Alarm over Kenyan IPR bill

TITLE: Industrial Property Rights Bill Runs Into Trouble AUTHOR: Judith Achieng' PUBLICATION: IPS News DATE: 28 May 1999 URL:
http://www.ips.org

NEW BILL A THREAT TO NATIONAL FOOD SECURITY

The Nation (Nairobi) May 27, 1999 By Nation Correspondent

Nairobi - The Industrial Property Bill 1999, Kenya's attempt to domesticate an agreement on Trade-Related Aspects of Intellectual Property Rights, is unwittingly skewed in favour of foreign control over local genetic resources. Small-scale farmers' ability to grow food through seed saving could be severely curtailed due to failure to protect traditional knowledge systems, warns GICHINGA NDIRANGU.

A month ago, Parliament went through the first reading of the Industrial Property Bill 1999. Few MPs took notice of this innocuous-sounding piece of legislation whose title camouflages what it bodes for Kenya's food sub-sector.

While the Bill does address industrial development issues from a tangent, it is its possible serious implications on national food security that explain the concern it is already generating. For the MPs representing the rural populations, the Bill's implications call for more than a bare fleeting glance.

In particular, small-scale farmers' ability to grow food through seed saving could be severely curtailed due to failure to protect indigenous and traditional knowledge systems.

On the contrary, the Bill - which is Kenya's response in domesticating the agreement on Trade-related Aspects of Intellectual Property Rights brokered by the World Trade Organisation - is unwittingly skewed in favour of advancing foreign corporate control over local genetic resources.

Yet, this places Parliament at a legal crossroads because by undermining traditional and indigenous knowledge systems, the Bill contradicts Kenya's obligations under the Convention on Biological Diversity (CBD) which calls for the protection of farmers' and community rights over biodiversity.

Parliament must ensure that the Bill is reconciled to the obligations created by the TRIPS agreement and the CBD - both of which are internationally binding and already ratified by Kenya.

What is more disturbing is that the Bill relegates Kenya's domestic priorities to the periphery in favour of foreign corporate control over genetic resources.

A Nairobi university law lecturer has already cautioned that the Bill would undermine rather than promote domestic concerns emphasising caution over domesticating international legal obligations with little or no regard to the local environment.

Dr James Otieno Odek, who heads the department of public law at the University of Nairobi, told a media symposium last week that "the salient provisions of the Bill do not reflect domestic concerns."

He added: "Unless the issues at stake are understood at the national level, input at the global level will be insignificant and the legal framework created will be a superstructure with no relevance at the grassroots level".

If passed in its present form, the Bill will enhance the leverage of biotechnology transnationals to introduce genetically modified seeds.

This at a time of growing international censure against biotech transnationals, especially in Asia over the threat posed by these seeds to small-scale farming and the environment in the absence of a clear legal regulatory framework.

Yet, in the face of this growing censure - most pronounced in Brazil, India, Thailand and Bangladesh - American transnationals who dominate the biotech industry, have continued to exert pressure for stronger patent protection for seeds in developing countries.

With 1.4 billion mouths to feed, the seed market in these countries makes the food sector a lucrative chip for corporate profit.

Before November, most developing countries are expected to have put in place strong domestic laws protecting patent rights. While this demand ostensibly comes from the WTO, the real push is from the agro-based transnational corporations keen on raking in high profits and controlling the world's food supply.

It is a complex matrix under which, national food policies are becoming increasingly irrelevant at the threshold of the next millennium as private corporate influence becomes more entrenched in world trade.

With the rapid growth of biotechnology in the world's seed sector, the utility of strong patent laws in the North is proving to be of limited value to transnationals unless matched by parallel legislation in developing countries. Hence the corporate push on the WTO to harmonise patent legislation across different countries.

Besides securing global reach, uniform patent legislation is expected to provide transnationals with greater economic control in new markets by enhancing the protection of royalties and controlling access to seeds.

Yet, in most developing countries where small-scale farmers dominate food production, such strong patent legislation will constrain food security.

Kenya's Industrial Property Bill 1999 opens up this gruesome possibility. Parliament's singular duty must be to protect food production by small-scale farmers by specifically excluding food and farming resources from patenting. National food security is too important to be subordinated to international agreements that further enhance the inequity of the North-South divide.

By providing scope for grant of patent rights over genetically modified seeds, the Bill is a telling example of the extent to which national priorities are being undermined by international corporate demands.

Action Aid country director Thomas Joseph last week urged Parliament to adopt a sense of caution in debating the Bill. "We are not convinced that the Industrial Property Bill safeguards the interests of our small-scale farmers", he cautioned.

"In opening up scope for patenting products of biotechnological processes, the Bill opens the doors to biotech transnational corporations to exercise patent rights over seeds which will increase farmers' dependence on the corporations and increase the cost of food production already under pressure from a lack of domestic subsidy support", he added.

It is not an idle nor preposterous concern. Poor farmers, who produce 80 per cent of Kenya's food will be further marginalised given their inability to afford expensive seeds while they lose out their inability to save seed on account of patent rights secured by transnationals.

