Introduction

This chapter is based on a longer, illustrated report (Chennells and Schroeder 2019).

The San peoples , widely known as “first” or “indigenous” peoples of southern Africa , have been the object of much academic research over centuries.

In recent years San leaders have become increasingly convinced that most academic research on their communities has been neither requested, nor useful, nor protected in any meaningful way. In many cases dissatisfaction, if not actual harm , has been the result. For instance, a genomics study published in 2010, based on the DNA of four San individuals, included conclusions which San community leaders found “private, pejorative, discriminatory and inappropriate” (Chennells and Steenkamp 2018). Authors of the paper “refused to provide details about the informed consent process …. [and] defended their denial of the right of the San leadership to further information on the grounds that the research project had been fully approved by ethics committees /institutional review boards” (Chennells and Steenkamp 2018).

In March 2017, the South African San launched the San Code of Research Ethics, the first ethics code developed and published by an indigenous community in Africa (Callaway 2017). The code requires all researchers intending to engage with San communities to commit to four central values , namely fairness , respect , care and honesty , as well as to comply with a simple process of community approval.

This chapter introduces the San of southern Africa and the main San support institutions involved in producing the San Code of Research Ethics. It goes on to describe key elements in the development and the launch of the code, namely leaders of integrity , legal support , supportive research collaborations and the process of drafting. Finally, the code is reproduced in full.

The San of Southern Africa

The San peoples of Africa are iconic, widely known as the quintessential hunter-gatherers of Africa and said to be the oldest genetic ancestors of modern humans (Knight et al. 2003). Once ranging over the whole of southern Africa, their numbers have now dwindled to approximately 100,000 San living primarily in Botswana, Namibia and South Africa , with small remnant populations in Angola, Zimbabwe and Zambia (Hitchcock et al. 2006). Although they speak at least seven distinct languagesFootnote 1 with numerous subdialects, they nevertheless recognize a common cultural identity which is readily identified as a hunter-gatherer heritage, with a shared ancestry also confirmed by genetic research (Soodyall 2006).

Prior to 1990, the San peoples lived typically in extended families and small clans in the remote reaches of South Africa , Botswana and Namibia, as well as in smaller scattered populations in Zimbabwe, Zambia and Angola. The fact that the San generally lived in small groups in remote locations added to their isolation, and contributed towards their vulnerability to exploitation by others.

Generally impoverished, marginalized and cut off from the modern world, they received minimal support from their respective governments. Almost no communication took place between the leaders of these far-flung communities, with the result that their ability to share information and empower their peoples remained structurally constrained.

The fate suffered by the San peoples in Africa is similar to that of many indigenous peoples in other parts of the world. Expansion and conquest, firstly by assertive local pastoralist and agriculturalist communities, followed later and with similar devastation by colonial powers , all but obliterated their former existence. The San history over the centuries has been one of dispossession, enslavement, cultural extinction and recorded patterns of officially sanctioned genocide (Penn 2013).

For many reasons, including their lifestyle until recent times as hunter-gatherer peoples, and their unique genetic properties as descendants of possibly the earliest members of the human race, the San have found themselves in high demand as research populations.

Modern San leaders faced with increasing societal challenges had no means of communicating their problems with other leaders, of learning about their human rights , or of discussing ways in which they might legitimately challenge the unwanted interventions of researchers and other outsiders such as media practitioners.

In addition, the San world view is generally one of seeking harmony, and avoiding all forms of conflict. Several scholars of conflict resolution have based their principles of good practice on ancient San systems, in which the prevention of disputes and the reconciliation of interests are deeply ingrained (Ury 1995).

The outside world regarded the San as a classic example of a “vulnerable population”, lacking the means to organize a collective expression of their common interests and concerns (Chennells 2009). Prior to the year 2000, virtually all research was externally conceived, and was perceived by the San as being disruptive and on occasion harmful to the research populations (Chennells and Steenkamp 2018).

Internet searches of the words San, KhoisanFootnote 2 and Bushmen throw up thousands of papers, books and research theses, supporting the assertion that they are among the most researched peoples in the world. Until they formed their own representative organizations, they did not have a unified voice and thus remained powerless to resist unwanted attention from outsiders.

