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Kenya

ABS stories

Learning from experience: Kenya

Slide Starting the ABS process after your research begins could cause delays

Institution: An applied university in Germany

Biological material: Part of a fruit from an African tree species

Research field: Biochemistry, Conservation biology, Ecology, Microbiology

Research: Basic, non-commercial

Focus: Promoting the use, processing and market development of the fruit with the aim of improving food security, nutrition and rural livelihoods in two African countries, including Kenya.

Collaboration partner: There were 10 collaboration partners in the project but only three universities (two in Germany and one in Kenya) had access to the fruit samples.

Getting the material: The fruit was provided to the German partners by the Kenyan partner university. The fruit was originally bought from two local communities living in different study areas.

Funding: German Federal Ministry for Food and Agriculture

Photos: K. Meinhold

ABS Process

Time needed for first response from the National Focal Point: Less than 1 week

Time needed to negotiate PIC and MAT:  Approximately 6 months

Processing time for the ABS application: 2-3 months

Amount of time invested full time in the process by the scientists:  Approximately 4 weeks

ABS documents needed: Prior Informed Consent, a benefit-sharing agreement, an ABS permit and a Material Transfer Agreement with the Kenyan university

Other documents needed: Research permit, export permit, phytosanitary permit

The researchers involved in this project only found out about ABS from their project partners after the funding period for the research project had already started, meaning that the fruit samples could not be sent to Germany for testing straight away. This led to a delay of approximately 10 months in the project.

Once they knew that ABS was relevant, the researchers sought advice from the German Federal Agency for Nature Conservation, the collaboration partner in Kenya and the Deutsche Gesellschaft für Internationale Zusammenarbeit (GIZ) GmbH, which partners with Kenya on an ABS-related project (the ABS Capacity Development Initiative).

The first step in the ABS process was to contact the Kenyan National Focal Point, who responded quickly to the initial enquiry. The Focal Point put the researchers in contact with the Kenyan Wildlife Service (KWS), which was subsequently the key authority in the process.

Several different documents were required, including a Memorandum of Agreement (MoA) which served as the Mutually Agreed Terms (MAT) and included the benefit sharing arrangements, Prior Informed Consent (PIC) and a Material Transfer Agreement (MTA). These documents went back and forth between the KWS and the German and Kenyan universities until they were agreed upon.

PIC was provided by the KWS and the two local communities located who provided the fruit. Local representatives of these communities signed the PIC after meetings were held to inform them about the proposed research. The PIC was subsequently signed by the German and Kenyan universities and finally by the KWS. The two universities also signed the MoA and MTA, after which an access permit was granted by the national authority responsible for ABS, i.e. the National Environment Management Authority (NEMA). After NEMA granted the ABS permit, the German university could apply for an export permit, which was granted by KWS in connection with a phytosanitary certificate obtained from Kenya Plant Health Inspectorate Service (KEPHIS). The samples could only be transferred from the Kenyan university to Germany after these permits had been obtained.

The procedure for non-commercial utilization of genetic resources is described in the ABS Clearing House.

Photos: K. Meinhold

Benefit-sharing

The parties to the benefit-sharing agreement are the German university, the local Kenyan university and the government of Kenya (KWS).

The benefit-sharing agreement was signed by the leader of the research group and the administrative head of the German university. During the process, legal assistance was provided to the researchers by the university’s legal department.

What were the benefits agreed to?

  • sharing results
  • provision of on-site training in Kenya
  • study exchanges for Kenyan students to Germany
  • research infrastructure and equipment for the local university
  • equipment for the local community to help with processing the fruit
  • training in local communities on value creation and awareness-raising on the value of the fruit for family nutrition.

Advice for other researchers obtaining biological material from Kenya

What do the researchers involved in this ABS process suggest?

Inform yourself carefully about ABS requirements. Contact the Kenya National Focal Point to find out what you need to do and be transparent with the authorities about your proposed work.

Start with the ABS process early, plan enough time for ABS process and be patient. There was a 10 month delay in the research caused by starting the ABS process after the project had started. This made it necessary to apply to the funding agency for an extension to the project. Inform yourself about ABS  and if ABS obligations apply, make contact with the relevant authorities and start organizing the paperwork before the research project begins.

Know where to get help because the ABS process can be complicated.

Value the role of your local partners in the ABS process! They may need to visit the relevant government offices and communicate with the government authorities in person. Following-up on progress with your partners and the different government authorities regularly can help to keep the process moving forward.

When communicating with the local authorities or representatives of local communities in the field, it is important to take cultural differences into account.

Make sure you have all of the permits you need. Kenya has stringent border controls to ensure that nobody exports samples of biological material in their luggage without the required permits (including ABS permits). Research permits are an additional requirement to ABS and you should not be out in the field without one.

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The German Alliance ABS advisory platform for academic research is funded by members of the Alliance of Science Organisations. The project sponsoring members of the Alliance are the German Research Foundation (DFG), the German Rectors’ Conference (HRK), the Helmholtz Association of German Research Centres (HGF), the Leibniz Association, the German National Academy of Sciences Leopoldina and the Max Planck Society.

 

 

 

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  • Some countries also have ABS laws even though they are NOT Party to the Nagoya Protocol. You still must comply with these laws!
  • Some countries in the EU also have specific national ABS laws.
  • If your research will involve traditional knowledge, you must take into account the national ABS rules in this regard.

