Cultural rights for Zimbabwe's Sui Generis Legislation Emphasizing symbolic practice related to traditional medicinal knowledge Notes T hroughout two decades of de- the overall ecological and social health velopment activity, reports on of specific territorial environments. the "crisis" of desertification, They are also the substrates of cultural food scarcity, and economic ineffi- resources, practices and traditional ciency have been challenged by local knowledge systems. KI counter-narratives which show local Cultural resources (practices): are people uniquely engaging in their envi- the inherited territorial (customary ronment in ways that deny the rel- and non-customary) practices that fol- evance of economic incentives (Lan- low local systems of production, circu- sing 1995; Leach and Mearns 1996; lation and reproduction of the environ- Appadurai 1990). ment -- natural and social -- which Recently, the Food and Agricultural characterizes them. They continue to http://www.worldbank.org/afr/ik/default.htm Organization (FAO) characterized evolve in conjunction with individuals plant genetic resources as the "heri- and the territorial environment. They tage of mankind" (Cullet 2001) in or- are also the substrates of intellectual der to globalize conservation of them. resources. Likewise, the World Trade Organiza- Intellectual resources (capital): are tion (WTO) and World Intellectual products that have been abstracted, Property Organization (WIPO) legisla- derived or synthesized from prior cul- tion has enabled biotechnology compa- tural or biological resources. In order nies to enclose aspects of this heritage to receive protection, cultural or bio- within intellectual property rights logical resource had to have been No. 57 (IPR) in ways that primarily fuel inter- transferred from their original territo- June 2003 national industry. As a result, the local rial environment and are 1) either cultural practices related to biological resources have been dismissed as inef- IK Notes reports periodically on ficient or discussed as barriers to de- Indigenous Knowledge (IK) initiatives in Sub-Saharan Africa and occasionally velopment. This may begin with the on such initiatives outside the Region. fact that the relationship between ter- It is published by the Africa Region's ritorial cultural practices, biological Knowledge and Learning Center as resources, and intellectual properties part of an evolving IK partnership between the World Bank, communi- has not been made explicit. The author ties, NGOs, development institutions has found the following distinctions and multilateral organizations. The helpful: views expressed in this article are World Bank Biological resources (plants, miner- those of the authors and should not be attributed to the World Bank Group als and animals): are the natural or its partners in this initiative. A sources of medicinal, agricultural, cos- webpage on IK is available at // mological, veterinary and ecological www.worldbank.org/afr/ik/ utility. Their presences helps balance default.htm 2 transported (as impersonal information bytes) to a new mi- develop several recommendations for Zimbabwe's own Na- lieu so that they may be reckoned "novel;" or 2) components tional Sui Generis Legislation. of them are reduced, standardized, and miniaturized for mass reproduction and distribution to be deemed "commer- cially applicable." Hence, they are synthesized or abstracted Methodology to receive an intellectual property right (IPR). With a cognizance of cosmopolitan movements and high ac- In regional, territorial and national contexts it becomes tivity border zones, the author's fieldwork was carried out in clear that there can be no intellectual properties (even re- three varied locales: 1) in the capital of Harare where a vari- lated to plant genetic resources) without the reproduction of ety of Bantu linguistic traditions from sub-Saharan Africa cultural knowledge and practice. meet in creolized forms commonly exchanged through En- Hence, significant initiative on the part of developing glish, 2) along two border areas -- in Zimbabwe's Eastern countries has brought unique (sui generis) national legisla- Highlands that straddles Mozambique, and to the North go- tion to facilitate both international and local interests in ac- ing to the wetlands that seep across to Zambia, and 3) in the cessing, keeping, using, sharing and valuing biological, cul- central high-grass, veld, region of Zimbabwe where Shona2 tural and intellectual resources simultaneously (Seattle Min- customary traditions are still strongly reproduced. isterial Meeting of the WTO 2000). The African Union (AU) The overall study and analysis was made with key infor- has been especially concerned with maintaining the unique mants, oral traditions, oral histories, participant-observation relationship between plant genetic resources and cultural in ritual and medicinal plant use, former ethnographic stud- practices and has subsequently handed down the African ies completed by anthropologists, as well as the official dis- Model Legislation for the Protection of the Rights of Local course of a national association of traditional healers. The Communities, Farmers and Breeders and for the Regulation author spoke to traditional healers (n'angas), healers' assis- of Access to Biological Resources (African Model Law 2001) tants (makumbi), spirit-mediums (svikiros), plant (muti) as a guide for its member states in developing National Sui merchants, elders, chiefs and their councilors, rural district Generis Legislation. However, because National Sui Generis officials, and urbanite Zimbabweans. All of these interviews Legislation (in accordance with Trade-Related Intellectual were conducted, with the help of a translator, in Shona. Property Rights Article 23(b) of the World Trade Organiza- tion) counters globalizing initiatives it has little to no inter- national aid. Hence, it is being drawn up without the partici- Findings