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I. INTRODUCTION
Seeds and other planting materials have become of global political significance largely because they are key components in the conservation and ownership of biological diversity in international trade. By the end of the 18th century, when systematic plant breeding by selection began, the plants grown by farmers were the result of several thousands of years of partly conscious and partly unconscious selection. Recent advances in biotechnology and genetic engineering have accelerated the process of producing new plant varieties. Plant genetic resources for food and agriculture are the essential raw material of the plant breeder, and their use in plant improvement is a source of tremendous benefit to humanity. New plant varieties contribute to the improvement in the quantity, quality and economical efficiency of satisfying market requirements for food, fuel, fibre and raw materials for industry. In fact, the breeding of new plant varieties is an economically important activity which contributes in many different ways to the well-being of society and is essential for human survival. Consumers and governments depend on plant breeders and producers to provide improved seed quality at lower costs. Increased production associated with new varieties benefit farmers whilst industries benefit from more abundant and cheaper supplies of raw products. Most of all, consumers benefit from the consistent availability of better quality food at attainable prices. In line with the world-wide concern for the environment, such improvements must be achieved without harmful impacts upon an environmental and sustainable manner. The issue of ethical and environmental concerns as well as the patenting of life-forms are still controversial. Other controversies are related to the impact of intellectual property rights on the holders of traditional knowledge, innovations and practices and the sui generis option provided under the UPOV Convention. ( Scowcroft & Polak, 2001; UPOV, 2001;Van Gastel & Gregg, 2001).
II. INTERNATIONAL AGREEMENTS
v THE CONVENTION ON BIOLOGICAL DIVERSITY
The Convention on Biological Diversity (CBD) has as main objectives the conservation of biological diversity, the sustainable use of its components and the fair and equitable sharing of the benefits arising out of the utilisation of genetic resources. The CBD considers the appropriate access to genetic resources and appropriate transfer of relevant technologies taking into account all rights over those resources. Provision is also made for international cooperation including information exchange, access to genetic resources, transfer of technology, and dispute settlement.(CBD, 2001, Van Emden & Peakall, 1996)
v THE UPOV CONVENTION
The system for the protection of plant breeders is covered by the International Convention for the Protection of New Varieties of Plants (UPOV Convention) of December 1961, administered by the International Union for the Protection of New Varieties of Plants. UPOV is a union of states which have agreed to grant exclusive rights of exploitation to the breeders of new plant varieties on an internationally harmonised basis and on an international level. The UPOV Convention has been revised on various occasions; the Convention of March 1991 introduced novelties of which account must be taken in national/regional Plant Varieties Protection Legislation. Among other issues, the 1991 amendment requires member states of UPOV to provide effective protection for new varieties of plants including relevant rules on the conditions and arrangements for granting protection as well as rules on the scope, possible restrictions, exceptions and forfeiture of the protection. The legislation must provide exclusive rights to breeders of new varieties and recognise the innovator's economic rights to financial reward for past efforts and investments.
( Dutfield, 1999;UPOV, 2001 a&b; Van Emden & Peakall, 1996 )
v WTO TRIPS, SPS AND TBT AGREEMENTS
Modern agricultural practices along with the establishment of the World Trade Organisation (WTO) and the Agreement on Trade-related Intellectual Property Rights (TRIPS) has brought about significant changes in plant breeding, seed multiplication and trade. Governments have to take those changes into consideration and ensure that proper legislation is introduced for the management/registration of seeds and new plant varieties and the protection of intellectual property rights. The TRIPS Agreement requires member countries to apply the obligations of one of the world's most important property convention. In the case of plant resources, the Article 27 of the TRIPS Convention requires the provision for the protection of plant varieties by patents, by an effective sui generis system or both. Whilst engaging into such Agreement member states of the WTO must ensure that they understand their rights, obligations and options under the agreement and its implications for their national legislation. TRIPS is probably the most controversial of WTO Agreements and already proposals are being considered for its review (e.g. Doha WTO Conference, Qatar 2001). The WTO Sanitary and Phytosanitary (SPS) Agreement also has some impact on the trade in seeds and plant varieties particularly where health and safety regulations are concerned. Under the agreement member states have to ensure that any sanitary and phytosanitary measure is applied to the extent necessary to protect human, animal or plant life or health, is based on scientific principles, and is not maintained without scientific evidence. Meanwhile, the WTO Technical Barriers to Trade (TBT) Agreement tries to ensure that regulatory standards, testing and certification procedures do not create unnecessary obstacles to trade. (Abbot & Mavroidis,2000; Dutfield, 1999; WTO, 2001)