Institution Building and Supportive NGOs

The most important step towards the San Code of Research Ethics was local institution-building, an initiative that made all further successes possible.

WIMSA: The Catalyst Institution

WIMSA (the Working Group of Indigenous Minorities in Southern Africa ) has arguably been the most important of a number of San support organizations operating in southern Africa over the past 25 years. Reverend Mario Mahongo, one of the San leaders whose work on the San Code of Research Ethics was crucial, noted of a 1996 workshop: “For the first time we were meeting San leaders from the whole region, and we realised that this new organisation WIMSA could really help our people” (Chennells and Schroeder 2019).

Table 7.1 lists the main non-governmental organizations (NGOs) that have provided services to the San in South Africa , Botswana and Namibia.

Table 7.1 San support organizations
Full size table

Supported through seed funding from Swedish and Dutch charities, German development worker Axel Thoma and San leaders such as Kipi George and Augustino Victorino promoted the formation of a cross-border, regional organization to protect the rights of all San peoples in southern Africa . The topics that emerged as clear priorities among San communities were:

  • Access to land

  • Benefit sharing for traditional knowledge

  • Protection of heritage and culture Footnote 3

WIMSA functioned effectively as a regional organization from its inception in 1996 until approximately 2016. The successes of this important San organization in raising awareness and promoting advocacy among the San cannot be overstated.

Importantly, in 1998 WIMSA drafted the San’s first Media and Research Contract, which was aimed at managing external incursions into San culture which up to that time had occurred with no San control at all. San leaders throughout the region were trained in the implementation of the contract, and it was used to deal with researchers, filmmakers, writers and others who entered San territory wanting to gather information.

South African San Institute and South African San Council

The San Code of Research Ethics takes a step further than the WIMSA Media and Research Contract. It outlines exactly what the San require from researchers. The WIMSA contract, by contrast, is more akin to an ethics approval form, which requires researchers to provide information about their studies before they enter San communities. One major difference is therefore that the San code requires collaboration from the start – that is, from the inception of the research – rather than approving fully conceived studies as through the WIMSA form.

The two NGOs most important in developing the San Code of Research Ethics were the South African San Institute (SASI) and the South African San Council (SASC).

SASI was formed in 1996 and initially took the form of a dedicated San service NGO. SASI’s original mission was to assist the !Khomani San with their restitution land claim in the Kalahari. This was completed successfully in 1999, but SASI continued to be active. SASI also supported the !Xun and Khwe San communities, who were relocated to South Africa from Namibia after the end of the “bush wars” in 1990, and settled in a temporary army camp near Kimberley, where SASI is based. The communities’ first needs were for assistance in relation to housing and other social problems arising from their exceedingly disrupted and war-torn history, having been caught in the crossfire between the apartheid government of South Africa and guerrilla fighters in Angola and Namibia. SASI was the partner in the TRUST project which represented the San peoples, and which assisted with the development of the San Code of Ethics. They hosted all relevant workshops and the launch of the code in Cape Town (see below).

The SASC had existed informally since 1996, representing the interests of three South African San communities on the WIMSA board (!Khomani , Khwe , !Xun ). It was legally constituted in 2001 so that it could negotiate officially on behalf of the San, and proceeded over the years to become a major success story in San institution building. The SASC negotiated a famous benefit-sharing agreement with South Africa’s Council for Scientific and Industrial Research (CSIR) in relation to the San’s traditional knowledge rights to the Hoodia plant.

The global UN Convention on Biological Diversity (CBD) of 1992 was the first instrument to provide for the principle that commercial users of plants with active ingredients based upon traditional knowledge needed to negotiate benefit-sharing agreements with the holders of the traditional knowledge, in order to ensure fairness . With this development , the San rediscovered the value of their culture and heritage in the form of their traditional knowledge of a wide range of medicinal and other useful indigenous plants. In 2003 the first benefit-sharing agreement was concluded with the CSIR.

The Hoodia benefit-sharing case achieved seminal status in the CBD world (Wynberg et al. 2009) and can be seen as the first major step taken by the San towards achieving fairness in research. The strong demand for benefit sharing in research is also the reason why fairness is an important, separate value in the San Code of Research Ethics.

