AFSA Makes
Small Gains for
Farmers’ Rights
in Draft SADC
PVP Protocol
A Briefing Paper
June 2014
ALLIANCE FOR FOOD SOVEREIGNTY IN AFRICA
The ALLIANCE FOR FOOD SOVEREIGNTY IN AFRICA (AFSA)
is a Pan African platform comprising networks and farmer
organisations working in Africa.1
CONTENTS
Acronyms 3
Background 4
SADC Regional Workshop to Review Draft Protocol for Protection of
New Varieties of Plants 5
Key Provisions Amended 6
Disclosure Of Origin 6
Farmers’ Rights 6
Road Map – What May Lay Ahead 7
Conclusion 8
References 9
Cover image: http://afsafrica.org/wp-content/uploads/2014/05/Slider-2.jpg
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Acronyms
AFSA Alliance for Food Sovereignty in Africa
AGRA Alliance for a Green Revolution in Africa
COMESA Common Market for East and Southern Africa
FAO Food and Agriculture Organisation
GM Genetically modified
ITPGRFA The International Treaty on Plant Genetic Resources for Food and Agriculture
UPOV The International Union for the Protection of New Varieties
LDC Least developed countries
PVP Plant variety protection
SADC Southern African Development
TRIPS Trade-Related Aspects of Property Rights
WTO World Trade Organisation
4 A L L I A N C E F O R F O O D S O V E R E I G N T Y I N A F R I C A ( A F S A )
BACKROUND
More than 80% of all seed in Africa is still produced and disseminated through “informal” seed
systems2, that is, through on-farm seed saving and unregulated distribution between farmers.
This system has survived for centuries and has generated a wide diversity of seed adapted to
local agroecological conditions. Efforts by a range of players including, but not limited to, the
G8’s “New Alliance for Food Security and Nutrition in Africa”, the Alliance for a Green Revolution
in Africa (AGRA), African and foreign governments and the seed industry to expand agricultural
production have identified limits to the commercialisation of these systems. These limits include
ceilings on yields using “unimproved” seed and those around introducing improved varieties
into traditional systems. Their agenda is to restructure seed systems to enable the production
and distribution of improved seeds as part of the objective of increasing agricultural yields in
Africa. The emphasis is on hybrids (although also some improved open-pollinated varieties) with
the possibility of the future expansion of genetically modified (GM) seed beyond South Africa.
Improved seed is part of the Green Revolution package of synthetic fertilisers, agrochemicals,
credit and sales into global markets.
Donors and potential investors have identified weak governance and regulatory systems and
institutions in Africa as immediate obstacles to the expansion of seed systems based on quality
controls and intellectual property rights. A key priority in the commercial agenda is to facilitate
regional harmonisation of policies and laws to regulate and support investment in seed and
agrochemicals. African governments are being co-opted en masse into restructuring their seed
laws and supporting the implementation of plant variety protection (PVP) laws through fast-
tracked regional harmonisation processes and trading blocs.
One such harmonisation effort is the Southern African Development Community’s Draft Protocol
for the Protection of New Varieties of Plants (draft SADC PVP Protocol), which aims to provide
secure markets for private investment including, and especially through, the protection of private
ownership over seed in the form of intellectual property rights, based on the provisions of UPOV
1991.3
As far back as March 2013, members of AFSA raised serious concerns regarding the draft SADC
PVP Protocol,4 whose architecture is based on UPOV 1991. Chief among its concerns are that
UPOV 1991 is a restrictive and inflexible legal regime that grants extremely strong intellectual
property rights to commercial breeders and that it undermines farmers’ rights. Such a regional
law will most certainly increase seed imports, reduce breeding activity at the national levels,
facilitate monopolisation of local seed systems by foreign companies, and disrupt traditional
farming systems upon which millions of African farmers and their families depend for their
survival.
Serious concerns were raised about by the lack of consultation with smallholders and civil society
regarding the modeling of the draft SADC PVP Protocol on UPOV 1991 and their exclusion from
the drafting of said Protocol.
