INTRODUCTION

Brazil, Russia, India, China and South Africa (BRICS) are a recognised trading bloc since 2009, following their inaugural summit in Yekaterinburg, Russia, with some observers denoting the organisation as a counterpoise to Western economic alliances.¹ Currently, its member states include: Brazil, China, Egypt, Ethiopia, India, Indonesia, Iran, Russia, Saudi Arabia, South Africa and the United Arab Emirates.²

In July 2026, the BRICS held their 16th Health Ministers’ meeting in Chandigarh, India.³ This produced their most significant political recognition of traditional medicine, marked by a dedicated section on traditional, complementary and integrative medicine (TCIM). The BRICS’ declaration, in light of the World Health Organisation’s Global Traditional Medicine Strategy 2025-2034,⁴ anchored on sustainability and diversity, proposed the establishment of the BRICS Expert Working Group on TCIM under the BRICS Health Track. This working group, according to BRICS, would provide a platform for collaboration amongst member states ultimately promoting Universal Health Coverage (UHC).

Despite this recognition of TCIMs being done with good intent, it may be inadequate in the protection of the traditional or indigenous knowledge (TK) used to manufacture medicine. This particularly affects countries without a comprehensive sui generis TK protection framework. Furthermore, the declaration does not create any binding obligations on state parties or members. The proposed Working Group only sets out to strengthen collaboration for the development of mechanisms to recognise and protect IPRs relating to TK in TCIM.⁵ Whereas it advocates for policy development and regulation, its objectives do not describe how enforcement of TK in TCIM will be achieved, which remains a significant concern.⁶ Ethiopia, a member state of BRICS,⁷ lacks a formal specific IP protection law to protect TK, while it is heavily reliant on TCIM.⁸ As such, this article argues that the BRICS declaration’s political recognition of traditional medicine is symbolic but fails to be substantive due to Ethiopia’s lack of a formal and precise TK protection law. Instead, the country has a regulatory framework through its IP authority that seeks to protect TK.⁹

HEAVY RELIANCE ON TK

In Ethiopia, herbal medicine is the primary point of contact for individuals seeking healthcare, particularly in rural areas with limited access to formal medical services; about eighty percent of the population are reliant on it.¹⁰ This stems from the belief that some illnesses have significant cultural meanings, with some denoting sickness as a consequence of wrongdoing.¹¹ Therefore, individuals search for herbalists, spiritualists and faith-based healers to produce medicines or heal them. Ultimately, this heavy reliance has not only influenced local communities’ but also international responses to communicable or transmittable diseases.¹²

The point of demonstrating this reliance was to provide a foundation for the risk of TK (used in manufacturing TCIM) when its legal protection is inadequate. If the knowledge base underpinning primary healthcare access for a majority of the population can be extracted, patented abroad, or otherwise appropriated without consent or benefit-sharing, the harm threatens the long-term viability of the health system that depends on that knowledge at its core.¹³ Notably, there is evidence that TK has already been exploited. In 2005, a Tennessee researcher obtained a patent on four medicinal plants, Damascisa, Tena Adam, Kosso and Birbira, which have been used for centuries by Ethiopian communities to manufacture medicine.¹⁴ No financial compensation was issued to the TK holders responsible; this could be attributed to Ethiopia’s lack of domestic legislation providing a platform for these communities to assert their rights.¹⁵ Against this backdrop, this article shall analyse the doctrinal gap in the next section.

ETHIOPIA’S LEGAL FRAMEWORKS FOR TK PROTECTION

Despite lacking a sui generis IP framework for TK, the country heralds an IP authority; the Ethiopian Intellectual Property Authority (EIPA). EIPA was established in 2003 to provide legal protection for Intellectual Property Rights (IPRs) through the implementation of state policies.¹⁶ It is coupled with an Intellectual Property Tribunal, established in 2018 to determine claims of civil cases arising in relation to IP.¹⁷ Its jurisdiction is mostly focused on cases to do with copyright, trademarks, patents, Utility Model, industrial design.Under these established categories, TK has no clear path to protection as there is no law on use of TK for patenting.

