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Implementation of International Obligations on Plant Breeders' Rights in Kenya: Pitfalls and Prospects

Document Cited authorities 1 Cited in Related
Vincent
DOI10.3366/ajicl.2018.0251
Date01 November 2018
Published date01 November 2018
Pages616-638
INTRODUCTION

The proliferation of international legal instruments on plant varieties protection (PVP), which have conflicting obligations on plant breeders' rights (PBRs), has resulted in uncertainty about the appropriate international legal instruments that should be acceded to by developing countries such as Kenya.1 For instance, Articles 14 and 15 of the International Convention for the Protection of New Varieties of Plants of 1991 (UPOV 1991) adopt a broad conceptualisation of PBRs and a highly restrictive notion of the farmers' privilege to freely save, use and exchange seeds.2 On the contrary, Article 9 of the International Treaty on Plant Genetic Resources for Food and Agriculture (International Treaty) adopts a liberal conceptualisation of the farmers' privilege, as an exemption to PBRs.3

The uncertainty with regard to the appropriate international legal instruments to be adopted by developing states is also aggravated by, on the one hand, pressure from developed countries and transnational corporations (TNCs), which are often the beneficiaries of PBRs, and the need to preserve the farmers' privilege to freely save, use and exchange seeds in order to address food security concerns in the Global South, on the other.4 It is on that basis that this article examines the nature of choices that Kenya has made in relation to its accession to the international legal instruments on PBRs, and evaluates their implications on the vital privilege of Kenyan small-scale farmers to freely save, utilise and sell seeds or propagating material.

Plant varieties protection in most countries is generally achieved through the issuance of PBRs.5 The granting of PBRs, such as is the case in Kenya, is a sui generis (special in characteristics) form of intellectual property regime that is distinct from the more evolved system of patents. Unlike patents, PBRs have traditionally been oriented towards the recognition of some exemptions to the breeders' rights, which permit farmers, who do not have the plant variety ownership rights, some privilege in relation to the further breeding of the protected variety, such as saving seeds for replanting.6 However, the farmers' privilege, which is extremely beneficial to small-scale farmers in developing countries such as Kenya, is retrogressively being eliminated through the liberal construction of PVP by some international legal instruments.

Kenya has made some inappropriate choices in its accession to treaties that have fundamentally restricted farmers' privilege. On that basis, this article argues that the protection of farmers' rights should be an overriding consideration in Kenya's international legal engagements on PVP issues, as agriculture, through small-scale farming, remains one of the core economic activities in the country. Support for small-scale agricultural activities is vital in order to effectively address food security and nutrition concerns in Kenya. The concept of the freedom of farmers to freely save, use, exchange and sell seeds is often postulated as a vital exemption to a strict formulation and interpretation of PBRs. It originated from the notion that plant varieties are a common heritage of mankind, and is often referred to as ‘farmers' privilege’.7 The phrase implies the legal entitlement of ‘farmers to exchange, sell or re-sow seeds harvested from proprietary plant varieties’ and is used interchangeably with ‘farmers' rights’.8

With regard to Kenya's implementation of international obligations, it appropriately fulfilled its responsibility under Article 27(3)(b) of the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) by developing a sui generis domestic legislation in the form of Seeds and Plant Varieties Act (SPVA).9 However, the 2012 amendment to the SPVA, carried out for purposes of conformity with the UPOV 1991, in order to permit accession to the Treaty, was inappropriate and misguided as it fundamentally restricts farmers' privilege while PBRs are liberally expanded.10 Further, based on the direct application of international law in Kenya by virtue of Article 2(6) of the 2010 Constitution, the accession to the UPOV 1991 on 11 April 2016 was inappropriate.11 In particular, the progressive provisions relating to farmers' privilege under the 2001 International Treaty,12 which may significantly benefit Kenyan small-scale farmers, are negated by the UPOV 1991 liberal endorsement of PBRs.13 It is on that basis that the article also cautions against the ratification of the 2015 Arusha Protocol for the Protection of New Varieties of Plants (Arusha Protocol) by Kenya, as it has the objective of reinforcing the UPOV 1991 provisions in the African region.14

