Kiondos, Kikoys and Shukas: Intellectual Property Protection is Everyone’s Business

What does this picture have in common with a picture of Wangari Maathai in Oslo City Hall on December 10th 2004? Easy, both of them give us another example of how peculiar Kenyans are. We take for granted all the wealth and potential we have until outsiders put it up on a pedestal, then that’s when Kenyans quickly rush to claim that which is being praised or paraded as originally from Kenya.

Kenyans are not only guilty of not appreciating what they have, but of also being too generous with their precious resources. How many times have you heard of researchers from the Developed World masquerading as tourists visiting Kenya, going straight to our rural destinations, collecting samples of plant, animal or even human genes, then heading back to their laboratories in the West and developing patented products which we end up buying?
In this regard, another recurring theme is Kenyans failing to come up with new and innovative ways of utilising all those aspects of our traditional knowledge and cultural expressions that are already known to be Kenyan and thus considered to be in the public domain for purposes of intellectual property protection, including art, designs and handicrafts.

The Kiondo case:
The Kiondo was not ‘stolen’ as is widely believed. Kenyans have simply failed to commercialise the Kiondo both as a product patent or even as a design. However, even if Kenya had filed a patent in respect of the Kiondo, the life of a patent under the law is only 20 years non-renewable. After this period, the patent falls into the public domain and can be freely used, adapted and copied by others.
With both the product patent and design windows firmly shut, the only other avenue for commercializing the kiondo is through a process patent. This is what Japan is currently doing and Kenya is not. The Japanese Patent Office database currently contains patented inventions able to produce en masse industrial woven baskets, some made of fabric or paper materials. Therefore for Kenyans to utilize the kiondo, there must be more aggressive brand campaigns so that we retain that positive link of association between the baskets and Kenya.

The Kikoy case:
A few years back a UK Company had attempted to register a trademark in respect of the Kikoy. This application for trademark registration was rejected because the word ‘kikoy’ has become a generic term (in the same way as ‘Xerox” in respect of photocopying) therefore it could not be registered in respect of textile goods. However for those innovative Kenyans that have been able to use the kikoy to come up with other products, these can be protected under our law as utility models or as distinctive trademarks.

The Maasai shuka case:
The question we must ask ourselves is for how many decades has the Maasai shuka been with us without us fully commercializing and exploiting it? So, if you’re a Kenyan designer and have registered a trademark in respect of shorts, shirts and ensembles similar to those unveiled by Louis Vuitton, by all means SUE AND CASH IN ON A SETTLEMENT! If not, then you really only have yourselves to blame. In reality, Louis Vuitton now basically owns a piece of Kenya’s cultural history through its branding of our maasai shuka as part of its fashion collection. It remains up to Kenyans to turn this free publicity by Louis Vuitton into a marketing tool to showcase to the world more varieties and uses of the maasai shuka. It’s a rare opportunity that many countries dont get.
Let’s exploit it!

Way Forward:
The truth of the matter is that there are many aspects of our traditional knowledge and traditional cultural expressions that are already in the public domain and thus cannot be patented or copyrighted because they belong to some or all Kenyans. However there still exists widespread unfair exploitation of our cultural heritage by outsiders for commercial and business interests and this cannot be allowed to continue. The solution is still up for debate and so far we have two options. Our government argues that the intellectual property (IP) system (patents, trademarks, copyright, industrial design) only serves to protect private and corporate property but not the collective heritage of the past, present and future generations of local communities. Therefore they want us to develop a brand new legal system of protecting our traditional knowledge and traditional cultural expressions.

However I am of a differing opinion. Coming up with a new protection mechanism will take a long time to establish and may not in any case be politically feasible. Furthermore, why re-invent the wheel? Laws relating to Trademarks and certification marks have provided both positive and defensive protection for traditional knowledge and traditional cultural expressions in countries like Australia, New Zealand and the United States. Plus, with a law on geographical indications in the pipeline, we will have enough legal tools for protection requiring very few adaptations.

In the meantime, Kenyans must remain vigilant and stop being so generous with your intellectual riches. If you discover something, stumble across something, know of someone or something that is indigenous to Kenya and has useful commercial application and is of great societal value, harness its potential, don’t go disclosing it. We have already proved ourselves as innovators on the world stage with MPesa. It is time for Kenyans to look within and see what other ways we can develop the nation by turning those traditional medicines, genetic materials, cultural expressions into commercial assets and strong income-earners.

