The Hon. Chairperson, Parliamentary Select Committee on Constitutional and Legal Affairs
Hon. Members of Parliament,
Rt. Hon. Speaker of the House
Clerk to Parliament
Dear Hon. Chairperson, and members of the Parliamentary Select Committee on Constitutional and Legal Affairs,
We write to thank you very sincerely for inviting us to express our concerns regarding the Plant breeders Bill, this Wednesday, 4th December, 2013.
Please find attached, a summary of our concerns as orally communicated, together with the documents referred to, as Appendices.
Thank you very much for your kind attention.
Duke Nii Amartey Tagoe
Deputy Chairperson, Food Sovereignty Ghana
Address: P.O. Box K272, Accra Newtown, Accra
Tel: +233 249867238 / +233 207973808
Executive Summary of Our Concerns On The Plant Breeders’ Bill To Parliamentary Select Committee
1.1 Food Sovereignty Ghana is a grass-roots movement of Ghanaians, home and abroad, dedicated to the promotion of food sovereignty in Ghana. Our group believes in the collective control over our vital collective resources, rather than the control by multinational corporations and other foreign entities of doubtful intentions and abilities. It is for these reasons that the Plant breeders’ Bill attracted our attention. We are not opposed to plant breeders being given some form of protection to enjoy the fruits of their labours. What interests us most is the fine-tuning and striking a fair balance between the interests of the plant breeder vis-a-vis the interests of the average Ghanaian farmer, and our national interests as a people.
2.0 The Basis of the Claims in the Petition.
2.1 The Bill gives unnecessary room for needless judgement debts whenever it becomes necessary for the state to regulate the activities of the plant breeder within the Republic of Ghana.
There is no need for Clause 23. No commercial activity requires such a power. It leaves a gaping loop-hole that is bound to saddle us with huge judgement debts. It is for this reason that we strongly recommend Clause 23 to be deleted. This clause will, at best, present us with a dilemma of regulating the activities of the plant breeder for the sake of public health or the environment and face judgement debts, or accepting the right of the breeder and be damned. As it currently stands in Clause 23, a plant breeder’s right is “independent of any measure taken by the Republic to regulate within Ghana the production, certification and marketing of material of a variety or the importation or exportation of the material”, irrespective of the consequences.
2.2 The Bill facilitates bio piracy
The Bill, as it stands, facilitates bio piracy in that it does not require a breeder to disclose the origin of the genetic material used to develop the variety it wishes to protect and neither does it provide mechanisms for prior informed consent and access and benefit sharing, although African nations have championed these mechanisms in various international forums. It actively promotes the theft of the commons. The amendments we are proposing seek to block this. See: i/ To add to Section 9 (3) APPENDIX I:
2.3 The Bill imposes unacceptable limitations on the Policy Space it leaves for the state to regulate the activities of plant breeders
It is one thing protecting the rights of a plant breeder and quite another thing surrendering our sovereignty to unelected and unaccountable foreign entities. The Bill, as it stands, contains clauses that have serious implications on our sovereignty as a people, including unacceptable limitations on the policy space it leaves for the state to regulate the activities of plant breeders vis-à-vis measures to protect public health and the natural environment. See: X/ Delete Section 23 on Measures regulating commerce. APPENDIX I
2.4 The Bill hinders Ghana’s ability to fulfil its commitments under the international Treaty on Plant Genetic Resource for Food and Agriculture
The Bill hinders Ghana’s ability to fulfil its commitments under the international Treaty on Plant Genetic Resource for Food and Agriculture in particular, to realise, protect, and promote farmers rights, including the right to save, use, exchange and sell farm-saved seed and other propagating material, and to participate in decision-making regarding, and in the fair and equitable sharing of the benefits arising from the use of plant genetic resources for food and agriculture. See: APPENDIX II
2.5 The Bill is silent on the urgent need for fair and equitable sharing of the benefits arising from the use of plant genetic resources for food and agriculture.
The Bill sets up a framework for commercial breeders – most of which are likely to be foreign entities – to use local germ-plasm to develop varieties that are then exclusively appropriated by such breeders through the PVP system established by the UPOV Convention. The language used in the Bill does not represent the position African countries have taken regionally and at international fora around issues on genetic resources, access and benefit sharing, indigenous knowledge, community and farmers’ rights. It is based entirely on the positions of the industry, the UPOV Secretariat in Geneva, and other foreign entities. Our proposed amendments seek to rectify this. See: ix/ To add Clause 21 to expand farmers rights. APPENDIX I.
