“Our children may learn about the heroes of the past. Our task is to make ourselves the architects of the future,” – Jomo Kenyatta, following the declaration of a state of emergency by the British colonialists on October 20, 1952.

Article 9 of the Constitution states that ‘Mashujaa Day’ (Heroes Day) is to be observed on the 20th October of every year as a national day which makes it a public holiday in Kenya. Mashujaa Day is particularly important since the assent of the Kenya Heroes Act because several Kenyans are selected to receive presidential awards for the contributions to Kenya. The Minister responsible for the Heroes’ Act, the Sports, Culture and Arts Cabinet Secretary Dr. Hassan Wario has already set up the National Heroes Council under the Act which responsible for this process.

Among two of the key statutory functions of the Council will be to identify and recommend national heroes as well as formulate and implement policy relating to national heroes. Section 22(4) states that the Council must apply the criteria set out in the First Schedule to determine whether a proposed nominee qualifies for designation as a hero under the Act. The First Schedule sets out 14 functional areas for identification, selection and declaration of heroes, including liberation struggle, spiritual leadership, arts, sports, scholarship professionalism and research, statesmanship, philanthropy, peace-making, entrepreneurship and industry, indigenous knowledge, human rights, environmental conservation, among others.

From an intellectual property perspective, it is clear that the functional area of “scholarship professionalism and research” could be applicable to both creative and inventive works. In addition, the “arts” functional area almost entirely relates to works protectable under the law of copyright and related rights. However, works of inventorship do not appear to fit neatly in any of the functional areas, with the closest area being “entrepreneurship and industry”.

To illustrate this IP-related lacuna in the Kenya Heroes Act, let us consider the case of Richard Turere. The 14 year old Turere a former Maasai herdsboy figured out how to scare off lions by irritating them with an invention widely known as “Lion Lights”. According to WildlifeDirect, a local wildlife conservation group, Turere was discovered while the group was working on a project to find new ways to reduce human lion conflict in the Kitengela area just south of the Nairobi National Park in Kenya. Turere’s invention was born out of a necessity to protect his family’s cattle herd from carnivorous predators, especially lions since they lived right on the edge of the Nairobi National Park. Turere is said to have used his knowledge of lions’ fear of flashing lights to devise an automated lighting system made up of torch bulbs, a box, switches, an old car battery and a solar panel. According to reports, Turere’s lights are “designed to flicker on and off intermittently, thus tricking the lions into believing that someone was moving around carrying a flashlight”. It is reported that “since Turere rigged up his “Lion Lights,” his family has not lost any livestock to the wild beasts, to the great delight of his father and astonishment of his neighbours.” This invention has become very popular and “around 75 “Lion Light” systems have so far been rigged up around Kenya”. With the support of WildlifeDirect, Turere has presented his invention at the well-known TED Conference in 2013 and obtained a scholarship to one of Kenya’s top private preparatory schools.

In reference to Turere’s case, Section 2 of the Kenya Heroes Act reads as follows:

“Child hero” means a hero who is below the age of eighteen years

Therefore, it is possible for a member of the public, an organization, a group of persons or an institution to nominate Turere as a “hero” under the provisions of the Act. However the challenge would lie in applying the criteria set out in the First Schedule. Specifically, this blogger wonders which functional area under the First Schedule would be applicable to the Lion Lights invention, assuming that a Turere’s proposed nomination were made by the public and approved by the Council.

Any takers?