Q & A with Martha Mphatso Kalemba #theABSweALLneed

Could you please introduce yourself and tell us who you are and what you do?

I am Mphatso Martha Kalemba, Chief Environmental Officer at Environmental Affairs Department (EAD) in the Ministry of Natural Resources and Climate Change in Malawi. I am responsible for Biodiversity Conservation and Management. I am also the ABS National Focal Point and Alternate CBD National Focal Point.

How did you first hear about Access and Benefit-Sharing (ABS)?

I first heard about ABS in 2011, during my studies at United Nations University Institute of the Advanced Study of Sustainability (UNU-IAS) and then again when I was transferred to the Department of Environmental Affairs Headquarters in 2013 from the District Council. The country was then working on ratifying the Nagoya Protocol and I was attached to the Biodiversity Division.

How did you become the ABS National Focal Point (NFP) for Malawi?

I was nominated to be the ABS NFP in 2014 by my country after Malawi’s ratification to the Protocol. I was part of the team involved in ensuring that Malawi becomes party to the protocol. My studies from UNU-IAS also gave me an understanding of Biodiversity Governance which was relevant for the work on ABS. Having prior experience working with local communities, I noted that local communities lacked incentives for conservation and sustainable use, and that ABS could be one of the tools to ensure this. I was therefore excited to work on this area that could be a potential solution to that challenge of incentives.

Malawi has been a Party to the Nagoya Protocol since 2014. What kind of changes have you seen happening in the past seven years?

There have been so many changes Since Malawi’s ratification to the Nagoya Protocol. I will just mention a few that have come to mind.

Development of regulatory measures on ABS: Firstly, Malawi included Aichi Target 16 in its NBSAP of 2015 which had actions to develop legislation on ABS, conduct sensitization and strengthen capacity for negotiating ABS contracts among others. Following the ratification of the Nagoya Protocol, Malawi included a comprehensive provision on ABS in its revised Environmental Management Act of 2017. Malawi has finalized development of its ABS regulations which are set to be adopted this year. Finally, Malawi has developed ABS guidelines that explain clear procedures for users, providers, and other players in the ABS process. The guidelines include application forms and guidance of benefit sharing

Capacity Building on ABS: Malawi has implemented several capacity building activities on ABS targeting legal professionals, conservation professionals, communities and local leaders including local users and bio traders. Malawi has also participated in many international capacity building programs and was on a long term support from the ABS Capacity Building Initiative and the Fridtjof Nansen Institute (Norway) to support in-country negotiation skills and contract development which built capacity of Malawian lawyers and focal points on developing ABS contracts and negotiating ABS contracts. Malawi has also trained boarder staff and participated in training sectoral institutions in ABS. As a result, Malawi has built a team of experts for ABS negotiations including from Health, Fisheries, Justice, Registrar General, Environmental Affairs, Forestry, Parks and Wildlife, Agriculture, Livestock, and communities among others who have capacity to negotiate contracts and engage in ABS agreements. All ABS contracts are vetted by the Ministry of Justice.

Development of ABS Contracts (MAT) and PIC: Malawi has developed several contracts and issued several ABS permits including working with communities and different sectors: health, fisheries, forestry, livestock, agriculture and other sectors who have provided access for genetic resources. So far, the following sectors have negotiated contracts with various Users: Health Sector (3), Fisheries Sector (4), Forestry Sector (6), Livestock (1), Agriculture (1), Communities (Mangochi and Nsanje) (2) EAD (8). Most of the contract negotiations have resulted in the development of ABS contracts and issuance of export permits.

Development of Sectoral ABS Contracts/procedures: Malawi is working with sectors to revise procedures for access and export of genetic resources to include benefit sharing mechanisms. So far we have worked with the Ministry of Health and Fisheries to revise their material on transfer agreements to align them with ABS requirements and agreements in the health sector to reflect ABS provisions. This will be a pilot for other sectors.

Development of community protocols: Malawi are working with communities to assist in developing community procedures for ABS and create an understanding on the genetic value and potentials of specific communities that have been activity in export of biological resources. This is also assisting to organize the communities to work together and be organized for engaging with users to reduce uncertainties and have workable systems at community level. So far two communities have been active in ABS, working with government; pilot protocols have been developed in one community in Nsanje District. Malawi’s first community protocol has been developed in Mwanda Community in Nsanje, exporting biological resources for pharmaceutical use, as a pilot which outlines the organization of the community, description of biological resources, roles of stakeholders, sustainable harvesting procedures, value addition, export and benefit sharing mechanisms. It also outlines procedures from application to export for users and providers. In addition, Communities have also been trained in ABS, and country exchange visits have been conducted

Bioprospecting studies on GR: In collaboration with NGO’s, academia, private institutions and communities, studies on valuable genetic resources that have potential for use as essential oils etc. are being conducted to identify their potential for utilization. This is done through ABS mechanisms where PIC and MAT are sought from communities and communities are engaged working with the various entities. This is to ensure that workable ABS systems are being promoted and encourage private sector, research engagement in the ABS process. The intention is to upscale these activities.

