Abstract
This chapter presents a case study of the preparation and passage of Kenya’s Seed and Plant Varieties (Amendment) Act in 2012. It begins by identifying the main differences between the previous laws that governed seed sovereignty in Kenya and the provisions of the new law. It then describes in detail the process by which the 2012 law was passed. It ends with a detailed analysis of the main actors involved in the decision-making process and their motivations. It reveals that the 2012 Kenyan seed law is consistent with a hyperglobalist interpretation of seed sovereignty. Kenya ceded proprietorial rights over seed to international corporate and commercial interests.
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Notes
- 1.
The Seed and Plant Varieties Act, 1972 (as amended in 2002) Act No. 2 of 2002 (Cap 326).
- 2.
Republic of Kenya, Ministry of Agriculture, National Seed Policy, June 2010.
- 3.
The Seed and Plant Varieties Act (Act No. 1 of 1972, L.N. 152/1998, Act No. 2 of 2002 (Cap 326), Act No. 53 of 2012, L.N. 71/2011).
- 4.
The Seed and Plant Varieties Act, 1972 (as amended in 2002).
- 5.
The Crops Act (Act No. 16 of 2013, L.N. 57/2013, L.N. 110/2014).
- 6.
The Agricultural, Fisheries and Food Authorities (Act, No. 37 of 2013).
- 7.
The Kenyan Agricultural and Livestock Research Act, 2013.
- 8.
The Kenya Plant Health Inspectorate Act, 2012 (Kenya Gazette Supplement No. 218 (Acts No. 54)).
- 9.
The Biosafety Act (Act No. 2 of 2009, Cap 321 A).
- 10.
The Anti-Counterfeit Act (2008) (relevant regarding infringements of PBRs).
- 11.
Memorandum of Objects and Reasons to the Seeds and Plant Varieties (Amendment) Bill, 2011, dated 28 November 2011.
- 12.
Firstly, WTO Agreement on TRIPS (TRIPS, Article 27.3 (b)) to which Kenya is a party requires member states to provide IP protection for plant varieties, but allows governments a wide latitude in its determination (Dutfield 2011, p. 7). Secondly, Kenya is already a member of UPOV 78, which allows wider scope regarding PBRs and is considered a better option for African countries than the stricter UPOV 91, which was designed with ‘developed’ agricultural systems in mind. Despite SPVAA 2012 being compliant with UPOV 91, Kenya has yet to deposit an instrument of accession (Munyi and De Jonge 2015) and so is still at time of writing bound only by UPOV 78.
- 13.
11 (3) (b) provides that “Parliament shall enact legislation to recognise and protect the ownership of indigenous seeds and plant varieties, their genetic and diverse characteristics, and their use by the communities of Kenya” (The Constitution of Kenya 2010).
- 14.
The Rockefeller Foundation is listed as a key institution involved in the first confined field research trial in Kenya for maize crop (Zea Mays 1, Cry 1Ba) alongside Monsanto, Syngenta, International Maize and Wheat Improvement Centre (CIMMYT), University of Ottawa and KARI (Karembu et al. 2009, p. 12).
- 15.
The Kenya Plant Health Inspectorate Act, 2012 (Kenya Gazette Supplement No. 218 (Acts No. 54)).
- 16.
In that period 2005–2012, three different Ministers for Agriculture oversaw the events that culminated in a new seed law SPVAA 2012. They were Kipruto Arap Kirwa (2003–2007), William Ruto (2008–2010) and Sally Kosgei (2010–2013). Ruto and Sally Kosgei exchanged portfolios in April 2010, Ruto having been suspended by Prime Minister Raila Odinga on 14 February 2010, following a report by PricewaterhouseCoopers regarding a maize scam. Kosgei became Minister for Agriculture. A few months later Ruto was demoted to Minister for Higher Education, a post he held only until 19 October 2010, when he was finally relieved of his ministerial duties altogether, after a court ruled that he must stand trial over allegations of corruption, based on the new Kenyan Constitution 2010. This was separate to the ICC case against Ruto, which was dropped on 5 April 2016, due to insufficient evidence. Ruto was appointed as Deputy President of Kenya in 2013.
- 17.
The formal seed sector expanded at a rapid pace since liberalisation, going from just three seed companies in the 1980s, to 18 in the 1990s and post-liberalisation escalating to 78 by 2010, 90 in 2012 (AFSTA 2010).
- 18.
PBAK was formed out of a conference co-hosted by STAK and UPOV in 1993, and officially registered in 1996 to lobby for the enactment of plant-breeders’ rights/IPR provisions in Kenya.
- 19.
- 20.
Seed Growers Allocation Panel chaired by Provincial Director of Agriculture and would include Director of Commodity research Centre, Director National Seed Quality Control Service, MD KSC, General Manager Horticulture Crops Development Authority.
- 21.
Special Issue: Kenya Gazette Supplement No. 12 (Legislative Supplement No. 8), 27 January 2009.
- 22.
DUS standard is the strict IO standard, which means that seed must be distinct, uniform and stable. The DUS standard is associated with the onslaught of commercial seed industry, necessary for monoculture practices of production.
- 23.
