Kenya has a large diversity of ecological zones and habitats, including lowland and mountain forests, wooded and open grasslands, semi-arid scrubland, dry woodlands, inland aquatic, as well as coastal and marine ecosystems. Forests support livelihoods through the provision of food, medicine, wood for construction and fuel, and ecosystem services such as water catchment areas. Kenya ratified the Nagoya Protocol in April 2014, ratified the International Treaty on Plant Genetic Resources for Food and Agriculture (ITPGRFA) and is Party to the CBD.

It is a country with a lot of experiences in negotiating ABS agreements and due to constitutional reform and the devolution process during the past years with good potential to involve IPLCs and local governments in ABS issues.

Biodiversity valorization for sustainable development is increasing in Kenya. National policies have recently been put in place, including the 2011 Bioprospecting Strategy and the 2012 Natural Products Industry Policy.

Kenya is also the host of many national, regional and international scientific institutions and international co-operations that access and utilize various genetic resources. Scientific literature reports about the outcome of the research based on such access in large numbers. While access requests for certain genetic resources are triggered by cognisance about traditional knowledge associated with these genetic resources actual requests only cover the genetic resource. This is based on the fact that the associated traditional knowledge was accessed earlier, sometimes decades ago, and made available publicly without PIC and MAT with the holders of that knowledge.

Several, Kenyan institutions started to develop independently from each other laws that deal with ABS issues. This process is likely to create an overlap of the regulatory scope of future ABS related laws which results in a lack of transparency and clarity for potential users. In addition, there exists a certain ambiguity as to the different levels of providers: local communities, counties, and federal institutions.

First steps to install a coordinated ABS-system under the lead of one Competent National Authority have been undertaken. A prime task of the future work is to strengthen awareness amongst the involved institutions and providers, foster a common understanding of ABS issues and support national coordination towards an effective ABS system. 

Since the mid-2000s several ABS policies and legislations at the federal level are in place or in the parliamentarian process. With the constitutional reform in 2010, local governments (the newly introduced counties) became the authority to grant access and negotiate MAT. Whereas Kenya has ratified the Nagoya Protocol, none of its current ABS policies and regulations is yet compliant with the Protocol. The same is true for the legislation under development so far.

ABS policies and legislation in Kenya have a number of gaps:

• Due to unclear regulatory mandates between institutions, overlapping and conflicting scope issues in the existing frameworks.
• The provisions on TK associated with genetic resources are inadequate. The legal position and responsibilities of indigenous peoples and local communities is unclear.

Any scientific research undertaken in Kenya needs to be based on a research permit. The process that is under the stewardship of the National Commission for Science, Technology and Innovation (NACOSTI) is fairly automated through an online application procedure and a rather smooth permitting flow. Research permits will be issued by NACOSTI and are valid without reassurance whether an ABS permit will be required.

Formalized dialogues between the authorities and stakeholders to increase transparency and seamless operations of the several approval systems do not exist. In addition, no concerted efforts are undertaken at the county level to develop local ABS capacities  and link them with the existing and future ABS procedures at the federal level.

A second task of future ABS cooperation is to create an institutional and administrative system that allows for IT-based and interlinked permitting processes.

To date, over 50 access permits have been granted by the National Environment Management Authority (NEMA) under the 2006 Environmental Management and Coordination Regulations. The majority involve the Kenya Wildlife Service (KWS) as the lead agency granting prior informed consent and negotiating mutually agreed terms. There are 10 other lead agencies, but their jurisdiction over genetic resources and roles in the ABS process is less clear.

The overlap with other permitting systems results in unnecessary duplication of paperwork and delays. Moreover, there is limited information and guidance on the ABS process and requirements available to companies and organizations engaged in biodiversity-based research and development.

Initiatives such as the Natural Products Initiative, coordinated by the National Museums of Kenya (NMK), are engaging stakeholders in various sectors and subjects. Finally, over 30 universities are now actively engaging in applied research on biodiversity, often in partnership with the private sector.

Kenya also has expertise and experience in negotiating ABS agreements. Entities such as International Centre of Insect Physiology and Ecology (ICIPE), the Kenya Forestry Research Institute (KEFRI), KWS and NMK have negotiated a range of projects and collaborations over the years.

At the local level, experience and capacities are much more limited. No ABS permit to date has involved indigenous peoples or local communities as the provider of genetic resources or associated traditional knowledge. Although many of the supply chains for natural ingredients sourced in Kenya – from henna (Lawsonia inermis), prickly pear (Opuntia ficus-indica), and Aloe vera to gum arabic (from Senegalia (Acacia) senegal and Vachellia (Acacia) seyal), essential oils and medicinal plants – involve local communities, few of these value chains follow ethical sourcing practices or receive any kind of certification.

A first attempt to involve the local level in ABS agreements is currently undertaken in the context of the UNEP-NPIF project, now also supported by the ABS Initiative.

The Constitution of Kenya from 2010 provides the framework for policies and laws affecting marginalised communities and the means by which they can participate in the political, policy and law making process. The Constitution recognises marginalised communities, establishes a right to genetic resources and traditional knowledge and gives direction on how to protect IPLC interests.

Out of the 50+ access permits with NEMA, none relate to aTK. There could be two reasons for this: either aTK is not being accessed or utilized based on previously published or common aTK.

It has been very difficult to ascertain the sufficiency and effectiveness of the PIC process in relation to community held GRs and aTK. It seems so far that community organisations , community level procedures and biocultural community protocols have not been effectively and efficiently used for access to and utilization of GRs and aTK. Government and non-government agencies involved in ABS should make information available to users to guide them on meaningful participation of IPLCs.

Reality is that only very few civil society groups are involved in ABS processes and co-ordination among them is weak.

An analysis of the ABS environment in Kenya – assessing the status of the regulatory framework[, the potential for ABS compliant value chains as well as the involvement of indigenous peoples local communities  – revealed promising strengths and opportunities, but also challenges that need to be addressed to implement the Nagoya Protocol and create a functioning ABS system.

Based on the results, a group of about 30 stakeholders, among them the ABS Focal Point, members of various institutions and representatives of IPLCs, identified potential interventions to advance the implementation of ABS in Kenya.

Possible interventions at the political level

• Establishment of a coordination forum in ABS issues under the lead of NEMA

• Initiation of discussion with international research institutions located in Kenya and accessing genetic resources

• Awareness creation of the gaps respectively overlaps in the ABS legislations, the implications on compliance with the provisions of the Nagoya Protocol and the practical difficulties for access, value chain creation and eventually benefit sharing

Possible interventions at the technical level

• Conducting a study on material and geographic scope of existing and draft ABS legislation to identify gaps and overlaps, also examining the tasks and roles of county governments and the Commission on Revenue Allocation in the existing framework

• Finalising the study of the ABS Initiative on the scientific publication landscape covering Kenyan GR and aTK and cross check with the research permit data for the underlying research

• Conducting a study with lessons learnt from Kenyan ABS agreements

• Supporting pilot counties in setting up ABS rules and procedures that link to the federal system

• Supporting the negotiation of ABS agreements in pilot counties and capacitating (marginalised /indigenous peoples and local) communities

• Supporting the creation of harmonised IT-based application and monitoring systems with the view to reach a coordinated application system at least for the federal institutions

• Developing awareness raising materials and trainings for the different actors