Info Service on Biodiversity and Traditional Knowledge (Feb14/11)
Please find below a letter from NGOs around the world expressing solidarity with farmers and civil society groups in Ghana that have expressed serious concerns with the Plant Breeders' bill pending in the Parliament.
Early this years, farmer, labour unions, religious, political and civil society organisations took to the streets of Accra on 28th January to demonstrate against the adoption of the Plant Breeders’ Bill that is before the Parliament. See http://www.apbrebes.org/news/massive-protests-ghana-over-upov-style-plant-breeders-bill.
GHANA’S PLANT BREEDERS BILL LACKS LEGITIMACY! IT MUST BE REVISED
The Hon. Chairperson, Parliamentary Select Committee on Constitutional and Legal Affairs, Alban Kingsford Sumana Bagbin,
Hon. Members of Parliament,
We, the undersigned organizations from Africa and around the world are concerned with the conservation of agricultural biodiversity for livelihood security and food sovereignty, promoting farmers’ rights and self-determination and citizen involvement in the decision-making process.
The undersigned organizations would like to express our solidarity with farmers and civil society groups in Ghana that have expressed serious concerns with the Plant Breeders’ Bill pending in the Parliament (“the Bill”).
The Bill is modeled on the International Convention for the Protection of New Varieties of Plants of 1991 (UPOV 1991) which a rigid and an inflexible regime for plant variety protection (PVP). It is worth noting that today out of the 71 UPOV members, only a fraction - about 22 developing countries are members of UPOV. Most of these developing countries (e.g. Brazil, China, Argentina, South Africa) and even some developed countries (e.g. Norway) are not members of UPOV 1991 but rather UPOV 1978, which is a far more flexible regime.
Ghana has full flexibility under the World Trade Organization (WTO) to develop an effective “sui generis” system for plant variety protection, i.e. to develop a unique system that suits its needs. In view of this, it is truly unfortunate and even irrational that instead of designing a PVP regime that reflects the agricultural framework and realities of Ghana as some other countries have done (e.g. India, Thailand, Ethiopia), Ghana is choosing to adopt and be bound by UPOV 1991 without any concrete evidence or impact assessment of the necessity and impacts of adopting such a regime.
As a member of the International Treaty on Plant Genetic Resources (ITPGRFA) we expect Ghana to take steps to realize farmers’ rights to use, sell, save and exchange farm-saved seeds, to protect their traditional knowledge and to allow their participation in national decision-making.
It is thus extremely disappointing to see that the Bill is heavily tilted in favor of commercial breeders and undermines farmers’ rights. The Bill does not allow farmers to sell and exchange seeds. Farmers’ use of farm saved seed on its own holdings is limited to “personal use” and regulations by the Minister and may be subject to payment of royalties. Noting the widespread protests by farmer groups in Ghana earlier this year it is clear that farmers have not been consulted sufficiently in the development of the Bill.
We are of the view that it is entirely possible to have an effective law on plant variety protection without compromising Ghana’s international obligations and farmers’ rights. Today, several countries have used innovative approaches in their PVP legislation that balances the interests of the breeding industry and farmers’ interests. India is one such example.(1) The African Model Law for the Protection of the Rights of Communities, Farmers and Breeders discussed and endorsed at the African Union level also contains innovative approaches for consideration (2)
The Memorandum to the Bill misleadingly argues that farmers have the right to use protected varieties as a source for further research and breeding activities. In actual fact under the Bill, if a protected variety is used for further breeding and where the variety developed from the protected variety is an essentially derived variety (EDVs), breeders’ rights extend to the EDVs. This concept of EDVs is highly contentious and uncertain. Many advanced developed countries are still grappling with this concept and its implementation. What is or is not an EDV is a question subject to extensive court and arbitration disputes. These types of provision favor multinationals, which have immense financial resources at the expense of farmers and even local breeders. It is simply not necessary to include such a provision in the PVP legislation. Many developing countries with successful PVP regimes do not incorporate such a clause in their national legislation.
It is also being argued that the Bill will lead to the development of varieties that are suitable for the needs of Ghana and is important for food security.
In reality the Bill only incentivizes “uniform” varieties. The Food and Agricultural Organization (FAO) estimates that about 75% of the genetic diversity of agricultural crops has been lost due to proliferation of commercial uniform varieties replacing native land races. The erosion of crop genetic diversity poses a serious threat to food supplies as it reduces resistance to pests, diseases and changing weather patterns. Genetic diversity within crops is also decreasing.
Additionally it is erroneous to suggest as the Memorandum does that the Bill will develop varieties that are suitable for the needs of Ghana. PVP systems tends to incentivize and orientate development of new varieties where a commercial market exists and where significant profits can be made. It is definitely not the solution to addressing the nutritional and food security needs of Ghana.