Plant protection Act (Cap 324), Suppression of Noxious Weeds Act (Cap 325), Pest Control Products Act (Cap 346) and National Biosafety Act (2008).
- 24.
KSC has had a monopoly on production and distribution of new varieties released by state research organisation KARI, which was mandated to develop new crop varieties.
- 25.
- 26.
GRAIN report recognises “huge potential for seed exports from the U.S. as the formal seed sector expands and the demand for numerous seeds grows” (USDA 2008). GRAIN point out that African Seed Trade Association (AFSTA), which was set up by the American Seed Trade Association (ASTA) “to act a s a local lobby for the transnational seed industry” was mandated to “promote regional integration and harmonisation of seed policies and regulations supportive of US seed trade”, with an explicit target of securing a 5% increase in US seed exports to the region in the first 5 years (GRAIN 2005, p. 31).
- 27.
STAK was formed in December 1982 under the Societies Act Cap. 108 of the Laws of Kenya.
- 28.
“For the financial year ended August 2014, Monsanto’s revenue topped US$15.8 billion, with total profits exceeding US$ 2.7 billion. R&D expenses for the year were US$1.7 billion” (Monsanto quoted in ACB 2015, p. 36).
- 29.
STAK is a member of the International Seed Federation (ISF), is linked to the African Seed Trade Association (AFSTA ), an African apex body representing the private sector in the seed industry, which in turn has strong links to the American Seed Trade Association, and expands through the African Regional Intellectual Property Organisation (ARIPO), the Organisation Africaine de la Propriété Intellectuelle (OAPI), the regional intellectual property organisation for mainly Francophone African states and the Southern African Development Community (SADC) to the rest of Africa.
- 30.
- 31.
In fact, only Tanzania within the ARIPO countries has fully acceded to UPOV 91.
- 32.
This officially became the Arusha Protocol in July 2015, though remains contested whether it can have direct legal application (Munyi and De Jonge 2015).
- 33.
Kenyan State is deeply committed to this paradigm at many levels. Through its Vision 2030 blueprint for Kenya’s Development, in its Strategy for Revitalising Agriculture (SRA) 2004–2014 and its 2010–2020 Agriculture Sector Development Strategy. Ruto also refers to Kenya’s commitment under the Maputo 2003 Declaration signed by African heads of state to increase agriculture budget to at least 10% of national budget. They are also committed to this paradigm through COMESA, ARIPO, Alliance for Commodity Trade in East and Southern Africa (ACTESA), Comprehensive Africa Agriculture Development Programme (CAADP), ASARECA at a regional level and through these initiatives and treaties they are in turn aligned with their key resource partners, namely, USAID, AGRA, EC, World Bank, Department for International Development (DFID) and others, who all share the same paradigmatic approach to seed.
- 34.
One-hundred and thirty pieces of legislation would be reduced to 7 according to Ruto (Hansard 28 October 2008).
- 35.
This was echoed in 2009 US President Barack Obama highlighted developmental ‘game changers’ in Africa in his US National Security Strategy speech, citing the need to pursue issues such as agricultural productivity which are ‘not adequately addressed at a bilateral level’, emphasising the need to pursue the potential for weather-resistant seed varieties and green energy technologies as an example https://www.whitehouse.gov/sites/default/files/rss_viewer/national_security_strategy.pdf (Obama US National Security Strategy 2009, p. 34).
- 36.
CIAT was ‘overhauled’ in 2000. This led to the creation of a CGIAR fund and saw its 15 global research programmes rehoused in the World Bank in Washington DC and CGIAR entered into a number of public-private partnerships (PPPs) with seed MNCs Monsanto, DuPont, Pioneer and Syngenta since, notably in Kenya (ACB 2015, p. 10). ACB highlight how the organisation is hugely funded now by AGRA to the tune of US $720 million from 2003 to 2014, while the Bill and Melinda Gates Foundation hold a place for BMGF on the CGIAR Council (ibid.).
- 37.
http://ciatblogs.cgiar.org/support/syngenta-foundation-stronger-bean-seed-systems/ [accessed online /6/2017].
- 38.
Kenya Gazette Supplement, No. 218 (Acts No. 54). The President would appoint the non-executive chairperson of the new ‘Service’, which would now be responsible for “implementing PVP in Kenya, and administering PBRs (Part 11, Section 5 (f), Kenya Gazette Supplement, No. 218 Acts No. 54), and undertaking plant variety testing and description, seed certification (Part 11, Section 5 (g)) (ibid.), and to implement and enforce national biosafety regulations on the introduction and use of genetically or living modified species of plants, insects and micro-organisms, plant products and other related species” (Section 5 (j)) (ibid.).
- 39.
http://www.slideserve.com/gage-bauer/presentation-made-during-8-th-ofab-meeting-in-nairobi-28-th-june-2007 [accessed online 8 June 2017].
- 40.
The 29 strong Agricultural Committee is an important drafting committee for agricultural legislation such as the seed bill.
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O’Grady Walshe, C. (2019). Kenya: A Hyperglobalised Seed Law. In: Globalisation and Seed Sovereignty in Sub-Saharan Africa. International Political Economy Series. Palgrave Macmillan, Cham. https://doi.org/10.1007/978-3-030-12870-8_4
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