The Obnoxious Plant Breeders’ Bill Is Back To Parliament!
by Food Sovereignty Ghana, July 29, 2020
— FoodSovereigntyGhana (@FoodSovereignGH) July 29, 2020
It has come to our attention that the Cabinet of President Akuffo-Addo has taken the decision to re-introduce the controversial Plant Breeders’ Bill back to Parliament without taking into account any of the objections raised against it for the past seven years.
Food Sovereignty Ghana (FSG) unreservedly condemns this decision. Even though Ghana, as a member of the World Trade Organization and is under a WTO obligation to protect the intellectual property of new plant varieties, this must not provide the excuse to impose the stringent restrictive regime being introduced. The bill the Cabinet of President Akufo-Addo just recommended to Parliament 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).
As has been pointed out on several occasions, “the rights and obligations concerning intellectual property are governed by the WTO Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS Agreement). According to Article 27.3(b) of the TRIPS Agreement, Ghana has 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 (PVP). This is what many developing countries such as Thailand, Malaysia, India have done. The African Union Ministers have also recommended a unique Model Law for Plant Variety Protection. See: Ghana’s Plant Breeders Bill Lacks Legitimacy! It Must Be Revised! http://
It would be recalled that the last time the UPOV-compliant Plant Breeders Bill was laid in Parliament, in 2013, it sparked a huge controversy to the extent that the then Speaker of Parliament had to take the unprecedented decision to withdraw the bill which was already at the Consideration Stage, “for further consultations”.
Several farmers’ associations, civil society organisations, faith-based organisations, as well as prominent individuals and international organisations who raised their voices against the bill were concerned about the basis on which Ghana opted for UPOV 91 when many independent experts and UN reports have actually recommended that developing countries should not join the UPOV system as it offers a rigid model inappropriate for developing countries where farmer managed seed systems (informal seed systems) and the practices of freely saving, using, exchanging and selling seeds are prevalent. Most saw the decision for UPOV91 as benefiting commercial breeders and consequent revisions to the act have leaned towards promoting genetic uniformity in crop varieties, which can have drastic effects on biodiversity.
Another pertinent issue raised in the petitions is a simple demand that has never been responded. It is the call for fair and equitable sharing of benefits arising from the utilization of Ghana’s genetic resources. We urgently need answers from Cabinet as to why there is still no provision in the Bill requiring the disclosure of origin in the application for the plant breeder right. This provision is critical for combating biopiracy of our genetic resources. UPOV establishes no mechanisms or safeguards against the practice of ‘biopiracy’.
A key element in the controversy is the demand to see the disclosure of origin of all genetic materials in the applications for patents or plant variety protection, in order to protect Ghana from biopiracy. Biopiracy or a situation where indigenous knowledge of nature, originating with indigenous peoples, is used by others for profit, without permission from and with little or no compensation or recognition to the indigenous people themselves. The fair and equitable sharing of the benefits arising out of the use of genetic resources is one of the three objectives of the UN Convention on Biological Diversity (CBD). The CBD recognises the sovereign right of states over their natural resources in areas within their jurisdiction. See: The Nagoya Protocol on Access to Genetic Resources and Benefit-Sharing.pdf http://
The Plant Breeders’ Bill in its current form, is a paradise for bio pirates, usually giant multinational seed corporations, which seek to take advantage of our genetic resources at Ghana’s expense. As Paul Raeburn puts it in his book, The Last Harvest: The Genetic Gamble That Threatens to Destroy American Agriculture (page 95): “The value of crop germplasm, a kind of green gold, is never clear until it is put to use. The examples of Norin10 and IR36 clearly show that crop germplasm can often be worth billions”.