The argument in the Memo that the Bill will “help farmers break out of their cycle of subsistence farming” is also flawed. The Special Rapporteur on the Right to Food has noted in a recent report that “This shift has led to grant temporary monopoly privileges to plant breeders……through the tools of intellectual property, as a means to encourage research and innovation in plant breeding. In this process, however, the poorest farmers may become increasingly dependent on expensive inputs, creating the risk of indebtedness in the face of unstable incomes. …. The farmers’ seed systems may be put in jeopardy, although most farmers in developing countries still rely on such systems, which, for them, are a source of economic independence and resilience in the face of threats such as pests, diseases or climate change.”(3)
The Bill also contains a “presumption” whereby a plant breeder is considered to be entitled to intellectual property protection in the absence of proof to the contrary.(4) Usually the onus is on the applicant to prove that he or she has complied with the necessary requirements and is thus entitled to protection. But in this case there is a presumption in favor of the plant breeder. This “presumption” provision and the lack of an explicit provision that calls for the disclosure of origin of the genetic material used in the development of the variety including information of any contribution made by any Ghanaian farmer or community in the development of the variety creates opportunities for breeders to misappropriate Ghana’s genetic resources using the PVP system and to exploit smallholder farmers.
It is important to note that Ghana is a member of the International Treaty on Plant Genetic Resources for Food and Agriculture (ITPGRFA) and the Convention on Biological Diversity and both these instruments champion fair and equitable sharing of benefits arising from the utilization of genetic resources. Including a disclosure of origin provision in the Bill is critical as it is widely recognized as an important tool to safeguard against biopiracy. Several countries have included such a provision in its PVP legislation and there is no reason why Ghana should not do the same.
The Bill also lacks provisions that will ensure that intellectual property protection will not be granted to varieties that adversely affect public interests.
The undersigned signatories strongly urge the Parliament to refrain from adopting the Bill. We are of the view that in its current form the Bill lacks credibility and legitimacy and does not benefit Ghana. Extensive consultations involving all stakeholders including the farming communities and civil society should be initiated urgently with the aim to develop a balanced and equitable legislation, with appropriate safeguards to protect the interests of smallholder farmers and public interests.
The Protection of Plant Varieties and Farmers Rights Act, 2001
For Food Sovereignty (AFSA)
African Biodiversity Network
Abalimi Bezekhaya (South Africa)
Actions pour le D้veloppement Durable/ Actions for sustainable
Development NGO (Benin)
African Centre for Biosafety (South Africa)
Alliance for Agroecology and Biodiversity Conservation (Zambia)
Alternative Agriculture Network (Thailand)
Berne Declaration (Switzerland)
Biaดlii, Asesorํa e Investigaci๓n, A.C.(Mexico)
Bifurcated Carrots (the Netherlands)
Biowatch South Africa
Both ENDS, (the Netherlands)
Center for Health, Human Rights and Development (CEHURD)
Community Mobilization Against Desertification (Kenya)
Dachverband Kulturpflanzen- und Nutztiervielfalt (Germany)
Environmental Rights Action/Friends of the Earth Nigeria
Fambidzanai Permaculture Centre (Zimbabwe)
Farm and Garden National Trust (South Africa)
F๖reningen Sesam-Society For Protection Of Heirloom And Rare
Vegetables And Crops
Food Matters Zimbabwe
Food Rights Alliance - Uganda (FRA)
Gaia Foundation (UK)
Friends of the Earth (South Africa)
Health of Mother Earth Foundation (HOMEF) (Nigeria)
Institute for Agriculture and Trade Policy (US)
JA/Friends of the Earth Mozambique
Kasisi Agricultural Training Centre (Zambia)
Les Amis de la Terre-Togo (FOE-Togo)
33. MELCA Ethiopia (Movement for Ecological Learning and Community Action) Non-profit organization working for the revival and enhancement of traditional ecological knowledge and protecting the rights of communities in Ethiopia.
National Association of Professional Environmentalists (NAPE) (Uganda)
National Farmers Union (Canada)
OGM Dangers (France)
Organic Growers of Ireland (OGI) (Ireland)
Pan-Africanist International (Belgium)
Participatory Ecological Land Use Management (PELUM) Association
Save Our Seeds (Europe/Germany)
South Asia Watch on Trade, Economics and Environment (Nepal)
Southeast Asia Regional Initiatives for Community Empowerment (SEARICE)
Southern and Eastern Africa Trade Information and Negotiations Institute
(SEATINI-Uganda) and (SEATINI- South Africa)
Tanzania Alliance for Biodiversity (TABIO)
Terra Nuova (Italy)
The Ram’s Horn (Canada)
Third World Network (Malaysia)
Unitarian Service Committee of Canada (USC Canada)
Verein zur Erhaltung der Nutzpflanzenvielfalt-(Seed Savers’Association,
World Development Movement (UK)