27 thoughts on “Kiondos, Kikoys and Shukas: Intellectual Property Protection is Everyone’s Business

  1. I get where you’re coming from to the extent that it relates to items independent of the human body. However I just have an itsy bitsy spanner to direct at the works on this one…
    Traditional medicines. I note that your title doesn’t read: Kiondos, Kikoys and Pearl Omega. 🙂 Prof Arthur Obel is, arguably, one of the bravest men I know in medical research (please ignore the fact that I don’t know a whole lot of them 🙂 ) If I have my facts straight, when he tried to patent the drug he was challenged by the medical fraternity and the Kenya AIDS Society for not conforming to health standards. The case went all the way up to the Court of Appeal and even though his right to distribute the drug was upheld, his opponents put up quite a fight.
    Now I don’t know a whole lot of traditional herbalists who have access to the kind of facilities that Prof. Obel has. I don’t know if they will be able to meet the requisite health standards. Where they have gone through KEMRI for instance, they claim to have gotten a raw deal… So how can we work the process in Kenya to make it happen for them?
    Dr. Ben Sihanya has written quite a bit on this… you might want to check out his work… if you’re interested.

    • As far as I know, our Industrial Property Act doesnt prohibit ANYONE from filing a patent application and receiving a grant of patent if their application satisfies the statutory requirements including novelty, non-obviousness, industrial application. AND you just had to drop Sihanya’s name in this.. lol.

  2. Hi. Had a debate on this topic yesterday with some guys online. Peeps were going ballistic over how the Maasai shuka, kiondo and kikoy have been stolen from us, I differed and told them its our fault we protect our cultural items. My argument (similar to yours) went something like this (I reproduce):
    “You see, we have had the shuka and other items of cultural importance for decades, yet we have been unable to commercialize them for our own benefit,… despite there being institutions such as the Kenya Intellectual Property Institute where one can easily register patents and inventions and other items of national cultural value. We need not wait for the government to do some things for us, because it will not.Enterprising Kenyans should have exploited the khanga, the maasai shuka and the kiondo for our benefit, but we slackened off and waited too late until someone else did it. If one Kenyan created a fashionable collection from the maasai shuka, i bet most people would not even wear it because it is deemed shady, and would rather do the west African kitenge.How many people do i see wearing Kenyan cultural clothing items? Very few. How many do I see doing west African kitenge, asian sari etc? Very many. So, in as much as something needed or needs to be done to protect our traditions, it all starts with supporting our own and making cultural clothing funky again. After all, we do not hear west Africans complaining the way Kenyans have ‘stolen’ the kitenge and made it their own.

    Point is, we failed to protect the shuka and the kiondo and the khanga while making them profitable. And somebody else did it.It is purely our own doing. Perhaps government is to blame a bit. Perhaps they should have done more to protect them, but at the end of it all, it is about how we Kenyans perceive out cultural items. Most of us theink they are useless, we take them for granted; and that’s why we have made little effort to preserve out cultural artefacts. The ideal is that the Maasai should have been assisted in protecting their shuka, while at the same time assisted in making their shukas profitable for them, by allowing people to make adaptations but more importantly, create contracts where the Maasai would earn a percentage of the revenues of the products arising from the maasai shuka. Such kinds of benefit sharing agreements allow culture to be preserved while at the same time allowing those who “own” it to benefit from what is there. Of what use is the maasai shuka to them if they cannot benefit from it? Let me give an example. For a long time, communities around the Kakamega forest have been growing the mukhombero plant (you all know what it is used for). These communities “owned” that piece of culture and deemed it theirs, same way we deem the shuka as originating and belonging to the Maasai. And for a long time, mukhombero was exploited and harvested by foreign companies who extracted its contents and marketed it abroad. (Part of a wider concept called biopiracy). Same route the shuka and the kanga and the kiondo went through. The people there did not benefit whatsoever. But now, things are changing abit. Mukhombero (and its attendant product) has been registered as a trademark, and anyone who wants to make money out of it has to enter into a benefit sharing contract that keeps ownership pf the “culture” to the community and also ensures that the community benefits through any commercialisation. (I have some literature you can read up on this)That is what should have been done to the shuka and kiondo and kanga. We failed to protect them. In many parts of the world, culture is commercialized as part of tourism. The Maasai culture for example, is a critical aspect of tourism. If we do not protect it, we will lose it altogether. I wouldn’t be surprised if someone in China has already trademarked the term ‘Maasai’. In France and South East Asia, their main export, especially in tourism, is their culture; which while commercializing it, have also protected it.