The article postulates the thesis that Kenya's accession to international treaties, and the conceptualisation and interpretation of domestic legislation, should liberally promote farmers' privilege due to the nature of small-scale farming in the state and the significance of agriculture to food security, nutrition and the economy. After the introduction, section II of the article examines various international legal instruments that are relevant to the protection of PBRs and farmers' privilege in Kenya and evaluates their implications. Section III discusses the effect of international legal instruments on Kenya's municipal legislation, particularly the SPVA.15 Section IV of the article evaluates the implications of a broad conceptualisation of PBRs and restriction of farmers' privilege in Kenya. Section V makes a recommendation on the most appropriate approach that should be adopted by Kenya in relation to the international legal obligations on PVP that it should accede to, in order to establish and maintain a reasonable balance between PBRs and the farmers' privilege. Section VI is essentially the conclusion of the article.

 INTERNATIONAL LEGAL INSTRUMENTS RELEVANT TO THE PROTECTION OF PBRS IN KENYA AND THEIR IMPLICATIONS

The identification of rights and obligations of states under the fragmented international legal instruments on PBRs is problematic since they ‘do not necessarily … form a coherent whole’.16 As demonstrated in the article, while some international legal instruments have a balanced approach to the protection of PBRs in the context of farmers' privilege, others have the objective of eliminating the right of farmers to freely save, use, exchange and sell seeds or propagating material. On that basis, Kenya has an obligation to protect its national interests by ratifying the treaties that best promote agrarian activities, food security and economic prosperity of its citizens. It should, however, be appreciated that, despite the lack of a hierarchy in the legal force of the various international legal regimes relevant to plant varieties protection, those adopted under the auspices of the World Trade Organisation (WTO), such as TRIPS, have more binding potency due to the threat of sanctions.17

The most common sui generis mode of PVP globally is based on the International Convention for the Protection of New Varieties of Plants guidelines,18 which is the case in Kenya. Article 6 of the original International Convention for the Protection of New Varieties of Plants of 1961 (UPOV 1961) provides that for a plant variety to qualify for the granting of PBRs, it should be new, distinctive, uniform and stable, criteria that have been maintained in the subsequent revisions of the Convention.19 The Kenyan legal framework on PVP is based on the stated criteria, with applications for PBRs lodged at the Kenya Plant Health Inspectorate Service (KEPHIS).20

The 1994 Agreement on Trade-Related Aspects of Intellectual Property Rights

The obligation of states to protect PBRs became a significant issue with the adoption of the TRIPS Agreement.21 Article 27(3)(b) of TRIPS obligates World Trade Organisation member states to protect PBRs ‘either by patents or by an effective sui generis system’, or through a combination of both mechanisms.22 However, TRIPS grants states a wide discretion in their choice of a sui generis mechanism of PVP, and more significantly fails to expressly endorse the commonly utilised UPOV system or provide any guidance.23 The nature of the TRIPS obligation, therefore, implies that states have a wide discretion in the balancing of the PBRs and farmers' privilege in the formulation of their domestic legal regime, and in their ratification of other international legal instruments on PVP.

 The Various Acts of the International Convention for the Protection of New Varieties of Plants

The original UPOV 1961 was adopted by a group of Western European states for the purposes of introducing private intellectual property rights into the breeding and propagation of plant varieties.24 The adoption of UPOV 1961 was motivated by the notion that patents were inappropriate as a PVP regime due to the prevailing practice ‘of free exchange of seeds and knowledge among farmers'.25 However, although UPOV was not premised on the concept of patents, it was still founded on the notion of providing ‘incentives to the private sector to engage in commercial plant breeding through the provision of plant breeders' rights’.26

The original rejection of the concepts of patents, which are more exclusive in nature, demonstrates that the adoption of UPOV 1961 appreciated the need to strike a balance between the rights of plant breeders and the farmers' privilege. However, three subsequent revisions with a minor amendment in 1972 and fundamental alterations in 1978 and 1991 resulted in a liberal expansion of PBRs under the UPOV system to a patent-like nature, while farmers' privilege was fundamentally limited.27 Article 6 of UPOV 1961 introduced the now common criterion that for a plant breeder to be granted legal protection, he has to demonstrate that the variety is new, distinct, uniform and stable.28 In addition, Article 5(1) of UPOV 1961 defined the scope of PBRs, which included the requirement...

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