The agricultural sector is important in Africa. It
is a dominant sector in terms of employment,
export earnings, and livelihoods for many
populations. It accounts for over 20% of Africa’s
GPD (AFDB, 2016). Even then, Africa remains a net
food importer. This situation is likely to remain as
the continent’s agricultural sector faces immense
challenges from the adverse effects of climate
change among others. The structure of Africa’s
food production system is characterised by a
vast majority of farmers engaging with farming
activities for a dual purpose-food production
for home consumption and for the market.
Commercial agriculture is also thriving for some
crops.
Seeds are at the core of food production, and seed
laws cover a broad range of activities over seed in the
agricultural sector. The activities that seed laws cover
include seed testing, certification, variety release,
and registration, phytosanitary measures, and plant
breeders’ rights or plant varieties protection. The
manner in which each of these activities are regulated
in the law has a profound effect on the outcome
of seed production, availability, accessibility and
therefore how agricultural systems are shaped. In
Africa’s context, seed laws also have to fit within the
unique characteristics and context of small-scale
farmers.
This report reviews the current status of seed laws
internationally, at the continental level in Africa, in
the EU, in the US as well as international programs
of relevance to seed laws in Africa. The review of EU
laws is based on the fact that the EU is a key trading
partner with African countries and regional economic
blocs and that policy developments in the EU such
as the European Green Deal (EGD) are likely to have
an impact on seed laws in the EU and beyond. The
brief review of US seed laws and US seed programs
in Africa are highlighted with a view to demonstrate
other external parties’ actions in influencing seed
laws in Africa. This report also reviews the debates
informing the status of these laws. These debates
revolve around the rights of farmers to save, reuse,
and exchange or sell farm-saved1 seed. Saving,
re-using, exchanging or selling farm-saved seed is
1. As a legal term, farm-saved seeds refer to seeds and propagating material of
protected varieties that a farmer retains from own harvest for planting. This is the
context in which we use this term.
not only a practice that farmers especially in Africa
have been engaging for a long time as a strategy
to overcome the challenge of accessing seed, but
is also recognized as a farmer right internationally.
This practice has contributed immensely towards
the conservation of plant genetic resources for food
and agriculture. Further, the report examines the
extent to which African farmers participate in the
processes for the formulation of seed policies, noting
that participation is necessary if seed laws, policies
and programmes are to be relevant, effective and
sustainable.
Promotion of agroecological, healthy and affordable
food systems in Africa cannot be achieved without
farmers participating in seed policy making processes.
These policies include those concerning maintaining
the rights of farmers to save, use and exchange
farms-saved seeds and harvests of protected as
well as indigenous varieties. There is a wide range
of treaties, instruments and policies that regulate
seed laws at the international level, continental level,
regionally in Africa as well as at the national level.
Workers at the
SEMOC Seed Processing
Plant filling sacks
with rice seeds on the
production line.
© FAO/Paballo Thekiso
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DeSIRA-LIFT Current developments in seed laws harmonisation in Africa
Executive summary
Figure 1. Recognition of farmers’ rights in treaties and instruments on seed and plant breeding
Treaties and instruments recognising
farmers’ rights in Africa
• UPOV (1978)
• Plant Treaty (2001)
•  SADC Harmonised Seed Regulatory System
(2013)
•  ECOWAS-UEMOA- CILSS Seed Regulatory
Framework (2014)
• Arusha Protocol on PVP (2015)
• SADC Protocol on PVP (2017)
•  AU Guidelines for the harmonisation of
seed regulatory frameworks in Africa
Treaties and instruments not recognising
farmers’ rights in Africa
• UPOV (1991)
• WTO TRIPS Agreement (1995)
•  COMESA Seed Harmonisation
Regulations (2014)
•  Annex X of the Bangui Agreement (2015)
•  Draft AfCFTA Protocol on Intellectual
Property Rights (2022)
This paper examines international, continental and
regional-level treaties, instruments and policies and
attempts to identify activities that DG INTPA F3 could
support to maintain and promote farmers rights.
Indeed, some of the treaties already in existence
recognize farmers’ rights or are crafted in a manner
that allow for these rights, while others do not at
all. An overview of these treaties is tabulated above
(Figure 1).
