At present, approximately between 80% and 90% of the seed stock produced worldwide is provided through smallholder farmer managed systems. In Africa, about 80% of all seed is spread through the free use, sharing and sale of seeds and/or propagating material among smallholder farmers.

In order to harmonise the legal framework for the protection of plant breeders’ rights in Africa, the African Regional Intellectual Property Organisation (ARIPO) has drafted the Draft Regional Policy and Legal Framework for Plant Variety Protection. ARIPO has based the draft policy on a number of considerations:

  • The importance of sustainable agricultural development.
  • The promotion of sustainable agricultural development to prevent hunger.
  • The promotion of agricultural innovation by rewarding those who create new varieties.
  • The stimulation of innovative mechanisms to deal with climate change.
  • The creation of an enabling environment for the development of the seed industry that meets the needs of smallholder farmers, promotes food security and improves welfare in rural communities.
  • Concerns regarding biopiracy in developing countries.
  • Various industry and International Union for the Protection of New Varieties of Plants recommendations.

The framework is drafted around the International Convention for the Protection of New Varieties of Plants 1991 (UPOV). ARIPO's integration of the UPOV 1991 provisions into the draft policy is supported by many organisations, including the US Patent and Trademark Office and various seed associations, as the framework aims to expedite the trade in seed which is bred commercially for the benefit of multinational seed companies by increasing research and development in new plant varieties, thereby increasing agricultural product output.

However, there has been resistance to the adoption of the draft policy by groups such as the Alliance for Food Sovereignty in Africa. Their reasons for opposition of the adoption of the draft policy include:

  • The replacement of traditional varieties with uniform commercial varieties of seeds, leading to a decrease in crop diversity and reduction in resilience to certain pests, disease and climate change.
  • The increase of farmers' indebtedness due to season-dependent income.
  • The exacerbation of challenges such as biopiracy, hunger and food security.
  • The failure to acknowledge the rights of farmers as breeders, and limiting farmers' rights in terms of customary rights to save, use, exchange and sell farm-saved seed.

There is little evidence that a system based on the UPOV 1991 will encourage the development of new plant varieties where no market exists at present, and there is no empirical data to support the improvement of rural income or food security. Prolific seed farming in Africa is attributed to knowledgeable seed breeders who have been farming for centuries and producing crops which are more resilient to pests and diverse weather conditions, while limiting production costs and transferring different crops which contribute to crop diversity.

Further, opposition groups are of the view that the draft policy criminalises farmers’ rights and will undermine the existing seed systems in Africa by allowing for the seizure, forfeiture, destruction or suspension of release into free circulation of material produced in contravention of plant breeders' rights registered in terms of the draft policy. There is no clear reference in the draft policy to the registration of existing varieties without the required novelty, and there seems little value in granting protection to existing varieties. There are also questions around the ownership of plant varieties developed through publicly funded research and participatory breeding programmes with farmers, and any licensing arrangements arising therefrom.

Various interested parties and groups of small farmers have compiled a petition against the introduction of the draft policy. ARIPO sought approval of the draft policy by its member states in a meeting in Zanzibar from 26th to 30th November, at which the petition and various arguments against the draft policy in support of plant breeders' laws acknowledging local farmers and their contributions to the world seed industry were to be submitted.