SEED LAWS THAT CRIMINALISE FARMERS: RESISTANCE AND FIGHTBACK

SUMMARY: "Seeds are under attack everywhere. Under corporate pressure, laws in many countries increasingly put limitations on what farmers can do with their seeds and with the seeds they buy. Seed saving, a thousand-year-old practice which forms the basis of farming, is fast becoming criminalised. What can we do about this?"

Seeds are one of the irreplaceable pillars of food production. Farmers all over the world have been acutely aware of this throughout the centuries. It is one of the most universal and basic understandings that all farmers share. Except in those cases where they have suffered external aggressions or extreme circumstances, almost all farming communities know how to save, store and share seeds. Millions of families and farming communities have worked to create hundreds of crops and thousands of varieties of these crops. The regular exchange of seeds among communities and peoples has allowed crops to adapt to different conditions, climates and topographies. This is what has allowed farming to spread and grow and feed the world with a diversified diet.

But seeds have also been the basis of productive, social and cultural processes that have given rural people the resolute ability to maintain some degree of autonomy and to refuse to be completely controlled by big business and big money. From the point of view of corporate interests that are striving to take control of land, farming, food and the huge market that these factors represent, this independence is an obstacle.

Ever since the Green Revolution, corporations have deployed a range of strategies to get this control: agricultural research and extension programmes, the development of global commodity chains, and the massive expansion of export agriculture and agribusiness. Most farmers and indigenous peoples have resisted and continue to resist this takeover in different ways.

Today, the corporate sector is trying to stamp out this rebellion through a global legal offensive. Ever since the establishment of the World Trade Organisation, and almost without exception, all countries of the world have passed laws giving corporations ownership over life forms. Whether through patents or so-called plant breeders’ rights or plant variety protection laws, it is now possible to privatise micro-organisms, genes, cells, plants, seeds and animals.

Social movements worldwide, especially peasant farmers organisations, have resisted and mobilised to prevent such laws being passed. In many parts of the world, the resistance continues and can even count some victories. To strengthen this movement, it is very important that as many people as possible, especially in the villages and rural communities that are most affected, understand these laws, their impacts and objectives, as well as the capacity of social movements to replace them with laws that protect peasants’ rights.

Today’s seed laws promoted by the industry are characterised by the following:

a) They are constantly evolving and becoming more aggressive. Through new waves of political and economic pressure - especially through so-called free trade agreements, bilateral investment treaties and regional integration initiatives - all the ‘soft’ forms of ownership rights over seeds were hardened and continue to be made more restrictive at a faster pace. Seed laws and plant variety rights are being revised again and again to adapt to the new demands of the seed and biotechnology industry.

b) Laws that grant property rights over seeds have been reinforced by other regulations that are supposed to ensure seed quality, market transparency, prevention of counterfeits, etc. These regulations include seed certification, marketing and sanitary rules. By means of these regulations, it becomes mandatory, for instance, for farmers to purchase or use only commercial seeds tailored for industrial farming. Or the regulations make it a crime to give seeds to your son or exchange them with a neighbour. As a result, seed fairs and exchanges - a growing form of resistance to control over seeds - are becoming illegal in more and more countries.

c) In strengthening privatisation, these laws have been disregarding basic principles of justice and freedom and directly violating the Universal Declaration of Human Rights. These seed laws have imposed the rule that anyone accused of not respecting property rights over seeds is assumed to be guilty, thus violating the principle that people are innocent until proven guilty. In some cases, measures can be taken against accused wrongdoers without their being informed of the charges. These seed laws are even making it an obligation to report alleged transgressors; they are legalising searches and seizures of seeds on grounds of mere suspicion (even without a warrant) and allowing private agencies to conduct such checks.

d) These laws are being drafted in vague, incomprehensible and contradictory language, leaving much room for interpretation. In most cases, the laws are being moved through legislative chambers in secrecy or by means of international agreements that cannot be debated nationally or locally.

Experience shows that people do not want these laws, once the misinformation and secrecy used to push the laws through have been countered by information campaigns and mobilisation on the part of social organisations. Most people reject the idea that a company can take ownership of a plant variety and prohibit farmers from reproducing their seeds. They find it completely absurd. People also generally do not agree that the work that farmers do to feed the world should suddenly become a crime. Wherever resistance has been strong enough, the legal plunder embodied in these laws has been stopped.

Experience also shows that those who want to privatise, monopolise and control seeds on behalf of large transnational corporations have no limits. There is no possibility to negotiate, make concessions, or reach common agreements on this in a way that would allow the different interests to co-exist peacefully. The corporate agenda is to make it impossible for farmers to save seeds and to make them dependent on purchased seeds.

Similarly, experience shows that it is possible to resist and dismantle these attacks. But doing so requires informative tools that can be widely shared, in order to blow away the smoke of false promises and nice words, so that people can see what really lies behind seed laws. This booklet aims to help to make this work possible.

1. How seed laws make farmers’ seeds illegal

The displacement of peasant seeds is a process that has been gaining ground and speed around the world over the past decades. In the 20th century, when plant breeding and seed production became activities separate from farming itself, peasant varieties were gradually replaced by industrial varieties. In Europe and North America, this happened over several decades, spurred by new technologies such as the development of hybrids. In Asia, Africa and Latin America, it took off after the 1960s, when so-called development programmes pushed ‘high-yielding’ crops and the use of chemical inputs (the so-called Green Revolution). In the last 20 years, we have been witnessing a new situation in which an aggressive wave of seed laws is being unleashed, often in the name of liberalising trade, with the purpose of stopping nearly all activities carried out by farmers with their seeds.

Farmers who produce and exchange their own seeds within their own community or with neighbouring communities are not in need of laws to govern their actions. The collective rights to use community seeds, which are often oral, are established and respected enough within each community for such use to be regulated. But once the seeds are commercialised on a large scale by companies who produce them with unknown methods and in unknown locations, often beyond national borders, then laws become necessary in order to combat fraud, counterfeiting, bad quality seeds that do not germinate or that carry diseases, as well as to regulate GMOs. Laws are also necessary to protect local seeds and the social and cultural systems which guarantee the survival of the population’s chosen systems of food production. These laws for “Prevention of commercial fraud” and the protection of food sovereignty represent a conquest on the part of rural organizations. Unfortunately, however, once the pressure of mo
bilisation by popular organisations and farmers weakens, most of these laws are rewritten by the industry in order to promote their own industrial &

39;improved’ seeds, and to ban farm seeds.

