Governing traditional medicine in Kenya: Problematization and the role of the constitution

ABSTRACT

After decades of repression and neglect, traditional medicine in Kenya has become the object of increasing official attention in recent years. Initiatives have been proposed by a range of state bodies and civil society groups to regulate practice and to protect the traditional knowledge on which it is based. These are informed by the work of international bodies with which agencies and groups are closely connected. This article draws on governmentality theory in mapping these developments accounting specifically for international and national influences on the current wave of reform. It argues that initiatives are cast in normative, epistemic and rhetorical terms as responses to problems faced by the Kenyan state. Governance technologies deployed or proposed are oriented to the ‘problematization’ of traditional medicine in terms of health and safety, threats to sovereignty and national development. The Constitution of Kenya 2010 (CoK) provides a crucial normative anchor for each of these problematizations. Its specific provisions allow international imperatives to be re-articulated in terms of the national interest.

KEYWORDS:

• traditional medicine
• governmentality theory
• sovereignty
• development

Acknowledgements

Thanks are due to Lotte Hughes, Mark Lamont and Lyla Latif for their advice on this article and to Thomas Ikin for help with research. The comments of the two anonymous reviewers are also gratefully acknowledged. Responsibility for errors and infelicities is mine alone.

Note on Contributor

John Harrington, is professor of Global Health Law and founding director of the Centre for Law and Global Justice at Cardiff University. He holds law degrees from Trinity College Dublin and Oxford University, and has been a research fellow at the African Population and Health Research Centre, the British Institute in Eastern Africa (both Nairobi), the European University Institute (Florence), Melbourne University Law School and the University of Dar es Salaam. His current research focuses on the implementation of and resistance to global health norms in the third world and is based on extensive fieldwork in East Africa. His work combines socio-legal and humanities approaches to law.

Notes

1. See further John Iliffe (1998: 28–9). This reification of ‘tribal’ identities in medicine was in contrast to the reality of mobile healers and patients, then and since, see Ole Rekdal (1999).

2. See respectively in Moni Wekesa (2009) and Sarah Laird & Rachel Wynberg (2008).

3. See James Gathii (2016); Franceschi, Muthoni & Wabuke (2017); and Kibet & Wangeci (2016).

4. The WHO country representative has advised the Kenyan Ministry of Health on the development of legislation to integrate traditional medicine within the official health sector since 2010. Interview with nationally prominent healer (22 April 2013).

5. General Comment 14, The Right to the Highest Attainable Standard of Health, CESCR, 22^nd session, 2000, UN doc. E/C.12/2000/4.

6. Interview with senior research officer, Centre for Traditional Medicine and Drug Research, Kenya Medical Research Institute (21 May 2013); and see Mwangi (2012: 33)

7. Newspaper coverage of traditional medicine frequently focuses on such ‘practitioners’, see for example ‘Africa’s Dr Cure-Alls: Men of God or quacks?’, L. Mwiti, Daily Nation 31 March 2011.

8. This fear registers among parliamentarians, see for example, Kenya NA Debates (9 December 2009) 4442 (Dr Khalwale MP). It is also shared by policy-makers and prominent healers, see interviews with former patent inspector, Traditional Knowledge and Genetic Resources Unit, Kenya Industrial Property Institute (11 July 2013) and with leader of herbalist’s association (31 January 2013).

9. For example, see Kenya NA Debates (9 December 2009) 4440 (Dr Mwiria MP).

10. Health Act 2017, sections 74–9.

11. Interview with senior pharmacist, Ministry of Medical Services, Nairobi (19 February 2013).

12. Interview with former patent inspector, Traditional Knowledge and Genetic Resources Unit, Kenya Industrial Property Institute (11 July 2013).

13. Interview with founder of traditional healing NGO (30 January 2013).

14. Thus, in its current global strategy, the WHO urges states to adopt national plans for regulating traditional medicine (WHO 2013: 35ff). This imperative is also reflected in the Kenyan media, see for example, ‘Editorial: Alternative medicine must be recognized’, Anonymous, Daily Nation (8 April 2012).

15. Interview with proprietor of herbal medicine clinic, Nairobi (29 January 2013).

16. See the comments of stakeholders noted in ‘Searching for a cure at all costs’, J. Ngetich, Daily Nation 1 April 2011 and ‘Herbal medicine industry in dire need of regulation’, S.C. Gemson, Daily Nation 19 February 2013.

17. Interview with leader of herbalists’ association (31 January 2013).

18. Interviews with traditional healer, Kakamega County (31 June 2013); and senior Kenyan research scientist (26 February 2013).

19. Interviews with senior pharmacist, Ministry of Medical Services, Nairobi (19 February 2013); nationally prominent healer (22 April 2013); senior research officer at Centre for Traditional Medicine and Drug Research, KEMRI (21 May 2013).

20. It should be noted that this plant is available in several locations around the world, and that it is difficult therefore to identify a clear link between the company’s successful drug and a specific appropriation of traditional knowledge in Madagascar, see Osseo-Asare (2014: 33).

21. For example, see the Institute of Economic Affairs (IEA) (2011: passim); GoK (2009: 6); and also Kenya NA Debates (9 December 2009) 4449, 4452 (Mr Shakeel MP, Mr Maina MP).

22. Environmental Management and Co-ordination (Conservation of Biological Diversity and Resources, Access to Genetic Resources and Benefit Sharing) Regulations 2006.

23. Interview with IP scholar and practitioner (1 October 2013); IEA (2009: 10).

24. The requirements for the issuing of a patent in Kenya are laid down in the Industrial Property Act 2001, section 23.

25. Interview with former patent inspector, Traditional Knowledge and Genetic Resources Unit, KEMRI (11 July 2013).

26. The rest of the Act does not offer much further guidance either. The definition of traditional knowledge as that which is ‘integral to the identity of the community’ (section 6) is essentially circular. Equally, though customary law is relied on to settle overlapping claims to the same knowledge (section 7(6)), it is unlikely to define the communities themselves.

27. Interview with senior pharmacist, Ministry of Medical Services, Nairobi (19 February 2013).

28. Interview with senior official, Natural Products Industry Initiative (25 July 2013).