Towards a flexible plant breeders’ rights system in Kenya

This thesis is a study of the relationship between plant breeders’ rights on the one hand and access to seeds and planting material on the other for smallholder farmers in Kenya. The objective of the thesis is to enquire whether the legal spaces that exist within plant breeders’ rights legislation can enable smallholder farmers to positively contribute towards Kenya overcoming food security problems. Kenya is selected as the study area because agriculture provides the bulk of employment and livelihoods in the country. Yet most of the farmers are smallholders, obtaining seed and planting material from informal sources and therefore they do not provide a market for protected varieties of seed. The thesis examines whether legal and policy frameworks that have evolved overtime have spaces for support of smallholder farmers. In this process, seeds systems that operate in Kenya are discerned. Thereafter, the thesis maps out legal frameworks governing plant breeders’ rights in Kenya and their implications for smallholder farmers taking into account international treaties and regional processes. It is observed that Kenya’s international obligations in plant breeders’ rights and plant genetic resources for food and agriculture influence smallholder farmers’ access to seeds and planting material. Furthermore, there are risks, concerns and uncertainties that will arise as sub-Saharan African countries (Kenya included) harmonize their plant breeders’ rights legislations. Finally, an enquiry is made into whether there are any existing legal spaces within the current plant breeders’ rights frameworks for rights holders and policy makers that could facilitate access to seeds and planting material for smallholder farmers. This enquiry is made with a view to consider whether through these spaces, smallholder farmers may contribute towards Kenya overcoming its food security problems. It is found that the need for Kenya to put in place a plant breeders’ rights framework is partly driven by the necessity to comply with international trade obligations resulting from the country’s membership to the World Trade Organization. However, the manner in which the country has implemented the plant breeders’ rights framework is in conflict with the smallholder farmers’ practices on the ground, and, other international obligations relating to conservation, sustainable use and access and benefit sharing of plant genetic resources for food and agriculture. While regional process in sub-Saharan Africa to harmonize plant breeders’ rights are likely to exacerbate conflicts between plant breeders’ rights policies and smallholder farmer practices in Kenya, it is found that this also, presents some opportunities. Thus, all these risks, concerns and opportunities need to be weighed with a view to ensure that smallholder farmers can access seeds and planting material for home consumption, livelihood improvement and food security purposes. In conclusion, the thesis demonstrates that plant breeders’ rights have the potential to influence important seed systems in Kenya. Therefore, policy makers should carefully assess internationally harmonized plant breeders’ rights systems before subscribing to them in order to ensure that national implementation of such systems fully concurs with national agricultural development and food security policy objectives.</p