Since the entry into force of the Convention on Biological Diversity (CBD) in 1992, several countries and regions around the world have established provisions on access and benefit-sharing (ABS) of biological and genetic resources in their laws or administrative structures. Nonetheless, the fact remains that the few countries that have national ABS frameworks in place have chosen a wide range of mechanisms to regulate access to biological and genetic resources and benefit sharing at the national level. Some countries have developed new stand-alone laws on ABS and other have amended, revised or updated existing general biodiversity related laws to introduce and give effect to ABS components. Yet others have promulgated administrative guidelines as they are still in the process of considering options on legislation.
One overarching observation is that, even after 18 years since the entry into force of the CBD, a large number of Contracting Parties to the Convention continue to face challenges in the adoption and implementation of operational national ABS laws and measures. According to the CBD Secretariat, to date, only 60 countries have some type of laws, measures or instruments to regulate access to their genetic resources and the fair and equitable sharing of benefits arising from their utilization. African countries are no exception to this and today very few African countries have operational and complete national frameworks to regulate access and benefit sharing. The above scenario does not in any way suggest that ABS processes only occur in those countries with ABS legislation or measures in place. Numerous ABS activities are in fact occurring globally through contractual means regardless of the fact that ABS legislations are in place or not.
As such, though contractual arrangements are, today, some of the main mechanisms used to facilitate ABS activities, national laws are of crucial importance in ensuring that genetic resources are accessed and utilized in a regulated manner and in accordance to each countries’ own needs and circumstances.
Ideal ABS legislation and measures should be clear and simple to follow so as to foster flexibility and transparency and in turn reduce transaction costs. Furthermore there is no one size fit for all as these measures need to be customized and tailored to accord with each individual country’s specific circumstances and needs.
In anticipation of a conclusion to the ongoing negotiations towards the adoption of a legally binding international Protocol on ABS, it will be important for countries that have ABS measures in place to share their experiences as regards to implementation. This will be instrumental in appraising and illustrating the different options and approaches that countries have opted for in regards to ABS. Furthermore, these practical national experiences will greatly assist in highlighting where regulatory gaps exist, what the strengths and weaknesses of different approaches to ABS are, and where international rules could be of assistance.
This compendium seeks to provide an experience-sharing platform for those countries that have ABS legislations in place in Africa. The compendium further aims at providing a practical tool for countries who have to date no national ABS legislations and who may benefit from the approaches and practical experience that other countries have taken. The six countries whose laws are presented here share one thing in common: they have gone beyond their national environmental legislation and provided for a level of detail on how ABS arising from the utilization of biological and genetic resources should occur in their countries. Therefore it is not all African countries that are listed by the CBD Secretariat as having ABS measures in place that are the subject of this compendium.
Next: Structure of the Compendium