‘Substantial Gains Made at the Expert Review on the Draft ARIPO Regulations’ – Civil Society Representatives

The expert review meeting on the Draft ARIPO (African Regional Intellectual Property Organization) Regulations for the Implementation of the Arusha Protocol held from 14 to 17 June was concluded with substantial gains for farmers’ rights. Yet again, many questions by civil society were disregarded by the designated chairperson of the meeting. The meeting also shunned media.

Attended by some 60 government officials from the 19 ARIPO Member States, the African Seed Trade Association, foreign entities such as the International Union for the Protection of New Varieties of Plants (UPOV), the European Union’s Community Plant Variety Office (CPVO) and the French Association for Seed and Seedlings (GNIS), the meeting, for the first time, included three members of the African civil society – the Alliance for Food Sovereignty in Africa (AFSA), the African Centre for Biodiversity (ACB) and Participatory Ecological Land Use Management (PELUM-Zimbabwe).

A report by these three African civil society representatives observed that ‘the four day discussions on the draft regulations were marred by impartiality towards contributions by civil society on the part of the designated chairperson of the meeting and lacked consensus on several contentious new substantive provisions in the draft regulations that lacked consistence with the Arusha Plant Variety Protection (PVP) Protocol’.

Article 24 of the Arusha protocol dealing with the right of Member States to object to a grant, the intrusion of ARIPO Secretariat in the issuance of compulsory licenses by Contracting States, misinterpretations on the scope of breeders’ rights exemptions and hostile provisions for smallholder commercial farmers regarding payment of remuneration to right holders of Plant Breeders Rights (PBR) through use of farm saved seed of protected varieties were the key areas of concern overlooked by the expert review meeting.

The Director General of ARIPO indicated that only five countries have signed the Protocol and none had ratified. Civil society representatives also observed that member states did not see the relationship between the International Treaties in particular the International Treaty on Plant Genetic Resources for Food and Agriculture (ITPGRFA) which incorporates farmers’ rights and the PVP systems such as the International Union for the Protection of New Varieties of Plants (UPOV) and Arusha Protocol.

It is to be remembered that African civil societies have raised so many concerns regarding the Arusha Protocol on New Varieties of Plants. However, through a flawed process that ignored and shunned civil societies, Member States adopted the Protocol on the 6th of July 2015 in Arusha, Tanzania. In a press statement released on the opening day of the expert review meeting, AFSA denounced the regulations as being ‘designed to intimidate and force seed processors, seed suppliers, government certification officers and even farmers’ organizations to police and spy on farmers who use farm-saved protected seed’. AFSA also demanded the regulations to be scrapped entirely. During the expert review meeting AFSA called upon the Member States not to adopt the regulations as it would have been too premature at this stage and that there were so many issues that needed more clarification.

The four key concerns raised by AFSA at the review meeting include the draft regulations impingement on national sovereignty in particular the right of States to object grant of PBR, inclusion of draconian provisions against farmers’ rights and seed systems, lack of the draft regulation to safeguard against biopiracy, compromising of the implementation of the ITPGRFA, the Convention on Biodiversity, Nagoya Protocol, and human rights instruments) and the draft regulations being based on the European Union (EU) regulations which makes it invalid for ARIPO region.

Despite these challenges representatives of African civil societies regarded the removal of draconian sub-rules for regulation 12 and the right of member states to object applications grant of compulsory licenses as substantial gains for a fairer seed system. Unfortunately, members did not consider the aspects of biopiracy and disclosure of origin. It is also very problematic that the definitions on ‘act done privately and for non-commercial purposes’ were left to be explained at the national level. This could be impossible for countries which lack PVP legislation at the national level.

On the last day of the meeting ARIPO proposed the sub-committee to refine the text including the recommendations from the member states. Once they are finalized, they will be sent to the members to input their comments in a period of one week and then sent back to ARIPO. The draft regulations will then be sent to the ARIPO PVP technical committee in August this year for consideration. Countries that are members of this technical committee include Kenya, Tanzania, Ghana and Zambia and will also include the host country. ARIPO mentioned that they would send letters to Member States to request them to submit their list on agricultural crops and vegetables that have a historical common practice of saving seed and also recommendations for competent authorities that will enter into contract with ARIPO to conduct the Distinctiveness, Uniformity and Stability (DUS) tests.

Credits go to Gertrude Pswarayi of PELUM-Zimbabwe, Bright Phiri of GMO-Free Malawi and Sabrina Nafisa of the African Centre for Biodiversity (ACB).

Read other stories from our Quarterly Newsletter, April-June.