The importance of the collaboration of SASI (support NGO) and the SASC (representing San issues directly through San leaders) has been emphasized by the SASC’s director, Leana Snyders:

Our relationship with SASI has helped increase our capacity to understand the law, and also to represent our people. With the legal knowledge gained from negotiating benefit sharing agreements resulting from our traditional knowledge , the San have become acknowledged leaders in this field. (Chennells and Schroeder 2019)

Leaders of Integrity

It is perhaps a truism that collective progress is impossible without leaders of vision and integrity. When the San began their process of institutional development in 1996, they were fortunate to have a group of pioneering leaders who drove and supported the vision to end the isolation of the past and to enter the organizational modern world. The San were blessed during this period with strong leaders, some of whom are still active, who had the wisdom to support change and the ability to engender consensus among sometimes differing opinions while retaining the confidence and trust of their people.

One can be forgiven, however, for singling out the following leaders, who died prematurely while dedicated to the process of empowering their people: Kipi George (Khwe ), /Xau Moses (Ju//Huansi), Augustino Victorino (!Xun ), Robert Derenge (Khwe), Dawid Kruiper (!Khomani), Andries Steenkamp (!Khomani ), and Mario Mahongo (!Xun).

These leaders rose above their peers for many reasons, including the following, which are drawn from the many eulogies delivered upon their passing: they were strong and able to take difficult decisions, without losing an element of softness and humanity; each was regarded as honest and dedicated to his people, rather than to his immediate family and clan; they were respected both by their own communities and by outsiders for their intelligence, integrity and wisdom. These factors alone made them unique, and, like Nelson Mandela, they are constantly invoked as icons of leadership.

The two San leaders who contributed most to the San Code of Research Ethics were Andries Steenkamp and Mario Mahongo. Two messages to researchers made by them have meanwhile achieved iconic status:

I don’t want researchers to see us as museums who cannot speak for themselves and who don’t expect something in return. As humans we need support. (TRUST Project Global Research Ethics 2018b)

– Reverend Mario Mahongo (1952–2018)

Your house must have a door so that nobody needs to come in through the window. You must come in via the door, that is to say via the San Council. (TRUST Project Global Research Ethics 2018a)

– Andries Steenkamp (1960–2016)

The last statement has even made it into the San Code of Research Ethics (see below), which notes:

Andries Steenkamp, the respected San leader who contributed to this Code of Ethics until he passed away in 2016, asked researchers to come through the door, not the window. The door stands for the San processes. When researchers respect the door, the San can have research that is positive for us.

The leaders who have succeeded Andries and Mario are focusing on many unresolved questions, in particular:

  1. 1.

    Why do some researchers still come into the San community through the window, like thieves? For instance, are they not aware of the community structures? Do they not trust the structures? Is there intent to avoid community approval?

  2. 2.

    How can awareness of the San Code of Research Ethics be spread throughout the far flung San communities in South Africa and potentially into Botswana and Namibia? How in a practical sense and how in a financial sense?

  3. 3.

    How can the on-line approval and code adherence system that the SASC wishes to install be designed and funded, both for development and for maintenance?

  4. 4.

    Could the San effort be captured in a model fit to assist other communities that do not have a 25-year history of institution building around their rights?

  5. 5.

    As the San community wishes to assist others in developing their own codes, how can such efforts be funded?

Legal Support

Many of the important steps undertaken along the path of community empowerment require legal support or intervention. The formulation of constitutions, leases and basic legal documents underpinning salaried appointments, and the drafting of basic agreements with government, funders and other external actors all require the services of a lawyer to protect the San’s interests.

WIMSA and SASI have, from the outset, retained the services of an in-house lawyer. This ensures that they receive basic institutional legal support, as well as strategic legal support, in their various advocacy programmes. Apart from basic institutional legal support, the most visible advocacy successes of the San have all relied upon close collaboration with a legal adviser.

San policy interventions at the United Nations , land claims and successful San claims for intellectual property rights related to their traditional knowledge (on Hoodia, buchu, Sceletium, rooibos etc), which raised the international profile of the San as indigenous peoples , all required committed legal support. This was made available mostly via SASI.

