The World Trade Organization’s (WTO) Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS)133 is a multilateral treaty that sets minimum international standards for intellectual property (IP) protection, that are binding on the WTO’s 164-member states. Since the formation of the WTO in 1994, developing countries in Africa have voiced doubts regarding the suitability of the agreement for attaining the food security objectives of the region.134 Subsequently, other bilateral and regional agreements have been negotiated by African states.
These agreements are crafted either by African institutions like the African Union (AU), or under guidance of and in collaboration with global economic actors that are often IP-rich nations. While some of the agreements advised strengthening of IPRs as the key to African development, others sought to increase the policy space for African countries to consider developmental issues in IP regulations.135 Some of the treaties were built on TRIPS provisions and norms. The Economic Partnership Agreement (EPA), signed by the European Union (EU) and 15 members of the Economic Community of West African States (ECOWAS) in 2014, represents one of such agreements.136
In-depth analysis of the relationship between IPRs and food security (FS) in West Africa is important for the following reasons: Firstly, the region is experiencing large scale population growth, susceptible to climate change and currently trailing behind in economic development.
133 Agreement on Trade Related Aspects of Intellectual Property Rights, 15 April 1994, Annex 1c WTO Agreement (entered into force 1 January 1995) [TRIPS].
134 Catherine Saez, “African Regional Plant Variety Protection Draft Legislation Raises Protests”, Intellectual Property Watch (5 April 2013); see “Least Developing Countries Proposal to exempt them from having to protect and enforce pharmaceutical patents and clinical data”, WTO document IP/C/W/605, 23 February 2015.
135 Susan Strba, “Intellectual Property Pluralism in African Development Agendas: food security, plant variety protection and the role of WIPO”, in Susy Frankel, ed, Is Intellectual Property Pluralism Functional? (North Hampton, MA: Edward Elgar Publishing, 2019) 37-65, at 37-38.
136 Economic Partnership Agreement between the West African States, ECOWAS and WAEMU of the one part and The European Community and its Member States of the Other Part, February 2014. [EPA]
According to the United Nations (UN) the West African population is expected to reach 430 million people by 2020 and go beyond half a billion by 2040.137 The majority of people in these countries rely on subsistence agriculture, using traditional farming methods, for income generation and food. ECOWAS is made up of 15 countries. 11 of these are described as “Least Developed Countries” (LDCs), while Cape Verde, Ghana, Ivory Coast and Nigeria are classified as developing countries.138
Secondly, the fact that many West African countries rely mainly on the export of few agricultural products as their principal source of income, while increasingly relying on imports of important foods, makes their economies particularly vulnerable. The region’s increasing dependence on the global rice market for domestic cereal supplies doesn’t advance food security in the region. For example, in Nigeria, the biggest market in West Africa, 180 million people are estimated to consume nearly 6 million tons of rice per year. Just over half, or about 3.1 million tons, is imported despite a tariff of 70%. This makes food security in Nigeria vulnerable to fluctuations in global rice prices.139
Statistics indicate that over 50% of rice consumed in West African countries is imported.140 West African countries, especially Ghana, show a steep increase in rice imports, with corresponding increases in the expenditure of foreign currency. According to the International Rice Research Institute, Sierra Leone spent 101 million United States dollars on rice importation in
137 Lauzon & Bossard, SAHEL AND WEST AFRICA CLUB/OECD, Working document 1, “The socio-economic and regional context of West African Migrations” (ISSY-LES-MOULINEAUX, France: OECD, November 2006), supra note 53, at 8, online: <http://www.oecd.org/migration/38481393.pdf>.
138 UN Committee for Development Policy, List of Least Developed Countries (December, 2018), online at: <
https://www.un.org/development/desa/dpad/wp-content/uploads/sites/45/publication/ldc_list.pdf>.
139 Grow Africa & Alliance for a Green Revolution in Africa (AGRA), ECOWAS Rice Factbook (Johannesburg:
USAID, 2018) at 16.
140 “Rice is King in West and Central Africa”, Editorial Article, WorldGrain.com, 25 January, 2016, online:
<http://www.world- grain.com/articles/news_home/Features/2016/01/Rice_is_king_in_west_and_centr.aspx?ID=%7B644CFE73-DA23-4E1B-A810-88E7C2430195%7D&cck=1>.
