Precedent, policy and possibility : a victimological orientation towards the protection of traditional knowledge in Africa.
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Abstract
The value and importance of traditional knowledge in Africa cannot be over emphasised. Paradoxically, such knowledge within the global knowledge economy is perceived to be raw, archaic and devoid of any economic value and not befitting instructive artificial and scientific exploration. The classification of traditional knowledge in such a negative category has constructively marginalised traditional communities, opening them up to adverse palpable effects which inter alia, include misappropriation of traditional knowledge for commercial exploitation with no or minimal consideration, social disintegration, to the sheer disappearance of the knowledge together with its associated genetic resources. The challenges affecting the victims of traditional knowledge misappropriation and marginalisation in Africa should not be conceived as natural and inevitable but should be traced back, to the history of the integration and subordination of traditional knowledge to the world system of knowledge. Through the aid of a radical and critical victimological paradigm, the thesis sought to identify the source of victimisation of traditional communities through a historical enterprise located in the elements and factors that influence the creation of a social formation, guided by material forces of production with their corresponding superstructure.
The findings of this study show that traditional knowledge within post-colonial Africa has become a contested discourse, inundated by a history of oppression, subjugation, colonialism, cultural violence and ideological prejudice. Institutional and structural power relations have been key in the facilitation of the sustained victimisation of traditional knowledge holders in Africa, to the extent that the framework that purports to protect traditional knowledge in Africa, largely reproduces inequality and victimisation of traditional knowledge communities. Within an emancipatory African victimological framework, remedial measures are proposed to dismantle the structures of knowledge imperialism thereby seeking to empower traditional knowledge holders in the furtherance of justice and sustained equilibrium. As such it is proposed that an ‘African victimology’ is not a mere abstract approach but refers to a lived experience that allows for transformation
through supplanting deleterious tenets of the intellectual property regime with the humanising values of Maat and Ubuntu. The thesis recommends that the policy framework that protects traditional knowledge communities should recognise the latter as victims of historical injustices and oppression. A policy framework that recognises traditional knowledge communities as victims of colonial and institutional imperialism, will be capable of addressing the factors and conditions that contributed to their marginalisation and victimisation. In this regard, from a theoretical perspective, victims should be empowered to self-assert and affirm dialogue with apprehensions affecting their humanity. Hence, justice is not the procedural and substantial administration of legal rules but the just and proper relational obligations reflective of the cultural conditions, affinities and connections.
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Ph. D. University of KwaZulu-Natal, Durban 2015.
Keywords
Traditional ecological knowledge -- Law and legislation -- Africa., Intellectual property -- Africa., Indigenous peoples -- Intellectual life., Theses -- Criminology.