The alt isn’t pre-modern Luddism or total rejection of all modernity. There’s a clear path to conceptual decolonization of intellectual property through existing jurisprudence.

What does decolonization entail? Does it mean reverting to the status quo applied in pre-colonial times? That would be a gross oversimplification. Africa intellectuals such as Frantz Fanon, Leopold Sedar Senghor, Cheikh Anta Diop, Ngugi wa Thiong’o and others have all contributed to this discourse. Contemporary interpretations of this concept range from the moderate to the radical feminist. An example of the former is Kwasi Wiredu’s notion of “conceptual decolonization”:

It consists in an African’s divesting of his thought of all modes of conceptualization emanating from the colonial past that cannot stand the test of due reflection. This divesture does not mean automatically repudiating every mode of thought having a colonial providence. That would be absurd beyond description.24

The idea here is not adopting a stance of rejecting everything linked to the colonial era, but rather closely inspecting the concepts of Western modes of living and asking the question: “does it work for Africa?” It has been described as a form of bi-culturalism, namely, attaining a conceptual synthesis involving “analyses of the canon of Western philosophy and also the manifestation of tribal cultures.”25

Radical interpretations seek to rethink Africa from an indigenous feminist perspective that critically engages Eurocentric interpretations of the pre-colonial period which are deeply rooted in fixed terminologies and classifications, “to produce knowledge of our precolonial past that is fuller, more complex, diverse, of immense value and, therefore, not dismissible.”26 It seeks to reclaim the experiences of the most marginalized groups, such as indigenous women, made invisi- ble by patriarchy and colonialism. This view argues that the impetus for decoloniality is increasing in a COVID-19 world of further mar- ginalization of the structurally oppressed and their voices.27

In South African jurisprudence, for example, the Constitutional Court has deliberated on the issue of decolonization in a landmark decision declaring capital punishment unconstitutional on grounds that included the application of African values such as Ubuntu 28 to contemporary legal disputes. This has prompted the court to depart from certain colonial era legal canons, such as the legality of capital punishment, as it cannot be recon- ciled with African values.29 There has not been much jurisprudence on the colonial foundations of intellec- tual property law, and its relevance to contemporary society. A recent case relating to a trademark dispute concerned a complaint that the purported use of cer- tain marks associated with a large fast-food chain by a small competitor were likely to deceive or cause confusion in the public.30 In rejecting the claim of infringement, the court took an unconventional ap- proach to an IP dispute and paid attention, in partic- ular, to the context in which these entities were trad- ing. The complainant was a large chicken food fran- chise whereas the competitor a small vegan eatery; and significantly, it again invoked the principle of Ubuntu (in this context encouraging rather than re- straining small business development in a develop- ing economy) as being in the greater public interest and consistent with African values. In response to the complainant’s claim to uniqueness of its brand as “pride and success in adversity” as hallmarks of its Afrocentricity, the judgment, states: “success against adversity also means allowing small busi- nesses to survive onslaughts by large, economically powerful corporates like the applicant.”31