CHAPTER 3: Integrating Food Security in West Africa’s IP related Regional and Continental Trade Agreements Continental Trade Agreements
3.6 Provisions Affecting Food Security in Continental and Regional Agreements Applicable to West Africa Applicable to West Africa
3.6.1 The African Regional Intellectual Property Organisation’s (ARIPO) Arusha Protocol Protocol
Established in 1976 on the basis of the Lusaka Agreement,487 the African Regional Intellectual Property Organization (ARIPO) is a union of 19 mostly English-speaking countries of Africa, four of which are ECOWAS member states.488 The organization was established with the objective of promoting the harmonization and development of the industrial property laws, and matters related thereto, appropriate for member states and for the region as a whole.489
Background: ARIPO resulted from a concerted response by both the United Nations Economic Commission for Africa (UNECA) and the World Intellectual Property Organization (WIPO) to the
486 Henning G. Ruse-Khan, “The International Law Relation Between TRIPS and Subsequent TRIPS-Plus Free Trade Agreements: Towards Safeguarding TRIPS Flexibilities?” (2011) 18:2 Journal of Intellectual Property Law, 325 at 329-330 [Ruse-Khan, Towards Safeguarding TRIPS Flexibilities].
487 Agreement on the Creation of the African Regional Intellectual Property Organization, Lusaka, 9December 1976. [Lusaka Agreement].
488 The draft PVP Protocol is to be implemented in the 19 ARIPO member states, (ECOWAS countries are
highlighted) namely: Botswana, Gambia, Ghana, Kenya, Lesotho, Malawi, Mozambique, Namibia, Sierra Leone, Liberia, Rwanda, São Tomé and Príncipe, Somalia, Sudan, Swaziland, Tanzania, Uganda, Zambia and Zimbabwe.
489 Lusaka Agreement, Article III (a).
desire for an industrial property organization for English-speaking African countries to have a dedicated industrial property coordination organization akin to OAPI.490 Across the developed world modern genetically modified (GM) and hybrid seeds are protected by strict intellectual property regimes, notably by an intellectual property regime known as UPOV 1991. The seed companies, along with the US State Department and the UK Department of International Development have all applied significant pressure on African governments to adopt UPOV 91.
As a result, in November 2009, ARIPO’s Council of Ministers approved a proposal for ARIPO to develop a policy and legal framework, the ARIPO Protocol on the Protection of New Varieties of Plants (PVP Protocol), which would push for the adoption of the UPOV 91 standards in Africa through government regulatory processes.491 Initially adopted in November 2013, the PVP Protocol was revised;492 resulting in the adoption of the ARIPO Protocol for the Protection of New Varieties of Plants by the Arusha (Tanzania) Diplomatic Conference of July 6, 2015 (Arusha Protocol).493
While industrial associations like The International Community of Breeders of Asexually Reproduced Ornamental and Fruit Varieties (CIOPORA), African Seed Trade Association (AFSTA), the French National Seed and Seedling Association (GNIS) and foreign entities such as the United States Patent and Trademark Office, the UPOV Secretariat, the European Community Plant Variety Office were extensively consulted and participated in the process of drafting the ARIPO PVP Protocol, local farming associations did not participate in drawing up the Protocol.
490 Oguamanam, Breeding Apples for Oranges, supra note 122, at 174.
491 Online at: < https://ekogaia.wordpress.com/tag/aripo/> .
492 See ARIPO, Consideration of the Revised ARIPO Legal Framework for Plant Variety Protection, Council of Ministers, 14th Session 28-29 November 2013, Kampala, Uganda, ARIPO/CM/XIV/8, 8th November 2013 [ARIPO PVP Protocol].
493 ARIPO, Arusha Protocol for the Protection of New Varieties of Plants within the Framework of the African Regional Intellectual Property Organization, adopted by Diplomatic Conference of ARIPO at Arusha, Tanzania, on 6th July 2015 [Arusha Protocol].
494 In the grand scheme of things, Arusha is a result of concerted pressure by the UPOV and WIPO, along with the EU to interpret the sui generis provision of Article 27 TRIPS with respect to PBRs as correlating to UPOV 1991. This is evidenced in the Protocol’s provisions.
Content: The Protocol seeks to provide Member States with a regional plant variety protection system that recognizes the need to provide growers and farmers with improved varieties of plants in order to ensure sustainable agricultural production. The Arusha Protocol establishes unified procedures and obligations for the protection of plant breeder’s rights in all ARIPO member states.
