The relationship between plant resources and traditional communities in Africa is inseparable. For centuries, indigenous communities have been depending on their cultural innovations and practices for health and food. Plant resources are part of the traditional knowledge system of indigenous communities in Africa.Colonialism and the scramble for Africa led to plant resources being opened to bioprospecting by western scientists and multinational pharmaceutical firms. They engage in secluded locations around Africa in order to find ‘new drugs from exotic plants’ for profit-making or patent rights. The advent of technology has witnessed a lot of illegal exploitation and commercialization of plant resources (biopiracy). The traditional knowledge system is being eroded with disregard to the welfare of the owners of the knowledge to sustainably manage it. The paper looks at the challenges, the existing legal framework to appreciate if it’s adequate to ensure the sustainability of the traditional knowledge system in Africa.

In this article, we examine the prospect of securing intellectual property protection of African traditional medicine within the legal framework of the right to development in Africa. We do so with the aim to advance the right to development as an imperative to improving living standards for the peoples of Africa. Our analysis involves determining to what extent adequate protection could be secured to the benefit of the communities that engage in the practice of traditional medicine as a livelihood. Despite the imposition of western medicine, which has dominated traditional medicine since the colonial era, the latter has survived and, as we argue, deserves protection for gainful purpose as part of the common heritage, which the peoples of Africa are entitled by law to benefit from. With the renewed impetus directed towards re-establishing African value systems against the iniquities of imperial domination, our central focus in this article is to demonstrate that the practice of traditional medicine is deeply rooted in African culture, which under the African human rights system is granted as a human right. In essence, the advancement of African culture constitutes an integral aspect of the right to socio-economic and cultural development enshrined in the African Charter. Unlike other intellectual property regimes, which we argue are not sufficiently protective, we posit that the right development provides a sui generis framework within which intellectual property protection of African traditional medicine could effectively be claimed as a measure to secure redistributive justice, which the peoples of Africa have been deprived of over the decades.

The quest for patent rights has seen bioprospecting as a scientific and commercial research paradigm in which bioprospectors explore secluded locations around Cameroon in order to find ‗new drugs from exotic plants'. Bioprospectors derive genetic and biochemical materials that are both scientifically and commercially valuable, and they subsequently patent these materials abroad away from the original source to justify legal ownership through intellectual property law. An almost unprecedented amount of discussion has been stimulated on the merits and demerits of genetic engineering of crop plants and biodiversity exploitation and has divided both the public and scientific communities. The arguments for and against genetic engineering are invariably based on visions or missions of the new technology from widely different ethical perspectives. Fundamental issues of man's relationship with nature and theological matters are issues of concern. The genetic engineering of living cells, plants, animals and human beings has brought ethical concerns and issues to the conservation of biodiversity. Agricultural productivity depends in part on the availability of biodiversity for the development of improved cultivars.Until the 1970s, biodiversity was considered to be part of the ‗common heritage of humanity'.Under the regime of patent rights, biological resources are treated as belonging to the ‗public domain' and are not owned by any individual, group, or state. From a common heritage of mankind, biodiversity is evolving into a resource under the sovereignty of nation states and is subject to intellectual property rights (IPRs). The new technology has witnessed a lot of illegal exploitation and commercialization of these biological resources which is considered as biopiracy.