PETITION TO PARLIAMENT ON THE PLANT BREEDERS’ BILL, 2013.

November 24, 2013 by admin

PETITION TO PARLIAMENT ON THE PLANT BREEDERS’ BILL, 2013.

To:

Rt. Hon. Speaker of the House,

Honourable Chairperson of Committee on Constitutional, Legal, and Parliamentary Affairs,

Honourable Members of Parliament,

Copy to:

The Clerk to Parliament,

Media Houses.

PETITION ON THE PLANT BREEDERS’ BILL, 2013.

We, the undersigned, representatives of the respective civil society, religious, and political organisations,

NOTING WITH DISMAY that the Plant Breeders’ Bill currently before Parliament has moved to the Consideration Stage;

DESIROUS to urgently contribute to the debate in order to help ensure the rights of the small farmer are not trampled upon in our zeal to protect the rights of the plant breeder;

CONCERNED that 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;

DEEPLY TROUBLED that 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.

ALARMED that in the absence of these elements, the Bill sets up a framework for commercial breeders – most of which are likely to be foreign entities – to use local germplasm to develop varieties that are then exclusively appropriated by such breeders through the PVP system established by the regional legal framework:

WORRIEDthat the Bill will lead to erosion of crop diversity and thus reduce resilience to threats such as pests, disease or climate change.

FURTHER CONCERNED that 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.

EAGER TO help block a reckless loop-hole that is bound to saddle us with huge judgement debts, as a nation, we particularly oppose Clause 23. 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;

DO HEREBY PETITION THE HOUSE TO URGENTLY CONSIDER THE FOLLOWING PROPOSED AMENDMENTS:

(1) To add to Clause 9 (3)

The application for a plant breeder right:

– shall be accompanied by an affidavit sworn by the applicant that such variety does not contain any gene or gene sequence involving terminator technology;

–shall contain a complete passport data of the parental lines from which the variety has been derived along with the geographical location from where the genetic material has been taken and all such information relating to the contribution, if any, of any farmer, village community, institution or organization in breeding, evolving or developing the variety;

–contain a declaration that the genetic material or parental material acquired for breeding, evolving or developing the variety has been lawfully acquired;

–shall be accompanied with the prior written consent of the authority representing the local community or the indigenous people in cases where the plant variety is developed from traditional varieties and evidence of fair and equitable benefit sharing;

–shall be supported by documents relating to the compliance of any law regulating activities involving genetically modified organisms in cases where the development of the plant variety involves genetic modification.

(2) To delete Clause 10 on presumption of protection.

This Clause puts the onus on the Plant Variety Protection office or the Registrar-Generalto proof that the right holder does not deserve protection. Actually the onus should be on the right holder to prove that its application meets the substantive and formal criteria.

(3) To amend Clause 16 to extend the period for objections.

A period of at least 9 months after publication of the application and any further time before the application is disposed of should be considered for a written objection to be made with regard to published application.

(4) Amend Clause 20 (1) to limit the scope of breeders rights to production for commercial marketing, offering for sale and marketing. This limits the scope to commercial activities while allowing on-commercial activities to continue.

(5) Delete Clause 20(3), (4) and (5)

These sections extend the scope of breeders’ rights to harvested material and to essentially derived varieties. These provisions place significant restrictions on using protected varieties for research and breeding purposes thus limiting development of new varieties – especially by farmers who usually breed and adapt varieties to suit their local conditions.

(6) To add to Clause 20 the following:

Nothing contained in this Act shall prevent -

(a) the use of any variety registered under this Act by any person using such variety for conducting experiment or research; or

(b) the use of a variety by any person as an initial source of variety for the purpose of creating other varieties;

Provided that the authorization of the breeder of a registered variety is required where the repeated use of such variety as a parental line is necessary for commercial production of such other newly developed variety.

<p(7) To add a new section: Notwithstanding anything contained in this Act, no registration of a variety shall be made under this Act

(a) which may affect public order or morality; or

(b) where there is reasonable ground to believe that the cultivation, reproduction or any other use of that plant variety may produce a negative impact on the environment, human, animal and plant life.

(c) No variety of any genera or species which involves any technology which is injurious to the life or health of human beings, animals, plants or the environment shall be registered under this Act.

(8)Todelete Clause 21 (c) and 21 (3)

Section 21(c ) is to be deleted as it refers to parts of Section 20 which are also proposed for deletion. Section 21 (3) limits farmers rights. It only allows farmers to use farm saved seed on their own holdings and this also may be subject to payment of royalty since the section speaks of safeguarding the legitimate interests of breeders. It does not allow farmers to freely exchange or sell seeds/propagating material.