In cases of non-compliance the National Authority (BfN) can:

  • confiscate the material.
  • prohibit further use and transfer of the material for research.
  • prohibit the publication or sharing of any results of utilization.
  • issue a fine of up to 50,000 EUR.

Check out more about the implications of non-compliance.

How do I check?

  • Start with the country profile in the ABS Clearing House (ABSCH).
  • Check out the legislative, administrative or policy measures section. If no measures can be found here, the interim reports might also contain relevant information. Tip! filter by country.
  • Be careful though. This information is not always complete or up to date. Some countries have ABS laws but they are not listed in the ABSCH.

To play safe and ensure legal clarity, always contact the ABS national focal point and/or the competent national authority. Tip! filter by country.

No answer?

  • Try contacting the national focal point of the Convention on Biological Diversity (CBD).
  • Ask collaboration partners in the country for help – easier for them to contact the authorities in their own country and language!
  • Ask colleagues who have worked in that country before.
  • Use the internet to find resources.
  • Contact the German Federal Agency for Nature Conservation (BfN). They have information about ABS and may be able to assist.

For research done in Germany, the German Federal Agency for Nature Conservation recommends using the DECLARE portal.

An account is required. Check with your institution as it may already have one.

This video and the user guide are very useful to start!

Starting your project before ABS permits have been granted is a violation of the EU Regulation and can get you in trouble if your institute is being checked by the German National Authority (BfN)!

In this regard, you have obligations under the EU ABS Regulation if:

  • You collected the material…
  • The collaborator who gave you the material collected it…
  • The material obtained from a collection was originally collected…
  • The shop or company where you bought the material collected it…

on or after 12 October 2014

This date is key because it is when the Nagoya Protocol entered into force.

When you obtain material from a collaborator, collection or trader, it is important to verify if there are benefit-sharing obligations linked to it.

For example: research on specific genetic or biochemical properties, gene function, gene expression, genetic modification, genome editing, breeding based on traits and their associated genes, among others.

The EU Regulation does not apply when research does not involve the study of the genetic or biochemical composition, e.g. storing biological materials in a collection, mere culturing of organisms, taxonomic identification, morphological or anatomical characterization, among others.

See the guidance document for more information and examples on “utilisation”.

Also check our FAQs section on it.

ABS obligations may or may not apply depending on the type of research. There could be exemptions for non-commercial or basic research.

Keep in mind that exemptions for local researchers may not apply if they conduct their research abroad (e.g. guest researchers bring material from their home country to study it in Germany).

Within the European Union, obligations stem from Regulation (EU) No 511/2014.

The EU Guidance Document contains information on scope, obligations and understanding whether your material/research is covered, including many practical examples. It is available in all EU languages and is a must-have resource.

Not all countries that are Party to the Nagoya Protocol regulate access, e.g. Germany. In such cases, you are free to use the genetic resources obtained from these countries without getting ABS permits.

You are obliged by the EU and German law to support user checks by the German Federal Agency for Nature Conservation.

Failure to support a user check is an administrative offence.

When you transfer the material to another person or institution:

  • Search if there are ABS documents relating to the material you have.
  • Check if the transfer to third parties is permitted.
  • Transfer also the information, e.g. a copy of the ABS permit or the number of the internationally recognized certificate of compliance (IRCC) published on the ABS Clearing House.

Having a good documentation system will save you headaches in the future.

Read the documents and understand your obligations as well as any conditions and restrictions on use of the material.

Keep in mind your commitments on benefit-sharing!

The due diligence declaration informs the competent authority in Germany that your research and material is Nagoya Protocol relevant and that you have complied with your ABS obligations.

Check out more about it!

“Derivative” means a naturally occurring biochemical compound resulting from the genetic expression or metabolism of biological or genetic resources, even if it does not contain functional units of heredity.

Some examples are: RNA, proteins (including enzymes), lipids, organic compounds (e.g. essential oils or resins) and other products of metabolism.

Also check our FAQs section on it.

In this regard, you have obligations in the EU if the country where the material comes from was a Party to the Nagoya Protocol and had ABS regulations at the time of access.

Why is ABS important?

Access and Benefit Sharing (ABS) measures ensure that research results support provider countries to:

  • Make informed decisions on conservation, sustainable use and management of their biodiversity.
  • Implement innovative solutions for productive activities, contributing to sustainable development.
  • Build capacities for national research.
  • Other benefits as agreed.

Even if ABS does not apply to your research project, you must be able to provide the German Federal Agency for Nature Conservation with the documentation that supports your conclusion. This will speed up possible compliance checks. Tip! save email correspondence with the provider country authorities on this regard.

For some countries, this can be determined by checking the date of entry into force of the national ABS legislation and compare it with when the material was collected in the field.  If you collected before the legislation went into force, you could be out of scope. However, in some countries “access” can also mean receiving material from an ex-situ collection or even when you start to use it (even if it was collected and left the provider country long ago). Keep this in mind!

Some laws only cover certain types of organisms or organisms collected in certain areas.

Check when:

  • you collect material outside of Germany
  • a collaborator gives you material from another country
  • you get material from a collection in Germany
  • you buy material from a shop or a company
  • traditional knowledge from indigenous peoples or local communities will be used for your research