The term "seed laws" often refers to intellectual property rules such as patent laws or plant variety protection legislation. But, in fact, there are many other laws pertaining to seeds, including those that regulate trade and investments; regulations related to the health of plants; certification and so-called ‘good agricultural practices’ related to marketing; or so-called biosafety regulations (See box, New seed marketing laws in Africa ). As a whole, these laws often result in peasant seeds being decreed illegal, branded as inadequate, and treated as a source of risk to be eliminated.

The new seed laws are a reflection of the increasing power of the food and agriculture industries. Until the 1970s, new types of crop varieties were developed and distributed by state-run companies, small seed houses, and government research stations. Since then, we have witnessed a massive process of large companies taking over smaller ones and public programmes giving way to the private sector. Today, just 10 companies account for 55% of the global seed market. And the lobbying power of these giants – such as Monsanto, Dow or Syngenta – is very strong. As a result, they have managed to impose restrictive measures giving them monopoly control.

Trade and investment agreements are a weapon of choice to impose seed laws where they did not exist before or to make existing laws more favourable to transnational corporations. The end goal is clear: to prevent farmers from saving seeds so that they buy corporate seeds on the market instead. And in that process, to get governments to pull out of plant breeding and seed production. In Africa, farmers’ seeds represent 80-90% of what is planted each season. In Asia and Latin America, they account for 70-80%. So, from the perspective of an agribusiness CEO, there is still a huge market out there to create and capture. Even in Europe, where industrial seeds already dominate farming, corporations continue lobbying for stronger enforcement of existing regulations in order to eliminate pockets of resistance and to restrict farmers abilities to reuse industrial seeds. When these laws are enforced, although that does not happen in all cases, the result has been very repressive: farmers seeds
have been confiscated and destroyed; farmers are targeted and under surveillance; and some face criminal charges and jail sentences for simply continuing to work within their peasant systems and for using their own seeds.

At the same time, almost everywhere that we look, the power of the industry is also being contested. Challenging this power takes on many different forms, including: organising and mass mobilisations; countering the false propaganda that these seed laws are necessary or are in the interest of the people; media work; education in schools and places of worship; street theatre; civil disobedience in defiance of unfair laws; and, most importantly, the daily work of continuing to develop peasant and small-scale farming systems. These systems include not only the native or local seeds and breeds, but also the land, territories, and rural peoples’ cultures and ways of life. Experience shows that when this counter-force to defend peasant seeds is strong, then institutional challenges in the courts or in parliaments can force the suspension of bad laws - or at least call them into question. Given the power and interests that are at stake, overturning these seed laws is not achieved in a singl
e battle. Rather, it is a continuous struggle in defence of peasant agriculture and food sovereignty as a whole.

New threats

Whereas the first patents protected homogeneous and stable varieties, today’s genetic technologies allow a patent to be placed on particular genetic traits (resistance to an insect, tolerance to a herbicide...). Such patents protect all plants and seeds that contain and show a particular trait that has been patented. This is the case with GMOs, and it is also the case with the numerous plants derived from genetic technologies other than transgenesis, such as mutagenesis, for example. These patents allow the industry to seize any farmers’ seeds that have been contaminated by pollen from a plant with a patented trait or seeds which contain patented traits. Some of these patents even cover traits that occur naturally in plants that have been cultivated by farmers for generations; yet these too, one by one, become the property of seed multinationals.

The PVP is often presented as being preferable over a patent because it authorises free use of protected plant varieties for research and selection of other varieties. This is the main argument used in the effort to convince governments to adopt the laws of the UPOV Convention. However, there are no advantages whatsoever for farmers, especially since UPOV 1991. The exception for research and selection only benefits the industry and researchers and is no longer extended to farmers conducting selection in their fields.

Along with these new patents comes the involvement of the International Treaty on Plant Genetics for Food and Agriculture (ITPGRFA) that paves the way for the privatisation of all seeds seized from all farmers’ fields around the world, which are saved in large worldwide seed banks. Under the Treaty, there are plans to digitize and publish online all genetic sequences of all of these seeds – which will facilitate patenting by multinationals. Farmers and civil society organisations are trying to convince a majority of the governments that are party to the Treaty to oppose this global facilitation of biopiracy, which is completely contrary to the Treaty’s original objectives of ensuring universal access to the worldwide seed banks and recognising “the rights of farmers to save, use, exchange and sell their farm seeds”.

Types of seed laws promoted by the industry

Marketing laws are the oldest and most widespread type of regulations affecting seeds. They define the criteria that must be met in order for seeds to be put on the market. As such, they are often justified as a means of protecting farmers, as consumers of seeds, in order to ensure that they are only offered good seeds – both in terms of physical quality (germination rate, purity, etc.) and of the variety in question (genetic potential). But whose criteria are used? In the countries that have adopted the system of “compulsory catalogue”, seeds are allowed on the market only if they belong to a variety responding to three critical requirements: they must be “distinct”, “uniform” and “stable” (DUS criteria). This means that all plants grown from a batch of seed will be the same, and that their characteristics will last over time. Peasant varieties do not fit these criteria, because they are diverse and evolving. Marketing laws also typically require that your variety present a ‘value f
or cultivation and use’, usually referring to its yield under mono-cropping cultivation dependent on a large amount of chemical fertilisers. Another problem is how ‘marketing’ is defined. Under many countries’ seed laws, the definition of marketing is not restricted to monetary sales alone. Marketing can include free exchange, bartering, the transfer of seeds within networks or even just giving seeds as gifts.

Intellectual property laws applied to seeds are regulations that recognise a person or an entity, most often a seed company, as the exclusive owner of seeds having specific characteristics. The owner then has the legal right to prevent others from using, producing, exchanging or selling them. The justification for this is to give companies a temporary monopoly so that they can collect a return on their investment without facing competition. But there are huge problems involved.