(9) To add Clause 21 to expand farmers rights.

– a farmer shall be deemed to be entitled to save, use, sow, resow, exchange, share or sell his farm produce including seed or propagating material of a variety protected under this Act in the same manner as he was entitled before the coming into force of this Act :

Provided that the farmer shall not be entitled to sell branded seed of a variety protected under this Act.

Explanation : For the purposes of clause (iv), “branded seed” means any seed put in a package or any other container and labelled in a manner indicating that such seed is of a variety protected under this Act.

(10) Delete Clause 23 on Measures regulating commerce.

“A plant breeder right shall be 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.”

Please find in the appendices attached, detailed references and explanatory notes, and recitals of our reasons behind these proposed amendments.

Done, this Thursday, 21st November, 2013,

For Life, the Environment, and Social Justice!

Respectfully,

………………………………………………………………….

Name of Organisation: Food Sovereignty Ghana

Address: P.O. Box K272, Accra Newtown, Accra

Contact: Duke Nii Amartey Tagoe

Email: info@foodsovereigntyghana.org

Contact: Tel: +233 249867238 / +233 207973808

Website: http://foodsovereigntyghana.org

………………………………………………………………….

Name of Organisation: African Centre for Biosafety, South Africa.

Address: PO Box 29170 Melville 2109, Gauteng, South Africa

Contact: Ms. Maraim Mayet

Email: mariammayet@mweb.co.za

Fax: +27(11) 486-1156

Website: http://www.acbio.org.za/

NB: Other organisations who endorse this shall be contacting you on this.

APPENDIX

Detailed references and explanatory notes, and recitals of our reasons

For the sake of brevity, here are our notes for discussion points.

#(1) To add to Section 9 (3):

Section 9(3) of the current Bill reads:

9. (1) A person may apply to the Registrar for the grant of a plant breeder right if that person is eligible in accordance with section 8.

(2) An application for the grant of a plant breeder right may be filed by the breeder of a new variety who is

(a) a citizen or who is resident in the country;

(b) a foreign citizen or a resident in the territory of a party to a treaty to which the Republic is party;

(c) a legal entity that has its registered office within the territory of a party to a treaty to which the Republic is party;

(d) a legal entity that has its registered office in the country.

(3) The application for a plant breeder right

(a) is subject to the payment of the prescribed fee; and

(b) shall contain the following details:

(i) the name and the address of the applicant,

(ii) the name and address of the person that has bred or discovered and developed a variety if it is different from the applicant,

(iii) the identification of the botanical taxon and the Latin or common name,

(iv) the generic designation proposed for the variety or a provisional designation,

(v) a technical description of the variety, and

(vi) any information, document or material required for the purposes of examination.

Our proposed amendment seeks to add to Section 9 (3)

The application for a plant breeder right:

– shall be accompanied by an affidavit sworn by the applicant that such variety does not contain any gene or gene sequence involving terminator technology;

–contain a declaration that the genetic material or parental material acquired for breeding, evolving or developing the variety has been lawfully acquired;

Reasons:

On gene sequence involving terminator technology

On informed consent and access and benefit sharing.

On ‘disclosure of origin’ provisions and mechanisms for benefit sharing

#(2) To delete Clause 10 on presumption of protection.

Currently reading:

10. (1) An applicant shall in the absence of any proof to the contrary, be presumed to be entitled to the protection of a plant breeder right under this Act.

(2) Where the application is made by the successor in title of the applicant, the applicant shall support the application with proof of the successor’s title.

the Plant Variety Protection office or the Registrar-Generalthat the right holder does not deserve protection. Actually the onus should be on the right holder to prove that its application meets the substantive and formal criteria.

Reasons to be deleted:

This clause is bad because it puts the onus of proof on the Plant Variety Protection office or the Registrar-Generalthat the right holder does not deserve protection. Actually the onus should be on the right holder to prove that its application meets the substantive and formal criteria.

#(3) To amend Clause 16 to extend the period for objections.

Currently reading:

Objection

16. (1) A person may object to the grant of a plant breeder right within sixty days after the publication in the Gazette or the Varieties Bulletin.

(2) The objection shall be made in writing and supported by the grounds of objection.

90 days or even six months grace period seem fairer for the purpose, as fairness ought to be a priority.

#(4) Amend Clause 20 (1) to limit the scope of breeders rights production for commercial marketing, offering for sale and marketing.

Currently reading:

20. (1) Subject to sections 21 and 22, the following acts in respect of propagating material of a protected variety require the authorisation of the breeder:

(a) production or reproduction;

(b) conditioning for the purpose of propagation;

(d) sale or marketing;

(e) exportation;

(f) importation; and

(g) stocking for any of the purposes mentioned in paragraph (a) to (f).

