FSG asks parliament to withdraw UPOV Compliant Bill

Food Sovereignty Ghana (FSG), a food advocacy group, has called on Parliament to withdraw the UPOV-compliant Plant Breeders' Bill and replace it with a "sui generis", plant variety protection (PVP) system suitable to the country’s conditions.

A statement issued in Accra by Edwin Kweku Andoh Baffour of the Communications Directorate of FSG said: “This call has become necessary in the light of the announcement by Parliament to provide "organisations and the…public the unique opportunity to have their say in the passage of any law through the Bill Symposium."

“First of all, we would like to reiterate our call for the publication of a report on the consultations so far undertaken by Parliament since the Plant Breeders' Bill (PPB) appeared before Parliament in June, 2013.

“We note that it is almost three years now since these consultations begun. We are also aware that a lot of petitions have been presented to Parliament. It does no one any good to ignore all these and organise a one-day symposium to replace such valuable and detailed work already presented to Parliament over the years,” the statement said.

It said the consultations have supposedly been going on since November 11, 2014 and FSG believes that these series must not be used as an excuse for not accounting for the time and energy of Ghanaians who have already petitioned Parliament.

The statement said there is absolutely nothing new to say that has not been said before. “We are finding it difficult to shake off the thought that this is a way of avoiding the publication of the report on the consultations so far done by Parliament”.

FSG is of the view that it is about time that Parliament shifts the discussion on the bogus UPOV-compliant PBB Bill, to a focus on a "sui generis" PVP system for Ghana.

“We have already pointed out that Ghana is a member of the World Trade Organisation (WTO) and the rights and obligations concerning intellectual property are governed by the WTO Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS Agreement).

“According to Article 27.3(b) of the TRIPS Agreement, Ghana has to provide protection of plant varieties by an “effective sui generis” system. Ghana has full flexibility under the WTO to develop an effective “sui generis” system for plant variety protection…. to develop a unique system that suits its needs.

“This provision allows Ghana maximum flexibility in the design of plant variety protection PVP. This is what many developing countries such as Thailand, Malaysia, India have done,” the statement said.

It noted that African Union Ministers have also recommended a unique Model Law for Plant Variety Protection.

It said Ghana could protect plant breeder rights without necessarily opting for UPOV 91. The Bill is modelled on the International Convention for the Protection of New Varieties of Plants of 1991 (UPOV 1991), which is a rigid and an inflexible regime PVP.

The 71 UPOV members, only a fraction – about 22 developing countries are members of UPOV. Most of these developing countries such as Brazil, China, Argentina, South Africa and even some developed countries like Norway are not members of UPOV 1991 but rather UPOV 1978, which is a far more flexible regime.

“Our first demand is that as a member of the International Treaty on Plant Genetic Resources (ITPGRFA) we expect Ghana to take steps to realise farmers’ rights to use, sell, save and exchange farm-saved seeds, to protect their traditional knowledge and to allow their participation in national decision-making. Instead of rather than a Bill that is heavily tilted in favour of commercial breeders and which undermines farmers’ rights.

"Joining UPOV under UPOV 91 narrows the possibilities for states to adapt PVP law to individual country’s needs and to involve stakeholders effectively.

“The Bill also contains a ‘presumption’ whereby a plant breeder is considered to be entitled to intellectual property protection in the absence of proof to the contrary. Usually the onus is on the applicant to prove that he or she has complied with the necessary requirements and is thus entitled to protection. But in this case there is a presumption in favour of the plant breeder.

“This presumption provision and the lack of an explicit provision that calls for the disclosure of origin of the genetic material used in the development of the variety including information of any contribution made by any Ghanaian farmer or community in the development of the variety creates opportunities for breeders to misappropriate Ghana’s genetic resources using the PVP system and to exploit smallholder farmers.

“Ghana’s farmers must not be criminalised by Ghana’s laws for practising traditional farming,” the statement said.

It said it is important to note that Ghana is a member of ITPGRFA and the Convention on Biological Diversity and both these instruments champion fair and equitable sharing of benefits arising from the utilisation of genetic resources.

“Including a disclosure of origin provision in the Bill is critical as it is widely recognised as an important tool to safeguard against biopiracy. Several countries have included such a provision in their PVP legislation and there is no reason why Ghana should not do the same.”

The Bill also lacks provisions that would ensure that intellectual property protection would not be granted to varieties that adversely affect public interests. It also provides a long list of plant breeder rights without any responsibilities.

“We strongly recommend the inclusion of a “Strict liability" clause, such as: ‘All approvals for introduction of GMO or their products shall be subject to a condition that the applicant is strictly liable for any damage caused to any person or entity’.”

FSG recommend that any PVP law in Ghana must protect Ghana from biopiracy so that any entity or individual who provides germplasm resources to any foreign entity, organisation or individual in cooperation to conduct research, shall make an application and submit a national benefit-sharing plan.

“We call on all those who have petitioned either for or against, to join us in demanding the publication of a report on the consultations done so far, and the conclusions of Parliament.

“A public account of these consultations would not only satisfy the order of the speaker who indicated, ‘this is because it is important to inform the people of Ghana’, but render transparent all controversies surrounding the Bill.

“We welcome the initiative to organise a seminar on a "sui generis" plant variety protection system. We think our attention should more be focused on that and do our best to draw the attention of our Parliamentarians on the need for a "sui generis" PVP system rather than another symposium on the same Plant Breeders' Bill. There is nothing new to say on this that we have not said before!

“We call for a new Bill! We call for a Bill that will be both Plant Breeders' and Farmers like India's Plant Breeders' and Farmers Act.”