Murimi Karani Robin
“First they came for the communists, and I did not speak out – because I was not a communist; Then they came for the socialists, and I did not speak out – because I was not a socialist; Then they came for the trade unionists, and I did not speak out – because I was not a trade unionist; Then they came for the Jews, and I did not speak out – because I was not a Jew; Then they came for me – and there was no one left to speak out for me.” – Pastor Martin Niemoller
In 1982, a Kenyan band known as ‘Them Mushrooms’ in the pop song “Jambo Bwana” popularized the phrase “Hakuna Matata” where the lyrics of the song read “Jambo – Jambo Bwana, Habari Gani? – Mzuri sana, Wageni mwakaribishwa Kenya yetu HAKUNA MATATA!” This can be translated to “Hi – Hi Mister, How are you?- I’m very fine, Welcome visitors to our Kenya there are no worries”. With time the phrase became a slogan commonly used by tourists with Kenyan natives, in fact till date the first words that a majority of tourists learn in Swahili are ‘Jambo’ and ‘Hakuna Matata’.
The Swahili words caught on like fire to the entertainment world and in 1995, Disney produced one of the most beloved animations in history, titled ‘Lion King”. The creation told a story of wild animals and an attempt to overthrow the King of the Jungle, the Lion. The East Africa region being a major destination for tourists and the home of the big five that is the lion, elephant, rhinoceros, hippopotamus and buffalo, it was more than likely that it would feature in the story line. Disney first used the words in the animated film Lion King when Timon and Pumba sang a song with the phrase “Hakuna Matata” in it.
Back in Kenya, the phrases Jambo Kenya and Hakuna Matata had been informally branded to map out the Kenyan tourism industry. The government and private institutions frequently used the words and their combination to come up with creative messages for the promotion of local and international tourism. It is worth noting that it is through the use of Swahili messages that words such as “safari” which is loosely translated to mean ‘Journey’ were adopted and have come to be incorporated in the English language with the meaning of overland journey usually a trip by tourists to Africa.
Surprisingly, that did not stop ‘The Walt Disney Company’ from filing to trademark the famous Swahili phrase “Hakuna Matata” which means “No problems” on August 8, 1994. The trademark was registered in 2003 and renewed in 2013 with the firm profiting from making merchandise such as T-shirts with the phrase on it. A trademark identifies a particular manufacturer of goods, using a particular phrase, design or symbol.
Trademarks are a form of intellectual property and are universally governed by the World Intellectual Property Organization (WIPO). The Registration provides a public record of the date of first use in cases of infringement, and allows the owner to use and recover attorney’s fees, damages, lost profits and costs of infringement. In as much as the trademark does not prohibit anyone from using the phrase ‘Hakuna Matata’, its registration and commercialization by a United States Company is seen to many, rightly so, as a form of pilferage of the African heritage and culture.
Interestingly enough, this is not a new concept. A recent report commissioned by Emmanuel Macron, The French President, revealed that about 90% of Africa’s cultural heritage currently lies outside the continent. “I cannot accept that a large part of the cultural heritage of several African countries is in France,” the French president said last year in Ouagadougou, the capital of Burkina Faso. “There are historical explanations for this but there is no valid, lasting and unconditional justification. African heritage cannot be only in private collections and European museums.” The systematic looting of African art took different forms: the researchers found that as well as being the spoils of war, theft and pillage, many of the works had been “bought” for fractions of their real value.
In Kenya, the function of maintaining the country’s image and enhancing the national identity is bestowed upon a state corporation under the Ministry of Tourism established in 2008 under the name “Brand Kenya”. It remains to be seen what actions they will take regarding the attack on Kenya’s image by Disney.
Seeing that both Kenya and the United States of America are member states to the United Nations, the UN agency that is WIPO provides an avenue through which Kenya can seek relief on the commercialization of the phrase ‘Hakuna Matata’. One such remedy is for the relevant governments or communities to apply for expunging of already granted trademarks after satisfying the thresholds that ought to be met for expungement of marks that contain heritage. If such slogans were protected globally then it means corporates that seek to use indigenous slogans would have to pay royalties.
In contrast, our East African counterparts in Rwanda protected the local slogan, “ndiumunyarwanda” as a trademark and a third party corporate was forced to pay licenses fees to the Rwandan government when it sought to manufacture sweets that contained the same slogan. In this way, the Rwanda government ensured that no foreign entities gained from use of indigenous slogans and it also earned revenue from the same.
As I conclude, there is need to have a structured framework to protect our national and regional heritage in Kenya and Africa in general. Kiswahili is spoken throughout EAC and it would be unreasonable for one particular country to claim ownership of the language. However, some words form part of our heritage and ought to be protected where possible. It is unfortunate that there has been a lot of pilferage of African culture over the years, through the use of intellectual property rights. Heritage ought to belong to a certain group of people (community) but it is instead being pilfered using legal methods, whereby third parties end up being awarded sole rights.