The Obnoxious Plant Breeders’ Bill Is Back To Parliament

It has come to our attention that the Cabinet of President Akuffo-Addo has taken the decision to re-introduce the controversial Plant Breeders’ Bill back to Parliament without taking into account any of the objections raised against it for the past seven years.

Food Sovereignty Ghana (FSG) unreservedly condemns this decision. Even though Ghana, as a member of the World Trade Organization and is under a WTO obligation to protect the intellectual property of new plant varieties, this must not provide the excuse to impose the stringent restrictive regime being introduced. The bill the Cabinet of President Akufo-Addo just recommended to Parliament is modelled on the International Convention for the Protection of New Varieties of Plants of 1991 (UPOV 1991) which is a rigid and an inflexible regime for plant variety protection (PVP).

As has been pointed out on several occasions, “the rights and obligations concerning intellectual property are governed by the WTO Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS Agreement). According to Article 27.3(b) of the TRIPS Agreement, Ghana has to provide protection of plant varieties by an “effective sui generis” system. Sui generis means a “unique” system of protection. This provision allows Ghana maximum flexibility in the design of plant variety protection (PVP). This is what many developing countries such as Thailand, Malaysia, India have done. The African Union Ministers have also recommended a unique Model Law for Plant Variety Protection. See: Ghana’s Plant Breeders Bill Lacks Legitimacy! It Must Be Revised! http://foodsovereigntyghana.org/ghanas-plant-breeders-bill-lacks-legitimacy-it-must-be-revised/

Controversy

It would be recalled that the last time the UPOV-compliant Plant Breeders Bill was laid in Parliament, in 2013, it sparked a huge controversy to the extent that the then Speaker of Parliament had to take the unprecedented decision to withdraw the bill which was already at the Consideration Stage, “for further consultations”.

Several farmers’ associations, civil society organisations, faith-based organisations, as well as prominent individuals and international organisations who raised their voices against the bill were concerned about the basis on which Ghana opted for UPOV 91 when many independent experts and UN reports have actually recommended that developing countries should not join the UPOV system as it offers a rigid model inappropriate for developing countries where farmer managed seed systems (informal seed systems) and the practices of freely saving, using, exchanging and selling seeds are prevalent. Most saw the decision for UPOV91 as benefiting commercial breeders and consequent revisions to the act have leaned towards promoting genetic uniformity in crop varieties, which can have drastic effects on biodiversity.

Another pertinent issue raised in the petitions is a simple demand that has never been responded. It is the call for fair and equitable sharing of benefits arising from the utilization of Ghana’s genetic resources. We urgently need answers from Cabinet as to why there is still no provision in the Bill requiring the disclosure of origin in the application for the plant breeder right. This provision is critical for combating biopiracy of our genetic resources. UPOV establishes no mechanisms or safeguards against the practice of ‘biopiracy’.

A key element in the controversy is the demand to see the disclosure of origin of all genetic materials in the applications for patents or plant variety protection, in order to protect Ghana from biopiracy. Biopiracy or a situation where indigenous knowledge of nature, originating with indigenous peoples, is used by others for profit, without permission from and with little or no compensation or recognition to the indigenous people themselves. The fair and equitable sharing of the benefits arising out of the use of genetic resources is one of the three objectives of the UN Convention on Biological Diversity (CBD). The CBD recognises the sovereign right of states over their natural resources in areas within their jurisdiction. See: The Nagoya Protocol on Access to Genetic Resources and Benefit-Sharing.pdf http://www.cbd.int/undb/media/factsheets/undb-factsheet-nagoya-en.pdf

The Plant Breeders’ Bill in its current form, is a paradise for bio pirates, usually giant multinational seed corporations, which seek to take advantage of our genetic resources at Ghana’s expense. As Paul Raeburn puts it in his book, The Last Harvest: The Genetic Gamble That Threatens to Destroy American Agriculture (page 95): “The value of crop germplasm, a kind of green gold, is never clear until it is put to use. The examples of Norin10 and IR36 clearly show that crop germplasm can often be worth billions”.