v THE INTERNATIONAL TREATY ON PLANT GENETIC RESOURCES FOR FOOD AND AGRICULTURE
This Treaty is the outcome of the International Undertaking on Plant Genetic Resources (IU) which was being negotiated by the Commission on Genetic Resources for Food and Agriculture (CGFA) of the UN Food and Agriculture Organisation (FAO). The FAO Conference has only recently adopted this treaty on 3rd November 2001. Its main objectives are the conservation and sustainable use of plant genetic resources for food and agriculture and the fair and equitable sharing of the benefits arising out of their use, in harmony with the Convention on Biological diversity (CBD) for sustainable agriculture and food security. These objectives will be attained by closely linking this Treaty to the Food and Agriculture Organisation (FAO) of the United Nations and the Convention on Biological Diversity. The Treaty deals with the conservation, exploitation, collection, characterisation, evaluation, and documentation for plant genetic resources for food and agriculture. Other issues include farmers' rights, benefit sharing, international cooperation, technical assistance and dispute settlement.(PGRFA, 2001)
III. STATUS OF SEED AND PLANT VARIETIES LEGISLATION AND ITS ENFORCEMENT IN AFRICA
In Africa the availability of seeds can be constrained by poor harvest, inadequate storage facilities, insufficient means of producing good quality seed of a wider range of plant varieties and poor seed distribution. Variety testing, seed regulations and seed quality control is generally unsatisfactory because seed regulatory system is poorly organised and there is inappropriate standards used. Moreover, there is a general absence of plant breeders' rights and other forms of intellectual property rights. An OAU initiative published in 2000 called 'The OAU Model Law on Rights of local Communities, Farmers, Breeders and Access' has not met with much success. There is a need to strengthen local capacities to produce and distribute seed of many crop varieties, including some landraces/farmers' varieties. This will involve both the governments and the private sector for improvements in plant breeding, seed production and seed distribution. Governments must develop and use appropriate national laws, regulations and policies concerning governmental, commercial and informal enterprises dealing in seed production and distribution as well as the enforcement of seed quality control schemes. It is essential that those seeds meet the distribution and commercialisation criteria for pests, diseases, health issues and the environment. To be more effective, such measures must meet quality standards of seed distribution and commercialisation in accordance with the regional or international legislation. (Hadjichristodoulou, 2001; Van Gastel, 2001).
MAIN CONSIDERATIONS
Any current or new legislative measures, which are introduced to deal with the production, certification, distribution and commercialisation of breeders and farmers varieties should consider the following:
q SEED POLICY
A seed policy is the first and most important step towards an adequate and stable supply of high quality seed. There is a need for governments to develop and adopt new seed policies dealing with the quality control process and standards, variety development, testing and release, the control of varieties and variety ownership, seed testing and certification and seed import/ export.
q SEED AND PLANT VARIETIES LAW
The seed law must ensure reliable standards of seed quality, the protection of seed users and suppliers and the development of a quality-oriented seed industry. A harmonised seed and variety legislation would facilitate the movement of seed whilst at the same time protection the breeders and farmers' rights. Considering that the issue of life-form patenting is still controversial, a sui generis system for new varieties may be adopted initially.
q SEED AND PLANT VARIETIES REGISTRATION AND CERTIFICATION
The registration policies should take into consideration the certification of varietal purity for seed entering the local and international trade, the standards for seed testing and procedures, the plant breeders rights and plant protection/quarantine standards. The standards, processes and methodology for seed certification must comply with internationally recognised norms.
q QUALITY-CONTROL AND SEED-TESTING LABORATORY
There must be constant supervision, monitoring, inspection and testing according to internationally established procedures to protect seed users and suppliers.
Adequately equipped and staffed seed-testing laboratories are required to support the implementation of the legislation. Tests would put emphasis on overall quality, purity, germination capacity and phytosanitary cleanliness and should be conducted in full compliance with international seed testing standards.
q RESOURCES AND INCENTIVES
For the successful enforcement of rights and obligations, the governments must encourage farmers/growers and breeders to produce better quality seeds and provide facilities for seed testing, quality control, certification, registration and the maintenance of a seed/varieties database. The legislation and procedures must not be used as unfair restrictions to the trade and marketing of seeds national or internationally.
q INTERNATIONAL TRADE
The Phytosanitary/Plant Quarantine Laws should complement the Seed/Plant Varieties Law for the importation and exportation of seeds.
The norms shall be based on internationally recognised seed quality and plant quarantine standards.
q HARMONISATION
The strengthening of regional and international cooperation is important for the harmonisation of seed policies, laws, regulations and procedures concerning plant varieties, quality control, certification, importation, exportation phytosanitary requirements and trade policies.