There are two main types of intellectual property systems for seeds: patents and Plant Variety Protection (PVP). The US started to allow patents on plants in the 1930s, when flower breeders demanded a kind of copyright on their “creations”; they wanted to stop others from “stealing” and making money from their flowers. Plant patents are very strong rights: no one can produce, reproduce, exchange, sell or even use the patented plant for research without the owners’ authorisation. To use patented seeds, farmers must make a payment to the owner of the patent. Farmers who buy patented seeds are also obliged to agree to a set of conditions: that they will not reuse seed from their harvest for the following season; that they will not experiment with the seeds; that they will not sell or give them to anyone else. The Monsanto Company even asks farmers to spy on their neighbours and report to the police anyone who is doing these things with ‘Monsanto seeds’. Today, patenting is standard for
GMOs.

Plant Variety Protection is a kind of patent developed in Europe specifically for plant breeders. It is accompanied by the same DUS criteria as those required by the catalogue and it initially granted less powers than a patent. In 1961, European states created the Union for the Protection of New Plant Varieties (UPOV), which harmonises rules through the UPOV Convention, which has been revised several times. UPOV gives breeders the right over their commercial varieties to prevent anyone else from producing seeds for commercial purposes. However, other breeders can use ‘protected’ (or privatised) materials for breeding programmes. In the first decades of UPOV’s existence, farmers were still free to save and reuse their seeds from protected varieties. However, with the revision of the UPOV Convention in 1991, protection of plant varieties extends to prohibit the agricultural production of the protected variety, including harvesting and the post-harvest produce. Under UPOV 91, farmers ar
e no longer allowed to reuse seeds of privatised varieties – except in rare cases and upon payment. If farmers infringe the regulation or are suspected of infringement, they can have their houses searched without warrant, their crops, harvests and processed products seized and destroyed, and they could be sent to jail for years. UPOV 91 also makes it much easier for seed companies to privatise farmers' own farm-produced seeds and to ban the use of local varieties.

Trade and investment agreements are a tool used by corporations to force governments to adopt policies promoting corporate rights over seeds. For example, almost all countries of the world are members of the World Trade Organisation (WTO), which has an agreement on Trade-related aspects of intellectual property rights (TRIPS). The TRIPS agreement requires countries either to provide some form of plant variety protection or to face trade sanctions. In addition, many countries have been bullied into joining UPOV 91 – through bilateral free trade agreements, development aid, etc.

Trade agreements such as those required by the WTO and FTAs set market rules that supposedly aim to prohibit discrimination but may also give agribusiness preferred access to certain markets. As a result, governments may no longer be able to implement procurement programmes under which state authorities buy seeds from local farmers. (The rationale is that, by restraining competition, local procurement requirements put transnational companies at a trade disadvantage.) These are harsh conditions that give preference to corporations rather than to the welfare of farmers or consumers.

Bilateral investment treaties, pushed by countries such as the US and members of the European Union, also contain a rule that intellectual property on seeds is a form of foreign investment that must be protected in the same way as an oil well or car factory. Thus, if such investments are expropriated or nationalised, or if the expected profits from them are jeopardised, then a US or EU seed company can sue the country in which the investment is located in an international court (investor-state dispute settlement).

Plant health and biosafety laws can also limit farmers’ use of and access to their seeds. Such laws are intended to prevent health or environmental hazards that can arise from seeds, including contamination through GMOs, and can, in that sense, be useful. Plant health regulations, for instance, are aimed at preventing the spread of diseases via seeds that are produced in one location and exported to another. The problem lies in the fact that these laws actually serve to protect the interests of industry. For example, sometimes small-scale exchanges of seeds among farmers are prohibited, or their seeds are confiscated and destroyed, because farmers are held to the same standards as multinational corporations, which sell seeds in far greater amounts and to more distant locations - with a corresponding increase in the chance of spreading disease. Under such laws, farmers’ seeds may be viewed as a potential risk or hazard while industry seeds are hailed as the only safe ones, even though
they play a huge role in spreading disease and contamination.

Similarly, biosafety laws often have the opposite effect of what they were intended to do. Instead of setting up barriers to the entry and spread of GMOs, which by their very nature are hazardous, they create a legal framework to manage risks and therefore facilitate the acceptance and spread of transgenic seeds. For example, biosafety laws often lay out formal procedures for planting GMOs that result in standards making these procedures legal without their being any safer. Such laws can also force farmers who do not want GMO and who produce their own seeds to have all their seeds analysed in order to guarantee the absence of GMO, which they obviously are unable to do, thus obliging them to buy industry-sold GMO seeds. In other instances, these laws make it much easier to import or export GM crops, since the countries involved have the necessary legal mechanisms set up to oversee the crops. In yet other cases, such as that of Europe, there are good biosafety laws in place which do ha
ve preventive measures to stop the cultivation or import of GMOs, but these laws are under fire as the seed industry sees them as barriers to trade.

It should be noted that United Nations agencies such as the UN Food and Agriculture Organisation, the UN Conference on Trade and Development or the World Intellectual Property Organisation are today important proponents of all of the above laws. They draft model laws and train governments in how to implement them.

ITPGRFA, the International Treaty on Plant Genetic Resources for Food and Agriculture.

It is the only international text which recognises the fundamental rights of farmers to use, exchange and sell their farm-based seeds, as well as their rights to protection of their knowledge, to a share of benefits and to participate in national decisions on seeds. Implementation of the treaty is subject to national legislation, but most of the 130 states that have ratified the Treaty do not respect it. The Treaty aims to put in place a multilateral exchange system giving industry access to all the seeds, now saved in large global seed banks, that have been collected from the fields of all the farmers of the world - in exchange for a so-called “benefit sharing”, which in practice is never paid for.

2. African seeds: a treasure under threat

Africa is awash with foreign governments pushing new public-private partnerships and development programmes that aim to privatise seed markets, get the public sector out of plant breeding and turn farmers into dealers for the global agroindustry supply chain. In addition, foreign seed companies and private foundations are working to help African states rewrite laws to make trade and investment “fair” and “responsible”, meaning supportive of corporate interests. As a result, African farmers and civil society groups are fighting new seed laws every single day.