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SADC REGIONAL WORKSHOP TO REVIEW
DRAFT PROTOCOL FOR PROTECTION OF
NEW VARIETIES OF PLANTS
These concerns around the lack of public participation and consultation were heard and
addressed by the SADC Secretariat in that some AFSA members5 were invited to participate at
a SADC Regional Workshop that took place 13-14 March 2014, in Johannesburg, South Africa. The
aim of the workshop was to review the draft SADC PVP Protocol. The Seed industry in Africa was
well represented at the workshop,6 as were several farmer unions/associations.7
The proceedings took the form of line-by-line discussions between AFSA members and
representatives of the SADC member states of the draft SADC PVP Protocol. Discussions were
extremely contentious and, often times, hostile. AFSA members made numerous (continuous)
interventions throughout the proceedings.8 Indeed, every effort was made on the part of the
SADC Secretariat and the chairperson, Dr Banda from Malawi, to give AFSA members a chance
to voice their concerns and make their inputs. AFSA members repeatedly placed on record their
serious objections to the draft SADC PVP Protocol being based on UPOV 1991. The principal
concerns raised included that such a regime:
• Promotes only one particular type of plant breeding system, namely industrial breeding for
cultivation in large-scale, monocropping, commercial farming systems.
• Promotes industrial farming systems heavily dependent on high irrigation and synthetic
fertiliser and pesticide use and that these systems are ecologically unsustainable and socially
unjust.
• Does not embody a sui generis (of its own kind) system that seeks to include and support the
interests of all affected groups, including farmers, consumers, indigenous communities and
local industries.
• Implies that member states of the SADC region turned a blind eye to its smallholders and their
seed and farming systems. The provisions dealing with the exclusive rights granted to plant
breeders’ and the exceptions to those rights render the centuries-old African farmers’ practices
of freely using, exchanging and selling seeds/propagating material illegal.
• Extended exclusive plant breeders’ rights to harvested material including entire parts of
plants.
• Forbad farmers from freely exchanging or selling farm-saved protected seed and propagating
material, even in circumstances where breeders’ interests are not adversely affected, for
example, in small amounts or for local rural trade.
• Is contrary to and in violation of the SADC Treaty,9 in particular, Articles 5 (1)10 and Article 6 (2).11
• Is ultra vires (beyond the scope of) the SADC Treaty, having regard to Article 5(2)(a).12
• Does not take into account that Least Developed Countries (LDCs) that are member states of
SADC, including Angola, Lesotho, Madagascar, Malawi, Mozambique, Tanzania and Zambia,
have been given an extended transition period of eight years to put in place the intellectual
property rights systems required by Article 27.3(b) of the World Trade Organisation’s (WTO)
Trade-Related Aspects of Property Rights (TRIPS) agreement. This is in recognition of the
special requirements of LDCs, their economic, financial and administrative constraints, and the
need for flexibility so that they can create a viable technological basis. 13 Thus there is no legal
international obligation for these countries to “provide protection for plant varieties either
through patent protection either through patent protection or an effective sui generis system
or a combination of the two” until 2021, as required by Article 27.3(b) of the TRIPS agreement. In
this regard, the SADC Protocol is prematurely imposing obligations on its member states that
it is not obliged under international law to implement currently.
6 A L L I A N C E F O R F O O D S O V E R E I G N T Y I N A F R I C A ( A F S A )
After marathon, highly contentious and difficult discussions, AFSA members were able to
persuade member states to amend key provisions in the draft SADC PVP Protocol dealing with
“disclosure of origin” and “farmers’ rights”. It must be specifically noted that none of the farmers
unions/associations present (as mentioned in note 7) gave any support whatsoever, to the
concerns raised by AFSA members or the positions taken by AFSA members. Indeed, these farmer
unions/associations were ominously silent, even during the marathon session when the heavily
contested Article 28(d) of the draft SADC PVP Protocol dealing with farmers’ rights was discussed.
KEY PROVISIONS AMENDED
Disclosure of Origin
AFSA members raised concerns regarding the lack of a disclosure of origin provision in the draft
SADC PVP Protocol. This provision aims to avoid a situation where a commercial entity seeks to
obtain plant variety protection over biological resources, including plant varieties that belong
to or are under the control of farmers and indigenous communities. Reference was specifically
made to a recent example of such misappropriation in the “Turkey Purple Carrot” case.