2012; Nigeria spent 1.28 billion dollars in the same year. 141 Data shows that in the period 2012-2017, importation of rice by ECOWAS countries soared to averages of 4 million metric tons (MMT) annually. Three West African countries (Nigeria, Senegal and Ivory Coast) were among the principal rice importing countries worldwide, with 5,200 metric tons imported annually.142 Reports estimate that between October 2016 to September 2017, in Burkina Faso, Ivory Coast, Mali, and Senegal, (West Africa’s principal rice exporting countries) total rice production fell 3.7% to 4 MMT.143 The resulting increase in rice imports leaves West Africa increasingly vulnerable to fluctuating global rice prices and puts their food security at risk.144
Thirdly, because prices affect access to the quality and quantity of foods required for food security, increased global food prices make it more challenging for the average person in West Africa to maintain a balanced healthy diet.145 This makes it imperative to review trade agreements being entered into by the region to ensure that they support and do not hinder sustainable growth and food security.
While the implications of international IP regulation for global food security have received much analysis, the implications of the regional IP and trade treaties for food security and sustainable development in West African countries has yet to be examined in depth. This research focuses on how patents, plant breeders’ rights (PBR), traditional knowledge and informal
141 Paul Conton, “West African Rice Import Comparison”, The Sierra-Leone Magazine, (14 January, 2016); USDA Foreign Agricultural Service, “2017 West Africa Rice Annual”, Global Agricultural Information Network (GAIN) Report, 4/11/2017, at 3, [GAIN Report 2017]. Online at:
<https://gain.fas.usda.gov/Recent%20GAIN%20Publications/Grain%20and%20Feed%20Annual_Dakar_Senegal_4 -11-2017.pdf>, at 12-15; USDA-FSA, “Grain: World Markets and Trade”, July 2016 Report, at 11-15.
142 Statista, “Principal rice importing countries worldwide in 2017/2018”, The Statistics Portal, online:
<https://www.statista.com/statistics/255948/top-rice-exporting-countries-worldwide-2011/>.
143 USDA Foreign Agricultural Service, GAIN Report 2017, supra note 141.
144 William G. Moseley, Carney Judith & Becker Laurence, “Neoliberal policy, rural livelihoods, and urban food security in West Africa: A Comparative Study of The Gambia, Cote d’Ivoire, and Mali” (2010) 107:13 Proceedings of the National Academy of Science (PNAS) of the United States of America, 5774-5779, at 5774.
145 Emmanuel Oritsejafor, “Food Security in Sub-Saharan Africa: A Case Study” (2010) 4:1 African Social Science Review Article, 52-69, at 58-60.
inventions affect food security in West African countries and seeks to identify how regional IP regulation can be utilized to provide optimum support for sustainable development in the region.
A recent UNDP study states that Sub-Saharan Africa (SSA) has experienced encouraging economic growth averaging about 4.5 per cent with some non-oil-exporting countries reaching an average of more than eight per cent. 146 Despite this impressive economic performance, agricultural transformation has been slow and growth rather sluggish. Notably, productivity is still way below yield potentials, agricultural mechanization is weak and declining, and the state of the agribusiness industry is still nascent.147 Recent moves by African governments and NGOs in Burkina Faso, Nigeria, and Senegal, to limit the use of genetically modified seeds in the cotton industry due to claims of lack of suitability of such products for sustainable use by and for the advancement of indigenous small and medium scale farmers, highlight the unsuitability of current IP systems to meet West African development.148
At a time when an increasing number of countries are adopting regional agreements to regulate IPRs, this research will offer crucial insight into the interplay between patents, PBRs and other relevant IP laws and food security in the ECOWAS region. Currently, West African states are in the process of ratifying several new bilateral and multilateral trade agreements the provisions of which have implications for IP and food security.149 If adopted, such agreements will either restrict or enhance the ability of West African countries to enforce food security objectives in relation to IPRs. With major economies in the region, such as Nigeria, yet to ratify the EPA due to
146 Nicolas D. Chauvin, Francis Mulangu & Guido Porto, Food Production and Consumption Trends in Sub-Sahara Africa: Prospects for the Transformation of the Agricultural Sector, UNDP WP2012-011, February, 2012.