    On a different note, nice blog you have. Always read it, never commented though, until now.

  3. Okay, I’m glad you guys wrote about this. I saw it in yesterday’s Nation and was shocked beyond belief.
    Anyways, I think a large portion of the blame should be on the government.
    They have done little to educate and create awareness among Kenyans on the importance of protecting our intellectual property!!
    Everytime we hear of these IP issues in the media, it’s almost as if the government was caught flat-footed and is now trying to do damage control

    In regard to Nyam’s comment, I feel there needs to be a way of setting aside funds to help those talented, innovative Kenyans that dont have money to commercialise their inventions and ideas.

    It’s high time we start seeing IP’s potential as an alternative source of development and start investing in our people’s dreams and ideas.

    • Let’s just say that IP protection is a two-way street. Government has its role (administering and implementing the various pieces of IP and IP-related legislation) but we as Kenyans have our role to play.

  4. Great post NV, this is nearly as bad as the slave trade itself where instead of massive cheap labour, here we are giving away our heritage and ideas for free…

  5. Ive been telling guys at maasai market to add a “made in kenya” stamp to those sandals i wish those things could be mass produced for the summer markets in the west….before u know it someone will take pics and kill that story…i want made in kenya stamped all over things n pliz spare us the chinese products at maasai market…where is the pride bana.

  6. IP protection is imperative if we are to reap any benefits from our indigenous resources, cultural or otherwise. However, somebody needs to take the initiative and get it done. The big question is, who will that be? On whom is the onus to go through the process of patenting (which by the way is quite technical). Yes, it is the massai shuka and part of their heritage/culture, so who will represent that community to get it done? Same applies to the kikoy, kiondo or any other resource for that matter. Because nobody has taken ownership, foreigners will keep profiting while we snooze. A mechanism needs to be developed for identifying these resources (as well as discovering new untapped ones) and systematically patenting them. We don’t need to wait for foreigners to “discover” our stuff before we realize the value of what we’ve always had. Somewhat like the Kenyan coffee with which starbucks has always made a killing, while farmers get paid a pittance. Probably a story for another conversation.

    • We must make a crucial distinction here between what is already in the public domain (unpatentable) and what is not in the public domain per se and hence still capable of being protected under IP and commercialised.

      The challenge is with the first category of elements. In this regard, I think Kenya could also borrow a leaf from India which has come up with a TKDL (Traditional Knowledge Digital Library).

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  8. Eish
    I don’t understand what the fuss is about. Fashion designers have been using all sorts of traditional fabrics since fashion has been around. After just about every European ethnic pattern was used they turned to American cowboy, Indian, Japanese, Chinese and whatever else styles… In other countries people are actually quite proud when well known fashion designers like and promote their traditions. But in Africa people feel exploited again – as always! Why can’t you just be proud of your culture and if other people like your style let them wear it for god’s sake! After all most of you guys here probably also wear western styles don’t you? In today’s world everything is interlinked anyway and traditions sometimes have very surprising origins. Talking about that… don’t you think that Massai pattern looks a bit Scottish….??

    • Eish! lol. In this particular case, the Head Designer at Louis Vuitton admits that his inspiration came from pics of a famous photographer was on safari in Kenya in the seventies and eighties. That aside, the point of the matter is that IP theft can boil down to exploitation especially when you’re dealing with traditional knowledge, cultural expressions and genetic resources because these are things that are unique to certain areas and therefore they OUGHT to be used and commercialised for the benefit of their original owners, not outsiders, per se.

      The issue here is one of awareness. Getting people to understand that intellectual property assets like these are like natural resources like oil, gold or diamonds. They must be mined, polished, refined, processed and we’re the ones to do it because if we sit around waiting for someone else to do it, we will lose out.

  9. This is stupid. The goverment should do something!! How are the Maasai people able to come forth n claim their culture without full on backing up of our govt?
    The goverment saw this coming, lets not be naive!

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  13. The main problem is EDUCATION. In former colonies, education tends to be EUROCENTRIC, which is a shame, since nobody is forcing them to have an eurocentric curriculum at all. My point is that we’re not teaching ourselves to LOVE & RESPECT our heritage. We think we are inferior because we were enslaved & colonized. When we educate our children in languages which aren’t our own (i.e English, French, Portuguese, Afrikaans etc) , and talk about foreign cultures more than our own, we will never develop the pride that we need to protect our heritage.

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