**5.3 Roles of TK holders' institutions in the building and strengthening of other institutions**

The popularity, resilience and legitimacy of TK holders' institutions suggests that there is need to interrogate how they can be harnessed to promote the building of strong institutions in view of failure by most African governments to provide critical goods and services to communities.

As custodial institutions, TK holders' institutions are being used in the case studies to regulate access to and use of natural resources (including associated TK). Among the Mijikenda, the governance of the *kaya* forests is through customary rules that are enforced by elders using traditional sanctions to censor misuse of resources [84]. The *kaya* elders 'control access to resources such as medicinal plants, sacred *kaya* areas, and rare species; traditional knowledge and agricultural activities' and 'are the ones who allocate those resources to clans and individuals' [21]. Indeed, the very existence of the *kaya* forests is attributed to the work of elders in conservation, and not gazettement as a forest reserve, national monument or listing as a world heritage site [84]. The demarcation, surveying, and mapping of territories; gazettement as national monuments and listing of the *kaya* forests, as World Heritage Sites is done with the assistance of elders and other community members [84]. The role of the *kaya* elders in environmental conservation is thus useful in realising other SDGs such as energy (SDG-7), food (SDG-2), water (SDG-6) and climate action (SDG-13), and ultimately in strengthening formal institutions dealing with these SDGs.

Moreover, social capital contributes to the strengthening of both the TK holders' and formal institutions involved in the collaboration. As communities begin to work together, bonding social capital is strengthened within the group, particularly in terms of trust between members, the development of group norms, roles, and processes, and the development of a sense of 'can-do spirit' within the group which contributes to a growing sense of collective efficacy [17]. This explains why TK holders' institutions promote cultural unity and identity. For instance, the *kaya* elders and forests, are seen as a significant unifying factor for the Mijikenda people. The *kaya* forests are the 'cultural and traditional home' of the Mijikenda that 'serves to remind them and future generations of how they migrated from Shungwaya to that place' [85].

Bridging social capital within TK holders' institutions enhances collaborations between those institutions and other institutions. Government agencies and civil society actors are relying on these institutions in their work of protecting and preserving TK. Among the Mijikenda, there are on and off collaborations between elders and NMK in preserving traditions and cultures [86]. For instance, *kaya* elders participated in the preparation of the 2014–2018 Mijikenda Kaya Forest Management Plan prepared by NMK. In conservation, herbalists from *kaya* Kauma have collaborated with the Gede Kenya Forest Research Institute (KEFRI) regional headquarters to get technical advice on research programs that can improve the mangrove forest medicinal value. Moreover, they contributed in the preparation of the National Mangrove Management Plan being developed by the Kenya Marine and Fisheries Research Institute (KEMFRI). One respondent lamented how the engagement with formal state institutions has been disrespectful and contemptuous of TK institutions, thus hampering their effective incorporation in governance [86]. In Mbeere, while the potters are usually invited to schools to teach students how to make pots, the respondents indicated that there are no CSOs that supports their pottery practices [80].

As mentioned earlier, collaborations between TK holders' institutions and the IP frameworks can enrich the IP regime and address the inadequacy, deficiency and unsuitability of the IP regime in protecting TK. Effectively, they can mediate interactions between the IP system and TK holders, and thus tame the misappropriation and loss of TK and genetic resources. For instance, TK holders' institutions can be used in granting prior informed consent (PIC) and in developing bio-cultural protocols to govern access to TK [87]. Additionally, having PIC and disclosure of origin as a criterion for patentability, would benefit TK holders since their institutions could be involved in the decision-making processes and institutions under the IP regime and *vice versa*. This collaboration can bridge the TK protection gap as TK holders can withhold their PIC so as to safeguard their rights, while the grant of IP rights over TK could also be withheld by relevant authorities, if there is nondisclosure of origin or proof of PIC is missing. This way the TK holders' institutions will contribute to the strengthening of IP institutions.

Moreover, the participation of women in TK holders' innovation (as is the case with the Mbeere potters) can help address institutional barriers to innovation created by the IP regimes. This way, TK holders' institutions can strengthen the IP

#### *Harnessing Traditional Knowledge Holders' Institutions in Realising Sustainable Development… DOI: http://dx.doi.org/10.5772/intechopen.98802*

policies, laws and institutions by making them gender sensitive by including women in decision-making processes, as key agents of innovation.

Similarly, TK holders' institutions are used in determining political leadership and maintenance of law and order. The *kaya* elders were described 'as a social-political epicentre of the Mijikenda people that is resorted to even by local politicians for blessings before venturing into politics' [21]. It is commonplace for those vying for political positions to seek the endorsement of the *kaya* elders. Clearly, they can play a role in strengthening political institutions, and in holding elected leaders to account.

As customary governance systems, TK holders' institutions are being used in conflict resolution among the Mijikenda. The *kaya* elders are the first port of call wherever there are disputes (including land, family and political) in the community [87]. They therefore contribute to enhanced access to justice, and strengthen institutions of justice.

#### **5.4 Roles of TK holders' institutions in driving transformative entrepreneurship**

Due to their role in driving innovation, TK holders' institutions provide a conducive environment for entrepreneurship, as they enhance the entrepreneurial capabilities and mind-set in the community.