2.6 The Bill will lead to erosion of crop diversity and thus reduce resilience to threats such as pests, disease or climate change.
The Bill must in the context of providing a tool for innovation, rather not end up as a toll for domination. Particularly, care must be taken in order to eliminate a raid on our genetic resources by foreign entities for free, take ownership of them, and impose royalties for our use. As Vandana Shiva points out from the experience in India, where hundreds of thousands of farmers committed suicide after being indebted, there is also a problem of the destruction of farmers’ choice by the multinational corporations systematically replacing seeds less profitable to them with the more profitable ones: See: APPENDIX III.
3.0 A background and best practices internationally.
3.1 We are especially concerned because of the irreversible nature of this Bill. We wish to humbly draw the attention of Honourable members to the fact that this Bill, once it is passed into law, can no longer be reversed. One of the most contentious points in the informal negotiations was the no-rollback (NRB) clause. This clause, found in paragraph 5 of the previous extension decision (IP/C/40), states, for even Least Developed Countries which have exemptions: “Least-developed country Members will ensure that any changes in their laws, regulations and practice made during the additional transitional period do not result in a lesser degree of consistency with the provisions of the TRIPS Agreement. Under this condition, Ghana cannot experiment with IP-legal reforms that are suitable to our development context, if we begin with the most restrictive regime such as UPOV 91. For example, If Ghana introduces a TRIPS-compliant obligation on IP-protection, it would no longer be able to reduce that scope of protection, regardless of the fact that we voluntarily enlisted.SeeAPPENDIX IV.
3.2 Since there is no other way of amending this Bill in the future if it is passed, we need to get it completely right, once and for all. We need to have a law that we can be comfortable with as a nation. It is for these reasons that the Africa Union developed a model that is more suitable for Africa. See: APPENDIX V. The natural and logical thing to do as a developing nation is to apply the minimum standards “to protect varieties either by patent or by an effective sui generic system of protection or by a hybrid of these two systems which is the plant breeders rights system”, demanded under the WTO. UPOV is clearly not a solution but part of the problem.
3.3 UPOV has been unpopular since its inception in 1961.It was accused of being shrouded in secrecy. It has since struggled to deliver on promises of transparency through its website. Of the current 71 countries that have signed up to the UPOV Convention, only 18 are from developing countries and most of these are members of UPOV 1978, while most developed countries are members of UPOV 1991. Compare this with the 166 number of countries which have signed up to the Cartagena Protocol on Biosafety to the Convention on Biological Diversity, which is even much more recent. It is not for nothing that at present, in Africa only Morocco and Tunisia are signatories to UPOV 1991, while Kenya & South Africa are signatories to UPOV 1978. See: APPENDIX VI.
4.0 A brief analysis of the local situation.
4.1 It aims to replace traditional varieties with uniform commercial varieties and increase the dependency of smallholders on commercial seed varieties. This system aims to compel farmers to purchase seeds for every planting season or pay royalties to the breeder in the case of reusing farm-saved seeds. In addition, farmers are required to pay for expensive inputs (e.g. fertiliser) since the performance of these commercially protected varieties is often linked to such inputs, thereby creating vicious cycles of debt and dependence.
Such a system will result in the erosion of crop diversity and reduce resilience to threats such as pests, disease and climate change. It will also result in farmer indebtedness in the face of unstable incomes (as revenue would vary depending on seasons). Additionally, these commercially high yielding varieties are very likely to be less suited to the specific agro-ecological environments in which farmers work, and for which locally adapted traditional farmer varieties are, by far, more appropriate.” See: APPENDIX VII
5.0 Specific problems section by section.
5.1 Please, find in the APPENDIX I attached, a detailed analysis of our concerns in the Bill, and justifications for the amendments proposed, section by section.Thank you very much for your kind attention.
Food Sovereignty Ghana
The international Treaty on Plant Genetic Resource for Food and Agriculture
Seed Monopolies, GMOs and Farmers’ Suicides in India, by Dr. Vandana Shiva, an article published 1st May, 2013
TWN Info Service on Intellectual Property Issues (Jun13/06), by Sangeeta Shashikant,
15 June 2013, Third World Network:
The African Model Law on Plant Variety Protection from 2000
What Is UPOV 91?
The Technical Expert Committee Report and Supreme Court ruling of India.
Indian PVP Model: The Protection of Plant Varieties and Farmers’ Rights Act, 2001