Inventory of Exported Biological Resources: Malawi developed an inventory of biological resources exported out of the country in 2018 which indicates which species are leaving the country, where and for what purposes. This allows to follow up and prioritize sectors that should ensure implementation of ABS mechanisms. However, this revealed a gap in the way export permits are tracked and documentation for access and export which is an area that Malawi intends to work on in future work.

How do you ensure that potential users are aware of your ABS procedures and guidelines?

Malawi has uploaded guidelines which contain ABS procedures on the ABS Clearing-House. We are also exploring other effective ways of communicating this information. We have developed FAQs for ABS users, based on the inquiries that have been sent to the ABS Focal Point. We are also working on uploading the ABS application form on Malawi’s website including a step-by-step procedure for ABS, the link of which will be shared on the ABSCH. Communication is indeed an area that needs further improvement on our part.

I noticed that Malawi hasn’t published any information on ABS permits on the ABS Clearing-House, is there a reason for that?

We now have concluded several ABS agreements, more than ten and are planning to upload them to the ABS Clearing House. They haven't been published yet mostly due to an understaffing issue, but we hope to create time and upload some of the contracts if not all in the near future.

However, before we started negotiating ABS Contracts (MAT), we had a mechanism where our export permits were accompanied by a list of predefined conditions including the need for reporting and sharing of research results with providers. We now have PIC and MAT being undertaken as part of the ABS processes for most applications. However, monitoring utilization is still a challenge in some aspects and this is an area that needs a lot of assistance and improvement. At the moment we require periodic monitoring from the users on the progress of utilization, and we follow up with users on agreed deliverables from the contracts. However, there are still a lot of grey areas in monitoring utilization.

Malawi has recently concluded several ABS agreements related to Digital Sequence Information (DSI) on Genetic Resources. Can you tell us more about these agreements and how they came about?

Yes, Malawi has concluded some contracts which contain DSI aspects from the health sector, and the forestry and fisheries sector. They came about because a big component the research required sequencing of genetical resources and, in Malawi, DSI is treated as being equal to physical genetic resources and therefore it was included in the contracts. The agreements were mainly with research institutions in Europe, the UK and other institutions who provide sequencing services. The contracts are slightly different to some of our other ones because they were negotiated on a case-by-case basis.

What kind of challenges are you currently facing related to implementing the Nagoya Protocol? How are you addressing them?

a. Uncertainty in expectations: Providers and users are still uncertain on what to expect from the ABS process and are still learning to adjust to the changes provided by the ABS mechanisms. This is being addressed by the creation of clear procedures, development of model contractual clauses and enhancing capacity of relevant players in the ABS system. In Malawi, our desire is to have a system that is workable, timely and beneficial for all concerned and so we will continue to work towards addressing the uncertainties.

b. Dealing with Multiple Users and Value Chains: In most of the utilization we are encountered with multiple users which becomes a challenge in how best to ensure that everyone involved is part of the contract. We have attempted to deal with this by putting third part user clauses in our contracts and working with the primary users on the best approaches.

c. Trust Issues: Most providers are not sure if users will comply to the contract, how it will be monitored and if the user will share information on any commercial outcomes. We try to address this in the ABS contracts by including reporting requirements.

d. Monitoring Compliance: This is one of the biggest challenges faced in the ABS mechanism, how to monitor compliance on the contract, how to monitor utilization of a resource or information that is being used miles away from the country, and in a foreign country with different legal requirements. This is also contributing to trust issue of the providers.

e. Governing laws: Challenges regarding governing laws to accompany the species and what would happen in a case of breach, which laws would apply. We have attempted to deal with this by including governing laws in our contracts.

g. Resistance of Users: We have seen instances where users look at the ABS process as an extra regulatory burden and a desire for them to continue business as usual. We deal with this by having dialogues with the users to inform them on the intention of ABS, which is literally to correct a wrong.

What role would you like to see ABS play in the post-2020 Global Biodiversity Framework?

I would like to see ABS play its role both as a tool and as an end. As a tool, ABS is a fundamental aspect of transformational change because it is a driver of and incentive for sustainable use and conservation and does require changes that will allow the sharing of benefits in a fair and equitable way. As an end, benefits from ABS can contribute to resource mobilization and achievement of SDGs including livelihoods, technology transfer, innovation, and poverty reduction among others.