147 Ibid.
148 See Joe Bavier, “How Monsanto’s GM Cotton Sowed Trouble in Africa”, Reuters Investigates (8 December 2017); Krinninger, supra note 64; and Simon Ferrigno, Daouda Traoré & Silvere Tovignan, “Power in West African Cotton Supply Chains”, Fair Trade Advocacy Office Report, Brussels, February 2016.
149 Examples include the EPA; and the Trade and Investment Framework Agreement between the Government of the United States of America and the Economic Community of West African States, ECOWAS-USA, 5 August 2014 [TIFA].
a desire for more information as to possible consequences, this research is timely as it will provide much needed directions to countries in the region.
Previous research conducted regarding the effects of patents and PBRs on public interests in Africa has mainly focused on international IP regulations, in relation to the public health and biotechnology sectors.150 Literature also exists that considers the effects of multilateral regulations on regional law and policies,151 and reviews national or regional IP regulations in Africa for their conformity to international standards.152
The main drawback of previous studies has been that after analyzing the current state of laws, they have not gone on to develop an alternative policy framework for IP and food security for the continent’s sub regions. Studies also conduct top-bottom analysis, which assesses African IP laws and policies based on pre-existing norms and standards contained in international IP agreements, thus narrowing the scope for considering alternative models. Also, by focusing on Africa as a whole, such literature doesn’t adequately consider the variations in social, economic, and political interests across African countries. In contrast, this research adopts a critical approach to IP regulation, not presuming that previous norms or standards set at the international level will
150 See Calestous Juma & Hezekiah Agwara, “African in the Global Economy: Strategic Options” (2006) 2:3-4 International Journal of Technology and Globalization 218; Philippe Cullet, “Plant Variety Protection in Africa:
Towards Compliance with the TRIPS Agreement” (2001) 45:1 Journal of African Law 97; Bram de Jonge, “Plant Variety Protection in Sub-Saharan Africa: Balancing Commercial and Smallholder Farmers’ Interests” (2014) 7:3 Journal of Politics and Law 100.
151 See Ikechi Mgbeoji, “The Comprador Complex: Africa’s IPR Elite, Neo-Colonialism and the Enduring Control of African IPR Agenda by External Interests” (2014) Osgoode Legal Studies Studies Research Paper 32/2014; and Chidi Oguamanam, “Intellectual Property, Agricultural Biotechnology and the Right to Adequate Food: A Critical Perspective” (2015) 23:3 African Journal of International and Comparative Law, 503 [Oguamanam, IP,
Agricultural Biotechnology and the Right to Adequate Food].
152 See George Sikoyo, Elvin Nyukuri & Judi Wakhungu, Intellectual Property Protection in Sfrica: Status of Laws, Research and Policy Analysis in Ghana, Kenya, Nigeria, South Africa and Uganda (Nairobi, Kenya: Acts Press, 2006); Law Student, “Patent and Intellectual Property Issues in Africa International Law”, Law Teacher.net (2 February 2018). Online: http://www.lawteacher.net/free-law-essays/international-law/patent-and-intellectual-property-issues-in-africa-international-law-essay.php?cref=1.
inherently advance African development; and utilizes bottom-top analysis to draw up an alternative framework for regulating IP and food security specifically for the West African region.
While some analysis has been made of regional trade agreements (RTAs) in Africa,153 in-depth analysis regarding the effects of West African RTAs on food security has not been conducted. The 2014 EPA between ECOWAS and the EU has yet to be comprehensively analyzed.
ECOWAS has yet to put in place regional policies in relation to IP and food security. Though the relationship between food security and IPRs such as patents has been examined broadly, this research goes further to study the relationship in the context of a more cohesive group of countries, namely those in the West African region.
By designing a regional framework for IPR, relevant for advancing and sustaining food security in the ECOWAS region, this research makes an original contribution by providing ECOWAS states with a comprehensive model for developing future regional IP laws and policies that will advance food security in West Africa. This research provides important insights on how legal theories and principles may be contextualized and applied to regional IP regulations and policies, so as to integrate West Africa’s food security interests.