Ghana: students and trade unions join farmers to oppose a restrictive seed law

In Ghana, students and trade unions have joined small-scale farmers organisations in mobilising against a Plant Breeders’ Rights (PVP) Bill. Currently under consideration in parliament, the Bill would establish a national seed law based on UPOV ’91. As has been the case in many countries around the world, the law is being used to introduce legal restrictions on farmers’ use of seeds that go above and beyond the already very restrictive provisions of UPOV ’91. For example, the draft Bill states that “in absence of proof to the contrary” the breeders can be assumed to be the owners of a variety in question, thus facilitating both biopiracy and the confiscation of seeds. Moreover, according to the Bill, if farmers use a protected variety in an illegal manner – such as reproducing the seeds of a ‘protected’ variety and sharing it with their neighbours – the farmers may be subject to up to 2,000 penalty units and up to two years in prison.

Since 2011, the resistance movement has been successful in gaining broad support against the Bill by showing ordinary Ghanaians that it is not only farmers who will be affected. They have argued that the property protection in the Bill is simply the precondition sought by transnational corporations as a requirement for operating in Africa; preference is given to cash crops for export and the businesses of a few members of the elite rather than to feeding the Ghanaian people. The Bill has been popularly hailed as a ‘Monsanto Law,’ emphasising that industrial and commercialised agriculture, rather than the welfare of peasant farmers, is at the heart of the Bill. This is explicit in the Memorandum of the Bill, which states that it is “aimed at improving the quantity, quality and cost of food, fuel, fibre and raw materials for industry“. Passage of the law is a commitment of the Ghanaian government towards the G8 New Alliance for Food Security and Nutrition.

To mobilise against the Bill, booklets have been prepared in order to explain the consequences of the law to village chiefs and farmer leaders in their local languages. This social mobilisation emphasises that seeds belong to farmers collectively and that there can be no private owners. As an alternative, farmers in Ghana are demanding that public breeding programmes be put in place to ensure quality seed for indigenous crops such as cowpeas, cassava, rice and coconut. In addition, groups of farmers and their allies have plans to organise collective projects for access to seed in the villages. This will allow farmers to access varieties that have vanished locally but may still be being used in neighbouring areas or by farmers in other villages across Ghana.

Mali: seed privatisation does not work for peasant farmers

It is not only international agreements such as UPOV which work for the direct advantage of the seed industry by pushing for stronger intellectual property rights around the world. These efforts are supported by like-minded institutions such as the World Bank. In 2008, under the West Africa Agricultural Productivity Program, the Bank granted Mali 50 million CFA (76,000 euros) to develop and ‘protect’ fifty crop varieties. The idea was to wean farmers off traditional seeds, which are taken to be ‘backward’ and ‘low yielding’, by encouraging the breeding and production of improved seeds. These seeds would be protected and the ensuing royalties would translate into income for Mali’s public research system.

But in a country where the vast majority of producers are peasant farmers who rely on their local seeds and breeds, initiatives like this are not a good fit. By 2012, Mali could boast PVP certificates on fifty crops, but their usefulness was unclear. The Malian government has to pay a yearly sum of 16.5 million CFA (25,000 euros) to maintain the property titles on these seeds, a situation that is problematic because Malian institutions are hardly receiving any income from the crops. On the one hand, there have not been enough enterprises interested in reproducing and marketing the seeds. On the other, most peasants are not interested in paying high prices for high input-requiring seeds such as hybrids that do not fit in with their small-scale, low-input farms. Furthermore, in some cases the PVP titles can be considered as direct biopiracy since the crops are clearly peasant varieties, even still carrying their local names. (The PVP certificates were granted even though the DUS criter
ia - the varieties should be distinct, novel, uniform and stable - were not fully met.) Now, since the PVP titles are valid in all 16 African Intellectual Property Organisation (OAPI) member states, farmers not just in Mali but in the other OAPI member states may no longer sell or exchange the seeds of these peasant varieties. Farmers can still reproduce these seeds on their fields, but only for use on their own farm. This situation may become even worse for farmers as OAPI joined UPOV in 2014.

At the same time that this is happening, many actors in Mali are working to strengthen industrial seed systems, in particular by encouraging laws that allow greater participation of private companies in various aspects of seed production and commercialisation. These efforts are supported by programmes such as the Alliance for a Green Revolution in Africa, which is supported by the Bill and Melinda Gates Foundation. Small seed companies are moving in, but they are paving the way for large multinationals such as Monsanto, Limagrain and Syngenta. Meanwhile, Malian peasant farmers’ real concerns lie elsewhere; instead of the seeds of okra, onions, cucumbers, cabbages or eggplant for which they can only find a few varieties of hybrids, they want to diversify the types of crops that they need on a small scale. By working together in local networks, they have developed new varieties - and rescued old ones - of onions, lettuce and also native varieties of vegetables, in addition to local mil
lets and sorghum.

New seed marketing laws in Africa: the case of COMESA

The Common Market for Eastern and Southern Africa (COMESA) involves 20 countries, stretching from Ethiopia to South Africa. According to the COMESA treaty, all member countries must abide by common seed trade regulations. These regulations were drafted in 2013 and, if adopted, which would allow corporations to certify their seeds in one member country and automatically acquire the right to market them in all COMESA states. This is particularly useful for the seed industry as, by eliminating national rules, it will facilitate the marketing of seeds over a large part of Africa. A common catalogue listing the authorised varieties for all countries will be drawn up and all countries will adopt the same certification system. The COMESA seed laws contain no measures to foster local peasant seed varieties.

COMESA has also approved draft policy guidelines for GMOs, a step that bypasses national regulations on GMOs in trade, farming and food aid. Farmers organisations have complained that these guidelines did not come principally from COMESA member states but rather from a biotechnology policy initiative funded by the US government. Experts trained by USAID dominated the drafting process, and the voices of farmers and civil society groups have not been heard. Furthermore, like the seed marketing regulations, the GMO policies have immediate application in all COMESA countries, undermining the ability of civil society groups to fight these laws through national governments, many of which currently have relatively strict regulations in place.

Mozambique: farmers resist by developing local seed systems

Behind the new Seed Law being drafted in Mozambique is the G8 New Alliance for Food Security and Nutrition, which seeks to create new opportunities for agribusiness in Africa. Typically, this means promoting cash crop production that meets the demands of the market rather than addressing the food needs of local communities. It also means promoting costly hybrid seeds that require agrochemicals and that only have a purpose in the context of commodity production for world markets. Although they have asked to be included in the drafting of the new law, organisations of peasant farmers have been regularly excluded. In other cases, such as that of the drafting of a PVP law, farmers organisations have participated by explaining to the government how Mozambique’s peasant farmers will be negatively affected, although the government ignored their suggestions in that case. Intellectual property schemes such as PVP laws are important for the multinational giants’ goal of expanding GMOs in Afric
a, where the industry wants to avoid the situation it has experienced in Latin America. There, it was only after the use of GMOs became widespread that companies tried to establish legal measures to collect royalties – with limited success. Additionally, Mozambique has recently passed a law that makes it easier for GMOs to enter the country.