The report finds that the international discussions
around how farmers’ rights should be implemented
at the national level continue at the International
Treaty and Plant Genetic Resources for Food and
Agriculture (Plant Treaty) notwithstanding the
provisions of this treaty. Similarly, what constitute
acts that are private and non-commercial insofar as
exemptions to breeders’ rights are concerned, and
how a farmer may save seeds on their own holdings,
while at the same time taking care of the legitimate
interests of a holder of Plant Variety Protection (PVP),
remains contentious at the International Union for
Protection of new Varieties of Plants (UPOV). In Africa,
continental instruments and regional instruments
are all at variance as to how the balance between
farmers’ rights, and the rights of holders of PVP is
to be found. The AfCFTA follows the UPOV 1991
model, with the UPOV 1978 model not being available
for subscription. The African Union guidelines for
the harmonisation of seed regulatory frameworks
in Africa mention farmers’ rights but do not give
detailed mention on how they may be attained. On
the other hand the Arusha Protocol provides explicit
considerations for farmers’ rights by broadening the
farmers’ privilege provisions. Coherence is necessary,
given that the level of adoption and application of
these different instruments varies. At the same time,
the EU has long experience in balancing rights of PVP
holders and those of small-scale farmers and this is
a transferrable experience to the African continent
where policy coherence is necessary.
With regard to seed testing, certification, registration
and varietal release, continental policies are
incoherent. Although regional bodies ECOWAS and
SADC provide for a system of recognition of landraces
in their seed schemes, COMESA does not. In the
EU, conservation varieties are specifically provided
for. Using the EU experience, landraces and similar
varieties should be uniformly provided for in the
regional seed schemes in Africa. Possibilities should
be explored in Africa to have a continental-wide
system that formally recognizes landraces. Such a
system could include elements such as provisions on
the scope of schemes for landraces and conservation
varieties, and also agroecological areas where they
are grown.
On the matter concerning participation of African
farmers and farmer organisation in seed policy
making processes, this report finds that the AU has an
elaborate institutional structure at the Commission
level of taking on board views of non-state actors.
However, it appears this structure is not being used
to the fullest, either by the AU but also the non-state
actors. Farmer organisations should maximise the
utility of this structure at the AU in making their views
known. Further, for the regional trading blocs and
intellectual property organisations, deliberate and
intentional efforts should be made to expand their
scope of entertaining views from farmer groups,
civil society organisations and non-state actors.
Policies on how civil society actors should engage
with these institutions should be put in place and
6
DeSIRA-LIFT Current developments in seed laws harmonisation in Africa
Executive summary
made known. In return, civil society organisations,
farmer organisation and other non-state actors need
support from continental institutions such as the
AU Commission and beyond as the constituencies
which they speak for – small-scale farmers – can
hardly sustain them. The EU programmes that
support non-state actors could be extended to farmer
organisations in Africa. Such support programmes
can be viewed through the lens for realisation of
farmers’ rights within the framework of the Plant
Treaty and also of international human rights
frameworks, including the right to food.
Overall, the EU and member states stand in strategic
position in enabling Africa to find a balance between
farmers’ rights and rights of PVP holders. This balance
will contribute immensely to the agroecological
approach for food production in Africa, the EU and
beyond. African countries that are members of the
Plant Treaty and increasingly becoming members
of the UPOV 1991, the two basic legal framework on
matters concerning farmers’ rights, could partner
with the EU in finding this balance. Supporting farmer
organisations participation in seed policy making
processes is part and parcel of finding this balance
and also in attainment of farmers’ rights. This is one
element that DG INTPA could take up and support
as part of the EU’s international partnership and
development policy programmes.
Finally, the AfCFTA, the African regional economic
blocs and intellectual property institutions require
support in making coherent the various seed laws
and policies in place. All these laws and policies
are intended to support, and not impede, food
production in Africa. EU institutions may have an
influential role in this regard by requiring African
countries to adhere to new seed regulation aligned
to the European Green Deal, as part of the wider
effort to mainstream the farm to fork strategy in
national and regional policies. It does not necessarily
follow that implementation of UPOV 1991 should
deny the rights of farmers to save, use, sell and
exchange protected seeds. In any event, clarity should
be contained in all the instruments on seed laws
being put in place that rights accruing to indigenous
varieties are different and distinct to those accruing
to protected varieties.