The only protection TK holders are offered is through the Intellectual Property Asset Development Directorate within EIPA.¹⁸ This new directorate focuses on three key areas namely traditional medicine knowledge development, cultural designs and utilities development and fine agricultural products.¹⁹ Under traditional medicine development, the working team is cognizant of Ethiopia’s historical reliance on TK in medicine. As such, it strives to raise IP awareness of the traditional herbalists, creating and effecting model TK medicine transfer agreements between researchers and traditional healers and installing legal and technical infrastructure to ensure protection of Traditional Medical Knowledge.²⁰ While the proposed legal infrastructure provides a foundation for protection, it alone is ultimately inadequate to protect TK holders’ rights.

The country however, through the Access to Genetic Resources and Community Knowledge, and Community Rights Proclamation No. 482/2006, has a domestic instrument that seeks to address TK.²¹ Article 7 of the proclamation gives communities the right to regulate access to their TK, obliging users to seek their prior-informed consent for their genetic resources and TK.²² However, this framework may be inadequate to protect TK. Firstly, though Article 7 regulates access, consent and withdrawal of such consent, it does not provide how a TK holder can patent their own knowledge given the proclamation’s salience on patentability with more of a focus on access-granting.²³

With the gaps averred from the proclamation, this article now shall draw from the prevailing patent law regime and assess its potentiality for protecting TK. The Proclamation on Inventions, Minor Inventions and Industrial Designs is the framework that governs Ethiopia’s patent regime.²⁴ For an invention to be patentable, it has to meet a three-step threshold.²⁵ This three-step test follows the same model that Kenya takes for patentability under the Industrial Property Act.²⁶

Firstly, the invention must be novel. Article 2(3) of the Proclamation on Inventions, Minor Inventions and Industrial Designs,²⁷ defines a new invention as one that has not been anticipated by “prior art”. Prior art in this case, consists of everything not disclosed to the public, anywhere by publication in tangible form or by oral disclosure, by use or in any other way, prior to the filing or where appropriate the priority date, of the application claiming the invention.²⁸ Any invention which is made public before application would be considered prior art, and hence this requirement of novelty is difficult to satisfy for the bulk of the TK, which originate from previous generations.

Secondly, a claimed invention requires proof of non-obvious “inventive-steps”.²⁹ It can be logically deduced that to demonstrate such steps, an identifiable inventor is requisite. Article 2 of the Proclamation defines an inventor as one who conceives an idea which provides the solution to a specific problem in the field of technology.³⁰ Similarly, article 8 prescribes the requirements for one to be classified as an inventor.³¹ TK however, is a transgenerational asset developed over time and transmitted between generations, making it difficult to establish the correct inventor.³² Returning to “inventive steps”, this is achieved through comparison of the invention with prior art. It would be difficult for TK to meet this threshold especially since a majority comprises simple ingredients manufactured using simple processes.³³ The final requirement is, after establishing novelty and proving that ‘inventive steps’ were taken, demonstrating that the invention itself is industrially applicable.³⁴ This entails assessing whether the invention can be used in fields such as agriculture, fishery or any other sector.³⁵

Moreover, patents are also time bound. Article 16 provides for protection of patents for a duration of fifteen years.³⁶ After the time lapses, an application can be made to protect it for five years. This creates a problem for TK because, being a transgenerational asset, its makers would want to hold it for eternity in preservation of their tradition and ancestors.

The exploitation averred earlier in this article is a result of Ethiopia’s lack of a precise legal framework for protecting TK. This section demonstrates the precarity of recognition (by BRICS) without protection (within national legislation). Comparatively, Kenya is amongst the countries in Africa which has enacted sui generis frameworks for the protection of TK.