In this situation, Mozambican farmers have turned to reinforcing their own peasant seed systems. Since 2012 they have been working with peasant farmers movements in Brazil, which has exposed them to the Brazilian experience in setting up seed systems (see Brazil). The idea behind this collaboration was for Mozambican farmers to learn to select and multiply seeds that they decide are important to have on their farms in large quantities. Given the success of this initative, it was to have been expanded, with support from the Brazilian, Mozambican and South African governments. But as the expanded programme was set to start, only the Brazilian government had put forth the money and resources to support the farmers’ seed initiative.

While developing their own seed systems, Mozambican farmers are also exploring the possibility of proposing a law in favour of peasant seed systems, following the experience of fellow farmers in Zimbabwe.

Niger: farmers’ victory against the piracy of a local onion

The ‘violet de Galmi’ onion from Niger is a hugely popular variety, not only in Niger, where it is named after a village in the southwest of the country, but also across West Africa. For centuries, since their arrival in the region from Egypt, the red-purplish onions have been widely appreciated for their sharp flavour and for their excellent storage qualities (they keep over months of hot weather without spoiling). During the 1990s, ‘violet de Galmi’ quickly gained importance even beyond the local domestic economies, becoming Niger’s second most important export product after uranium, and making Niger the largest exporter of onions in the entire region. Thus, if anyone claimed ownership of this variety, it would be a big deal. And this recently happened.

After its success in farmers’ fields, in the 1960s the onion was further bred by public researchers. Then, in the 1990s, a private seed company in Senegal, Tropicasem, a subsidiary of the French seed company Technisem, further bred the onion with the aim of marketing it exclusively. Eventually, the company applied for a Plant Variety Certificate at the OAPI, claiming the popular onion as its own, and it obtained exclusive ownership rights in all OAPI member states (See map). Moreover, due to a FAO initiative that had resulted in a common catalogue for marketing seeds in West Africa, Tropicasem could now exclusively market the onion in nine countries. When farmers in Niger found out that a private company had claimed exclusive rights to their onion they were outraged; they asked the government to act on their behalf in this case of biopiracy. After the conflict that ensued, OAPI revoked the property rights on the onion under the name ‘violet de Galmi’, but allowed the company to maint
ain rights for the name ‘violet de Damani’. This was a victory for the onion farmers against a company that was seeking a monopoly over one of their most important crops.

At the same time, the large-scale commercial onion farmers and traders who were also affected remained concerned about how to protect ‘their’ onion and they applied for a geographic indication (GI), another form of intellectual property that resembles a trademark but is linked to a place of production. This means that despite the fact that ‘violet de Galmi’ has now extended to all areas of West Africa, only the farmers of the Galmi region can use this name to sell it. So far, this has not affected small peasant farmers because the law is not applied strictly. The large onion producers of Galmi are not coming to enforce ‘their’ GI in the neighbouring villages. But what if they decide to do so? Since 2004, small peasant farmers in the region have been organising to discuss issues such as this at a regional level. Farmers from Niger as well as Benin, Burkina Faso, Guinea, Mali, Togo, Guinea Bissau, Ivory Coast and Senegal are meeting to discuss alternatives for working together to respe
ct the rights of all farmers to their seeds and crops without impinging on the freedom of others to use them.

Patenting seeds pushed by regional organisations in Africa

Instead of dealing with the slow work of lobbying each African country, the agribusiness industry has been pushing regional bodies to adopt laws applying to several countries at once. Currently, there are two draft laws pending that would restrict farmers’ rights over seeds in two parts of Africa. The first is the ‘SADC Protocol’, which would affect 15 countries of the South African Development Community. The second is an ‘ARIPO PVP law’ that would apply in 18 anglophone states belonging to the African Regional Intellectual Property Organisation. As we have seen, in West Africa, 17 mainly francophone countries belonging to the African Organisation for Intellectual Property (OAPI) have already had a plant variety protection law based on UPOV ’91 since 2006.

The SADC and ARIPO proposals to strengthen and harmonise seed laws take UPOV ’91 as a model. These proposals would outlaw farmers’ exchange or sale of seeds that are protected by PVP certificates, even if it were only in small amounts and for local use. In the case of SADC, merely saving and reusing seeds of such crops on one’s own farm would require paying a royalty fee to the breeder. Farmers in the ARIPO states would have to pay too, and this would only be allowed in the case of certain crops. If these laws are adopted, seed companies would be under no obligation to declare where they got the seeds that they register as ‘new’ varieties, thus increasing the chances of biopiracy.

While large coalitions including civil society groups are growing in the sub-regions and across Africa, stronger campaigns, solidarity work and actions are needed to stop these proposals from becoming law.

Tanzania: farmers’ seed sharing under criminal law

As part of its commitments with the G8 New Alliance ( see box ), in 2012 the Tanzanian government passed a Plant Breeders’ Rights Act. The Act goes beyond the requirement of UPOV ’91. If farmers use and exchange so-called protected seeds without the authorisation of the breeder, they face punishment under criminal rather than civil law. This means that on top of paying fines, they may be liable to imprisonment. Since the law applies to industrial rather than peasant seeds, the Tanzanian government is telling farmers not to worry, as the law does not concern them. Yet farmers’ organisations argue that the law is part of a larger project directed against peasant farming and towards the privatisation of peasants’ resources, including land and seeds. And as private seed companies promoting these protected varieties begin to attain dominance in the context of an increasingly industrialised way of producing, it will be difficult for farmers to avoid using industrial seeds. Currently, howev
er, there are still 4.8 million peasant farmers in Tanzania - almost five thousand times as many as industrial farmers - making up more than half of the country’s population.

