The Organization of African Unity (OAU) has drafted model legislation50 on community rights and access to biological resources as a basis for national legislation and possibly for an African Convention. The preamble of the model legislation declares that "the State recognizes the necessity of providing adequate mechanisms which guarantee a just, equitable and effective participation of its citizens in the protection of their collective and individual rights and in making decisions which affect the biological, genetic and intellectual resources as well as the activities and benefits derived from their utilization."
50 The African Model Legislation for the Protection of the Rights of Local Communities, Farmers and Breeders, and for the Regulation of Access to Biological Resources.
The aim of this legislation is: "to ensure the conservation, evaluation and sustainable use of biological resources, including agricultural genetic resources, and knowledge and technologies in order to maintain and improve their diversity as a means of sustaining the life support systems." Its scope includes: in-situ and ex-situ biological resources; derivatives of biological resources; community knowledge and technologies; local and indigenous farming communities; and plant breeders. However, it does not affect the system of access, use or exchange of biological resources, knowledge and technologies by and between traditional communities. Neither does the legislation affect the sharing of benefits based upon the customary practices of the concerned communities, except when dealing with persons not living in the traditional and customary way.
According to the Model Law, the State recognizes the rights of communities over their biological resources and over their innovations, practices, knowledge and technology acquired through generations. It furthermore recognizes their right (i) to collectively benefit from the use of their biological resources and from the utilization of their innovations, practices, knowledge and technologies, (ii) to use their innovations, practices, knowledge and technologies in the conservation and sustainable use of biological diversity, and (iii) to exercise their collective rights as legitimate custodians and users of their biological resources. These rights are to be recognized and protected "as they are enshrined and protected under the norms, practices and customary law found in, and recognized by, the concerned local and indigenous communities, whether such law is written or not".
Any access to biological resources or knowledge is subject to prior informed consent of the communities concerned, with local communities having the right to prohibit or place restrictions on access, and to withdraw their consent. Moreover, communities may exercise their inalienable right to access, use, exchange or share their biological resources according to customary practices and laws. With respect to benefit sharing "at least 50% of benefits obtained from commercial use of a biological resource and/or community innovation, practice, knowledge or technology are to be channeled to the concerned local community or communities in a manner which treats men and women equitably". This provision contrasts starkly with the patent laws of most countries, which do not have any provisions for benefit sharing in case of commercial exploitation of biological resources or associated (traditional) knowledge.
The Model Legislation may become a document of great significance, since African Governments increasingly consider the issues involved to be of great importance and the introduction of relevant legislation to be a priority.