Monsanto’s subsidiary Seminis had purchased farmers’ seed at a farmers’ market in southern
Turkey of a certain variety of purple carrot and after a simple process of selection obtained plant
variety protection in both the United States and the European Union.14
Requiring full disclosure of information on how the variety is developed in exchange for receiving
plant variety protection is also critical for transfer of technology and knowledge to local
communities. Moreover, full disclosure of information will enable SADC member states to ensure
that varieties that are injurious to health and the environment do not receive protection.
After much discussion and following a positive intervention from the SADC Secretariat that “we
cannot exploit farmers,” SADC member states agreed to including, as part of the application
requirements for a plant breeder’s rights, a declaration to the effect that the genetic material or
parental material acquired for breeding, evolving or developing the variety was lawfully acquired.
Farmers’ rights
Articles 27 and 28 of the draft SADC PVP Protocol were, by far, the most contested set of
provisions at the workshop. The provisions in Articles 27 and 28 epitomise the stark tensions
between exclusive breeders’ rights granted to the breeder and farmers’ rights. Article 27 sets out
the scope of the exclusive rights granted to breeders and Article 28 dealt with the exceptions to
such rights.
The concept of farmers’ rights was developed to reflect the contributions made by traditional
farmers, particularly in the developing world, to the preservation and improvement of plant
genetic resources. The Food and Agriculture Organisation (FAO) Resolution 5/89 defines farmers’
rights as those “rights arising from the past, present and future contributions of farmers in
conserving, improving and making available plant genetic resources, particularly in centres of
origin/diversity”.15 Such rights are also recognised in Article 9 of the The International Treaty
on Plant Genetic Resources for Food and Agriculture (ITPGRFA),16 to which Angola, Democratic
Republic of Congo, Lesotho, Mauritius, Malawi, Namibia, Swaziland, Seychelles, Zambia and
Zimbabwe are contracting parties.17
Article 27 (1) confers exclusive rights to plant breeders to:
• Produce and multiply propagating material of the protected variety
• Package for purposes of propagation
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• Sell, market, export, import and store the protected variety.
Article 27(2) also extends the exclusive rights of the breeder to harvested material, including
entire plants and parts of plants.
Anyone who wants to undertake any of the above activities must obtain the consent of the
plant breeder in the form of a licence granted by the right holder, and usually upon payment of
royalties.
The exception to the plant breeders’ rights having a direct bearing on farmers’ rights was
originally provided in Article 28(d) as follows:
“(d) acts done by subsistence farmers for the use for propagating purposes, on their own
holdings, the product of the harvest which they have obtained by planting, on their own
holdings the protected variety or varieties covered by Article 27(3) (a)(i)or(ii) to this Protocol.”
This provision was totally unacceptable to AFSA members and they engaged the member states
for the better part of seven hours on the second day of the workshop on this provision alone. The
provision, modeled on Article 15(2) of UPOV 1991, limits smallholder subsistence farmers, who
constitute the majority of farmers in the SADC region, to re-planting farm-saved seeds of the
protected variety only on their own fields and to using the product of the harvest only on their
own fields. Such farmers are thus not allowed to exchange, barter, or sell either farm-saved seeds
of the protected variety or to share the product of their harvest with anyone else (for example,
family, neighbours or the community). Smallholders are also not allowed to exchange, barter
or sell the product of their harvest if it derived from the replanting of farm-saved seeds of a
protected variety.
Several recommendations for a substitute clause were made by AFSA members, some of these
were also supported by the FAO representative present. Towards the end of the second day,
it did look as if consensus would not be reached on an alternative clause, as almost all the
member states present were not prepared to shift their positions to retain the disputed Article
28(d). Continuous interventions by AFSA members eventually prompted representatives from
Botswana and South Africa to support the inclusion of an alternative clause and with AFSA
members redrafted a compromise exception to plant breeders’ rights clause as follows:
“(d) acts done by a farmer to save, sow, re-sow or exchange for non-commercial purposes his or
her farm produce, including seed of a protected variety, within reasonable limits and subject to
the legitimate interests of the holder of the breeder’s right. The reasonable limits and the means
of safeguarding the legitimate interests of the holder of the breeder’s right shall be prescribed.”
