Small Farmers’ Rights Sidelined In Uganda’s Plant Breeding Regulation

In a country with over 35 million people, Uganda’s economy is based on agriculture. Over 80 percent of the country’s workforce is employed in the sector, contributing up to 23 percent of the country’s gross domestic product (GDP).

Like many other countries,Uganda is party to the World Trade Organization Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS). TRIPS Article 27.3 requires member countries to provide protection for new plant varieties either by patents or by a sui generis system or by a combination of both.

Uganda is also a party to the International Treaty on Plant Genetic Resources for Food and Agriculture, to which it acceded in 2003, which urges the contracting parties to provide for the protection and promotion of farmers’ rights.

“Traditional farming practices should be excluded from the armpits of exclusive rights to plant breeders included in intellectual property rights regulations, because it’s an exploitation of the farmers’ indigenous knowledge, denying them their rights,” Mugisha said. “This includes the right to save, use, exchange and breed these seeds on a non-commercial basis, age-old practices that small farmers all over the world have used.”

For the last 10 years, the country has been developing a plant variety protection legislation for the protection of new plant varieties. This new regulation is referred to as the Plant Variety Protection Bill 2010, and was passed by the national Parliament in December last year. The bill has been developed along the lines of the African model law.

According to Komayombi Bulegeya, the Commissioner for Crop Protection in the Ministry of Agriculture, Animal Industry and Fisheries, “the legislation on plant variety protection will address the formal seed sector and is aimed at recognising rights and providing incentives to plant breeders to encourage them to develop new plant varieties with such agricultural values as high yields, resistance to pests and diseases, tolerance to droughts, good taste and high quality.”

According to information from the Ministry of Agriculture, “the seeds produced by the formal seed sector are of high genetic and purity value, though only contributing about 20 percent to the seed supply system. On the other hand, the informal seed system’s contribution of 80 percent of the seed supply has no organised seed production chain and is heavily unregulated.”

The formal system has fully registered local and international seed companies. The country currently has 23 registered seed companies.

During the state of the nation address earlier this month, Uganda President Yoweri Museveni revealed that 68 percent of the agricultural farmers in the country are involved in subsistence farming.

According to Richard Mugisha, advocacy officer with the Uganda chapter of Participatory Ecological Land Use Management, (PELUM), “although the bill has taken ten years under deliberations, stakeholders, especially small scale farmers were marginally involved. Even the minimal contributions that advocates of small farmers put forward were ignored while drafting the final bill.”

Although the African model law protects plant breeders’ rights in harmony with farmers’ and community rights, the final gazetted bill lacks substantive sections that had provided for the recognition and protection of farmers’ and community rights. For instance, section 41(1) of the first draft protected traditional knowledge on traditional varieties, including the right to equitably participate in sharing benefits arising from the use of farmers’ traditional varieties.

Bulegeya adds that the Plant Variety Protection bill will deal with varieties derived from conventional means.The need for plant variety protection arises from the need for a mechanism of rewarding plant breeders and for the purpose of promoting plant breeding activities to stimulate and promote agricultural development. Plant breeder protection ordinarily leads to improvement and enhancement of existing plant varieties.

The duration of the rights granted is 20 years in the case of annual crops and 25 years for trees, vines and other perennials. At the end of these periods, varieties protected by them pass into the public domain. The rights are also subject to controls, in the public interest, against any possible abuse.

The failure of the final version of the bill to recognise and protect farmers’ and community rights will erode the efforts of farmers and their communities to enrich and sustainably manage agricultural biodiversity, which is the basis of agricultural production and livelihoods for many Ugandans.

“It’s the attitude towards small scale farmers,” said Mugisha. “The small scale farmer in Uganda is viewed as disorganised, illiterate and informal, and therefore does not deserve to be recognised, yet they constitute the biggest agricultural input in the sector.”

Until the finalisation of African model legislation for the protection of the rights of local communities, farmers and breeders, the widely used model for the protection of plant breeders’ rights was the Union for Protection of New Varieties of Plants (UPOV).

The major difference between the two model laws is that although the African model law protects plant breeders’ rights in harmony with farmers’ and community rights, UPOV gives greater protection to formal plant breeders and hardly concerns itself with issues of farmers and community rights.

According to a document titled, “Designing Regimes to Support Plant Breeding in Developing Countries” by the World Bank Agriculture and Rural Development Department, “the UPOV system is the major example of a sui generis method for the protection of plant varieties, and it is seen by many as the most straight forward choice for countries wishing to comply with the TRIPS Agreement.”

In fact, the draft bill was based on the former Organisation of African Unity’s model law [pdf] adopted in 1998, which leans toward the protection of farmers’ rights.The law outlines farmers’ rights including the right to save, use, and exchange seeds produced on farms, and to use protected varieties in the development of new farmer varieties.

The bill applies to plant varieties in-situ and ex-situ conditions; derivatives of plant varieties; community knowledge and technologies; and plant breeders. It does not affect the traditional method of access, use or exchange of knowledge, technologies and plant varieties and the sharing of benefits based upon customary practices of the concerned local communities.

The bill states that local communities have the right of ownership of their plant varieties, technologies, knowledge, innovations and practices acquired through generations and the right to collectively benefit from such varieties, technologies, knowledge and practices.

“Traditional farming practices should be excluded from the armpits of exclusive rights to plant breeders included in intellectual property rights regulations, because it’s an exploitation of the farmers’ indigenous knowledge, denying them their rights,” Mugisha said. “This includes the right to save, use, exchange and breed these seeds on a non-commercial basis, age-old practices that small farmers all over the world have used.”