The prohibitive cost of standard commercial lawyers is a well-known deterrent to obtaining legal advice and assistance. In addition, utilizing lawyers who are not familiar with the ethos and needs of the community can lead to expensive mistakes and misunderstandings. Lawyers who are willing to represent the community legally on a pro bono or noncommercial basis can therefore give a vulnerable community a significant advantage.

Dr Roger Chennells, SASI’s lawyer, also provided a legal editing service for the San Code of Research Ethics.

Supportive Research Collaborations

Formulating ethics codes is a time-consuming business that requires funding, in particular to support workshops where San traditional leaders and San community members can discuss their concerns and ways forward. Sceptics may point out that the same individuals always attend such workshops largely out of appreciation for the food provided, and leave without any tangible or lasting benefits .

By contrast, there is much anecdotal evidence of San colleagues who reported, after attending workshops, that their thinking, and indeed sometimes their lives, had forever been altered by an insight gained at the workshop. The San development programmes conducted by WIMSA, SASI and the SASC held capacity-building workshops on a range of topics. Of particular relevance to the San Code of Research Ethics were the workshops funded by two successive EU projects, ProGReSSFootnote 4 and TRUST .Footnote 5

The ProGReSS project, under the leadership of Professor Doris Schroeder, ran from 2013 to 2016 with SASI as a partner with its own budget. The project funded two workshops to revise the WIMSA Research and Media Contract, among other things. By the conclusion of ProGReSS, it became clear that a new San ethics code might realize San interests more effectively in the future.

The EU -funded TRUST project , also led by Professor Schroeder, catalysed a global collaborative effort to improve adherence to high ethical standards in research around the world. Its main product is the Global Code of Conduct for Research in Resource-Poor Settings , the main topic of this book. However, a second high-profile output is the San Code of Research Ethics.

Both projects enabled productive workshops to be held, at which the San’s rights were further debated, and where the outcomes were not only used by the San in practical cases, but also published and disseminated. The TRUST project united the efforts of many years to tackle the challenge of how unwanted research could be controlled. Without the collaborative support of international research partners, it is doubtful that the San Code of Research Ethics would have emerged.

Drafting the San Code of Research Ethics

Building on various earlier efforts, the San Code of Research Ethics was drafted over the course of three workshops and much intervening work during the year prior to its launch in March 2017.

In March 2016, SASI organized a preparatory workshop at which San representatives voiced their concerns and reported their past involvement in national and international research studies. Examples of good and bad research case studies were identified, in order to guide a revision of the San Media and Research Contract and the drafting of a San Code of Research Ethics. The aim was to help the South African San manage their involvement in research and heritage studies. Delegates included SASC members plus leaders from the !Xun , the Khwe and the !Khomani , together with selected invited experts from the fields of genetics , sociology, ethnology, research ethics and law. During this workshop the participants received background information on research in the different fields, delivered by the experts attending the workshop.

Based on this input, initial ideas to improve research engagement were developed. The following ideas were voiced:

  • A single central body needs to be created with clear external and internal authority, and the capacity to manage research and media issues.

  • A code of ethics needs to be established, whereby researchers are able to understand the “dos and don’ts” of engaging with the San.

  • Training needs to take place, both of the leaders or local coordinators of research and among the communities and individuals who are required to participate.

  • Research and media contracts need to be drawn up in such a way that research is not discouraged, but is managed for the benefit of the community. Research which is not felt to be useful should be refused.

  • Noncommercial research or engagement should be managed with basic contracts. More in-depth research should be managed with more complex contracts as appropriate.

  • There should be consequences and penalties for failure to comply with the terms of such contracts.

  • Funds should be raised in order to establish a research monitoring and compliance body with the SASC .

In May 2016, SASI organized a full workshop with 22 San representatives and a further eight external contributors, again from the fields of genetics , sociology, ethnology, research ethics and law. On this occasion, work was undertaken to ensure that the San could protect themselves from exploitation in research through the redrafting of their original research contract, and by the development of what was to become the San Code of Research Ethics.Footnote 6

During this important workshop, the San developed a range of general principles that applied to their own community. These principles were as follows and were used for a first draft of the San Code of Research Ethics:

  • The San require respect to the environment, to San leaders and individuals, and to cultural values .

