Introduction

In heavily mechanized and science-driven agriculture, on the one hand, it is assumed persons, mostly seed companies of an international pedigree, who breed, develop or discover a seed or a plant variety[1] are producers while farmers are deemed to be consumers of plant breeders’ products through buying the seeds and planting the protected plant varieties. This dichotomy disregards the quintessential role of farmers from time immemorial to save, use, exchange and sell farm-saved seed/propagating material in order to promote agrobiodiversity and food security and nutrition.

Plant Breeders’ Rights

Breeders’ are granted plant breeder’s rights for their distinct, uniform and stable[2] plant varieties. Due to the financial muscle required in scientific research, often, multinational companies are the largest beneficiaries of plant breeders’ rights. They exercise these exclusive rights for twenty years[3] prohibiting other persons, including local farmers, from producing and reproducing, conditioning for the purpose of propagation, offering for sale, selling or other marketing, exporting, importing and stocking for any purpose.[4] Farmers are only allowed minimal latitude, which is Farmers’ Privilege, to harvest and use such products on their own holdings within reasonable limits and safeguard the legitimate interests of the plant breeder.[5]

The current legal framework leaves little or no room for local farmers to make decisions on what farm-saved seed to continue saving, using, exchanging and selling within their networks. In fact, such actions may amount to infringement of plant breeder’s rights and a plant breeder can sue for damages and account for profits.[6] This may limit farmers in developing new seed and plant varieties using locally available knowledge. In spite of this, this practice of saving, using, exchanging and selling farm-saved seed forms the cornerstone of Article 9 of the International Treaty on Plant Genetic Resources for Food and Agriculture “ITPGRFA”, which Kenya acceded to on 29^th June 2004.

Farmers’ Rights

Without a doubt, local farmers from time immemorial have been knowledge producers, breeders on their own right in agriculture and users of that knowledge. These unique roles are intertwined but have since been sidelined within the producer-consumer dichotomy and grant of exclusive rights and legal monopolies. The Kenya Agricultural Sector Transformation and Growth Strategy (“ASTGS”) 2019-2029, sought to highlight local farmers’ role in agriculture. This was aimed at increasing average small-scale farmer incomes by 30-40% and directly impacting 3 million small-scale farmers, pastoralists and fisherfolk; increasing agricultural GDP by 35% to KES 3.9 trillion; reducing the food-insecure population to 0-1.3 million; and reducing the cost of food and improving nutrition. Despite such goals, ASTGS has failed to convincingly spell out the unique role of local farmers in knowledge production, breeding and use of such knowledge in promotion of agro-biodiversity and food security and nutrition.

Local farmers in the ASTGS are considered consumers of knowledge while universities and agricultural research institutions are the knowledge producers. This is generally evidenced by the nine action-oriented flagship enablers. The flagship enablers presuppose that farmers cannot actively engage in research and decision making regarding pest, drought or disease-resistant crops that ensure food security and nutrition. Research and innovation are solely undertaken by public and private organizations as well as universities independently or in collaboration with other agricultural research institutions. The nine enablers do not seem to appreciate that farmers’ have been selectively saving, using, exchanging and sell farm-saved seed/propagating material from immemorial.

Conclusion

In order to articulate the unique role of farmers in agriculture, farmers should be recognized as integral stakeholders in agricultural sector transformation. This requires active participation. This would be through allowing farmers to participate in the decision-making process at both policy and legislative levels. The decisions should touch on matters to do with their ability to save, use, exchange and sell farm-saved seed/propagating material of farmers’ varieties.[7] Farmers should be able to use varieties including those that are protected by plant breeders’ rights. Engaging farmers as stakeholders, decision-makers and knowledge producers ensures that there is inclusive agricultural transformation without losing control of plant and genetic material. Such inclusion serves as an incentive to the conservation of local genetic resources and enhances food security and nutrition.

[1] Section 2, Seeds and Plant Variety Act CAP326, 1972 as amended in 2012.

[2]  Section 3 (1) Fourth Schedule, Seeds and Plant Variety Act CAP326, 1972 as amended in 2012.

[3] Section 19, Seeds and Plant Variety Act CAP326, 1972 as amended in 2012.

[4] Section 20 (1), Seeds and Plant Variety Act CAP326, 1972 as amended in 2012.

[5] Section 20 (1E), Seeds and Plant Variety Act CAP326, 1972 as amended in 2012.

[6] Section 20 (3), Seeds and Plant Variety Act CAP326, 1972 as amended in 2012.

[7] African Model Legislation for the Protection of the Rights of Local Communities, Farmers and Breeders, and for the Regulation of Access to Biological Resources, 2000