In addition, the Seed Act of 2004 - a marketing law - is also in the process of being revised under the guise of bringing ‘quality seeds’ to the market. As in other countries, seed quality is a real problem in Tanzania. There are many people selling seed grains that have poor germination and that have not been properly selected. Yet this is primarily a problem for the seed industry whose market share is threatened by fake seed sellers. Peasant farmers traditionally keep their seeds within their own farms or villages. When someone in a village has the capacity to select and store larger amounts of seeds to share or sell, scams are not a problem because people in the village know each other, and they know where the seeds came from. Under the new revisions, it is precisely this type of local sharing and selling of small quantities of seeds that will become illegal, as only certified seeds will be allowed on the market. Under the current law, the government still allows farmers to sell u
ncertified seeds of a known variety within a restricted area of 2 to 3 villages. Furthermore, a government seed certification system also currently exists. Although the current system involves much bureaucracy, some farmers organisations and NGOs have used this alternative system to reintroduce varieties that are found in seed banks by bringing them back into farmers’ fields. Under the new law, this option will most likely no longer be a possibility.

Farmers organisations in Tanzania are working together with organisations in other countries to counter this onslaught of laws. They are coming together to work not only on seed issues but also against the privatisation of farmers’ resources, especially land.

The G8 privatising seeds – and land – in Africa

The G8 New Alliance for Food Security and Nutrition was launched in 2012. It aims to transform African farming by boosting private sector investment. Ten African countries are participating (Ethiopia, Burkina Faso, Côte d‘Ivoire, Ghana, Mozambique, Tanzania, Benin, Nigeria, Malawi and Senegal), and almost $1 billion from G8 countries and companies (including Yara, Monsanto and Syngenta) have been committed. As a condition for receiving this money, African governments are required to change their seed and land tenure laws in order to protect the investors. For example, Mozambique is required to “systematically cease distribution of free and unimproved seeds” – meaning peasant varieties – and instead to pass a PVP law in order to “promote private sector investment in seed production”. Similar radical changes are being pushed in all the participating countries. Moreover, farmers’ seeds are not the only target. Agricultural land held under customary law is also being privatised, by means
of new land titling regulations, and leased to participating corporations. For example, the government of Malawi has committed to making 200,000 hectares of prime farmland available to participating investors by 2015.

3. The Americas: massive resistance against “Monsanto laws”

Latin America is probably the region where social mobilisation to stop the criminalisation of farmers’ seeds through seed laws is the most dynamic right now. In country after country, campaigns are growing to block what inevitably get identified as “Monsanto laws” and instead to promote indigenous and peasant seed systems. Sometimes, as in Venezuela, these efforts translate into counter legal initiatives (alternative laws). In all cases, seeds are never the sole focus. These struggles are part of the growing efforts to actively defend territories and food sovereignty against an onslaught of pressure from agribusiness corporations and governments supporting their agenda.

In North America, where industrial agriculture is the norm, farmers organisations and social movements are also vigorously working, both to prevent the further strengthening of laws that impose seed privatisation and to build support for local community-based food systems where farmers’ seeds can flourish.

Brazil: large-scale development of creole seeds

As a result of decades of farmers’ struggle in Brazil for access to land and for food sovereignty, a National Policy for Agroecology and Organic Production was adopted in 2012 that explicitly recognises the role of peasants’ own ‘creole’ seeds. Furthermore, since 2003, a national Program for Food Acquisition has given Brazilian farmers an important avenue for developing their own seed systems. Although it is illegal to sell seeds in Brazil unless they are certified, through this programme the government buys creole seeds directly from farmers and then provides them to other farmers at no cost, thereby bypassing the market.

As a result, some of the country’s largest peasant organisations have been able to develop their own seed systems. In addition to promoting families’ selection and use of peasant seeds, and developing community seed houses, these organisations have also developed large-scale programmes that provide seeds to hundreds of thousands of families. In addition to the 7,000 tonnes of maize, beans and forage crop seeds produced by over 2,000 small-scale farmer members of one movement in 2013, 800 tonnes of black bean seeds were produced and sent to farmers in Venezuela. Although there has been a major advance in securing the creole seeds needed by small-scale farmers, the defence of these pro-peasant policies is a constant struggle. The US government has complained, for instance, that the food acquisition programme goes against WTO rules because it provides a subsidy to Brazilian farmers.

Another major struggle for Brazilian farmers is the one against GMOs and the toxic chemicals associated with them. Brazil is the second largest producer of GMOs in the world, with, in 2013, over 40.3 million hectares under production. In October 2013, 5,000 Brazilian farmers occupied a seed production facility belonging to Monsanto in the northeastern state of Pernambuco. They replaced the varieties of GM maize being grown there with creole seeds. As a result, some of the farmers have been prosecuted and are now banned from Monsanto’s premises throughout Brazil. Brazilian farmers are also fighting against a law currently under consideration by Brazilian lawmakers which would lift the country’s moratorium on a very dangerous type of GMO known as ‘Terminator’.

Chile: victory against the privatisation of seeds

After four years of mobilisation, in 2014 Chileans celebrated a victory against a PVP law that would have privatised peasant seeds in accordance with UPOV ’91. Since 2010, farmers organisations and social movements had worked hard to counter the claims of government and industry in favour of this law – especially the assertion that without it food security for Chileans was under threat. Farmers and environmental organisations explained the consequences of this ‘Monsanto law’ and how it was being promoted, and also resisted, in other countries, from Colombia to France.

The battle in Chile was a long one. Industry lobbyists tried several times to push the law through the national parliament. Successfully stalling the bill and winning over public opinion against it, the network of social movements continued to grow and reached a national level. The forms of resistance included: demonstrations; media campaigns via internet, radio and television; workshops in the cities and in rural communities; and meetings with church leaders and with government officials, several of whom came to oppose the law. Despite their success in getting the bill withdrawn, farmers organisations and social movements remain on alert. Because of its location and climate, Chile is a major site for the production and export of industrial seeds. That means that there is substantial pressure from the United States and Europe to have strong laws in place to protect the interests of the seed industry.

Colombia: mass protests for farmers’ seeds and food sovereignty

In August 2013, Colombian farmers' organisations initiated a massive nationwide strike. They blocked roads, dumped milk on cars and essentially stopped producing food for the cities. The problem? Farmers are being driven out of existence by the government's policies.

The state provides almost no support for the small-scale farming sector. Instead, it embraces a social and economic model that serves the interests of a wealthy elite minority. Recent free trade agreements (FTAs) signed with the US and the EU are undercutting Colombian producers, who cannot compete with subsidised imports.