By easing the acquisition of patents over Kenya's genes and crops by foreign agro-based transnationals, the farmers' local knowledge of farm systems will be severely undermined. Ultimately, the inequities of the international trade system that underpin both hunger and poverty among the rural poor will be further accentuated as local control over germplasm is increasingly ceded to foreign biotech transnationals.

It is this gruesome prospect that underlines the need for Parliament to vote against patent rights over food and farming resources under section 26(a) of the Bill to secure the national interest.

There is also need to legislate against the introduction of the 'terminator seed' whose genetic composition allows only a single reproductive cycle to increase farmers' dependence on transnationals.

The terminator seed poses a clear threat to natural crops through cross-pollination which could severely undermine food production. While certain countries have already banned field growing of the terminator alongside other genetically engineered seeds, Parliament must take cue in debating the Bill.

Most importantly, the Bill must assert control over natural resources by seeking benefit sharing between foreign transnationals and local communities from whom genetic resources are sourced for industrial exploitation.

© The Nation 1999

<> <> <> <> <> <> <> <> <> <> <> <> <> <>

INDUSTRIAL PROPERTY RIGHTS BILL RUNS INTO TROUBLE

By Judith Achieng'

NAIROBI, May 28 (IPS) - Kenyan rights groups say a new Industrial Property Rights (IPR) Bill, which has been drafted to conform with the requirements of the World Trade Organisation (WTO), will be controlled by powerful multinational corporations, if passed into law.

They say the bill, which has been read once and awaits two more readings in parliament before it replaces the Kenya Industrial Property Act, would not only erode the country's sovereignty by reducing the government's regulatory powers but also threaten food security.

'We are not convinced that the Industrial Property Bill safeguards the interests of our small-scale farmers,' said Thomas Joseph, the director of ActionAid, a non-governmental organisation (NGO), at a news conference in the capital Nairobi recently.

Kenya, along with 100 other developing countries, has signed for membership in WTO.

As a signatory to the 132-member body, the East African country is under a binding obligation to implement its numerous trade agreements, which include the Trade Related Aspects of Intellectual Property Rights (TRIPS), as part of a binding code for its members.

IPR allows the patenting of parts of animal or plant products which come as a result of biotechnological processes. Modification of any life-form, such as hybrid seeds or cattle are patentable, under the Bill.

The Bill does not recognise the right of communities to their orally preserved traditional knowledge of seeds and other natural resources.

The definition of a patentable bill drawn from TRIPS, has angered rights groups. TRIPS demands that for an invention to be patented, it must be new, involves an inventive step and industrially applicable.

Otieno Odek, a Kenyan human rights lawyer, says this definition, which requires there has to be a clear inventor who can be identified, knocks off indigenous people who have been using invented arts and technologies for generations.

'This definition almost immediately dismisses the knowledge systems and the innovations of indigenous people and farmers because they innovate communally over time, and even inter generationally,' he says.

Ironically, Kenya has also signed the Convention on Biological Diversity (CBD) which recognises indigenous rights to their resources, in contradiction with TRIPS.

'We are keen on seeing that community rights over control of biodiversity are clearly acknowledged, protected and rewarded so that legislation on Intellectual Property Rights is not skewed in favour of official private profit,' says Joseph.

Non-governmental organisations (NGOs) like ActionAid argue that food and medicinal products are basic needs and should not be subjected to monopoly pricing associated with patents and plant breeders rights.

'The truth is that the knowledge of farming and of plants, known to our farmers for generations, is being appropriated with impunity by northern Transnational corporations,' says Joseph.

A Nairobi-based NGO, 'Econews Africa', says the change in patent protection duration from the original seven years to 20 years in the new bill, would virtually bring to a halt industrialisation process in most developing countries like Kenya, which aims to industrialise by 2020.

Econews' Jagjit Plahe argues that 20 years of protecting a patent from copying or readapting goes against the spirit of competition which the globalisation process is all about. 'TRIPS violates all principles of liberalisation. Its all about control, and making profits at all costs,' she says.

Odek say the Bill, which remains vague on issues of national interests, encourages technological dependency on developed countries.

For instance, out of the more than 400 patent applications made in the field of biotechnology by 1991, less than one percent were filed outside developed countries, a figure which shows that developing countries would have to pay fees and royalties to their counterparts in developed nations if they need results of these innovations.

'The developmental goals of a country cannot be left to a vague legal regime,' Odek says. 'A legal regime conducive to a country's socio-economic development must be internal and national in outlook and must provide incentives to its citizens and at least it should treat its residents better than non- residents.'

However, all is not lost for Kenya's indigenous people, despite the little time left, for it to domesticate TRIPS. After its adoption in 1994, developed countries had one year within which to comply with the requirements of TRIPS while developing countries were given a five-year grace period. Least developed countries, like Kenya, were given six years.

Article eight of TRIPS permits members to insert in the national Industrial Property rights regulations, measures to protect public health and nutrition as well as promote sectors of vital importance to their economies, according to Odek.

Under this provision, known as the 'Sui Generis Code', developing countries could develop systems to protect their indigenous knowledge.

So far only the Philippines and South Africa have applied it in their national constitution, to protect all their local patents and plant varieties, and also protect through patents, their folklore and traditional medicine knowledge. (END/IPS/ja/mn/99)