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Africa's Regulatory Approach to Biotechnology in Agriculture: An Opportunity to Seize Socio-Economic Concerns

Document Cited authorities 3 Cited in Related
Vincent
Date01 March 2009
Pages29-56
AuthorCHARLES MOITUI,DEBBIE COLLIER
DOI10.3366/E0954889009000279
Published date01 March 2009
BACKGROUND Introduction

The use of modern biotechnology (in this context genetically modified organisms – GMOs in agricultural crops) presents a number of challenges, including that of regulating biosafety, international trade and intellectual property rights over GMOs. Biosafety is concerned with the risks that GMOs may pose to the environment and human health. Issues around international law and intellectual property rights arise from efforts to eliminate trade barriers and to allow patent protection over plant genetic resources for commercial gain. Regulators setting out to address these issues must, importantly, not lose sight of the socio-economic concerns1

These include concerns around population growth, poverty, (un)employment, impact on cultural and traditional practices and knowledge, loss of biodiversity, etc. See the discussion in Part III below.

generated by the use, and regulation, of GMOs in agriculture

Africa's (regulatory) approach to biotechnology in agriculture has been mixed: few countries (such as South Africa, and possibly Egypt) have adopted, what might be called, a permissive regulatory approach,2

The terms permissive, cautious and restrictive regulatory approaches, and the concept of a ‘traffic-light approach’ together with the graphic representation appearing in the text below, were first used by Collier in her paper titled Regulating agricultural biotechnology: exploring Africa's traffic light approach presented at the International Consortium on Agricultural Biotechnology Research (ICABR) 11th Annual Conference on Agricultural Biotechnologies: New Frontiers and Products – Economics, Policies and Science at Ravello (Scala, Italy), 26–29 July 2007.

giving the ‘green’ light to agricultural biotechnology, with minimum regulatory intervention. Most African countries have opted rather for cautious3

See for example the Law to lay down safety regulations governing modern Biotechnology in Cameroon (Law No. 2003/006 of 21 April 2003) available at http://bch.cbd.int/database/record.shtml?id=10787 (accessed 12 June 2007).

 (with stringent regulatory measures in place) or even restrictive regulatory approaches where a total ban is placed on the import and use of biotechnology in agriculture, although such an approach may breach a country's international trade obligations

The argument, which we put forward in this article, is that, notwithstanding international trade imperatives which prima facie require countries to adopt a permissive approach, or at least a reasoned cautious approach, countries should move from a restrictive or cautious approach toward a more permissive approach only in the event that socio-economic concerns, among others, have been considered and addressed. In other words, countries should only adopt a permissive approach when they have achieved a high level of preparedness for agricultural biotechnology.4

Factors to be considered in accessing level of preparedness include: (1) a biosafety net; (2) socio-economic considerations; (3) liability and redress; (4) property and intellectual property considerations; (5) international trade; (6) public participation mechanisms; (7) general preparedness or capacity (with regard to resources and infrastructure).

Given the controversies around GMO crops5

See for example the European Communities – Measures affecting the approval and marketing of biotech products WT/DS291/R, WT/DS292/R, WT/DS293/R (2006) (Panel Report) (the EC – Biotech products dispute) discussed in the text below.

 and the status of agriculture in Africa generally, we would argue that no African country is currently in a position to adopt a wholly permissive approach, in particular with regard to GMO crops imported into Africa. The argument may be represented schematically (see Figure 1)

Diagram illustrating when countries should move towards a permissive approach.

Socio-economic considerations are, invariably (and at times confusingly), integrated into other factors, such as biosafety law, international trade and intellectual property law, all of which are factors which should be considered in assessing preparedness for agricultural biotechnology and therefore an examination of socio-economic considerations requires some examination of these areas of law.

Part I of the article provides some background on the importance of agriculture in Africa; and on the use, and regulation, generally of biotechnology in agriculture. Part II sketches the legal framework for biosafety (from a predominately international law perspective, but also from regional and domestic viewpoints), while Part III analyses a variety of approaches to socio-economic concerns in four diverse African countries (South Africa, Cameroon, Uganda and Kenya) arising from the use of biotechnology in agriculture. Part IV broadly considers the provisions of international trade law, including the international law protection of intellectual property rights, as a potential barrier to the advancement of domestic socio-economic interests. A short conclusion, advocating better collaboration among African countries, particularly under the auspices of the African Union (AU) is drawn in Part V.

