Plant Variety Protection Regime in Relation to Relevant International Obligations: Implications for Smallholder Farmers in Kenya

• Date: 01 March 2015
• Author: Peter Munyi
• DOI: http://doi.org/10.1111/jwip.12031
• Published date: 01 March 2015

Plant Variety Protection Regime in Relation to

Relevant International Obligations: Implications

for Smallholder Farmers in Kenya

Peter Munyi

Law and Governance Group Wageningen University, Wageningen, the Netherlands

Together with other laws affectingagriculture, Kenya’s plant varieties protectionlegislation was radically amended in

2012. The amendmentswere mainly driven by the quest to comply with international obligations,principally the 1991

UPOVConvention. However, the country is also a contractingparty to other international treatiesaffecting seeds such as

the InternationalTreaty on Plant Genetic Resourcesfor Food and Agriculture and theWTO Agreement on Trade Related

Aspects of Intellectual Property Rights. Moreover, the national Constitution obligates statutory recognition and

protectionof the ownership of indigenous seeds and plantvarieties, their genetic and diverse characteristics,and their use

by the communitiesof Kenya. The obligations deriving from all these internationalagreements must be fulfilled against

a backdrop of farming systems that are predominantly smallholder farmer-based. This article discusses how the

amendments in the new Kenya plantvariety protection law depart from the former legal regime and analyzeswhether

the current regime is compliant with international obligations, and the implicationsfor smallholder farmers.

Keywords breeders-rights; plant varieties; smallholder farmers

International PVP Obligations and Domestication Dilemmas

This article analyzes the revision of a domestic plant variety protection regime in Kenya against the

backdrop of a set of international obligations and farming systems that are predominantly smallholder

farmer based. The article addresses questions regarding how the global PVP architecture has influenced

domestic legislation, and its implications for smallholder farmers. In the area of intellectual property

protection, globalization, and the correspondent development of international instruments defining

relations among nations has become a catalyst to proliferation of legislation governing intellectual

property rights (IPRs), in particular to developing countries such as Kenya.

Adopted in 1994, the World Trade Organization (WTO) Agreement on Trade Related Aspects of

Intellectual Property Rights (TRIPS) stands out in this context, foremost because it constitutes part of an

international legally binding agreement to which an enforcement mechanism is available. National

compliance with its provisions is therefore one of the key pillars of the implementation of TRIPS. The

requirement under TRIPS that intellectual property protection must be provided for plant varieties

provided a logical opportunity for the International Union for Protection of New Varieties of Plants

(UPOV) to present itself as the obvious de facto sui generis mechanism for protection of plant varieties

(PVP). Seen in the broader context of IPRs, contention exists on whether PVP promotes industrial

enterprise, enabling innovation, and ultimately providing farmers and gardeners more choice and varieties

of better yield and quality.

1

Mooney (1979) argues that PVP among other effects: (i) encourage economic

concentration; (ii) threaten traditional agriculture and food security; (iii) constrain free exchange of

germplasm; (iv) contribute to genetic erosion; (v) threaten biodiversity; and (vi) lead to appropriation of

what is otherwise common heritage for mankind.

This debate was at the heart of the ne gotiations throughout the 19 80s and 1990s that culminated in

the adoption of Convention on Bio logical Diversity (CBD), and th e International Treaty on Plant

©2015 John Wiley & Sons Ltd 65

The Journal of World Intellectual Property (2015) Vol. 18, no. 1–2, pp. 65–85

doi: 10.1111/jwip.12031

Genetic Resources for Food Agric ulture (IT) under the auspices of the Foo d and Agriculture

Organization of the United N ations (FAO) (De Jonge, 2011 ). The IT brought farmers, p articularly

smallholder farmers, into shar p focus for their role in conserving plan t genetic resources for food and

agriculture (PGRFA), howe ver without recognition or cl aim for ownership rights. Bes ides, the IT also

laid bare the fact that countri es are interdependent on germp lasm for food and agriculture a nd as such,

no country exists in a vacuum.

Countries that are contracting parties to these agreements are faced with the dilemma how to conform

to these international obligations at the national level. Kenya became a member of the WTO in 1995, the

UPOV in 1999, and the IT in 2003. In observing international agreements and domesticating them, the

country has to contend with local realities. In the context of agriculture, these realities are characterized by

among others, farming systems and rural economies that are largely smallholder farmer based. In Kenya,

agriculture provides employment to 75% of the total labor force, and contributes close to 25% of the

national gross domestic product (Devarajan and Kasekende, 2011). Over 75% of the total agricultural

outputs are produced by smallholder farmers with farm sizes of 2.5 ha on average, producing mainly for

home consumption, and using traditional technologies (FAO, 2009). There is also a significant commercial

horticultural sector, producing mainly for export. This statistical information demonstrates that the

smallholder farmer plays a significant role in provision of employment, income, and food at the national

level. This means that the nationalization of these international regimes should support, or at least not

counteract the interests of these farming systems.

Whereas they mainly produce for home consumption, smallholder farmers are not substantial

participants in formal seed markets, which are characterized by among others certified seeds or seeds

protected with some form of IPR. Indeed, with a few exceptions, mainly maize and wheat, significant

portions of seed and planting material in Kenya are accessed from farmer-based sources. Ayieko and

Tschirley (2006) have found that for bananas, beans, cassava, ground-nut, millet, pigeon pea, sorghum,

soybean, Irish potato, and sweet potato over 80% of seed is accessed from farm-saved sources. Maize is the

exceptional cereal crop mainly because of the hybrid nature of the high yielding varieties whose offspring

does not breed true-to-type once saved, leading to lower yields in the next generation.

PVP provides the breeder commer cial benefits, and is thus not prim arily geared to affect non-

market seed systems. Yet th e country is littered with a diversity of farming and seed systems-farmer

based seed systems, commu nity based seed systems, pub lic formal seed systems, mi xed public private

seed systems, pure private valu e chains, and relief seed syste ms (Munyi and De Jonge, 2015). The

architecture of PVP at the gl obal level and its domestica tion at the national level ap pears not designed

to equally address these di fferent seed systems and esp ecially bypasses the needs of the smallholder

farmer. Each of these seed systems ta kes place in specific agro-ecosys tems, with specific goals,

objectives, and production needs.

Below is an examination of the global PVP architecture of relevance to Kenya. In this context, a brief

introduction to some of the main features of TRIPS, UPOV, and the IT is undertaken. This is followed by

an examination of the Kenya PVP regime juxtaposed against the international regimes aforementioned.

In undertaking this examination, the main departures between the Seeds and Plant Varieties Act 1972

(“the SPVA”) and the Seeds and Plant Varieties (Amendment) Act 2012 (“the 2012 SPVA Amendment”)

are identified, particularly in how these two statutes conform to and depart from the UPOV system, as well

as how they contribute to the fulfillment of TRIPS and IT obligations. Subsequently, a discussion on the

following four issues follows: (i) the extent to which indigenous seeds and plant varieties are protected

given the constitutional requirement for their protection; (ii) access to foreign germplasm by local farmers,

having been identified as a key policy objective of the PVP system; (iii) whether the PVP legislation

now meets UPOV 1991 standards given that Kenya seeks to join UPOV 1991 membership; and

(iv) implementation of farmers’privilege in line with IT obligations.

Peter Munyi Plant Variety Protection Regime

©2015 John Wiley & Sons Ltd

66 The Journal of World Intellectual Property (2015) Vol. 18, no. 1–2