You have played a strong role in the African Group’s negotiations on DSI, why is this such an important topic for Africa?

Historically and currently, there has been a lot of exportation of biological resources from Malawi to other countries for research and development. In 2018, the Environmental Affairs Department conducted an inventory to identify trends in export of biological resources and the utilization of Malawi’s genetic resources which revealed that these were leaving the country at an increasing rate, and more and more resources were being exported for the purposes of sequencing. It was also discovered that there are a number of current projects that are planning to sequence fish, plants and other genetic resources including wildlife components from Malawi. Collaborations exist where research institutions in Malawi have agreements with research institutions outside of Malawi, where the local institutions were expected to collect and send hundreds of plant species, fish species for sequencing outside the country. The health sector had also similar requests. All these discoveries highlighted a huge gap in our ABS mechanism and on how best to treat DSI. We discovered that there are lot of issues including database requirements, service providers providing sequencing services, third party users all of which compromised the equitable and fair benefit sharing intention from genetic resources. This is what motivated Malawi to be part of the negotiations to find a solution for benefit sharing for DSI.

Let me state that the vision for Malawi is to ensure that there is fair and equitable benefit sharing of the economic benefits generated from the utilization of its biological resources with its local custodians, which will incentivize sustainable use and lead to the achievement of Malawi's conservation goals. Malawi desires to secure its long-term interests in the outcomes of any utilization of its genetic resources and as such it is in our interest to work with users of its biological resources in a mutually beneficial way. Malawi sees genetic biodiversity as a potential way of valuing the natural capital and enhancing scientific innovation that can contribute to Malawi’s research and development agenda.

Overall, Malawi wants to ensure the achievement of the Sustainable Development Goals (SDGs) and other relevant goals by ensuring that the national economy, business, research and local communities all stand to gain from the further development of Malawi’s biotechnology industry, including its participation in partnerships and investment for bioprospecting.

Malawi has therefore put mechanisms in place and is working to improve processes for engaging with users of its biological resources. Ideally, ABS mechanisms regulate activities prior to, during and after utilization, and provide a forum to bring everyone concerned to the table and discuss equitable and fair sharing of benefits. This gives Malawians (Communities and researchers and relevant individuals) a chance to elaborate the type of collaboration that is desirable for Malawi and helps to build trust amongst the players.

Malawi therefore sees bioprospecting as an avenue which, in the presence of a good policy and legal environment, can remove biopiracy, can improve community livelihoods, poverty, and provide incentives for achievement of the three objectives of the CBD, Conservation, Sustainable Use and Benefit Sharing. In our experience, we have noted that ABS mechanisms are compromised if DSI is not part of the discussion. This is why Malawi has been very active in the discussion on DSI, noting that there are international standards and ways of doing things that need to be adjusted to accommodate fair and equitable sharing of benefits, and therefore it is critical that the Post-2020 Global Biodiversity Framework includes a solution for DSI. This is not just an opportunity to enhance multilateral solutions for benefit sharing but also an opportunity to restore trust between providers and users.

Do you have a message for delegates coming to COP-15?

Yes. My message is that there is a solution to everything as long as Parties involved are willing to find that solution. The solution we are trying to find here is on the fair and equitable sharing of benefits arising from utilization of biological resources including DSI. Access is already happening, utilization is already happening, and now we need to ensure that fair and equitable benefit sharing is also happening.

We have already come a long way and if we are to change something, let's change the way we share benefits from the use of DSI. If we refuse to have a solution for DSI what message does this convey to the world? Far from transformative! The future is digital, and we cannot afford to leave out what is important for the future in a document that is supposed to be forward looking. We cannot afford to fail, if we fail to find a solution for DSI, we are failing our communities, the research and development community, we are failing the three objectives of the convention and we are failing the world at large. Let’s join hands to create a fair and equal society that takes care of its biological resources for the benefit of all.

Last question, what are your top 3 favourite publications or websites related to ABS?

1. Drafting Successful Access and Benefit Sharing Contracts by Tomme Rosanne Young and Morten Walløe Tvedt

2. The ABS Contract Tool: A hands-on and practical tool for drafting contracts governing (access and benefit-sharing) in the context of use of biological samples without declared immediate commercial application by Associate Professor Morten Walløe Tvedt in collaboration with Olivier Rukondo

3. Publications from Margo Bagley, Rachel Wynberg, Third World Network, Voices of Bio-Justice, Third World Network, ABS Capacity Building Initiative, and the ABS Clearing-House

Do you have some unique and interesting ABS experience to share? If YES, please drop us line here: absch@cbd.int