pation of local communities who access, keep, use, share, and value biological and cultural resources in customary and In Zimbabwe, the natural substrates of TMK are conceived of non-customary ways. both as magic3 and as medicine (mishonga). Yet, these sub- strates manifest as a magic and/or a medicine only when they are wielded by an individual possessing an entire repertoire Research question of practices, rituals, divinations, symbols and acute timing based on a familiarity with the social, cultural, environmen- Because the requisite institutional reforms of WTO member- tal and physical milieu (the hun'anga).4 In addition to the ship create new needs in developing countries such as Zimba- individual practitioner, the individuals who comprise the bwe, development practitioners might effectively aid na- greater social field validate by their own consecration tional development by working in conjunction with the na- whether the magic and medicine become effective tional goal to create Sui Generis Legislation. This could be (kushanda). done most effectively by taking an anthropological study of Access to the full repertoire of ancestral TMK (vadzimu how repertoires of knowledge exist in a priori1 local condi- hun'anga) begins when the juvenile kin of an elder family tions first. Based on this qualitative data, an analysis of the healer selects one among their descendants to assist them in cultural practices that both vitalize and sustain traditional their practice (Chavanduka 1997; Reynolds 1996). While the knowledge systems should follow. The author endeavored to apprenticeship demands hands-on practice with TMK ­ iden- do this with one repertoire of knowledge in Zimbabwe, Tra- tifying, collecting and preparing plants; ditional Medicinal Knowledge (TMK), by exploring how it is identifying,understanding and healing illnesses -- it also re- accessed, kept, used, shared, and valued in both customary quires lessons in the greater customary, symbolic and social and non-customary ways. Subsequently, this has helped her 3 milieu. The sum of the extended apprenticeship is the at- nosing and healing each problem or illness individually. As a tainment of invaluable intuition (mapipi) related to the rela- result, careful customization (opposed to a standard set of di- tionships and cultural codes that direct an entire TMK sys- agnoses) yields many opportunities for innovation and ad- tem. For Zimbabweans, the elders (as well as the deceased vancement in practice. ancestors) are the key to continuing access to and inherit- ance of TMK through special dreaming (kurotswa) and ritual divinations (kusvikirwa) where the knowledge is revealed as Non-customary practices a gift (Frommer 2002).5 Presently, however, several non-customary practices that ap- Hence, while a general familiarity with traditional medici- propriate the physical substrates of TMK (mishonga) also nal plants is possessed by many within the local community, neglect the importance of the cultural and ritual matrix that only selected and trained individuals gain enough familiarity may spark individual insights and innovation. As Zimbabwean with TMK to know with certainty what combination of plants, merchants, scientists and a trade union of traditional healers rituals, charms, divinations and diagnoses are effective under have begun to remove the physical mishonga for product what conditions. As a result, different lineages and bodies of development and distribution, the entire reproduction of TMK have evolved -- some more specialized, customary, ef- TMK practices (hun'anga) as well as the entire cultural sym- fective or powerful than others, depending on the different bolic system is threatened. Further, when these non-custom- territories or situations.6 ary practices are linked with foreign pharmaceutical compa- nies, the focus on product development weakens the empha- sis on ancestral gift and heritage and thereby also the expec- Symbolic and social capital tations of duty and responsibility with respect to the local While innovation in TMK is necessary to meet the changing communities who rely on these practices (Wyneberg 1999; needs of local Zimbabwean communities, it is not economic 2000). Because TMK has always had a degree of collective incentives that fuel this process. Traditional healers who sharing, unconsecrated and non-customary practitioners have been specially selected to access and keep the ancestral have been able to take liberties with the mishonga in ways knowledge finds themselves entrusted with a duty in which that have begun to breed local misuse, misdiagnoses, and they are expected to share and cure before remuneration is fraud.10 As a result of these divergent practices, an estrange- even considered.7 Further, it is not required that the in- ment between traditional healers and their communities is sights, intuition, and innovation of a personal practice be settling in to such an extent that the entire reproduction of shared in order to gain remuneration because healers are cultural practices and relationships that fuel innovation valued first as cultural authorities, second as practitioners, within the traditional medicinal knowledge system is threat- and third as practicing scientists. Hence, traditional healers ened. receive a different type of payment -- that of community consecration (symbolic capital).8 The highest authority and rewards are given to those healers who appropriately revere Prognosis the TMK (kuchengetera) and demonstrate respect for the cus- Nonetheless, Zimbabwe has a changing and evolving culture. tomary rituals, healing, figures, symbols, proverbs, and nar- Recent years have seen specific customary figures from the ratives that are used to enrich and illuminate the entire so- distant past (PasiChigare) or from the "Liberation War"11 cial field.9 For instance, in addition to healing, mishonga is used to encourage the tourism industry. In theory, new local used symbolically to give