Analysis of the role of the County Governments in Implementation of the Nagoya Protocol on access and benefit sharing: a case study of Baringo County in Kenya

Abstract

The Convention on Biological Diversity (CBD) (1992)(SCBD, 1992b), was the first international instrument on conservation of biological diversity to be adopted. Subsequently, the Nagoya Protocol (2011) on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilization to the Convention on Biological Diversity (the Protocol) was adopted and came into force in October, 2014. The Protocol sought to govern access to genetic resources and sharing of benefits arising from their utilization and the traditional knowledge associated with them, a concept commonly known as ABS, and to contribute to the CBD. The critical role of counties in the management of natural resources since their introduction under the Constitution of Kenya, 2010 (CoK, 2010) is acknowledged but they have not been embedded in the ABS regime as part of the multi-level governance regime in the country. Their involvement in the management of genetic resources within the framework of the Nagoya Protocol is supported by Section 50-53 of the Environmental Management Co-ordination Act, 1999 (EMCA) including Section 147A which mandates counties to make relevant legislation. Further, the Environmental Management and Coordination (Conservation of Biological Diversity and Resources, Access to Genetic Resources and Benefit Sharing) Regulations, 2006 which provide for ABS did not have counties in contemplation since they were prepared before the CoK, 2010 came into force. Counties have consequently been inadequately involved in the ABS regime and the objectives of devolution in implementation of the Protocol have not been realized. The objectives of this research therefore were to analyze the role of county governments in implementation of the Protocol in Kenya with the specific objectives seeking to: establish their current role, investigate their relationship with the national government, find out what policy, legal and institutional gaps exist and to make policy recommendations for more effective implementation of the Protocol by County Governments. The qualitative research design was used to collect data between September 2019 and January 2020. Focus group discussions and key informant interviews were utilized. Baringo County was the ideal study site because it had experience with ABS. Results show that the role of counties exists within the current law and policy frameworks, it has been performed to some extent but that there are gaps due to among other reasons, lack of a clear unifying law and policy at both the national and county levels, failure to devolve ABS and to involve counties. It was found that counties are required among other functions to: have an integrated unifying ABS policy and law at national and county levels that include key elements for implementation of the Protocol; mainstream county roles within existing policy legal and institutional mechanisms across departments and sectors; document and value their resources; have an ABS desk office and adopt holistic systems thinking approach in implementation of the Protocol.