IV. PROPOSALS FOR A SEED AND PLANT VARIETIES LEGISLATION FOR AFRICA
The main component of a Harmonised Plant Variety and Seed Legislation for Africa (Primary and subsidiary legislation) would include the following:
¨ Scope/objective: to promote the production and use of high-quality seeds through their certification and inspection
¨ Definitions e.g. seed include vegetative planting materials such as bulbs, tubers, rhizomes, etc.
¨ Variety registration and labelling: Registered varieties must be unique/distinct, stable, uniform and of high purity. Detailed Registration and Labelling requirements and procedures should appear in separate regulations
¨ Seed quality control standards: Standards may appear in a separate regulation and would include seed purity, germination level, proportion of inert matter and weed seed, etc.
¨ Testing and certification of seeds: Appearing in the statute and/or secondary legislation must be conditions for seed and variety testing, certification and control based on acceptable standards for purity, good quality, and the absence of seed-borne pests and diseases.
¨ Import/export rules and procedure: import and export procedures must take into account other trade plant quarantine and quality standards legislation.
¨ Phytosanitary/ quarantine control measures: This will surely overlap with the plant protection/plant quarantine legislation but has to be considered.
¨ Intellectual property rights for breeders: A patent or other effective sui generis system would have to be established. Provisions must be made for registration and protection of new varieties based on novelty, distinctness, homogeneity and stability. All procedures must be stated clearly in the main legislation or regulations.
¨ Genetically-modified varieties/seeds (GMOs) All genetically-modified seeds and plant varieties being imported, exported or made available to local producers must be covered by the legislation. More details on that should be included in secondary legislation e.g. regulation.
¨ Derogation e.g. for seed/food security during emergency/disaster situations: Special consideration must be made in cases of famine and other calamities, which may be serious in certain parts of Africa.
¨ Restricted and prohibited seeds/varieties: Certain seeds and plant varieties have the potential of developing into weeds or invasive plants. This must not be overlooked either in the main legislation or in secondary legislation.
¨ Application procedures, Permits and Licences: As part of the registration system for seeds and plant varieties provision must be made for the use of permits and licences as part of the regulatory procedures. Producers, breeders and dealers would also have to make formal applications the regulatory agency and provide any documentation as required under the law.
V. CONCLUSION
As stated above, the use of legislation dealing with seed quality and intellectual property rights tends to encourage innovation and benefits both the national and international economies. In other words the development of a legal system for seed quality and the protection of the rights of breeders of plant varieties should stimulate plant breeding research and have a positive impact on the agricultural sector and national economy of many African countries. Such legislation should also encourage more private investment in plant breeding, research and seed production (an area where government agencies have often failed in the past) as well as facilitate the access of farmers to new technologies, better varieties, improved seed quality and higher farming productivity. At the regional and international levels, there is a need to develop basic national seed laws and establish the necessary structures for effective seed certification and trade. To facilitate such developments, countries and regional bodies could start with the adoption of international rules and regulations to manage variety release, plant quarantine, plant variety rights, seed certification, product labelling, marketing, pricing and consumer protection.
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REFERENCES
· Abbot, F. & Mavroidis, P. (2000) Committee on International Trade Law. International Law Association, London Conference. Fourth Report
· CBD Convention (2001). On the Internet at: http://www.biodiv.org
· Dutfield, G. (1999). Intellectual property rights, trade and biodiversity: the case of seeds and plant varieties. IUCN, The World Conservation Union.
· Hadjichristodoulou, A. (2001) Seed legislation and regulatory measures in the Near East and Africa. FAO. On the Internet at: http://www.fao.org/ag/agp/agps/cyprus/paper6.htm
· PGRFA (2001) The International Treaty on Plant Genetic Resources for Food and Agriculture. On the Net at: http://www.ukabc.org/iu2.htm
· Scowcroft W. & Polak Scowcroft C. (2001) Developing a strategy for sustainable seed supply system in Sub-Saharan Africa: Policies, Stakeholders and coordination. FAO. On the Internet at: http://www.fao.org/ag/agp/agps/abidjan/paper11.htm
· UPOV. (2001a) National Plant Variety Protection Laws. On the Internet at: http://www.upov.int/eng/npvlaws/index.htm
· UPOV (2001b) About UPOV. On the Internet at: http://www.upov.int/eng/content.htm
· Van Emden, H. & Peakall, D. (1996) Beyond Silent Spring, Integrated Pest Management and Chemical Safety. P 99 - 104. Chapman & Hall, London
· Van Gastel A. & Gregg B.(2001) National seed policy and strategies for the Near East and North Africa. FAO . On the Internet at: http://www.fao.org/ag/agp/agps/cyprus/paper3.htm
· WTO (2001) World Trade Organisation On the Internet at: http://www.wto.org
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