Harmonised corporate seed laws in Africa: Where does this leave smallholder farmers?

The expansion of the corporate seed market, embedded in the green revolution agenda in sub-Saharan Africa is progressing very fast. This expansion is going hand in hand with regional policies and regulations – in a process also known as seed harmonisation – that will enable facilitate trade across national borders. This has been the case in Southern and Eastern Africa in the last two and a half decades within three overlapping regions-SADC, COMESA and the EAC. These harmonised seed regulations focus solely on the formal seed sector, both neglecting and prohibiting the historical and current role played by farmer-managed seed systems, which indisputably provide the majority of seed used in food production across the continent. The harmonisation efforts attempt to shortcircuit lengthy and costly variety testing and release processes that take place at the national level. Proponents of the seed regulations argue that this will facilitate greater availability of seed and will increase smallholder farmers’ access to improved seed. It is questionable though,  whether the formal seed systems which favour large-scale seed corporations will be able to meet African farmers’ requirement on access to good quality seed in sufficient time. This is because at the moment, across Eastern and Southern Africa, the formal seed sector supplies only 10–20% of the seed used by smallholders. Harmonisation processes seem to disregard the undeniable fact that the majority of seed is produced locally by farmers, who manage their own seed supply through farmer-managed seed systems, with around 90% sourced from informal systems, of which 60% comes from local markets. Harmonisation processes centre on three core aspects: variety testing, registration and release; seed certification; and phytosanitary measures. In the case of the South African Development Community (SADC) and Common Market for Eastern and Southern Africa (COMESA) systems, once a variety is released in two member states, that variety can be included on the regional variety catalogues and will be deemed to be registered in all member states that have acceded to the respective harmonisation framework. The East African Community (EAC) requires a variety to be released in one member state only before it can be made available for regional trade in all the countries in the EAC. The costs of registering a variety are very high; for example, COMESA’s fees for registering a variety are US$ 400, its transfer fees are US$ 300 per country, and it requires an annual fee of US$ 200. The variety must then also undergo vigorous testing for Distinctiveness, Uniformity and Stability (DUS) and Value for Cultivation or Use (VCU) before release and registration. It is unclear how these tests can accurately determine the suitability of a variety’s performance across diverse climatic and biophysical conditions for all the countries in the three regions. It is thus extremely worrying as there are no mechanisms for redress by and compensation to farmers in the event a variety fails to perform.