  • Honesty , integrity and honour are important between all partners.

  • Cultural and spiritual values must be fully honoured and respected in all research and media projects.

  • The right formal process should be followed to protect communities in research.

  • Informed consent is central to all research.

  • Genetics samples should only be used for the purpose stated in the research contract.

  • Researchers should not enter a community without being guided and led by members of the community itself.

  • Both researcher and community should benefit from the interaction.

In November 2016, SASI organized a third workshop with the same delegates and some of the earlier external contributors to finalize the content of the San Code of Research Ethics. The overall goal was to achieve fair research partnerships. The following threats and weaknesses were discussed.

  • Vulnerable and far-flung populations and serious poverty

  • Undue influence by researchers, due to poverty

  • “Free riders” who do not support San community concerns when taking part in research for cash

  • Exploitation possibilities due to illiteracy

  • Lack of knowledge of research, what it means and what its risks are

  • Lack of knowledge about the San leadership’s approach to research

  • Lack of assistance from the government

  • Low self-esteem in engaging with outside individuals and agencies

  • Earlier theft of traditional knowledge leading to mistrust of researchers

  • Lack of system to combat the problems

  • Lack of institutional and financial support to the leadership who aim to improve the situation

With these challenges in mind, the initial draft of the San Code of Research Ethics was revised and refined. In addition, each element of the new draft code was grouped into one of the four TRUST ethical values of fairness , respect , care , and honesty . These values had been agreed on previously by the TRUST group , with San input. The four core values were to be supported by a fifth value, which the San delegates deemed essential, namely proper process. In small groups the key points of each value were written out in greater detail.

A highly important decision was that examples of past exploitation would form part of the code itself.

The results of the third workshop were then given to colleagues who undertook further work. In December 2016, Roger Chennells worked on the code from a legal perspective, and in January 2017, Doris Schroeder worked on its ethical dimensions.

The subsequent draft, which had been edited from both a legal and an ethical perspective, was then presented to the San leadership for adoption. Further minor changes were made, until the code was unanimously adopted and declared ready to be launched by the San leadership.

The San Code of Research Ethics

Respect

We require respect , not only for individuals but also for the community.

We require respect for our culture , which also includes our history. We have certain sensitivities that are not known by others. Respect is shown when we can input into all research endeavours at all stages so that we can explain these sensitivities.

Respect for our culture includes respect for our relationship with the environment.

Respect for individuals requires the protection of our privacy at all times.

Respect requires that our contribution to research is acknowledged at all times.

Respect requires that promises made by researchers need to be met.

Respectful researchers engage with us in advance of carrying out research. There should be no assumption that San will automatically approve of any research projects that are brought to us.

We have encountered lack of respect in many instances in the past. In Genomics research, our leaders were avoided, and respect was not shown to them. Researchers took photographs of individuals in their homes, of breastfeeding mothers, or of underage children , whilst ignoring our social customs and norms. Bribes or other advantages were offered. Failure by researchers to meet their promises to provide feedback is an example of disrespect which is encountered frequently.

Honesty

We require honesty from all those who come to us with research proposals.

We require an open and clear exchange between the researchers and our leaders. The language must be clear, not academic. Complex issues must be carefully and correctly described, not simply assuming the San cannot understand. There must be a totally honest sharing of information.

Open exchange should not patronise the San. Open exchanges implies that an assessment was made of possible harms or problems for the San resulting from the research and that these possible harms are honestly communicated.

Prior informed consent can only be based on honesty in the communications , which needs to be carefully documented. Honesty also means absolute transparency in all aspects of the engagement, including the funding situation, the purpose of the research, and any changes that might occur during the process.

Honesty requires an open and continuous mode of communication between the San and researchers.