There are several obnoxious clauses such as the criminalisation of farmers, (See: Clause 58) which still remain in the current text. Clause 21 reduces the right of the farmer to the discretion of the Attorney-General and Minister of Justice, whilst Clause 23 of the Bill elevates the plant breeder’s rights over and above the laws of Ghana. The situation was grave. It was in this light that FSG wrote to congratulate His Excellency, President Nana Addo Danquah Akufo-Addo upon his election, dated December 13, 2016, stating among other things:

“Considering the numerous objections from experts all over the world, that UPOV benefits the big multinational seed corporations, and that a developing country like Ghana stands to lose by its adoption; the ubiquitous problem of corruption and the track records of the corporate lobby behind the UPOV bill, we strongly smell a rat. We do not only demand its withdrawal from Parliament, and a replacement with a “sui generis” plant variety protection system, but also, investigations into why we came so close as a people to be sold out to foreign seed companies, and draw the appropriate lessons. For the same reasons, we further call for the total rejection of the Arusha New Plants Protection Protocol, currently pending Parliamentary ratification, as just another way of smuggling into our laws, the same UPOV convention without public scrutiny.” See: FSG Congratulates President-Elect Nana Akufo-Addo, December 13, 2016. https://foodsovereigntyghana.org/fsg-congratulates-president-elect-nana-akufo-addo/

“Sensitisation” Workshops

In the evening of Wednesday, 26th February, 2020, FSG was alerted to an ongoing two-day “National Workshop on the Plant Breeders’ Bill”, in Accra organized by the Registrar General’s Department where the reviewed Plant Breeders’ Bill was expected to be presented. FSG only heard of this at the end of the first day from a representative from the Peasant Farmers’ Association of Ghana, PFAG. No formal invitation was ever extended, but were informed by a participant that “the organisers said FSG was welcome”.

It was at this ‘workshop’ that FSG learned from the organisers that the Cabinet of President Nana Akufo-Addo has taken the decision to re-introduce to Parliament, the controversial UPOV91-compliant Plant Breeders’ Bill without any changes. Naturally, since none of the numerous objections raised by civil society and faith-based organisations against the bill have been taken into consideration, a backlash is feared. Consequently, in order to preempt that, the idea of “sensitization workshop” was embarked upon, following Cabinet’s advice to first ‘educate stakeholders”. According to news reports , Mr. Samuel Anum, Project Coordinator of the Intellectual Property Project, Ministry of Trade and Industry, has indicated that “another one would be held for the northern sector to well educate stakeholders within that part of the country”.

Many organisations, including Food Sovereignty Ghana, that have publicly come out against the Plant Breeders’ Bill were not even invited to the workshops. This clearly clashed with the demands by numerous organisations for consultations, transparency, public awareness and participation in such an important decision. And as it happened, the meeting was structured in such a fashion that instead of the expected discussion on the fundamental objections to the bill, the meeting was turned into a classroom with several “professors” taking turns to lecture each participant who opened dared the mouth, within the limited time, without any interest in feed-back, nor any right of reply from the participants. And all this “discussion” happened in less than two hours.

Even though no one even saw a copy of the Plant Breeders’ Bill, at any of those “workshops”, the organisers were able to come to the conclusion that “invariably, there was much more of a consensus” (on the acceptance of the bill) at the Accra workshop and most probably, all the workshops. [See: Video Report on Meeting… Part One , 51.10] It is difficult to see how any form of transparency can be achieved when the invitations to the workshops themselves appear skewed towards organisations and institutions that have already expressed some form of support for the Plant Breeders’ Bill in the past, while very few of those who had even petitioned the Parliament over the same bill were excluded.

As our report on the meeting indicates, “There was no opportunity given in the programme for Food Sovereignty Ghana to respond to their answers, by way of feedback or further clarifications. We have thus included our response here. The very first time FSG has received any form of justification for “opting for UPOV” was the response from Mrs Grace Ishaque. She mentions our French-speaking neighbours,”Now, let’s ask ourselves, we are living in the global world, all the seventeen African countries, the francophone countries surrounding Ghana, they have all acceded to the UPOV.” She also says UPOV is a sui generis system. That is not enough. We asked for a ‘sui generis plant variety protection law that takes into consideration our local conditions’.”

The facts of the matter is that the seventeen “francophone countries surrounding Ghana” belong to the Organisation Africain de la Propriété Intellectuelle (OAPI – African Intellectual Property Organisation), introduced Annex X on plant variety protection – modelled on UPOV 1991 in 2006 – and they acceded to UPOV in 2014. Evidence shows that the membership of OAPI has not brought them any advantages. On the contrary data show that the Implementation of UPOV 1991 Unnecessary For the Development of a Strong Seed Market. A recent study on UPOV in West Africa reveals the ineffectiveness of the UPOV system even after 10 years of implementation. The OAPI study shows that implementing a UPOV-style PVP law in Western Africa brought no benefit for the french speaking countries, their farmers or seed sector.