#(5) Delete Clause 20(3), (4) and (5)

Currently reading:

(3) Subject to sections 21 and 22, the acts referred to in subsection

(1) as regards harvested material, including the whole of a plant and part of a plant obtained through the unauthorised use of the propagating material of the protected variety, shall require the authorisation of the breeder, unless the breeder has had a reasonable opportunity to exercise the right in relation to the propagating material.

(4) Subsections (1) and (2) apply in relation to the following:

(a) varieties which are not clearly distinguishable from the protected variety in accordance with section 5;

(b) a variety which is essentially derived from the protected variety where the protected variety is not itself an essentially derived variety; and

(5) For the purposes of subsection (4) (b), a variety shall be deemed to be essentially derived from another variety being the initial variety if it

(a) is predominantly derived from the initial variety, or from a variety that is itself predominantly derived from the initial variety, while retaining the expression of the essential characteristics that result from the genotype or combination of genotypes of the initial variety;

(b) is clearly distinguishable from the initial variety; and

(c) except for the differences which result from the act of derivation, conforms to the initial variety in the expression of the essential characteristics that result from the genotype or combination of genotypes of the initial variety.

(6) An essentially derived variety may be obtained for example by the selection of a

(a) natural mutant or induced mutant,

(b) somaclonal variant, or

#(6) To add to Clause 20 the following:

Nothing contained in this Act shall prevent -

(a) the use of any variety registered under this Act by any person using such variety for conducting experiment or research; or

(b) the use of a variety by any person as an initial source of variety for the purpose of creating other varieties;

#(7) To add: Notwithstanding anything contained in this Act, no registration of a variety shall be made under this Act

(a) which may affect public order or morality; or

(c) No variety of any genera or species which involves any technology which is injurious to the life or health of human beings, animals, plants or the environment shall be registered under this Act.

#(8) Todelete Clause 21(c) and 21 (3)

#((9) To add Clause 21 to expand farmers rights.

Provided that the farmer shall not be entitled to sell branded seed of a variety protected under this Act.

#(10) Delete Section 23 on Measures regulating commerce.

Reasons:

The rights of the plant breeder, or any other business activity for that matter, must end where issues of public health and the environment begins. This clause is fundamentally problematic as it calls on Parliament to legislate away the right to take “measures to regulate within Ghana the production, certification and marketing of material of a variety or the importation or exportation of the material”, even where there are compelling reasons to do so on behalf of public health or the environment.

There is no reason why our Parliament must be called upon to cede what they are obliged under oath to systematically, diligently, and directly, whenever this is needed.

What this law does is that it only provides an avenue for these giant corporations to raid our Treasury with judgement debts, under the bizarre pretext of “loss of business opportunity”. It is not only the possibility of systematic suits whenever we need to control our environment or public health, that makes this law dangerous. There is really no reason for the Parliament to cede this right to unelected business executives of multinational corporations of doubtful intentions and abilities.

We must not forget that Monsanto Corporation, the largest of the six giant corporations which control 90% of the market, has a strange history of producing dangerous materials. For instance, “Monsanto’s dirty dozens”, provides thirteen examples of the ability of these companies to cause harm, if they could be left alone without any controls. These dangerous products from Monsanto alone include Saccharin, polychlorinated biphenyls (PCBs), Polystyrene, Atom bomb and nuclear weapons, Dioxin, Aspartame (NutraSweet / Equal), Bovine Growth Hormone (rBGH), etc, etc. Here is a quote that should tell our Parliamentarians that Ghana is safer when Parliament to retain the right to oversight of any commercial venture on our territory:

“In 1944, Monsanto became one of the first manufacturers of the insecticide DDT to combat malaria-transmitting mosquitoes. Despite decades of Monsanto propaganda insisting that DDT was safe, the true effects of DDT’s toxicity were at last confirmed through outside research and in 1972, DDT was banned throughout the U.S.”

Here is another:

During the early 1960s, Monsanto was one of the two primary manufacturers of Agent Orange, an herbicide / defoliant used for chemical warfare during the Vietnam War. Except Monsanto’s formula had dioxin levels many times higher than the Agent Orange produced by Dow Chemicals, the other manufacturer (which is why Monsanto was the key defendant in the lawsuit brought by Vietnam War veterans in the United States).” Read more:Monsanto’s Dirty Dozen: The 12 Most Awful Products Made By Monsanto

Why should Ghana be required to cede our sovereignty over public health issues to corporations with a track record marketing dangerous products? What type of business proposal is this one?