Access and Benefit-Sharing of Biological Diversity Act, 2022 (Act No. 37 of 2022).

This Act, comprising 40 sections organized into VIII Parts, aims to implement the Convention on Biological Diversity and the Nagoya Protocol and regulate the related matters. It applies to the utilization of biological or genetic resources, their derivatives, genetic information or gene sequences, and associated traditional knowledge, including any resulting benefits from their subsequent application and commercialization. Section 5 designates the department responsible for environmental affairs as the Competent National Authority, responsible for issuing access authorizations, facilitating access to biological or genetic resources and associated traditional knowledge, receiving utilization applications, and submitting copies of issued authorizations to the Access and Benefit-sharing Clearing-House to enable the issuance of internationally recognized certificates of compliance. It also shall keep a national record system through which an owner of associated traditional knowledge shall register a claim of a right over the associated traditional knowledge. Under Section 8, the Competent National Authority shall designate a National Focal Point to provide information on accessing biological or genetic resources and associated traditional knowledge, including procedures for obtaining prior informed consent and establishing mutually agreed terms and benefit-sharing arrangements, maintain relevant records, liaise between the Government and the Secretariat, and sign correspondence relating to access and benefit-sharing. Finally, Section 9 establishes a Minister-appointed Implementation Committee on Access and Benefit-Sharing responsible for reviewing permit, authorization and prior informed consent applications, managing authorizations and access prohibitions, negotiating mutually agreed terms and benefit-sharing arrangements, assisting traditional knowledge providers with their consent, and advising the Competent National Authority on related matters, including the protection of unregistered traditional knowledge.
Part III regulates access to and utilization of biological or genetic resources and associated traditional knowledge by requiring prior informed consent, relevant permits and access authorization, mutually agreed terms, and fair and equitable benefit-sharing. Benefits may be monetary, such as access fees, royalties, licence fees and research funding, or non-monetary, including the sharing of research results, technology transfer, capacity-building, training and access to scientific information. The Part also establishes procedures for the transfer and export of resources and associated traditional knowledge, as well as emergency access and transboundary cooperation. In emergencies that threaten human, animal or plant health, the Minister may issue an emergency access authorization. Where biological or genetic resources or associated traditional knowledge are shared between Botswana and another country, the Competent National Authority must establish transboundary access and benefit-sharing arrangements with the other country’s competent authority and facilitate negotiations between users and traditional knowledge providers where local communities are involved.
Part IV, concerning the rights over biological or genetic resources and associated traditional knowledge, establishes that the State retains rights over access to, collection, sale, disposal and control of biological or genetic resources, as well as ownership of related resources, derivatives, genetic sequence information and intellectual property, unless otherwise agreed under mutually agreed terms. It recognises local communities’ ownership of associated traditional knowledge, their rights to use resources sustainably and share benefits arising from their utilization, and protects community intellectual property rights under customary laws and practices, including unregistered traditional knowledge. It also safeguards farmers’ rights to save, use, exchange or sell farm-saved seeds for propagation and to preserve and develop genetic resources and associated traditional knowledge for food production and agriculture. Part V promotes research and development by allowing local communities and research institutions to utilize biological or genetic resources and associated traditional knowledge to develop new knowledge, innovations, goods and services. It requires local community involvement from the initial identification of resources and conceptualization of projects through to product development, encourages research institutions to establish mechanisms for collaboration in technology, prohibits the publication of potentially patentable research results without prior consent and agreement with the provider on intellectual property rights, and requires holders of valid access authorizations to report research and development progress to the Competent National Authority and the relevant Authority. Part VI establishes a checkpoint system under the Competent National Authority to monitor and track authorizations for the utilization of biological or genetic resources and associated traditional knowledge. Designated checkpoints, which may include concerned institutions, are responsible for collecting compliance certificates, prior informed consent information and details of resource origins, and submitting relevant information to the appropriate authorities. Part VII empowers the Minister to appoint investigating officers to enforce the Act, granting them authority to inspect premises, search persons, examine and copy documents or biological and genetic materials, access computer systems, and seize relevant items.