impetus to culturally ordained re- practices cannot be conceived of as not "cultural" simply be- sponses, rituals, and activity that may manipulate any set of cause they do not flow directly from the orthodox tradition. factors in the environment, e.g., for success in business, poli- Hence, so as to not conscript and freeze the processes that tics, winning arguments, extending influence, or settling dis- reproduce culture as a resource, both customary practices putes. Because these practices exist in a realm where they and non-customary practices must have legislation to support are accepted, spoken of, and understood they become and protect traditional medicinal knowledge as part of the "kushanda," or, effective. However, just because these prac- social service sector. tices are "cultural" and rely on the traditional codes does not mean they are not scientific or innovative. In fact, one of the strengths of these practices lies in their flexibility in diag- 4 Conclusion While industrial countries believe that IPR for intellectual 1A prior, or "a priori " right is recognized for local communities in the resources fuels innovation through reward, the value-added African Union's Model Law (2001). 2Shona is a national language of Zimbabwe from the Bantu heritage. to biological resources by cultural resources has symbolic The importance of doing fieldwork in a territorial language is engines that move it. The singular focus in development illustrated in the discovery of concepts unique to Bantu tradition that can not be easily translated into English without casting doubt circles on protecting "plant genetic resources" overlooks the on their non-superstitious reality, e.g., charm, magic, relationship between it and other resources and denies that 3Magic, according to Leach (1976) is an index of the possible. While cultural resources are crucial for the continued health, re- the cause of an identified effect is not verified, the potential effects still have very real implications for believers. In the author's production, and innovation in each type of resource. research this includes an affirmative belief that banal empiricism The author's findings show that TMK is accessed, kept, and may be transcended with ritual and mishonga. 4The customary and the cosmological, the magical and the spiritual, used by individual practitioners in order to share it effec- the bureaucratic and the modern all of these may represent tively and to attain full valuation in the surrounding commu- simultaneous realities, sub-realities and hyperrealities for Zimba- bweans who traverse the beliefs, practices and ways of individuals nity combats the assumption in development circles that inhabiting rural, customary, urban, scientific, entrepreneurial, TMK is primarily a collective resource. It is important to spiritual and magical realms and communities. 5 look past this assumption, which is married to the expansion A special phrase, gift of the ancestors, (chipo vadzimu) indicates the special rules pertaining to a heritage and gift as opposed to a of an intellectual property rights regime, especially since commodity. Anthropologists such as Marcel Mauss, Bronislaw this has served to justify the alienation between individuals, Malinowski, and Annette Weiner, have all written about the engines and rules of gift giving. Common to each analysis is the emphasis families and communities and their cultural and biological that these special items do not follow economic rationale but are heritage. rather tied into social and symbolic status aquisitions. 6 While plant genetic resources have been called a "green- The author's research found that the "godobori' n'anga is said to have the most customary appeal and therefore the most powerful gold" in recent years, in reality it is has been the access to wielding of mishonga. Further, she found some patterns suggesting territorial cultural resources (based on customary and non- distinctions between regional, family, childbirth, environmental and magic mishonga. customary practices with local medicinal plants) that have 7Often, a token or a delayed reimbursement is satisfactory. yielded the pharmaceutical applications receiving protection 8 In recent years, development officials have begun to pay more as intellectual property (Wyneberg 1999; 2000). Therefore, attention to symbolic capital (Bourdieu 1977). Yet, that this capital is a convertible form that can encourage particular products, cultural (customary and non-customary) practices related to services and values or even efficiency in the absence of monetary biological heritage need a system of protections that en- input has not to date received adequate credit in the development of individuals, practices or societies. Symbolic capital is also most hance a capacity to keep relationships, social systems, social/ evident vis-à-vis ones position in a family. symbolic matrices that reproduce territorially important 9This helps build status and power for that family, clan (dunhu) and/or knowledge alive. The author has outlined how this may be totem (mutopa). 10I write about the case of the African Potato (Hypoxesis done in accordance with the United Nation's International hemericallidae) in my published research: The Cultural Right to Covenant on Social, Economic and Cultural Rights (1966) in Traditional Medicinal Knowledge in Zimbabwe" (2002) McGill University. more detail for Zimbabwe. 11The second Chimurenga, the Liberation War, was fought for Zimbabwe's independence from the British Colonial goverment. The author of this article, Chloe Frommer, conducted this anthropologicaly research under the auspices of McGill Uni- versity, as a researcher for the Centre for Society, Technology and Development (STANDD), and the Centre for Developing Area Studies (CDAS)in Montreal, Quebec. She can be contacted at Chloe@culturalrights.com. The full version of this article with a complete list of works cited can be found at www.culturalrights.com