As mentioned earlier, TK holders are 'not-for-profit entrepreneurs' as they mainly pursue social and collective goals. For instance, the conservation work of the *kaya* elders. However, that is not to say that they cannot derive economic benefits out of their entrepreneurial work. Some communities have traded, and are ready to convert some of their TK products and entrepreneurial activities into income generating ventures to improve their livelihoods. Among the *kaya* elders there are income generating activities such as establishment of tree nurseries, poultry farming and so on, aimed at reducing community dependency on natural resources for livelihood [86]. In *kaya* Kauma, there are plans to start levying students, researchers and tourists who may want to pay a visit to the permitted parts of the *kaya*. Additionally, there is a plan to register traditional songs and dances of the Kauma and provide entertainment services during government events and other communal gatherings [87].

In Mbeere, whereas pottery plays cultural functions in the community, it is a source of livelihood to the potter. Thus, nowadays pottery is a complementary source of income to the women who sell their pots on market days especially in Ishiara town. Wangari explains that the shift towards commercialisation of pottery, is occasioned by the demand for pottery in neighbouring regions such as Nyeri, Mururi, Kerugoya, Murang'a and Meru where pottery making does not take place ([27], note 35 at 78). The Mbeere potters explained that they are not paid *per se* for training school children traditional pottery, but only get refund for transport expenses, costs for transporting soil and a small token for the days spent training [80]. This allows the women to generate some income, and gives them an incentive to continually look for new training opportunities, and create new networks and social relations, thus engender entrepreneurship. Likewise, among the Mijikenda, plans to introduce income-generating activities by a CSO, Careway-Trust such as putting up tree nurseries, inventory of a craft industry, window curtains or manufacturing workshop are meant to reduce community dependence on the *kaya* forests for livelihoods/subsistence needs [88]. Therefore, strengthening TK holders' institutions, will not only advance innovation, but will help safeguard their survival and livelihoods, which are met through their innovative activities.

The intangible capacities within TK holders' institutions continue to enhance and promote TK holders' entrepreneurial spirit. For instance, the Mbeere women indicated that the people they sell their pots to are their ambassadors, as they market their pots and activities to other people and organisations [80].

There are other entrepreneurship initiatives around the conservation work of the Mijikenda people. For example, a community-based organisation, Care Way-Trust has come up with different thematic areas to promote entrepreneurship. One scheme called '*tubadilike* scheme' seeks to introduce bee keeping around *kaya* forests, educating the wider community on terrestrial tree nurseries in their homes and starting grafting of citrus trees as income generating activities [89]. The '*mtoto asome*' seeks to create awareness among the youth on the importance of environmental conservation by teaching them techniques on tree planting for income generation.

#### **5.5 Roles of TK holders' institutions in data governance**

TK holders' institutions are data repositories and data governance structures holding data on community affairs such as knowledge, beliefs, values, 'regularised practices', customary rules, norms and practices. In the case studies, most data is gathered, stored and transmitted intergenerationally through TK holders' institutions. Among the Mijikenda, traditional ceremonies, rituals, prayers, and legends play a critical role in storage and sharing of information and knowledge [22]. A respondent stated that, 'cultural rituals for example the rites of passage in most communities provide a system of transmitting and guarding TK' since 'as one goes through the rites of passage, there is knowledge that is passed on to initiates' [81]. Some reports document how legends are used to pass on rules against cutting trees, fishing, hunting or cultivating in the sacred sites, among the Meru people of Kenya [90]. Moreover, there are legends about the ability of sacred sites to self-protect themselves 'from destruction by reacting and attacking any person who interfered with them by venturing into or doing anything forbidden at the sites' [90]. Similarly, the *kaya* elders explained that at times they 'rely on prophets who get information through divine intervention on how to deal with different calamities, diseases and outbreaks. That information is then given to elders' [22]. Data governance among the Mijikenda has a divine aspect in the sense that "once an elder die (chairman), elders keep his record/memory in a *kigango*, which represents the dead *kaya* elder and continues to 'speak' on his behalf." [90]. The elders explained that most of these *vigango* were stolen and taken to museums abroad, although there are efforts to repatriate them.

As data governance structures, they are the forum through which community decisions and norms are made [91] including regulating who can access, use, add data and have control of communal resources [92]. Among the Mijikenda, 'the *kambi* controls access to resources such as medicinal plants, sacred *kaya* areas, and rare species; traditional knowledge and agricultural activities' and 'are the ones who allocate those resources to clans and individuals' [21]. Access, use and sharing of data within the community is mediated by core principles like trust, honour, and integrity ([92], note 233 at 12). While common knowledge may easily be accessible, secret and sacred TK might not be accessible. This has significant implications since it means that secret and sacred TK might not be a proper subject of innovation collaborations and entrepreneurship because for local innovation to thrive, it is essential that the infrastructure and networks relating to it is disclosed to actors outside the circle of local innovators themselves.