One argument of the “sensibilisation team” was one of reciprocity of UPOV. This argument is a mute one as breeders in UPOV countries need to protect their variety in every state where they like to have protection. And breeders in non-UPOV countries can do the same. It is also argued by the proponents of the UPOV system, that membership of UPOV is a prerequisite to promote breeding activities and support development of a national seed market. But the recently published Access to Seed Index data seems to confirm that there is no causal relationship between the UPOV system and a dynamic seed sector. On the contrary, countries with a non-UPOV sui generis plant variety protection (PVP) legislation or even without a PVP legislation have in some regions the most vibrant seed sector. (Pls see https://www.apbrebes.org/files/seeds/Article%20UPOV_Access%20to%20Seed%20Index_Final_0.pdf )

As of today, the informal or farmer seed system still covers over 85% of the Ghanaian Seed market (see also https://www.mordorintelligence.com/industry-reports/seed-market-in-ghana ). Therefore any seed law – including plant variety protection, needs to support both systems (the formal and the informal one). This is also recommended by the FAO – Voluntary Guide for National Seed Policy Formulation :

“Strengthening both formal and informal seed systems is therefore an integral part of the sustainable use of plant genetic resources for food and agriculture (PGRFA)”. A main tool to strengthen the farmer seed system is to promote farmers rights – including the right to save, use, exchange and sell seeds. And before drafting any pvp law there should be an analysis about the current seed systems. Ghana clearly has not followed any of these recommendations. The process itself is therefore totally wrong.

When Ghana develops a plant variety protection right, it should take into account the process developed in the FAO Voluntary Guide for National Seed Policy Formulation. This includes first and foremost the evaluation of the existing system and knowledge about the role of the Farmers Seed System (informal system). The aim must be to strengthen farmers’ rights and the Farmer Seed System with a new plant variety protection law. The following lines from the FAO Voluntary Guide show this necessity.

Sound seed policy development requires a sequence of steps: careful problem analysis to determine the need for a seed policy, a thorough assessment of relevant technical and institutional aspects of the seed sector followed by a participatory formulation process involving all relevant stakeholders including small farmers. (Page3) See: FAO – Voluntary Guide for National Seed Policy Formulation http://www.fao.org/3/a-i4916e.pdf

There are independent scientific studies that confirm this. For example, Centre for International Environmental Studies Research Paper cites:

“Effective and well-designed IPRs are expected, in theory, to contribute to technology transfer by trade, licensing or foreign direct investment. This paper analyzes the effect of IPRs on trade in the sector of agricultural seeds, specifically on the effects on trade as a channel for technology transfer. The TRIPS Agreement has continued to be fiercely debated between North and South, particularly with respect to its provisions for the agricultural sector. Article 27.3(b) requires WTO member countries to offer some form of IP protection for new plant varieties, either in the form of patents (common in the US) or PBRs. It can be argued for the specific case of agricultural seeds that the introduction or strengthening of IPRs in countries with generally less innovative capacity in plant breeding will lead to an increase in seed imports from those countries possessing such capacity. Exporting firms would most likely expand their range of seed products exported to a country introducing IPRs. The paper therefore specifically analyzes the effects of the introduction of PBRs in almost 80 importing countries on the value of exports of agricultural seeds and planting material from 10 exporting EU countries, including all principal traditional exporters of seeds, as well as the US. The paper finds no significant effect from UPOV membership, as an indicator of the scope and strength of IPRs affecting the plant breeding sector, on seed imports, i.e. there is no evidence that the adoption of a UPOV system of PBRs positively influences seed imports. See: Trade and Intellectual Property Rights in the Agricultural Seed Sector, Derek J.F. Eaton (2013). Centre for International Environmental Studies Research Paper No. 20/2013. https://ssrn.com/abstract=2323595 or http://dx.doi.org/10.2139/ssrn.2323595

Another study on the “Impacts of Strengthened Intellectual Property Rights Regimes on the Plant Breeding Industry in Developing Countries: A Synthesis of Five Case Studies”, commissioned by the World Bank makes it clear:

“This study analyses initial experiences with strengthened IPRs and their effect on agriculture in developing countries, focusing on five case studies – China, Colombia, India, Kenya and Uganda. It assumes that the primary justification for IPRs is to increase welfare in society, but that the monopoly may disadvantage particular stakeholders. Careful consideration is thus needed of the different seed systems in the country and of the balance of economic interests of different stakeholders. The study finds that the emergence of the private seed sector in the case study countries owes relatively little to national IP regimes; the most dynamic private seed sector in the sample (India) has grown and diversified without benefit of any IPRs. With the exception of China (a UPOV 1978 member), the study found little evidence of actual revenue generation from breeding through IPRs. Instead, NARIs’ focus on revenue generation may divert attention from the needs of marginal farmers in favor of breeding objectives and methodologies directed at large-scale commercial production, and may affect the conduct of participatory methods in breeding and variety selection. The study also finds that farmers’ seed systems are the main source of seed and new varieties for most crops in the case study countries and that IPRs may reduce the effectiveness of these systems by limiting the saving, exchanging and selling of farmer-produced seed of protected varieties. The study concludes by pointing to significant lessons, including: (1) IPR regimes should be consistent with developing countries’ priorities and capacities instead of being externally imposed; (2) IPRs in plant breeding should be seen in the context of a wider range of agricultural policies, but IPR regimes themselves must be carefully tailored to specific situations; (3) the need to assess whether particular IPR regimes are actually providing incentives for seed system development consistent with national agricultural goals; (4) countries should recognize that they have choices in designing legislation consistent with the TRIPS Agreement; and (5) farmers should participate in debates regarding possible IPR regimes and that their interests and priorities are reflected in the work of public agricultural research. Important parameters that require careful consideration for PVP are: (1) the designation of which species are to be covered; (2) fee structures (and possible subsidies or differentiation by crop); (3) the nature of the breeder’s exemption for use of protected varieties; and (4) implications for farmers’ abilities to save, exchange and sell seed.” See: N.P. Louwaars, R. Tripp, D. Eaton, V. Henson-Apollonio, R. Hu, M. Mendoza, F. Muhhuku, S. Pal & J. Wekundah (2005). Report commissioned by the World Bank. Wageningen University and Research. https://library.wur.nl/WebQuery/wurpubs/fulltext/36798

Conclusion

There is something fundamentally wrong with the decision to adopt UPOV 91 Convention as Ghana’s plant variety protection regime. The Cabinet has the power to withdraw the bill and improve upon it before presenting it to Parliament. Since the Cabinet is responsible to the President, we shall be addressing our petitions to the President for urgent redress. What we seek is meaningful and inclusive consultations. The so-called “Sensitisation” workshop was a sham. When we raised the issues of inclusivity and broader consultations, FSG was invited to a special workshop.

A human rights impact assessment of the 1991 Act of UPOV implementation concluded “…if implemented and enforced, UPOV 91 would sever the beneficial inter-linkages between the formal and informal seed systems”, and its “restrictions on the use, exchange and sale of protected seeds could adversely affect the right to food, as seeds might become either more costly or harder to access” as well as “other human rights, by reducing the amount of household income which is available for food, healthcare or education.”

Experts believe that the prevailing policy framework favours centralized crop breeding and the creation of uniform environmental conditions and discourages agro-ecological research or local breeding tailored to local conditions.[Source: United Nations Development Programme (2008) “Towards a Balanced Sui Generis Plant Variety Regime”, available at http://www.undp.org/content/undp/en/home/librarypage/poverty-reduction/toward-a-balanced-sui-generis-plant-variety-regime.html ]

Even the UN General Secretary warns about the risk of UPOV as “An additional challenge that has advanced to the forefront is the pressures exerted on small-scale farming stemming from the provisions of the 1991 Act of UPOV. Restrictions on seed management systems can lead to a loss of biodiversity and in turn harm the livelihoods of small-scale farmers as well as weaken the genetic base on which we all depend for our future supply of food. As smallholders rely predominantly on informal seed systems, the restriction imposed by the Act on the use of farm-saved seeds and the prohibitions on their exchange and sale cause considerable concern.” [Source : See Report of UN Secretary General, Agriculture development, food security and nutrition para 68].

We shall join forces with all well-meaning Ghanaians, irrespective of party political affiliation, in demanding a withdrawal of the Plant Breeders’ Bill in its current form. We are already in talks with allied organisations, and invite all those who are yet to make the move to join us in this campaign.

No doubt, the interests behind the push for the UPOV-compliant Plant Breeders Bill are rich and powerful. Hence this is a struggle that can only be waged at the grassroots. For instance, if you do not see this statement in the media, as it was the case in the past, do not be surprised. The long reach of the corporate lobby is at work. The only way to counter them is the power of enlightened public opinion. We count on individual Ghanaians to help champion this cause on the social media hashtag, #WithdrawPlant BreedersBill, copied to @GhanaPresidency , asking for the right thing to be done because we are of sound mind and intent to vote in the December elections to see the back of any administration that seeks to impose the UPOV-compliant Plant Breeders’ Bill on Ghanaians.

For Life, the Environment, and Social Justice!

Edwin Kweku Andoh Baffour

Director of Communications, FSG