AFSA has launched an urgent appeal to the African Regional Intellectual Property Organisation (ARIPO), the African Union (AU) and to the United Nations Economic Commission for Africa (UNECA) to urgently revise the draft ARIPO Plant Variety Protection Protocol, recognise farmers’ rights and facilitate the right to food. In its latest appeal to ARIPO, the AU and UNECA, and acting upon expert legal advice obtained, AFSA is alleging that:
ARIPO has failed to comply with Article V of the 1976 Lusaka Agreement establishing the ARIPO (Lusaka Agreement), which requires ARIPO to consult with the AU and UNECA. Such failure to consult raises serious questions about the validity of the draft PVP Protocol.
The process adopted by ARIPO is flawed in that there has been inadequate consultation with relevant stakeholders, including organisations representing farmers and the general civil society, as required by international law, particularly that outlined in the International Covenant on Civil and Political Rights, the Convention on the Elimination of All Forms of Discrimination against Women and the International Treaty on Plant Genetic Resources for Food and Agriculture.
ARIPO has furnished incorrect information to ARIPO Member States, and that Member States did not give a mandate that the UPOV Council should examine the draft ARIPO PVP.
ARIPO furnished incorrect information to ARIPO member states about adequate consultation with relevant stakeholders.
The provision of incorrect information by ARIPO constitutes gross negligence on the part of ARIPO, in the light of the UN International Law Commission’s 2011 Articles on the responsibility of international organisations and the International Law Association’s 2004 Final Report on Accountability of International Organisations.
ARIPO has not adequately facilitated a process whereby the right to food for all is fully taken into account. In an African context, where such a high proportion of farmers depend on farm-saved seeds, and where the legislation and institutions for curbing anti-competitive practices might differ between countries, this is an unforgivable and unwarranted omission.
ARIPO’s adoption of the least flexible approach in the realm of plant breeders’ rights, as set out in the draft ARIPO PVP Protocol, represents a protection regime that goes further than UPOV 1991, hence it is correct to describe it as “UPOV 1991+”. This is disconcerting, given that currently no sub-Saharan African State is bound by UPOV 1991.
In its appeal, AFSA seeks the following specific interventions:
The draft ARIPO PVP Protocol should be immediately revised in order to comply with the more flexible effective sui generis requirement of TRIPS Article 27.3(b), as well as including provisions that recognise farmers’ rights and facilitate the right to food. This revision should be based on a much broader consultation process and by making use of experts from outside of the plant breeders’ rights sector.
The ARIPO Secretariat should review the information that was provided during the presentation of the draft ARIPO PVP to its member states, and correct any information that is found to not have been adequately substantiated or adequately clear in its content.
The governments of Ghana and Tanzania, both of whom are in the process of adopting legislation based on UPOV 1991, should commission an independent sustainability impact assessment of the draft plant breeders’ rights, where the social impact is understood as encompassing human rights impacts. The assessment should be presented to the respective national parliaments.
ARIPO should request the AU and the UNECA to undertake an assessment in order to identify how the many recent initiatives for enhancing the productivity in the African agriculture can foster publicly initiated participatory breeding and strengthen public extension services.
ARIPO should consider how the many studies on effective sui generis systems for plant varieties can be made available to its member states.
AFSA also stressed: 'ARIPO specifies that there will be regulations based on the draft ARIPO PVP Protocol, with the aim “that the situation of small holder farmers will be taken into consideration in relation to farm-saved seeds…”….While such regulations can be relevant for the interpretation of the draft ARIPO PVP Protocol, it is the wording of the Protocol that will prevail".
AFSA's full submission can be viewed at http://tinyurl.com/ka2ad7k