations.

“Effectively” according to Chee YokeLing from the EED partner organi-sation Third World Network in Ma-laysia, “patent law is underminingbenefit-sharing regulations.” Mostnon-governmental organisations arehoping that further negotiations willstrengthen the Convention againstpatent law.

ABS and TRIPs: Systems in conflict

The Hoodia Trust is currently being established to prevent this. Moreover, the Sanrepresentatives from the different countrieshave agreed to share benefits among them-selves without regard for national frontiers.The CSIR will pay the San 6% of all royaltiesthat the CSIR itself receives oncethe drug is commercially avail-able. “In the old days, before thecolonial era, there were no bor-ders between us,” MathamboNgakaeaja, the WIMSA coordina-tor in Botswana had successfullyargued, “and today we still belongtogether.” In that sense, the agree-ment had already brought aboutone direct benefit: “Thanks toHoodia, our efforts to unite andstrengthen the San in SouthernAfrica have come a long way,” saysAxel Thoma.

At the moment, the worry isthat they are counting their chick-ens before they have hatched.Since Pfizer gave back the licencein July 2003 because the groupwas withdrawing from the naturalmedicines sector, it is unclear whowill step into the breach. And itcould take four or five years tomarket a product that makes anyreal money, be it a drug, a ‘novelfood’, a Hoodia drink, a slimmers’tea or a weight-reducing mueslibar. Whatever the new product, italready has competition: a widevariety of slimming productsallegedly containing Hoodia arebeing advertised for sale over theInternet.

Competing locationsIf Hoodia becomes the successfulslimming aid that everyone ishoping, other profitable avenues will open up.Before long, natural supplies gathered in thewild might not be enough to satisfy the risingdemand. WIMSA, the Namibian Ministry ofEnvironment and Tourism and the SouthAfrican San Council are already being swampedwith enquiries from producers wanting to cul-tivate Hoodia commercially, including

Phytopharm. Near Stellenbosch, not far from Cape Town, the first such farm alreadyexists, growing Hoodia under contract for an exporter. And other countries like Chile,with a similar climate to Southern Africa, arepoised in the starting blocks.

With great foresight, the CSIR had alreadysecured the rights for cultivation and produc-tion for the South African market, while Phyto-pharm owns the rights for plantations outsideSouth Africa. Developing the technology topropagate and produce Hoodia, which is just ascomplex to grow as Devil’s Claw, is a scientificachievement in its own right, explains CSIR


The existing system of patents takes away the rights of indigenous

communities to control their own resources

director, Petro Terblanche. Hence, these pro-cesses have also been legally protected. For theSan, inexperienced in commercial agriculture,cultivated production is a non-starter. Buyershave high expectations, and the level of invest-ment required is equally high. But PetroTerblanche ventures to hope that perhaps theSan might find paid employment in the pro-cessing industry.

The prospect of business deals and foreignexchange generated by the commercial produc-tion, processing and marketing of Hoodia,Devil’s Claw and other crop and medicinalplants, could still cause rifts between the neighbouring countries. Namibia fears that its chances are under threat; not least by the far more advanced state of agriculture andresearch in South Africa. Countries like Chile,brought in on the act by Phytopharm as apotential competitor, could also have animpact. In the end, the region of origin couldend up losing out. Although such an outcomewould contravene the spirit of the Conventionon Biological Diversity, Namibia or SouthAfrica could finish up all but dispossessed.

Clinching the deal In any case, under the same agreement, theCSIR secured the San’s blanket consent to further bioprospecting, “for the benefit ofboth parties” according to the wording of thecontract. In collaboration with the San, theresearch council wants to gather all the knowninformation on local medicinal herbs and other plants. That would also provide a body of evidence which the San could use as proofof their traditional knowledge, for instance indisputes with possible biopirates.

Despite the assurance that this data and itsuse “are subject to CSIR regulations, and legis-lation and conventions on bioprospecting,”lawyer Roger Chennells thinks that consider-able clarification is still needed. Bioprospectingis extremely complex and difficult to regulate.More to the point, it remains a legal ‘grey area’, with little relevant legislation yet in force.Namibia and South Africa are taking their timeover national implementation of the Conven-tion on Biological Diversity. Meanwhile, busi-ness in biodiversity is so lucrative that certainruthless players will try every trick in the book.In such a climate, nobody wins concessionseasily, least of all the San. Though the Conven-tion requires states to recognise traditionalknowledge and to promote its conservation,such obligations are of little help to the indige-nous community in practice.

Organisations like WIMSA approach suchagreements with great caution, unless there areadequate safeguards to prevent bioprospectingfrom crossing the line into biopiracy. So infuture, all patents which derive from jointinformation gathering should be registered inboth names, advises Roger Chennells, and bejointly owned by the CSIR and the San. Other-wise the San should withhold their consent.

In the light of the vast economic potential of biodiversity, one thing is clear: the CSIR andthe state of South Africa had much more atstake than the imperative to clear their namesof the biopiracy accusation by offering a ‘fair’share of the proceeds. Throughout the nego-tiations on benefit-sharing with the San, bigbusiness deals were on the cards. Appetite sup-pressants and slimming aids containing Hoodiaare no more than a tiny fraction of the greatKalahari superstore’s true commercial poten-tial. Far more lucrative ideas will follow: seed


“We have come to the conclusion that the concept of access to genetic resour-ces and benefit-sharing (ABS) must beunderstood in its own right without alinkage to patents. Patents must not be a pre-condition of ABS. The patent sys-tem, as promulgated by the TRIPs Agree-ment, rewards biopiracy, deprives com-munities of their ownership rights overtheir resources, disregards the require-ment for benefit-sharing, and under-mines measures for the preservation andmaintenance of the cultural heritage of rural, agrarian and indigenous com-munities. (...) We firmly reject patents onall life forms. They pose a threat to bio-diversity and traditional knowledge.”