We have encountered lack of honesty in many instances in the past. Researchers have deviated from the stated purpose of research, failed to honour a promise to show the San the research prior to publication, and published a biased paper based upon leading questions given to young San trainees. This lack of honesty caused much damage among the public, and harmed the trust between the collaborating organisation and the San. Another common lack of honesty is exaggerated claims of the researcher’s lack of resources, and thus the researchers’ inability to provide any benefits at all.

Justice and Fairness

We require justice and fairness in research.

It is important that the San be meaningfully involved in the proposed studies, which includes learning about the benefits that the participants and the community might expect. These might be largely non-monetary but include co-research opportunities, sharing of skills and research capacity, and roles for translators and research assistants, to give some examples.

Any possible benefits should be discussed with the San, in order to ensure that these benefits do actually return to the community.

As part of justice and fairness the San will try to enforce compliance with any breach of the Code, including through the use of dispute resolution mechanisms.

In extreme cases the listing and publication of unethical researchers in a “black book” might be considered.

An institution whose researchers fail to comply with the Code can be refused collaboration in future research. Hence, there will be “consequences” for researchers who fail to comply with the Code.

We have encountered lack of justice and fairness in many instances in the past. These include theft of San traditional knowledge by researchers. At the same time, many companies in South Africa and globally are benefitting from our traditional knowledge in sales of indigenous plant varieties without benefit sharing agreements, proving the need for further compliance measures to ensure fairness.

Care

Research should be aligned to local needs and improve the lives of San. This means that the research process must be carried out with care for all involved, especially the San community.

The caring part of research must extend to the families of those involved, as well as to the social and physical environment.

Excellence in research is also required, in order for it to be positive and caring for the San. Research that is not up to a high standard might result in bad interactions, which will be lacking in care for the community.

Caring research needs to accept the San people as they are, and take note of the cultural and social requirements of this Code of Ethics.

We have encountered lack of care in many instances in the past. For instance, we were spoken down to, or confused with complicated scientific language, or treated as ignorant. Failing to ensure that something is left behind that improves the lives of the San also represents lack of care.

Process

Researchers need to follow the processes that are set out in our research protocols carefully, in order for this Code of Ethics to work.

The San research protocol that the San Council will manage is an important process that we have decided on, which will set out specific requirements through every step of the research process.

This process starts with a research idea that is collectively designed, through to approval of the project, and subsequent publications.

The San commit to engaging fairly with researchers and manage effectively all stages of the research process, as their resources allow. They also commit to respecting the various local San structures (e.g. Communal Property Association, CPA leaders) in their communications between San leaders and San communities.

Andries Steenkamp, the respected San leader who contributed to this Code of Ethics until he passed away in 2016, asked researchers to come through the door, not the window. The door stands for the San processes. When researchers respect the door, the San can have research that is positive for us.

Conclusion

Key to the achievements of the San in South Africa have been: dedicated San leaders of integrity , supportive NGOs , legal support , and long-term relationships with key individuals who also assisted with fundraising (see Fig. 7.1).

Fig. 7.1
figure 1

Success factors

Full size image

The San leadership have developed an approach to outsiders, for instance researchers, that is open to forging authentic human relationships. Every research project meeting or benefit-sharing negotiation was regarded as an opportunity to meet a certain person who might prove himself or herself to be mutually open to a relationship of trust .

In particular Andries Steenkamp of the !Khomani San and Mario Mahongo of the !Xun San, both former chairpersons of the SASC , formed such relationships of trust. Not only was the famous San humour seldom far from the surface, but they exuded an air of confidence and open curiosity, quick to understand and appreciate the persons across the table, and slow to take personal offence. Their personal integrity shone through, and the trust that they generated in others translated into untold benefits for the San.

This approach ensured that the San Council is highly respected in South Africa . In addition, relationships of trust developed with international researchers, generating funding for research and policy projects. One of the many results of the openness of San leaders to collaboration with the world is the San Code of Research Ethics, which, it is hoped, will put all future relationships with outsiders onto an equitable basis. As Leana Snyders put it:

The San Code of Research Ethics is the voice of a community that have been exploited for so many years. This code manages to bridge the gap between the research community and the San Community through dialogue. By taking ownership of the code, the San Community will ensure that this document will remain relevant for generations to come. (Chennells and Schroeder 2019)