ADDITIONAL KENYA REPLY ON SHARING OF GENETIC

UNCLAS SECTION 01 OF 02 NAIROBI 001283 SIPDIS DEPT FOR AF/E, AF/EPS, AND OES/ETC E.O. 12958: N/A TAGS: SENV ETRD TBIO KE SUBJECT: ADDITIONAL KENYA REPLY ON SHARING OF GENETIC RESOURCES REF: A. STATE 36337, B. NAIROBI 1174 ¶1. SUMMARY: Following the delivery of Ref A talking points last week, Econoff met with Kenyan trade officials and heard additional details of Kenya's strong support for a binding, negotiated protocol on access and benefit sharing of genetic resources (ABS). Kenya believes that a new protocol is needed to ensure that source and/or origin countries benefit from full disclosure and adequate compensation for the exploitation of its natural resources. Kenya does not have the internal capacity to ensure these benefits. For Kenya, this is a much-publicized issue and the government feels it needs to be proactive in pursing an ABS agreement. Post believes we will be hard-pressed to alter Kenya's position on this issue, especially since the U.S. is not a party to the Convention on Biological Diversity. END SUMMARY. ¶2. On March 21, Econoff met with Elijah Manyara, Director, Department of External Trade, Ministry of Trade and Industry, Mr. Mboi E. Misati, Senior Patent Examiner, Kenya Industrial Property Institute (KIPI),and Mr. Mwasi Mashengu, also of KIPI, to discuss further the Ref A points on access and benefit sharing of genetic resources (ABS). [Note: KIPI is an agency of the Ministry of Trade and Industry. End Note.] Misati is one of the members of Kenya's interagency "task force" (committee) noted in Ref B dealing with the Convention on Biological Diversity (CBD). ¶3. In short, Misati stated that Kenya does not agree with U.S. concerns on the proposed negotiations on ABS aspects of the CBD. Rather, Kenya feels it needs help in assuring control over access to its genetic resources and that the country derives proper benefit from the exploitation of those resources. Kenya feels a protocol under the CBD is the proper approach. Misati went so far as to assert that the WTO/TRIPS agreement should be modified to recognize requirements for certification of the source and possibly the origin of genetic material in patent applications. Noting that the U.S. has not yet ratified the CBD, Misati asked what the U.S. interest was in this issue, other than facilitating easy access to genetic material for U.S. researchers and companies. ¶4. While Manyara and Misati acknowledged the U.S. concern that a binding protocol could inhibit international partnerships for the legitimate exploitation of genetic material, they explained that Kenya expects such a protocol to be of great assistance in helping the local "custodians" derive appropriate benefit from such partnerships. They noted that "many" Kenyan genetic resources had been commercialized without disclosing their origins and without any compensation to the country or the local communities that provided the material. He stated that "Kenyan law and regulations are not enough to compel disclosure because most local `custodians' are not aware of patent or commercial implications." Manyara added that Kenya was not interested in pursuing "big" financial returns from its genetic resources, but that it was important formal mechanisms in place to provide "some small" returns to the local communities. This was important to promote conservation efforts at the local level, according to Manyara. ¶5. When Econoff asked why a new international, potentially burdensome protocol was needed to achieve these goals, Misati replied that Kenya believed such an agreement would compel disclosure in a way that Kenyan authorities are not able to match due to lack of technical, financial, and staffing resources. When asked about using the Bonn Guidelines to provide effective regulations for ABS, Misati agreed that they were useful, and that the CBD task force would soon promulgate such guidelines. He added that this effort did not, however, detract from the need for an ABS protocol. Manyara added that in the past year a number of cases of "biopiracy" have been publicized and highlighted by activist NGOs, and the government felt it was "on the spot" to take the lead on this issue. As an example of the "public interest" in this issue, Misati mentioned a case from 2002 whereby "genetic material" from poor people living in Nairobi's Kibera slum was commercialized into a profitable human vaccine without disclosure or compensation. [Note: Misati was vague on additional details of this case. End note.] ¶6. COMMENT: It is unlikely that Kenya will move much in our direction on this issue. Alleged instances of "biopiracy" or uncompensated exploitation of Kenyan resources resonates with both the government and the public. Post is not convinced this is an issue that should rise to the top of our agenda with Kenya. Given that the U.S. is not a party to the CBD, Post suggest a more productive approach might be to work with like-minded countries to present similar cases to Kenya and other proponents of a binding international protocol. END COMMENT. BELLAMY