Kenya’s Protection of Traditional Knowledge and Cultural Expressions Act (PTKCEA), provides a clear roadmap and criteria for protection and registration of TK under sections six and seven of the Act.³⁷ It solves the inventor-identification problem through encompassing communities in addition to individuals as owners and holders of TK.³⁸ This ultimately provides a foundation for communities (now that it has been established that they can be owners and holders of TK), to receive compensation for the use of their cultural heritage as envisioned under Article 11(3) of the Constitution.³⁹

A BROADER ISSUE: REGIONAL AND CONTINENTAL TK PROTECTION

Ethiopia’s legislative gaps presuppose a wider, multi-jurisdictional problem in the protection of TK in Africa. This systemic failure is highlighted by Prof. Chidi Oguamanam,⁴⁰ who argues that despite the acceptance of the cultural significance of TK, it is not given the requisite protection by key continental instruments.

The African Continental Free Trade Area (AfCFTA) agreement focuses on trade liberalisation in agricultural development, food security, public health, environment and cultural diversity, all of which are sites for the promotion of TK.⁴¹ Its IP protocol provides insight on informed consent, TK databases and transnational cooperation to promote and protect TK across member states.⁴² Through the establishment of TK databases, including AfCFTA’s own database based on information from State parties, as well as equitable benefit-sharing principles, and also requiring state parties to take measures to prevent and prohibit the unauthorised utilisation of traditional knowledge in all categories of IPRs, these implementation measures demonstrate AfCTA’s cognizance of the potentiality of TK as a strategic hub for regional economic advancement.⁴³ However, the African Economic Community (AEC) treaty, which aims to promote the economic, social and cultural development of African economies, in tandem with transnational economic integration,⁴⁴ does not directly mention TK. The Charter for African Cultural Renaissance comes close through its endeavour to promote popularisation of science and technology including traditional knowledge systems in order to promote the cultural heritage of each country.⁴⁵ The African Convention of the Conservation of Natural Resources encourages benefit-sharing between TK-linked biotechnologies provided they are scientifically-based and promote sound traditional conservation, utilization and management of natural resources.⁴⁶

Furthermore, of the 22 countries to have ratified Africa Regional Intellectual Property Organisation’s (ARIPO) Swakopmund protocol tailored to protect TK and Traditional Cultural Expressions, only nine countries have taken steps to develop legislative systems for the protection of TK. These include: Botswana, Cabo Verde, Gambia, Liberia, Malawi, Namibia, Rwanda, Zambia and Zimbabwe.⁴⁷ In Ethiopia’s case, not being a member of ARIPO, without the ability to ratify the protocol and a lack of a sui generis system to protect IP, particularly TK, leaves manufacturers of medicines without a platform to assert their rights as TK holders. With the majority of the population reliant on TCIM, the makers of these medicines are left with no standing to negotiate, refuse or share in the benefits when their TK is patented elsewhere. As a result, the knowledge base of Ethiopia’s healthcare system is left exposed and economically unremunerated.

In 2024, the World Intellectual Property Organisation (WIPO), approved the WIPO Treaty on Intellectual Property, Genetic Resources and Associated Traditional Knowledge.⁴⁸ This recent development may seem a viable solution to the problem averred in this paper. Article 3 of the treaty requires that applicants claiming an invention founded on TK, to disclose the local populace responsible for the TK or genetic resources.⁴⁹ However, the efficacy of this treaty remains unseen as it is yet to come into force.⁵⁰

CONCLUSION

BRICS recognition of TCIM does not amount to the protection of Ethiopia’s TK holders IPRs in that field. Gaps within domestic instruments governing TK including the difficulty for TK in meeting the patentability threshold under The Proclamation on Inventions, Minor Inventions and Industrial Designs, leaves the enforcement or protection of TK-holders’ rights incomplete. Regional instruments such as the AEC Treaty or the African Charter of Cultural Renaissance aspirationally denote the need for the promotion of TK but fail to provide mechanisms for protection. ARIPO’s Swakopmund Protocol could adequately protect TK but cannot be implemented since Ethiopia is not a member of the organisation. Ultimately, what would adequately cover these gaps, as demonstrated through insights into Kenya’s PTKCEA, is an autochthonous IP system drawn from the country’s own cultural background. Until such a framework exists, traditional herbalists, spiritual and faith-based healers remain unable to claim their TK and the expertise that Ethiopia’s healthcare system is reliant on is exposed to unrewarded patenting from abroad, as was shown in the case of the Tennessee researcher.

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