The farmers' strike was soon supported by thousands of people from other sectors of society: oil industry workers, miners, truckers, health sector professionals, students and others. The government’s response was chaotic and contradictory. Police forces violently repressed and injured many protesters, not to mention journalists.

Seeds emerged as one highly visible issue in the strike. Under the FTA signed with Washington, as well as that signed with Brussels, Bogotá is required to provide legal monopoly rights over seeds sold by US and European corporations as an incentive for them to invest in Colombia. Farmers who are caught selling farm-saved seeds of such varieties, or simply indigenous seeds which have not been formally registered, could face fines or even jail time.

In 2011, the Colombian government authorities stormed the warehouses and trucks of rice farmers in Campoalegre, in the province of Huila, violently destroying 70 tonnes of rice which it said were not processed in accordance with the law. This militarised intervention to destroy farmers' seeds shocked many people, and inspired one young Chilean activist, Victoria Solano, to make a film about it. The film is called "9.70", after the number of the law that was adopted in 2010, which gives the state the authority to destroy farmers'; seeds if they do not fulfill the requirements of Colombian law.

Social pressure was so strong that the government declared that the Resolution would be suspended for two years. However, it was not suspended and it is merely being amended. Some of the harsh language has been replaced with more subtle wording, but it remains the same in content. The central demand of the people of Colombia has yet to be granted: the outright repeal of the resolution and of any attempt to impose UPOV 91 through other channels.

Moreover, a new national policy that is supposed to promote “family farming” is also a wolf in sheep’s clothing. The farmers who will be supported are those who change their production methods in order to “become competitive”, which means that they must purchase industrial inputs such as seeds, fertiliser and pesticides.

Costa Rica: major mobilisations make UPOV a household name

In 1999, the Costa Rican government was considering how to change its laws to comply with the WTO requirements concerning intellectual property rights. Civil society groups, which were aware of the negative effects of the privatisation of seeds in other countries, put pressure on their government to avoid implementing such changes to Costa Rican laws. For a few years they were successful in this endeavour and they even came up with a proposal for an alternative law that would recognise the work of plant breeders without impinging upon the rights of peasants and indigenous peoples. Instead of the DUS criteria, new varieties would need to respect the needs of peasants and indigenous agriculture (indicated via a special label). And any measure preventing farmers from freely reusing seeds that they had purchased would be prohibited.

But the situation changed drastically a few years later when the US-Central America free trade negotiations took off. As part of this agreement, the Costa Rican government was required to align its laws with several intellectual property treaties, including UPOV ’91. This and many other provisions of the proposed FTA provoked enormous resistance in Costa Rica. Farmers groups and their allies managed to turn UPOV ’91 into a household name by organising hundreds of small meetings in communities, churches, schools and universities in order to explain the consequences of UPOV ’91. The resistance was so strong that, even after all other Central American states had already ratified CAFTA, Costa Rican social movements managed to obtain a referendum to decide whether the country would sign or not. Unfortunately, when the referendum took place in 2007, those in favour of CAFTA unfairly manipulated it, and a year later Costa Rica joined UPOV.

The legal aggressions have continued in Costa Rica, but so have the struggles. As a result of mobilisation by farmers and civil society organisations, a proposed seed marketing law that would have made it illegal to commercialise seeds that do not satisfy the industrial DUS criteria was stopped. Under the proposed law, although peasants’ varieties might have been exempted, they would nevertheless have had to have been registered with the National Seed Office. Farmers objected to this, believing that their communities risked being subject to further controls and to biopiracy. Although this law was averted, organisations remain on the alert, in the knowledge that all over Latin America there is a strong push for changing seed marketing laws in order to suit industry.

Finally, another important battle in Costa Rica is that against GMOs, which have been planted in Costa Rica for the past 15 years. Although today GMOs cover ‘only’ 3,000 hectares, the impact of this production is increased by the fact that the land in question is used to produce GMO seeds that are sold to other Central American countries. However, thanks to resistance by farmers and other social movements, by now 77% of the national territory has declared itself GMO-free, meaning that 63 out of 81 municipalities have used the legal autonomy existing at the municipal level to prohibit GMOs. Furthermore, social organisations are currently pushing for a law that would declare a moratorium on GM crops at the national level.

El Salvador: free trade agreements in favour of Monsanto

In recent years, El Salvador embarked on a Family Farming Programme (Plan Agricultura Familiar) which includes a policy of distributing local maize and bean seeds to small-scale farmers. 400,000 farmers benefited from this popular programme in 2013. However, the initiative led to difficulties with the US government, which felt it ran afoul of the US-Central America free trade agreement.

In 2014, El Salvador was to receive US $277 million from the Millennium Challenge Corporation (MCC), a US government foreign aid agency. But the US Trade Representative, who sits on the MCC board, blocked the money, claiming that El Salvador was breaking the rules of CAFTA by procuring seeds for the Family Farming Programme without a transparent and competitive bidding process. In short, the US wanted Monsanto to get a slice of the action. Earlier on, the government of El Salvador had indeed been buying seeds from Semillas Cristiani Burkard, a subsidiary of Monsanto, but more recently it had turned to national farmers’ cooperatives instead.

An outcry ensued both in El Salvador and the US. People were upset that the US was bullying El Salvador in order to make money for Monsanto – at the expense of depriving local farmers of a source of support. Suddenly, everything that social movements opposing CAFTA had said about the trade deal’s being against the country’s interest appeared to be true.

The fact is that Monsanto had bid for the contract to supply seeds in 2013. However, in 2014, there was too little time before the planting seasons to conduct a full bidding process. The temporary decree governing that year’s purchase only stipulates that the seeds needed to be produced in El Salvador. So it appeared that the US Trade Representative’s opposition was baseless. In the end, Washington withdrew its objections to the MCC grant’s going through.

While the Family Farming Programme is not promoting the production and distribution of peasant varieties, the $300 million conflict with Washington was a wakeup call about how free trade agreements can be used to undermine national decision-making about seed policies and choices.