There are several obnoxious clauses such as the criminalisation of farmers, (See: Clause 58) which still remain in the current text. Clause 21 reduces the right of the farmer to the discretion of the Attorney-General and Minister of Justice, whilst Clause 23 of the Bill elevates the plant breeder’s rights over and above the laws of Ghana. The situation was grave. It was in this light that FSG wrote to congratulate His Excellency, President Nana Addo Danquah Akufo-Addo upon his election, dated December 13, 2016, stating among other things:
“Considering the numerous objections from experts all over the world, that UPOV benefits the big multinational seed corporations, and that a developing country like Ghana stands to lose by its adoption; the ubiquitous problem of corruption and the track records of the corporate lobby behind the UPOV bill, we strongly smell a rat. We do not only demand its withdrawal from Parliament, and a replacement with a “sui generis” plant variety protection system, but also, investigations into why we came so close as a people to be sold out to foreign seed companies, and draw the appropriate lessons. For the same reasons, we further call for the total rejection of the Arusha New Plants Protection Protocol, currently pending Parliamentary ratification, as just another way of smuggling into our laws, the same UPOV convention without public scrutiny.” See: FSG Congratulates President-Elect Nana Akufo-Addo, December 13, 2016. https://
In the evening of Wednesday, 26th February, 2020, FSG was alerted to an ongoing two-day “National Workshop on the Plant Breeders’ Bill”, in Accra organized by the Registrar General’s Department where the reviewed Plant Breeders’ Bill was expected to be presented. FSG only heard of this at the end of the first day from a representative from the Peasant Farmers’ Association of Ghana, PFAG. No formal invitation was ever extended, but were informed by a participant that “the organisers said FSG was welcome”.
It was at this ‘workshop’ that FSG learned from the organisers that the Cabinet of President Nana Akufo-Addo has taken the decision to re-introduce to Parliament, the controversial UPOV91-compliant Plant Breeders’ Bill without any changes. Naturally, since none of the numerous objections raised by civil society and faith-based organisations against the bill have been taken into consideration, a backlash is feared. Consequently, in order to preempt that, the idea of “sensitization workshop” was embarked upon, following Cabinet’s advice to first ‘educate stakeholders”. According to news reports, Mr. Samuel Anum, Project Coordinator of the Intellectual Property Project, Ministry of Trade and Industry, has indicated that “another one would be held for the northern sector to well educate stakeholders within that part of the country”.
Many organisations, including Food Sovereignty Ghana, that have publicly come out against the Plant Breeders’ Bill were not even invited to the workshops. This clearly clashed with the demands by numerous organisations for consultations, transparency, public awareness and participation in such an important decision. And as it happened, the meeting was structured in such a fashion that instead of the expected discussion on the fundamental objections to the bill, the meeting was turned into a classroom with several “professors” taking turns to lecture each participant who opened dared the mouth, within the limited time, without any interest in feed-back, nor any right of reply from the participants. And all this “discussion” happened in less than two hours.
Even though no one even saw a copy of the Plant Breeders’ Bill, at any of those “workshops”, the organisers were able to come to the conclusion that “invariably, there was much more of a consensus” (on the acceptance of the bill) at the Accra workshop and most probably, all the workshops. [See: Video Report on Meeting… Part One, 51.10] It is difficult to see how any form of transparency can be achieved when the invitations to the workshops themselves appear skewed towards organisations and institutions that have already expressed some form of support for the Plant Breeders’ Bill in the past, while very few of those who had even petitioned the Parliament over the same bill were excluded.
The facts of the matter is that the seventeen “francophone countries surrounding Ghana” belong to the Organisation Africain de la Propriété Intellectuelle (OAPI – African Intellectual Property Organisation), introduced Annex X on plant variety protection – modelled on UPOV 1991 in 2006 – and they acceded to UPOV in 2014. Evidence shows that the membership of OAPI has not brought them any advantages. On the contrary data show that the Implementation of UPOV 1991 Unnecessary For the Development of a Strong Seed Market. A recent study on UPOV in West Africa reveals the ineffectiveness of the UPOV system even after 10 years of implementation. The OAPI study shows that implementing a UPOV-style PVP law in Western Africa brought no benefit for the french speaking countries, their farmers or seed sector.
When Ghana develops a plant variety protection right, it should take into account the process developed in the FAO Voluntary Guide for National Seed Policy Formulation. This includes first and foremost the evaluation of the existing system and knowledge about the role of the Farmers Seed System (informal system). The aim must be to strengthen farmers’ rights and the Farmer Seed System with a new plant variety protection law. The following lines from the FAO Voluntary Guide show this necessity.
There are independent scientific studies that confirm this. For example, Centre for International Environmental Studies Research Paper cites:
For Life, the Environment, and Social Justice!
Edwin Kweku Andoh Baffour
Director of Communications, FSG