Pre-existing ideas regarding IPRs in previous studies will be critically examined. Rather than limiting the analysis of subjects protectable by IPRs to formal inventions that take place in a scientific setting such as a laboratory, consideration will be made of how IPRs can be extended to cover traditional knowledge and unconventional innovations relevant to West African agriculture and food security. The question of what potential impacts the EPA will have on farmer’s rights,
153 See Adebambo Adewopo, “The Global Intellectual Property System and Sub-Saharan Africa: A Prognostic Reflection” (2002) 33:4 University of Toledo Law Review; Enyinna Nwauche, “ An Evaluation of the African Regional Intellectual Property Rights Systems” (2003) 6 The Journal of Intellectual Property, at 137-138; and Dalindyebo Shabalala, “Intellectual Property in European Union Economic Partnership Agreements with the African, Caribbean and Pacific Countries: What Way Forward After the CARIFOUM EPA and the Interim EPAs?”, Center for International Environmental Law (CIEL) Discussion Paper, April 2008.
traditional knowledge and innovation, agroecology, and other areas linked to food security in West African countries, has yet to be critically examined. Analysis of this question will form a central part of this research.
Analysis is not limited to looking at how laws trickle down from the topmost multilateral level, but this research goes on to analyze how change occurs from the middle (regional) level in West Africa. Also, this research goes beyond analyzing the current international norms and practices for IP regulation, to consider alternative frameworks that are more suitable to advancing food security in the region.
By drafting a legal and policy framework suitable for advancing food security in ECOWAS countries, this study will be making a significant contribution in providing West African countries with an IP model that they can utilize for advancing food security in the region. None of the above studies analyzed the EPA specifically as it relates to IPRs that affect food security. Through its analysis of the EPA provisions that relate to IPRs, and their implications for food security (not just economics or trade) in ECOWAS states, this study will bring a fresh perspective to knowledge regarding the EPA.
The theoretical limitations of previous attempts to integrate IP and food security interests will be overcome by combining two legal theories: (i) an instrumentalist theory, under which IPRs are viewed as teleological instruments for advancing all the objectives of IP law, including public interests like food security; and (ii) A differential approach to designing IP regulation, that allows for IP laws and policies to be adapted to suit different contexts. These theories are analyzed in greater detail below in sections 1.7 and 3.4 of the thesis.
This research goes beyond reviewing how traditional knowledge and practices may be defended from encroachment by IPRs, to proffer a regional framework for advancing local
agricultural innovation in West Africa. Previous studies have focused on ensuring access to IP protected technology, as the portal from which innovation can be launched in African countries.154 But considering the important role that traditional knowledge and unconventional inventions play in developing countries,155 the focus of this study is on drawing up an IP policy that goes beyond protecting formal technology, to cater for informal inventions, traditional knowledge and local agricultural practices that are also relevant to food security in West Africa.
In proposing a regional policy framework for IPRs regulations that is more appropriate for integrating domestic food security interests in the context of West Africa’s EPA, this research does not limit itself to analyzing the EPA, but goes further to scrutinize relevant provisions of inter-related regional agreements adopted by West African countries. This is an important contribution at a time when several free trade agreements, including the EPA, have yet to be ratified by the majority of West African countries, because the countries seem unsure as to the consequences of ratifying such agreements.156 It will also grant ECOWAS states important directions on forming future regional strategies for regulating IPRs in relation to food security at a time when, despite the numerous regional agreements advocating the necessity of a policy for food security and IPRs in West Africa,157 a regional policy has yet to be framed and adopted.
154 UNESCO & AU, “Innovation and Technology Transfer for Enhanced Productivity and Competitiveness in Africa”, background paper E/ECA/CM/47/4, AU/CAMEF/MIN/4(IX), 5 March 2014, paras 4-7; Nathaniel Agola, Technology Transfer and Economic Growth in Sub-Saharan African Countries (Berlin: Springer, 2016) at 7-8.
155 Miguel Altieri, “Agroecology, Small Farms, and Food Sovereignty” (2009) 61:3 Monthly Review 102; Emmanuel Yiridoe & Vincent Anchirinah, “Garden Production Systems and Food Security in Ghana: Characteristics of
Traditional Knowledge and Management Systems” (2005) 20:3 Renewable Agriculture and Food Systems 168.
156 Examples include the African Regional Intellectual Property Organization [ARIPO] Agreements, which Nigeria has refused to ratify; The Plant Breeders’ Bill; and the ARIPO PVP Protocol that have not been ratified by Ghana.
157 See ECOWAS Commission, Regional Agricultural Policy for West Africa: ECOWAP, CEDAO and ECOWAS document for Paris Conference on the Regional Agricultural Policy for West Africa, 9 December 2008.