These rights will be granted by a single authority established by ARIPO to administer the whole system on behalf of its member states. 495
Being based on and conformed to the rules contained in the 1991 Act of the UPOV Convention,496 the Arusha Protocol establishes legal protection of new plant varieties for 20-25 years, depending on the crop. Farmers will not be able to save and re-use seed from these varieties on their own farms except for specifically designated crops, within reasonable limits, and upon annual payment of royalties. Under no circumstances will they be able to exchange or sell seeds harvested from such varieties. Because Article 22.2 of the Protocol subjects farmers’ rights to breeder’s rights, the provision limits the Protocol’s utility for advancing food security in West African agriculture where the rights of the farmers and breeders are not separated, but merged.
494 GRAIN, “Land and seed laws under attack: Who is pushing changes in Africa?”, 21 January 2015. Online at:
<https://www.grain.org/es/article/entries/5121-land-andseed-laws-under-attack-who-is-pushingchanges-in-africa?print=true>.
495 ARIPO News, online: <http://www.aripo.org/news-events-publications/news/item/117-draft-aripo-regulations-for-the-implementation-of-the-arusha-protocol-go-under-review>.
496 Article 41, UPOV Doc, “Examination of the Conformity of the Draft ARIPO Protocol for the Protection of New Varieties of Plants with the 1991 Act of the UPOV Convention”, UPOV Council 31st Extraordinary Session, Geneva, 11th April 2014, C(Extr.)/31/2, 14 March 2014.
Implications for Food Security in West Africa: To understand the implications that the Arusha Protocol has for food security in West Africa, it is important to take a look at the form of farming of food crops that dominate the continent. Agricultural production in the ECOWAS region is mainly based on small holder subsistence farms (of less than 10 hectares), producing a wide variety of crops.497 Smallholder farmers have developed crop systems which are based first and foremost on traditional knowledge and development of local varieties, rather than agricultural technology.498 Relatively little use is made of IP protected seed varieties, fertilizers and agricultural machinery.
Also, more than 90% of seeds used by smallholder farmers are sourced from among themselves through traditional and informal seed exchange and sharing practices.499 This is especially true in the case of food crops.500 Studies on indigenous plants suggest that, due to its sustainability, traditional knowledge relating to Africa’s local plants plays an important role in fostering food security and nutritional health in the region.501 A lot of the trade in agriculture is carried out informally.
This contrasts with the systems adopted in formal IP regulations such as TRIPS and the UPOV, which advance proprietary control of agricultural innovation through breeding and other IP protected agrobiotechnology methods. The latter regimes restrain the rights of farmers to freely exchange and use farm-saved, in favor of the rights of breeders; advances the research and protection of monocultures, over biodiversity obtainable in local plants; and provides more support to multinational corporations.502
497 Roger Blein et al, supra note 467, at 7-9.
498 Ibid, at 7-9, and 30.
499 Craig Borowiak, “Farmers’ Rights: Intellectual Property Regimes and the Struggles over Seeds”, (2004) 32:4 Politics and Society, 511–543 [Borowiak, Farmers’ Rights].
500 Roger Blein et al, supra note 467, at 31-32.
501 See Asogwa., Okoye & Oni, supra note 470, at 75-87; Cordeiro, supra note 470, at 273-287.
502 Oguamanam, Breeding Apples for Oranges, supra note 122, at 167.
Civil society organisations have campaigned against plant breeders’ regulations contained in the Protocol, arguing that the proposed protection framework is unsuitable for African countries as it may affect traditional rights for farmers to save, exchange or sell farm-saved seeds and infringe on the right to food.503 These concerns are not limited to the substantive contents of the Arusha Protocol, but extend to the procedural regulations. As pointed out by Bridget Mugambe, policy advocate for Alliance for Food Sovereignty in Africa, a “major concern about the ARIPO regulations is that they attempt to give more powers to the ARIPO office and undermine national sovereignty”. 504
For example, the regulations compel national authorities to accept the decision of the regional ARIPO office to grant PBRs. This limits the ability of countries to utilize the provision in the Arusha Protocol that gives national authorities the right to object to any plant breeders’ rights as granted by ARIPO. As it seems that countries cannot reject PBRs granted by ARIPO, or protest to alternative regimes like the WTO, or International Court of Justice (ICJ), but can only call for revision of the terms. It also limits the ability of countries to adopt sui generis regimes for the protection of plant varieties as permitted under Article 27.3(b) of TRIPS, as no alternative form of IP protection to PBRs is provided for. The regulations also further risk infringing on farmers’ rights by putting in place provisions requiring farmers, seed processors and certification agencies to provide information and monitor the use of farm saved seed by farmers.This adds an additional layer of regulation for farmers, which seems to support the monopolistic control over seeds by breeders, more than traditional agricultural processes used in West Africa small scale farming, such as the free exchange and replanting of farm grown seeds.
503 AFSA document.
504 Hillary Muheebwa, “ARIPO Reviews of Draft Regulations on Implementation of Arusha Protocol on Plant Varieties”, IP Watch, 24th June 2016.