CSO/FBO Position Paper: The Plant Breeders’ Bill (2013)
Select Committee on Food, Agriculture and Cocoa Affairs
Parliament House, Accra, 27th February, 2018.
We are most grateful for the opportunity granted us to humbly present to you our views on the UPOV-compliant Plant Breeders’ Bill, (2013).
The WTO agreement clearly states that contracting parties have a right to develop their own sui generis plant variety protection (pvp) laws. Even though this is acknowledged in the memorandum to the Plant Breeders’ Bill, it proceeds to opt for the International Convention for the Protection of New Varieties of Plants (UPOV 1991) without any explanation, as to why the government made such a choice. It provides no evidence, or impact assessments of the necessity for adopting such a regime.
The Memorandum to the Plant Breeders’ Bill only abruptly announces:
“Clause 1 of the Bill defines the scope of application of the Bill. Ghana has opted to apply the requirement for compliance with the International Convention for the Protection of New Varieties of Plants of December 2, 1961 and subsequently revised on November 10th, 1972, on 23rd October, 1978 and on 19th March, 1991″.
It gives no justification for such a choice which a sui generis pvp cannot do.
Meanwhile several prominent Ghanaian experts in the field have dared to raise their voices against the passage of the UPOV-compliant Bill such as the critique by Nana S. K. B. Asante.  As eloquently expressed by a study by the German Government on the UPOV Convention, Farmers’ Rights and Human Rights – An integrated assessment of potentially conflicting legal frameworks: it calls for the harmonising of the goals and obligations from different treaties while implementing PVP law.
“Goals and obligations from different international treaties, such as TRIPS, ITPGRFA and ICESCR, need to be harmonised if a country sets out to develop a national PVP law. The TRIPS agreement as such leaves sufficient discretion to governments to design PVP laws in such a way that the obligations of other treaties are addressed”. 
The 1991 Act of the International Convention for the Protection of New Varieties of Plants (UPOV 1991) offers a rigid model inappropriate for developing countries. It ignores the characteristics of the seed supply systems in those countries, where farmers produce a large part of the seeds and other propagating material, and limits farmers’ traditional practices of saving, exchanging and selling plant materials. These activities are crucial to preserving a diversified supply of seeds, adapted to local conditions and a changing environment as well as support farmers’ livelihoods. 
“SUI GENERIS” PVP:
Under the WTO TRIPS Agreement, Article 27.3(b) of the TRIPS Agreement, gives Ghana the right to provide protection of plant varieties by an “effective sui generis” system. (Sui generis means a “unique” system of protection). This provision allows Ghana maximum flexibility in the design of plant variety protection. UPOV 1991, on the other hand, is a rigid and an inflexible regime for plant variety protection.
The decision to adopt UPOV is not in the interest of a developing country like Ghana. The giant multinational corporations waiting in the wings stand to benefit at our expense. It is also important to note that African countries in concert with other developing countries ensured during the TRIPS negotiations that a developing economy like Ghana would not be short-changed by giant corporate interests. The inclusion of the sui generis clause in the WTO negotiations was an important victory won by the so-called third world countries like Ghana in the complex web of intellectual property rights protection.
To consolidate the victory won at the WTO, the African Union developed a model that carefully took into consideration, the legitimate rights of the plant breeder, as well as those of our farmers. It is thus truly pathetic that the report submitted to Parliament made no mention of this, nor referenced even the International Treaty on Plant Genetic Resources for Food and Agriculture (ITGRFA). Ghana is a signatory to the ITGRFA, and is under an international obligation to respect the rights of farmers.
PUBLICATION OF CONSULTATIONS:
The only reason given for the withdrawal of the Plant Breeders’ Bill, which was at the Consideration Stage was, in the words of the former Speaker of the House, “because it is important to inform the people of Ghana”.  It therefore behoves Parliament, in the interest of transparency, especially given the controversy surrounding the Plant Breeders’ Bill, to publish a cogent report on the consultations over the Plant Breeders’ Bill, detailing the petitions, the basis of opposition to the Bill, and generally provide a public account before any decision to proceed with the Bill in its current form.
We would also like to see in the report, what justification, if any, lies behind the inclusion of Clause 23 in the Plant Breeders’ Bill which makes the rights of the plant breeder independent of the laws of Ghana. Even as citizens, our rights are subject to the laws of Ghana, not independent of it. Another pertinent issue raised in the petitions is the call for fair and equitable sharing of benefits arising from the utilization of Ghana’s genetic resources. We urgently need answers from Parliament why there is no provision in the Bill requiring the disclosure of origin. This provision is critical for combating biopiracy of our genetic resources.
Over 150 organisations from Africa and around the world have already petitioned Parliament on the Plant Breeder’s Bill. Their petition further buttresses the point we have been making all along:
“Ghana can protect plant breeder rights without necessarily opting for UPOV 91. The Bill is modelled on the International Convention for the Protection of New Varieties of Plants of 1991 (UPOV 1991) which is a rigid and an inflexible regime for plant variety protection (PVP). It is worth noting that today out of the 71 UPOV members, only a fraction – about 22 developing countries are members of UPOV. Most of these developing countries (e.g. Brazil, China, Argentina, South Africa) and even some developed countries (e.g. Norway) are not members of UPOV 1991 but rather UPOV 1978, which is a far more flexible regime”.
The title of their petition declared, “Ghana’s Plant Breeders’ Bill Lacks Legitimacy! It Must Be Revised!” We are in full agreement with this request, and pray on you to heed the call.
 A Private Memo From Nana S. K. B. Asante Pointing To Flaws In The Plant Breeders’ Bill Special Report | 31 August 2014 https://t.co/qim3hyRW8k
 UPOV Convention, Farmers’ Rights and Human Rights – An integrated assessment of potentially conflicting legal frameworks” GIZ: https://www.giz.de/fachexpertise/downloads/giz2015-en-upov-convention.pdf
 Plant Variety Protection in Developing Countries: A Tool for Designing a Sui Generis Plant Variety Protection System: An Alternative to UPOV 1991 | APBREBES http://www.apbrebes.org/news/new-publication-plant-variety-protection-developing-countries-tool-designing-sui-generis-plant?pk_campaign=too
 African Model Legislation for the Protection of the Rights of Local Communities, Farmers and Breeders, and for the Regulation of Access to Biological Resources http://www.wipo.int/edocs/lexdocs/laws/en/oau/oau001en.pdf
 The Hansard – Official Report for 11th November 2014 Publications | Parliament of Ghana
 Ghana’s Plant Breeders Bill Lacks Legitimacy! It Must Be Revised! | Organizations from Africa and around the world petition Ghana’s Parliament on the Plant Breeder’s Bill… 20th February 2014 http://foodsovereigntyghana.org/ghanas-plant-breeders-bill-lacks-legitimacy-it-must-be-revised/
— Peasant Farmers (@PFAGghana) February 27, 2018