Pharmaceutical Bioprospecting and the Law by eguevara

The Case of Umckaloabo in a Former Apartheid Homeland of South Africa

Umckaloabo (Pelargonium sidoides) tubers. Photo courtesy Tony Dold

The business of pharmaceutical bioprospecting foregrounds enormous tensions between medicine, capitalism and regulatory governance in countries like South Africa, where biological and knowledge diversity are plentiful but regulatory legislation and its enforcement are problematic. An exemplary context for this paradox is the site of my 2011 fieldwork, the former apartheid homeland of the Ciskei (now belonging to the Eastern Cape Province of South Africa), where efforts at governing the extraction of the medicinal plant Umckaloabo are haunted by apartheid’s faulty partitioning of power. Here, the expansion of apartheid-associated traditional authority and still-active apartheid-era laws combine with local government disorder and multinational corporate interests to shape the source end of a global pharmaceutical industry.

Umckaloabo

Umckaloabo is a plant-based therapy for respiratory diseases that currently generates hundreds of millions of dollars in annual sales for European and American pharmaceutical companies across the global North. It is contentious. The South African national director of bioprospecting considers the plant the most controversial in the country. The reason is simple: Umckaloabo is endemic to southern Africa, but is removed and profitably commercialized in the global North with minimal associated financial benefits to southern Africans. Additional controversial: Umckaloabo’s primary global marketer, Schwabe pharmaceuticals of Germany, held a number of Umckaloabo-related patents in Europe, including the plant’s use for the development of drugs treating AIDS and AIDS-related diseases like tuberculosis. The patents were subject to a legal challenge (2007–10) by a South African anti-biopiracy NGO, which accused Schwabe of stealing South African medicinal knowledge, unsustainably harvesting the plant, and exploiting South African harvesters, who, otherwise unemployed, risk arrest and earn a pay rate ten times below the minimum wage for (already poorly paid) farm workers under South African labor laws (African Center for Biosafety 2009).

An industry middleman’s warehouse is well-stocked with Umckaloabo bags, en route to the Western Cape for export to Germany. Photo courtesy Quintus Hahndiek

In response to unconstrained commercial access to the plant, the South African state—as party to the Convention on Biological Diversity and the Nagoya Protocol on Access and Benefit Sharing (ABS)—has recently sought to formalize ABS between Schwabe and Umckaloabo “access providing” and “knowledge holding” communities in South Africa. In the former Ciskei homeland, where much of the raw material for the global Umckaloabo industry is procured, the South African Department of Environmental Affairs and Schwabe have controversially defined such communities as the chiefdoms of the Rharhabe Kingdom, traditional authority structures resuscitated in the Ciskei area in the days of apartheid. As a result of this definition, Schwabe has signed ABS agreements with Rharhabe chiefs. The agreements significantly expand Rharhabe chiefly power in the former Ciskei, as they afford chiefs control over a valuable resource and the distribution of benefits associated with its trade, even in areas where chiefly jurisdiction is contested.

Expansion of Traditional Authority in the Ciskei, Take Two

The apartheid state (1948–94) spatially organized the social, economic and geographic isolation of the black South African majority. For the sake of “separate development,” it transformed a number of the already established “native reserves” designed to “contain” black South Africans into independent, self-governing states known as “homelands.” Within these, traditional authorities loyal to the apartheid state became salaried local government functionaries and the sole access-point to government for the rural poor (Oomen 2005). Ultimately, some 80% of those categorized as “black” would populate these overcrowded, socioeconomic hinterlands (Williams 2010).

The Ciskei region presented a unique challenge for the apartheid state, however. At the time of its establishment as an administrative region in 1961, there were no formally recognized chiefs to appoint. Colonial authorities had decimated them in the 19th century. Consequently, chiefdoms like the Rharhabe had to be resuscitated or—in many instances—wholly fabricated and jurisdictionally positioned to uphold apartheid polices and the legitimacy of the Ciskei president (Peires 1989). This process was legislatively initiated in the Bantu Authorities Act of 1951 and labeled “retribalization.”