The role of traditional institutions in TK governance includes: the identification of TK; ascertainment of beneficiaries; definition of custodianship; the nature of community custodianship over TK; the rights and responsibilities associated with custody, access rights, protection of customary use, means of dissemination and preservation of knowledge; and the customary mode of defining modalities of PIC, benefit sharing mechanisms, dispute settlement, and sanctions for infringement of customary law ([69, 93], note 113), [93].

In addition, the TK held by communities is 'a key element of the social capital of the poor and constitutes their main asset in their efforts to gain control of their own

#### *Harnessing Traditional Knowledge Holders' Institutions in Realising Sustainable Development… DOI: http://dx.doi.org/10.5772/intechopen.98802*

lives' ([78], note 136 at 1). Moreover, TK is 'the basis for decisions pertaining to food security, human and animal health, education, natural resources management, and other vital activities' ([78], note 136 at 1). Among the Mbeere, for example, pot making is done during the dry season (August–October) because they can easily get dry grass and wood to harden the pots [80]. Further, reliance on TK holders' institutions in conflict resolution reveals that they hold vital information that aids in mediation of disputes with high degrees of societal and ecological complexity, as demonstrated by the work of *kaya* elders [21].

Evidently, the above discussion shows that TK holders' institutions are pivotal in designing a strong regime for TK holders' data sovereignty ([47], note 128 at 12-14). Those institutions are better placed than formal state institutions in defining what constitutes data, outlining appropriate ways of securing the data, and governing control, use or reuse of their data by third parties, even where such data is gathered in the context of research studies. Indeed, one cannot conduct research among communities, such as the Mijikenda, without an ethical clearance and permission. Thereafter, the *kaya* elders determine the data and areas (within a *kaya*) that a researcher can access. Further, reliance on TK holders' institutions in developing community bio-cultural protocols and granting PIC [94], strongly suggests that it is indeed possible to develop a collaborative framework where those institutions can be legally mandated with TK holders' data governance.

#### **5.6 Challenges bedevilling TK holders' institutions**

In spite of the existence of TK holders' institutions in both case studies, their vitality and influence are waning due to a multiplicity of factors. These include, leadership wrangles among elders, each claiming to be the legitimate elders; cultural erosion; loss of Indigenous territories due to developmental projects; and the influence of modern education and religions, which have contributed to the loss of traditional beliefs and values. For instance, among the Mbeere, young women and girls see pottery as 'foolishness and shameful' and have no interest in the art and practice. One respondent, who has practiced pottery for over 50 years, indicated that 'my daughter is almost 40 years but does not want to learn the practice' [80]. In the Mijikenda community, a negative perception towards elders has occasioned numerous attacks and killings of elders. One elder observed that, 'We will die with our knowledge, we are seen as witches. We are being killed because of white hair. We are not seen as good people' [95]. However, the elders indicated that they continue to conduct prayers, cultural rituals and other traditions to continually replenish and revitalise their TK and cultural expressions so that they are not lost [96]. Similarly, urbanisation has contributed to the low demand for pottery because many people in towns have resorted to the use of gas and electric cookers as compared to the pots that are commonly used on *jikos* and hearthstones ([27], note 35 at 86). However, and inasmuch as traditional pots are commonly used in cooking with firewood (in which case they are more energy efficient than ordinary aluminium pots), they can also be used with gas and electric cookers (which are more energy friendly than firewood) thus promoting conservation.

Most TK holders are living in poverty, and are experiencing capacity, financial, educational, skills, information, and infrastructure constraints to innovate on a large scale. Likewise, these constraints are also hindering entrepreneurship among TK holders and beyond due to lack of essential skills for business organisation such as 'writing, reading, bookkeeping, project management, and even (potentially) fluency in the English language' ([54], cit note 82 at 7). The Mbeere potters face difficulties when transporting pots to distant markets due to their bulkiness and fragility, and lack expertise for mass production of pots to meet

rising demands for pots, and get more income to meet survival and livelihood needs [82]. However, earlier studies show that the potters had shunned mechanised forms of production ([83], cit note 165). To scale up and commercialise (if permissible by the holders) some of their innovations, TK holders can utilise their institutions to enter into collaborations with other players to develop (according to their terms) and diffuse them. Nonetheless, there is need for caution in embracing modern systems of production, as they may erode the innovative capacity of TK holders and their institutions. Moreover, and as observed earlier, there are people who still prefer hand-made crafts as opposed to machine-made ones, for cultural, aesthetic, and functional reasons, which are factors that create demand for hand-made products. Hence those collaborations must acknowledge the value and potential for TK to empower other forms of knowledge and innovation.

The respondents lamented lack of support from government and CSOs. The author observed the lack of programs from CSOs or government to support and promote the pottery practices of the Mbeere. Unless there are concerted efforts to support the Mbeere women, the traditional pottery practices are likely to become extinct. As opined earlier, through their institutions, TK holders can increase their innovation output, learn new techniques of production, but also document their pottery knowledge and techniques, so that they can remain sustainable.

Similarly, the *kaya* elders observed that there is tension between them and chiefs and sub-chiefs, and in most cases the latter do not recognise or engage them in community affairs [22]. Finally, the *kaya* elders decried the fact that although they 'bless' or endorse secular or political actors, those leaders end up undermining them once they get power [83].
