In the recently published discussion paper, ‘The SADC PVP Protocol: Blueprint for uptake of UPOV 1991 in Africa’, Sabrina Masinjila and Mariam Mayet, provide an updated critique on the regional Plant Variety Protection (PVP) system developed under the auspices of the Southern African Development Community (SADC) – the SADC PVP protocol – adopted by the Heads of States and Governments of SADC in August 2017. They also discuss the anomalies between the SADC Protocol and the Arusha PVP Protocol, as nine SADC countries are also members of ARIPO.

The SADC PVP Protocol is among the many efforts of regional harmonisation taking place on the continent to expedite trade and production of commercially-bred seed varieties and facilitate the corporate takeover of the seed industry. The SADC PVP protocol has come under great criticism by African farmer and civil society organisation (CSOs) particularly as it is based on UPOV 1991, an inflexible PVP regime developed for industrialised countries to address their own plant breeding and development needs. The Protocol provides an extremely inappropriate PVP system that is contrary to the actual needs of African agricultural systems where nine of the SADC member states are least developed countries.

In this paper, key concerns with the SADC PVP protocol are outlined, including the most shocking being the absence of provisions or mechanisms to enable member states to object to the application of PBRs in their territory and thus exercise their national sovereignty. This is a serious oversight, one that has been addressed by ARIPO in the Arusha PVP protocol.

As a result of the robust advocacy work by African farmer and civil society interventions on previous draft versions of the Protocol, two significant gains were made in the adopted SADC PVP Protocol, the first being the requirement to declare the provenance or origins of germplasm used in the development of new varieties, in order to be granted a PBR, while the second includes an additional exception of breeders’ rights of what is commonly known as farmers privilege (Article 28 (d)). However, the provisions on farmers’ privilege do not go far enough to ensure the realisation of farmers rights, and much rests on the definition of, “non–commercial purposes”, and the use of protected varieties within the “reasonable limits and safeguarding the legitimate interest of breeder’s rights”. These concerns are also similar to the first exemption for farmers on ‘private and non-commercial use’ (Article 28 (a)). It is necessary that broad definitions are applied for these concepts in the regulations or national legislation.

We urge the SADC members states not to ratify the SADC PVP Protocol to the flawed, inappropriate and inconsistent provisions, and for member states without PVP laws in place to develop suitable and flexible PVP systems. SADC member states are urged to conduct independent and participatory impact assessments to explore the consequences the UPOV 1991- based regional PVP system will have on smallholder farmers and rural communities. Furthermore, if and when the regulations are developed for the implementation of the SADC PVP protocol, it is vital that African smallholder farmers, indigenous and local communities and CSOs are consulted extensively to ensure an inclusive and transparent decision making process is followed in accordance with provisions of Article 9 of the Farmers Rights treaty.

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