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