The Alliance for Food Sovereignty in Africa (AFSA), a Pan African platform comprising civil society networks and farmer organisations working towards food sovereignty in Africa, has today lodged an urgent appeal to the African Regional Intellectual Property Organisation (ARIPO), African Union and United Nations Economic Commission for Africa (UNECA) to urgently revise the draft ARIPO Plant Variety Protection Protocol, recognise farmers’ rights and facilitate the right to food.

AFSA is requesting that such revision be based on a broader consultation process with farmer organisations and experts from outside of the plant breeders? rights sector. African civil society organisations, many of them members of AFSA, made submissions to ARIPO on its draft Plant Variety Protection (PVP) law and policies in November 2012. AFSA has itself submitted comments on ARIPO’s Response to Civil Society: Draft Legal Framework for Plant Variety Protection, March 2014.

In both submissions, several serious concerns were raised about the law, which later was titled ‘the draft ARIPO Plant Variety Protection Protocol’, being based on UPOV 1991 (the International Union for the Protection of New Varieties of Plants), a restrictive and inflexible legal regime focused solely on promoting and protecting the rights of commercial breeders that develop genetically uniform seeds/plant varieties suited to mechanised large-scale mono-cropping agriculture systems.

Of particular concern, is that the draft ARIPO PVP Protocol renders the centuries-old African farmers’ practices of freely using, exchanging and selling seeds/propagating material illegal and undermines the right to food. ARIPO has dismissed these concerns and, instead, presented the draft PVP Protocol to an extraordinary session of UPOV on 11 April 2014, where the UPOV Council assessed the draft PVP Protocol and took a positive decision on the conformity of ARIPO’s draft Protocol with UPOV 1991.

If the draft Protocol is to be adopted without changes at the next Diplomatic Conference of ARIPO, set to take place in March 2015, ARIPO and any ARIPO member that ratifies the Protocol can join UPOV. According to AFSA, this means that any member state of ARIPO can simply sidestep national consultation processes and disregard farmers’ rights, ratify the ARIPO Protocol and become a UPOV 1991 member, all in one foul undemocratic swoop. In its latest appeal to ARIPO, the AU and UNECA, and acting upon expert legal advice obtained, AFSA is alleging that:

  • ARIPO has failed to comply with Article V of the 1976 Lusaka Agreement establishing the ARIPO (Lusaka Agreement), which requires ARIPO to consult with the AU and UNECA. Such failure to consult raises serious questions about the validity of the draft PVP Protocol.
  • The process adopted by ARIPO is flawed in that there has been inadequate consultation with relevant stakeholders, including organisations representing farmers and the general civil society, as required by international law, particularly that outlined in the International Covenant on Civil and Political Rights, the Convention on the Elimination of All Forms of Discrimination against Women and the International Treaty on Plant Genetic Resources for Food and Agriculture.
  • ARIPO has furnished incorrect information to ARIPO Member States, and that Member States did not give a mandate that the UPOV Council should examine the draft ARIPO PVP. ARIPO furnished incorrect information to ARIPO member states about adequate consultation with relevant stakeholders.
  • The provision of incorrect information by ARIPO constitutes gross negligence on the part of ARIPO, in the light of the UN International Law Commission’s 2011 Articles on the responsibility of international organisations and the International Law Association’s 2004 Final Report on Accountability of International Organisations.
  • ARIPO has not adequately facilitated a process whereby the right to food for all is fully taken into account. In an African context, where such a high proportion of farmers depend on farm-saved seeds, and where the legislation and institutions for curbing anti-competitive practices might differ between countries, this is an unforgivable and unwarranted omission.
  • ARIPO’s adoption of the least flexible approach in the realm of plant breeders’ rights, as set out in the draft ARIPO PVP Protocol, represents a protection regime that goes further than UPOV 1991, hence it is correct to describe it as ‘UPOV 1991+’. This is disconcerting, given that currently no sub-Saharan African State is bound by UPOV 1991

AFSA is seeking the following specific interventions:

  1. The draft ARIPO PVP Protocol should be immediately revised in order to comply with the more flexible effective sui generis requirement of TRIPS Article 27.3(b), as well as including provisions that recognise farmers’ rights and facilitate the right to food. This revision should be based on a much broader consultation process and by making use of experts from outside of the plant breeders’ rights sector.
  2. The ARIPO Secretariat should review the information that was provided during the presentation of the draft ARIPO PVP to its member states, and correct any information that is found to not have been adequately substantiated or adequately clear in its content.
  3. The governments of Ghana and Tanzania, both of whom are in the process of adopting legislation based on UPOV 1991, should commission an independent sustainability impact assessment of the draft plant breeders? rights, where the social impact is understood as encompassing human rights impacts.[i] The assessment should be presented to the respective national parliaments.
  4. ARIPO should request the AU and the UNECA to undertake an assessment in order to identify how the many recent initiatives for enhancing the productivity in the African agriculture can foster publicly initiated participatory breeding and strengthen public extension services
  5. ARIPO should consider how the many studies on effective sui generis systems for plant varieties can be made available to its member states.

Regulations cannot cure fundamental defects in draft PVP Protocol ARIPO specifies that there will be regulations based on the draft ARIPO PVP Protocol, with the aim ‘that the situation of small holder farmers will be taken into consideration in relation to farm-saved seeds'[ii].

To this extent, it hopes to host high-level consultations with policy makers from ARIPO member states during October 2014. While such regulations can be relevant for the interpretation of the draft ARIPO PVP Protocol, it is the wording of the Protocol that will prevail.

  1. The full submission can be viewed here.
  2. AFSA members include 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 Re?gionale des Organisations Paysannes d?Afrique Centrale (PROPAC).
  3. The following countries are members of ARIPO: Botswana, Gambia, Ghana, Kenya, Lesotho, Malawi, Mozambique, Namibia, Sierra Leone, Liberia, Rwanda, Somalia, Sudan, Swaziland, Tanzania, Uganda, Zambia and Zimbabwe (Total: 18 Member States). Sao Tome and Principe has deposited its Instrument of Accession to the Harare Protocol and will be joining ARIPO on 19 August 2014.
  4. For more background information on AFSA’s concerns regarding the ARIPO PVP Protocol, see ARIPO?s Plant Variety Protection Law Based on UPOV 1991 Criminalises Farmers? Rights and Undermines Seed Systems in Africa. Available at: AFSA-ARIPO-Statement
  • A document recognising this link between sustainability impacts and human rights impacts is OECD 2012. Recommendation of the Council on Common Approaches for Officially Supported Export Credits and Environmental and Social Due Diligence (the ‘Common Approaches’), 5.
  • ARIPO 2013. ARIPO-CM-XIV-8-Annex I, Responses to the comments made by civil society organizations, 3. [Online] Available at: AFSA-ARIPO-Comments
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