While being an improvement on the clause it has replaced, a great deal will depend on how
“non-commercial purposes” and “reasonable limits and safeguarding the legitimate interests of
the holder of the breeder’s right” will be further elaborated in regulations.
ROAD MAP – WHAT MAY LAY AHEAD
At the time of writing, the SADC Secretariat was unable to provide AFSA with a road map for
the draft SADC PVP Protocol. Nevertheless, the SADC Treaty provides some guidance in Article
22 stating that the only binding instruments between SADC member states are Protocols. A
Protocol is only given life when it has approved by the Summit of the Heads of States, on the
recommendation of the Council of Ministers from each member state responsible for economic
planning or finance where after it may be open to signature and ratification. We know of no such
recommendation being made and it is therefore not likely that the draft SADC PVP Protocol will
8 A L L I A N C E F O R F O O D S O V E R E I G N T Y I N A F R I C A ( A F S A )
be tabled at the next Summit of the Heads of State due to take place in Zimbabwe in August
2014.
CONCLUSION
While some space was opened through the participation of AFSA members at the very tail
end of the workshop, the objections to the draft SADC PVP Protocol being based on UPOV 1991
still remain. Indeed, the road ahead for smallholders and their seed systems continues to look
extremely bleak. A radical shift is required at the political level away from a singular system that
favours only one kind of plant breeding (industrial) and corporate seed systems that facilitate
commercial growing and regional trade in improved and protected seed only and in which
smallholders’ role is defined as that of passive consumers or growers in certification schemes
(that produce improved/protected seed) to a system that embraces a multitude of actors and
encourages a diversity of farming systems and seed. Current policy directions are based on the
fallacious notion that African hunger is caused by farmer’s varieties, which are low yielding and
spread disease, employed within a “backward” agricultural system that needs to be modernised.
However, the reality is that smallholders continue to provide food for more than 50% of the
global population, with scant resources and support, while industrial agriculture, propped up
with huge subsidies, investment, infrastructure and research and development, only manages to
supply some 30% of our nutritional needs.18 If we are to deal with food insecurity in Africa, it is
vital that our leaders support and help to improve farmer-managed systems and recognise that
Green Revolution technology will ultimately benefit an elite few with the resources to enter the
system.
The SADC Treaty obliges member states to treat all the farmers in the region equitably. SADC
is obliged to conduct meaningful consultation with smallholder farmers to discuss issues of
national and regional importance to these farmers including, for example, creating an enabling
environment for the protection of farmers’ varieties and providing extension support for farmers’
seed systems to enable them to flourish. SADC must shift its agriculture policies towards a
broad and inclusive approach to food systems, ones in which farmers and consumers should
hold substantial control. Africa’s rich food history, closely linked to the diverse cultures across the
continent, should be recognised and respected as should the farmers who grow diverse food in a
sustainable way to enhance agricultural biodiversity, nutrition and ecosystem resilience.
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References
1 Including the African Biodiversity network (ABN), the Coalition for the Protection of African Genetic Heritage
(COPAGEN), Comparing and Supporting Endogenous Development (COMPAS) Africa, Friends of the Earth- Africa,
Indigenous Peoples of Africa Coordinating Committee (IPACC), Participatory Ecological Land Use Management
(PELUM) Association, Eastern and Southern African Small Scale Farmers’ Forum (ESAFF), La Via Campesina Africa ,
FAHAMU, World Neighbours, Network of Farmers’ and Agricultural Producers’ Organizations of West Africa (ROPPA),
Community Knowledge Systems (CKS) and Plate forme Sous Régionale des Organisations Paysannes d’Afrique
Centrale (PROPAC).
2 Smale, M., Byerlee, D. & Jayne, T. 2011 “Maize revolutions in sub-Saharan Africa”. Policy Research Working Paper 5659.
Washington