We are witnessing the exclusion, neglect and criminalisation of farmers’ seeds and farmers’ seed systems, despite their indispensable role in the maintenance and production of agricultural biodiversity. Seed laws – be they regional or national – make it unlawful to market and trade seed that is uncertified, thereby criminalising the sale and even the exchange of farmers’ varieties. Unfortunately, registration and certification processes are administratively complex, strict, onerous and expensive. With the high costs involved, the intensive labour demands, and the impossibly stringent and inappropriate international standards, it is difficult to certify and trade farmers’ varieties, making it unlikely that smallholder farmers or small-scale seed enterprises will be able to participate. Further to that, these create barriers for farmers varieties and small-scale seed producers from entering the seed market. Farmers use and want continued access to, their own varieties, which have adapted over the years to their local agro-ecological conditions as mentioned in a recent report by ACB, and unfortunately, this is not being taken into consideration. The SADC and COMESA regions have finalised and operational seed regulation frameworks and institutions in place but the EAC is yet to have a finalised seed harmonisation framework. The SADC Technical Agreements on Harmonisation of Seed Regulations – a guiding framework, not a legally binding tool – became operational in 2013, once two-thirds (i.e. 10 member states) of the SADC countries had signed the Memorandum of Understanding (MoU). Angola, Zimbabwe, Seychelles and Madagascar have yet to sign the MoU. The SADC Seed Centre implements, coordinates and supervises the registration and development of the regional seed catalogue, and operates as the Secretariat to the SADC Technical Agreements.The Seed Charter, the Seed Centre’s constituting document, was approved at the SADC Council in August 2017, along with the publication of the SADC Regional Variety Catalogue. In December 2015, USAID began its Feed the Future (FTF) Southern Africa Seed Trade Project, aiming to speed up the operationalisation of the SADC Technical Agreements. The FTF programme is targeting four countries: Malawi, Mozambique, Zambia, and Zimbabwe. On the other hand, COMESA Seed Trade Harmonisation Regulations were approved in 2014. While these are the newest regulations in the harmonisation seed process, they are proceeding more rapidly than the others. COMESA has been implementing the COMESA Seed Harmonisation Implementation Plan (COMSHIP), established in 2015, through its specialised agency, the Alliance for Commodity Trade in Eastern and Southern Africa (ACTESA), across its now 21 member states. Rwanda and Burundi have fully domesticated the COMESA seed regulations within their national seed laws, and Uganda, Kenya, Malawi, Zambia and Zimbabwe are all in the advanced stages of domesticating the seed regulations. A number of seed harmonisation processes in the EAC have taken place since 1999. These include the regional harmonisation agreements in 2002 around: (i) variety evaluation, release and registration process; (ii) seed certification process; (iii) phytosanitary measures; (iv) plant variety protection; and (v) import/export documentation. The draft EAC harmonised regulatory framework should have been submitted to the Sectoral Council on Agriculture and Food Security for endorsement by mid-2016, to have been ready for validation and adoption by December 2016. However, it is not certain how far the process of adopting the framework has moved. SADC is the only regional economic community to provide for the registration of landrace varieties. This provision opens new avenues to make farmers’ varieties part of the commercial seed sector and eligible for regional trade. Traditionally, landrace varieties are not able to pass formal DUS and VCU tests, due to their heterogeneity and adaptability. How this system will be operationalised, and who will ultimately benefit, remains to be seen. It is unfortunate that the orientation of harmonised seed regulation systems is deeply embedded within the green revolution ideology, which promotes large-scale agribusiness as the solution to seed insecurity in Africa. This approach is deeply flawed and fails to ensure a long-term solution for the region. Clearly, the harmonisation of seed laws across the region will favour the expansion of the formal seed system and the spread of corporate seed, while at the same time further neglecting and marginalising farmer varieties and farmer-managed seed systems, thus threatening agricultural biodiversity. This will have major implications for the availability of seed and therefore the future of food production across the continent. Civil society across Africa has long advocated for systems that support seed and food sovereignty, agricultural biodiversity and agroecology, as central to the future of African seed and food systems. The failure of the formal seed regulations, in particular, phytosanitary control measures have already been illustrated with the recent outbreak of the Fall Armyworm which has caused devastation across much of sub-Saharan Africa. The phytosanitary control measures were unable to prevent the movement of Fall Armyworm via grain imports into Africa from the Americas. It is still unclear how the new harmonised phytosanitary measures will deal with such issues, which have catastrophic consequences for farmers in the region. All the harmonisation efforts underway should, therefore, include provisions that guarantee the rights of farmers, especially of women farmers. For instance, the recently concluded discussions under the International Treaty on Plant Genetic Resources for Food and Agriculture have resulted in a call for contracting parties to review or adjust national laws that affect the realisation of farmers’ rights; in particular, those regulations concerned with variety release and seed distribution. This is something that also has to be taken into consideration by regional harmonisation processes.

In order to guarantee rights of farmers, this requires comprehensive and appropriate national and regional seed policies that acknowledge the small-scale farmers’ role in ensuring adequate and available seed for local production, as well as protect agricultural biodiversity. Furthermore, African civil society should be involved in decision making and formulate comprehensive seed policies for farmer-managed seed systems, to ensure egalitarian, sustainable and thriving national and regional seed systems. This is an introductory blog to ACB’s upcoming Status Report on the SADC, COMESA and EAC harmonised seed trade regulations: Where does this leave the regions’ smallholder farmers? which will be published early in 2018.  

Linzi Lewis is a research and advocacy officer at the ACB and Sabrina Masinjila an ACB outreach and advocacy officer.