An Umckaloabo harvester with tubers. Photo courtesy Christopher Morris

When homelands like the Ciskei were integrated into the new South Africa in 1994, the association between traditional authorities and apartheid kept chiefs on the margins of governance plans. Designs for local government instead entailed the decentralization of state institutions to newly established democratic tiers, namely provinces and municipalities. Unfortunately, however, while decentralization was intended to bring about material and political transformation in the former homelands, conditions in them changed very little. Presently, poverty, unemployment, municipal incapacity and corruption, lack of basic services, and general political disorder reign (see Ruiters 2011).

Increasing bitterness (affirmed to me in interviews with residents in the former Ciskei) at the slow pace of change is a major cause for concern for the ruling African National Congress (ANC) party. And it is for this reason, critics argue, that the ANC has allied with chiefs and even legislatively reinforced their salaries and authority as a means of maintaining ANC power and consent in the rural hinterlands (see Koelble and LiPuma 2011; Marais 2011). It is in this context of disorder and power-jockeying that Rharhabe chiefs find themselves back in the governance game, enlisted in the Umckaloabo industry as the Ciskei version of the Nagoya Protocol’s liberal modern access providers, environmental stewards, and distributers of royalties for community benefit.

Royal Pharmaceuticals and their Discontents

If the critics are right, the very fact of the chiefs’ eligibility as intermediaries in a lucrative, multinational pharmaceutical industry is an outcome of both the apartheid and postapartheid states’ strategic efforts to manage an impoverished rural black populace without having to meaningfully effect their socioeconomic transformation.

But there is more. During my fieldwork in a major district of the former Ciskei, I found that both the historical absence of Rharhabe chiefly authority and its contrived resuscitation under apartheid engender considerable ambivalence about its contemporary legitimacy among its own supposed subjects. And nowhere is this more evident than with the Umckaloabo ABS agreements. Namely, while many Rharhabe subjects respect the “ceremonial status” of the chiefs, there is widespread opposition to their control over the Schwabe royalties and plant harvesting permits. In fact, the highest-profile chieftainess in the Umckaloabo industry is widely accused of enriching solely herself and her council members with plant profits. And since the ABS agreements do not impact the meager pay rate for harvesters, chiefly subjects complain that Umckaloabo-related upliftment is lacking. Secondly, I found that communities of Umckaloabo harvesters that have, since 1994, viewed themselves as outside of Rharhabe chiefly jurisdiction, complain of socioeconomic exclusion, for they can only meaningful participate in the industry by embracing an authority structure that exploits their labor. Despite these concerns, however, the agreements are a federal and even multinational corporate stamp of approval on Rharhabe chiefly legitimacy, especially where their powers have historically been weak.

Apartheid Rules

Apartheid’s legacy of disunion shapes the Umckaloabo industry in other regards. Consider that, under apartheid, sovereign homelands like the Ciskei legislated their own environmental conservation laws. Today, in the Eastern Cape Province, these laws remain active. The upshot: the province currently operates under three different apartheid-era legislations governing the conservation of plants like Umckaloabo. Only the Ciskei Nature Conservation Act of 1987 protects the species (the Cape and Transkei legislations do not), a fact that rendered unlawful a 2007 government moratorium aimed at curbing the illegal extraction of the plant across the province. Industry middlemen, aware that the homeland borders remain very real for law enforcement, continue to evade arrest by quickly transporting the plant out of the former Ciskei and into a major city for processing. In this instance, it is clear that legislative disjuncture stifles policing and facilitates commercial opportunism.

The Umckaloabo industry exposes the messy contact zone between “global” aspirations and “local,” postcolonial realities, where multinational corporate interests and international legal instruments like the Nagoya Protocol on ABS play out in a context characterized by non/democratic tension and compromise. In sum, the global biotrade in Umckaloabo—its legalities, its authorities and its victims—is profoundly shaped by the apartheid past and the corporate present.

Christopher Morris is a doctoral candidate in anthropology at the University of Colorado at Boulder. His research interests include medicine, intangible cultural property, labor and identity. His research on the biotrade in Umckaloabo (aka Umcka or Pelargonium sidoides) was funded by Social Science Research Council and National Science Foundation.

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