Mexico: people struggle against GM maize

One of the most serious attacks Mexican farmers are currently facing is the push to introduce GMOs into the country, in particular maize. Maize is by far the most important crop for Mexicans, not only because it is the staple of their diet, but also because it is central to the culture and life of peasant and indigenous communities. Although Mexico is presented as an outstanding example of agricultural modernisation brought about by the Green Revolution, 80% of the maize which is grown in the country comes from the native seeds that Mexican farmers continue to use. This is despite 20 years of the North America Free Trade Agreement’s having gone far in imposing an industrial model for agriculture and the privatisation of resources.

Since 1999, at the federal level, a de facto moratorium had blocked any permits to plant GMOs in the country. However, in 2005, a negative biosafety law was passed which legitimises GMOs by setting out a series of bureaucratic procedures for companies wanting to plant GMOs for commercial purposes. Known popularly as ‘the Monsanto law’, the biosafety law was followed, in 2007, by a Federal Law on Seed Production, Certification and Trade. In reality, this latter law served to criminalise the free exchange of native seeds. In 2009, a presidential decree ended the moratorium and announced the granting of permits. This led to the granting of 155 permits for experimental maize planting to the multinational corporations Monsanto and Dow.

Mexicans have been fighting on all fronts to defend their maize. Since it was proven, in 2001, that imports from the US had already contaminated native Mexican maize, farming communities have paid greater attention to the seeds that they use and to where those seeds come from. They are careful to avoid contamination from GM varieties, which they fear could come in through government seed programmes, such as those that encouraged farmers to trade in their native seeds for commercial hybrids. These efforts amount to an on the ground moratorium.

When it was announced that corporations would seek to plant GMOs on a large commercial scale (on an area of over 4 million hectares – as large as the country of El Salvador), a broad mobilisation began. Alliances were formed among peasant communities, indigenous peoples, trade unions, academics, urban groups and others to alert the public about the threat of contaminating maize in its world centre of origin. As a part of this mobilisation, farmers organised a hunger strike in the spring of 2012.

Finally, since 2013, a coalition of farmers organisations and their allies have been pursuing a legal action. Their efforts have resulted in a court ruling that has, at least for now, stopped the commercial planting of GM maize.

Many peasant and indigenous communities have decided to defend their maize through agreements at the community and ejidal assembly level (ejidos are the collective landholdings that are the legacy of the land reform process which took place after the Mexican Revolution). The Mexican constitution recognises that such agreements can be used to protect the land and resources on the 31,000 large-scale collective landholding communities and ejidos in Mexico. But above and beyond the possibility of their being used as a formal legal tool in the future, these community and ejidal agreements mainly serve as a process of discussion and organisation, strengthening local defence of local peasant seeds, which are valued as inseparable from the life of the peoples, their knowledges and cultures.

The latest step in the Mexican mobilisation in defence of seeds was a three-year trial against the Mexican state held before the Permanent Peoples Tribunal (2012-2014).

United States: a cocktail of restrictive laws and intimidating practices

The legal system in the US makes it possible to claim private property rights over seeds by means of various tools, with patents being the most common. A seed can even be subject to various different patents plus Plant Variety Protection plus exclusive licensing agreements – all at once! Today, popular new varieties of crops are even covered by trademarks. And, if this were not enough to guarantee monopoly payments, there are also new schemes such as ‘clubs’ in which products such as apples can only be grown by members of such a club, thus keeping the prices high and a tight rein on the market. Given this situation, it is not surprising that farmers are intimidated from doing anything other than purchasing industrial seeds every year, fearing that they might be charged with breaking the law. Moreover, this is a problem not only for farmers, but one that extends to breeders, researchers and seed organisations wanting to do further work with seeds.

Upon purchasing seeds, farmers are required to sign lengthy contracts known as “technology use agreements”. These contracts prohibit farmers from saving seeds and, among many other intrusive provisions, allow companies to access the farmers’ records that are held by third parties, such as the US government. As early as 2003, Monsanto had a department of 75 employees with a budget of $10 million dedicated to the sole purpose of pursuing farmers for patent infringement. By December 2012, Monsanto had filed 142 lawsuits alleging seed patent infringement involving 410 farmers and 56 small farm businesses in 27 states, and it had received over $23.5 million from patent infringement lawsuits against farmers and farm businesses.

But Monsanto is not alone in its scaremongering tactics. DuPont, the world’s second largest seed company, hired at least 45 farm investigators in 2012 to examine planting and purchasing records of Canadian farmers and to take samples from their fields for genetic analysis. In 2013, DuPont expanded this operation to the US, hiring approximately 35 investigators, many of them former police officers. The US, with its restrictive laws and the aggressive behaviour of its corporations, is fast on the way to become a "big brother is watching you" police state controlling everything farmers do with their seeds.

When it comes to seed marketing laws, the United States is an exception. Seeds do not have to be certified to be sold there, contrary to the case in almost all other countries. As a result, despite the tremendous concentration of the industry serving large-scale US agribusiness, small seed initiatives and companies are able to develop non-hybrid varieties. However, given the aggressive intellectual property culture in the US, there is no easy way to distribute these seeds and to keep them free for reuse and exchange without risking that they will be patented by third parties. One approach to solving this problem has been to create licencing agreements setting the terms under which these seeds can be used commercially, making it explicit in the agreement that claiming the seeds as private property, to the exclusion of their use by others, is prohibited. Another approach is the development of closed-circuit seed networks and library systems.

Venezuela: a bottom-up law to defend farmers’ seeds

A national seed law will soon be up for vote in the Venezuelan parliament. Yet this law is very different from most of the laws proposed in other countries in that it was promoted and agreed to by hundreds of social movements, including farmers, seed savers, environmental organisations, community collectives, researchers, and agroecology networks. The project began in 2012, as the movement against GMOs saw the need for a stronger law in order to prevent the entry of transgenics into the country. Over time, their vision expanded to include the defence and promotion of peasant seeds as part of a strategy for moving towards a new production model based on sustainable farming and food sovereignty.

The proposed new law is to replace the existing law of 2002. It is the result of a series of popular consultations (consulta popular) – a formal process for creating a new law that is recognised in Venezuela. A total of five national consultations were held between October 2013 and June 2014, in addition to many local ones, with the participation of some 250 organisations.

The proposed bill states that seeds are living organisms whose rights should be recognised. In accordance with the Venezuelan constitution of 2009, it prohibits pa

SOURCE: GRAIN
URL: http://www.grain.org/article/entries/5142-seed-laws-that-criminalise-far...
DATE: 14.04.2015