Extract from a joint declaration by theEED and 17 partner organisations fromAfrica, Asia, Latin America and Europe,adopted in June 2003 in Hyderabad,India.

No patent on life!

production, propagation, cultivation, process-ing and export of products by no means con-fined to Hoodia and Harpago. Numerous otherplants and ingredients are likely to be coveredunder bioprospecting agreements with the San, and under a similar agreement betweenthe CSIR and traditional African healers.

With their knowledge and experience, theSan hold the key to these treasures – but theCSIR has the scientists, laboratories, and con-tacts, and since sovereignty over natural re-sources is assigned to states and their govern-ments under international treaties like theConvention on Biological Diversity, it controlsthe instruments for profiting from them. Itholds the power to turn the key into gold.

Money isn’t everythingIn the film, “The Gods Must Be Crazy”, a colabottle falls from the sky and lands in the midstof a San family in the Kalahari bush, remotefrom western civilisation. They admire andcaress the magical, transparent, glittering object. Everyone wants to hold it – and anargument breaks out. At this, one of the men

is charged with taking the ill-fated gift to the end of the world, and getting rid of it. It is the beginning of a daring quest through the bush and the modern world. Ultimately he tosses the bottle over a sheer precipice into the boundless waters of the ocean. Andthey all go back to their happy and contented lives...

In the same way, the promising partner-ship with the CSIR more or less landed in thelaps of the San. It resulted from research workin distant laboratories, negotiated by lawyers,governed by international agreements and reglations, all stemming from a worldviewcompletely at odds with that of the San. Un-like the family in the film, the San decided tokeep the alien, unexpected and fascinating gift, make use of it, and work together to make the best of it.

How much the San will receive in materialterms remains to be seen. It is also unclearwhen there will be any actual money on thetable. Whether it will be enough to fulfil alltheir wishes is doubtful. They are the last linkin the chain, the group with the least influence.


Agrarian communities

possess traditional know-

ledge of plants and

medicinal herbs which

harbours vast economic

potential

One thing is clear: the money will not offer a total solution to the San’s wide-ranging eco-nomic, social and political problems.

In other respects though, they have gained a lot already: their organisation hasgrown stronger, even across national frontiers.Furthermore, “indigenous knowledge hasreceived a huge boost of understanding,” asRoger Chennells says. On the one hand, it has wrenched the San themselves out of theirformer oblivion and oppression. On the other

hand, it does their self-confidence good torealise that their traditional knowledge is veryvaluable, even in far-off Europe, even for theinvincible modern world. As a consequence of the negotiations and developments of thepast few years, the San in Southern Africa have become moreexperienced and more confident. They want tolearn more about their endangered traditions,languages and cultures, protect them and keepthem in use. And they have grown warier andmore reticent towards friendly visitors whoshow an interest in their traditions, medicinalplants, music and rock paintings, now that theyknow their potential value outside the Kala-hari. Which means that biopirates will have itneither cheap nor easy in future.


The San are keen to

use their traditional

knowledge for the

benefit of future

generations

Acknowledgements

Just a few weeks ago, I would not have known how to spell Hoodia, let alone how it tasted (juicy,but bitter). What a difference a few weeks make! For the opportunity to bridge these gaps in myknowledge, and to produce this publication, thanks are due, first and foremost, to the EED. Theyrecognised that the story of an unassuming desert plant was a vital contribution to the debate on indigenous knowledge. Many people helped with my bridge-building efforts, especially AxelThoma, Magdalena Brörmann, Joram|Useb, Victoria Geingos, Cameron Welah and many more in the WIMSA office, as well as Ian Agnew of the Omaheke San Trust, who took time out of theirbusy working lives to answer my questions patiently. Abraham and Ben made the long journey toVergenoeg seem a lot shorter with their stories about Morama nuts, land distribution and iguanas.Frits Kamte and Augustus Jacobs not only showed me the secrets of Devil’s Claw, but also told meabout the hardships faced by the San. Stretch, maybe the oldest hippie in Namibia, shared his vastknowledge with me, including how to get the WIMSA minibus back on the road when it wouldn’tstart. From Andries and Magdaleen Steenkamp, among other things, I picked up a taste for Kala-hari truffles; Roger Chennels remained calm as he explained to me, time and again, why the agree-ment between the San and the CSIR was right in spite of everything. The sincerity of the SanCouncil’s discussions on future work and the Hoodia Trust was impressive, and so was Dave Coleof CRIAA with his extensive knowledge about “Gamagu”. But I learned the difference between the German and the Kalahari species of Devil’s Claw from Dr. Dieter von Willert of the Universityof Münster. To all these people, and of course to the many others I have not managed to mentionby name, I am sincerely grateful.

Uwe Hoering

Biopirates in the Kalahari?How indigenous people are standing up for their rights

The peoples of the San in Southern Africa have

been using a plant called Hoodia for centuries.

On hunting expeditions and when food is scarce,

it staves off the sensation of hunger. Now industry

wants to capitalise on this appetite-suppressing

effect: churning out a mass-market hunger-

curbing drug, in the form of diet pills or slimming

bars, promises to generate sizeable profits.

What about the San? Are they victims of biopiracy?

The active ingredient of Hoodia was used and

patented without their knowledge. But they stood

up for their right to a piece of the pie. The agree-

ment they have managed to conclude assures them

of a share in the profits. This is quite a success.

But if all the provisions written into binding inter-

national treaties had been complied with, the San

would be even better off today.

Biopirates in the Kalahari? - khoisanpeoples.org€¦ · Biopirates in the Kalahari? Bush,...

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