 The importance of agriculture

Agriculture feeds the world population, estimated to be 6.598 billion at January 2007.6

US Census Bureau, available at www.census.gov (accessed 1 June 2007).

Food security,7

Food security is defined by the 1996 World Food Summit in Rome as a state of affairs where all people at all times have access to and safe and nutritious food to maintain a healthy and active life. Realizing the promise and potential of African agriculture a report submitted to the UN in 2004 by the Inter-Academy Council at the request of the Secretary General. Available at www.interacademycouncil.net/?id=10015 (accessed 30 May 2007).

 often an issue in Africa, is hence inextricably linked to agriculture; and food insecurity is, very often, a sign of a failing agriculture. Availability of sufficient food (i.e. sufficient agricultural output), access to such food and clean water, and sanitation together with health care constitute the main dimensions of food security.8

Klaus, Biotechnology and food security available at www.ias.ac.in/currsci/feb25/articles14.htm (accessed 15 June 2007).

Agriculture plays a significant role in alleviating poverty, improving human health and productivity and the avoidance of political and social chaos.9

Feeding the world in the 21st century: The role of agricultural science and technology, a speech given at Tuskegee University by Norman Borlaug a 1970 Nobel Prize Laureate, available at www.agbioworld.org (accessed 1 June 2007).

The economies of many countries and especially the developing countries, are sustained by agriculture and related activities. Food and cash crops provide employment on farms and in the transport and processing industries. The proceeds from exports also earn much-needed foreign currency

In sub-Saharan Africa agriculture typically employs between thirty percent,10

This is the figure for South Africa. The Central Intelligence Agency (CIA), The World Factbook, at https://www.cia.gov/library/publications/the-world-factbook/ (accessed 10 January 2008). The Food and Agriculture Organisation (of the United Nations) reports that ‘Sub-Saharan Africa contains a total population of 626 million people of whom 384 million (i.e. 61 percent) are classified as agricultural.’ M. Hall (ed), Farming systems and poverty: improving farmers’ livelihoods in a changing world FAO Corporate Document Repository. Available at http://www.fao.org/DOCREP/003/Y1860E/y1860e00.htm (accessed 4 February 2008).

on the low end of the scale, and, on the upper end, ninety percent11

This is so in countries such as Malawi and Burkina Faso. The average is around seventy to eighty percent. The World Factbook ibid.

 of the labour force and similarly accounts for roughly between thirty and eighty percent of GDP.12

The World Factbook ibid. See also D. Collier ‘Access to and control over plant genetic resources for food and agriculture in South and Southern Africa: How many wrongs before a right?’ 7(2) Minnesota Journal of Law, Science and Technology (2006): 529 and D. L. Sparks, ‘Economic trends in Africa South of the Sahara’ in K. Murison (ed) Africa South of the Sahara, 32nd ed (2003) at 18.

The human element in agriculture was highlighted recently in Kenya, where participants at the fourth Africa Conference on Social Aspects of HIV/AIDS urged African governments to introduce national nutrition programmes to support poor people infected with HIV/AIDS: drugs and nutrition should work together. Currently there are more than 12 million children orphaned by AIDS in Sub-Saharan Africa.13

The Standard (Kenya), Food and nutrition key in tackling HIV/Aids, 3 May 2007, available at www.eastandard.net.

More food is needed to support the fight against HIV/AIDS and to provide nutrition for the orphaned children; the difficulty is that many agricultural workers are incapacitated as a result of HIV/AIDS. As explained in the text below, the use of modern biotechnology in agriculture is offered as an important tool in the struggle to improve agricultural output in Africa. Modern biotechnology and the need for biosafety law

Biotechnology is not a recent phenomenon in human history. Biotechnology has been used for more than 5000 years. Some of its uses include the making of cheese, the fermenting of wine and for the breeding of animals and plants.14

S. Sterckx, Biotechnology, Patents and Morality, Ashgate Publishing (1997) at 1.

The Convention on Biological Diversity15

(1992) 31:1 ILM 822. The Convention was adopted on 22 May and entered into force on 29 December 1993.

 (CBD) defines biotechnology as ‘any technological application that uses biological systems, living organisms, or derivatives thereof, to make or modify products or processes for specific use’.16

CBD preamble.

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