UPOV91: The Apartheid seed law
Although political apartheid was dismantled by the 1994 election of President Nelson Mandela in South Africa, a new form of economic apartheid is now stalking the entire African continent.
This new economic apartheid refers to the seed convention known as UPOV91 (International Union for the Protection of New Varieties of Plants), advanced by the European Union, the United States, and the World Bank to protect plant breeders’ rights under the World Trade Organisation. The EU is setting its implementation by African governments as a prerequisite for trading under their Economic Partnership Agreements (EPAs), scheduled for 2016.
The first apartheid characteristic of UPOV91 privileges formal sector plant breeders who work in modern laboratories full of expensive equipment to experiment with new plant varieties. The UPOV91 convention gives this breeder private ownership over the new strain, extending property rights beyond the seed, to the full plant, and to ‘essentially derived’ products (e.g. flour from wheat).
For this legal, individual possession, the new variety must be distinct, uniform, and stable (DUS), characteristics not found in farmers’ newly bred varieties after their experimentation in the fields. It means that farmers’ new varieties are not protected by the UPOV convention and remain free for the taking.
Farmer breeders do not desire seed traits that are highly stable, for they are looking for nuances in traits to choose the next seeds for breeding. As one farmer asked, ‘What do they mean by ‘heritage seed’? Aren’t the seeds changing all the time?’
During the 20 years of proprietary rights for the breeder of DUS varieties, no one can exchange, use, experiment or save the seed without permission, a prohibition eradicating farmers’ rights to work with any seeds. Because farmers have cultivated diverse food crops over millennia, two international laws protect farmers’ rights (International Treaty for Plant Genetic Resources for Food and Agriculture and the Nagoya Protocol to the Convention on Biological Diversity). For African governments to incorporate UPOV91 into national laws, they would have to violate these two treaties.
Farmers’ experimentation and freely sharing involve not only seeds but the indigenous knowledge embedded in them. Farmers, for example, know the hundreds of varieties of millet and sorghum or teff, grains more nutritious than maize or rice or wheat, and ones that are regaining interest on the continent because they grow well in semi-arid conditions, while the more familiar maize varieties are not standing up to climate change aridity. Smallholder African farmers grow 20-25 crops on one hectare, sharing knowledge — sometimes formally in farmer field schools but also daily in informal ways — about which variety grows best under another crop, where to place the various crops in terms of moisture percolation in the small field and, especially, variable planting times in case the rains come late, or start early. Farmers know the nutrition value of their biodiverse crops, encouraging children and mothers to partake more of one (e.g., pearl and finger millets) than of another (cassava). And nutrition includes feeding the living soil with leguminous plants rotated with grain crops.
Why would anyone want to destroy farmers’ experimentation and knowledge? For the same reason apartheid reigned too long: it is profitable. UPOV91 offers another way to privatise a living organism, accomplished more easily than the difficult job of enforcing a patent.
To demonstrate that this metaphor of an apartheid seed law is not a casual label, I have taken quotations about South African apartheid from a photography exhibit  in Johannesburg that chronicles what the daily abuses and humiliations were. They speak well to the segregation and abuse of all farmer breeders that UPOV91 will impose.
SEGREGATION WITH INFERIORITY
‘Apartheid’s social reality was not only the regime of law, but the construction of the necessary context in which the inferior status of Africans was established….It is by understanding the rituals of truth of apartheid (white entitlement and superiority) and how those rituals were translated by those who benefitted most from the rules.’ (Enwezor and Bester 2013: 24)
UPOV91 is trying to establish, by law, the inferior status of smallholder farmers who breed and do scientific experiments in the field. It privileges the formal sector plant breeders’ entitlement and superiority. The normative law translates back into profit for the corporations benefiting from PVP – plant variety protection. This constructed distinction between two different types of breeding becomes a ‘ritual of truth’.
AESTHETICS OF SEGREGATION
‘The visible and aesthetic aspect of this [apartheid segregation”> would be that whites lived in manicured, well-tended, and organised neighbourhoods and houses with modern amenities, sat in first class, … ate in different and better restaurants…and on the other hand, Africans lived in substandard, crowded, squalid townships with deficits in modern amenities, travelled in the second-class cabin, and ate in different restaurants….
‘A park bench that has inscribed on it ‘for whites only’ defines a structure. But it is also a picture that reproduces the conditions that secure the image of a norm. …Over time, such an expectation becomes internalised as norm, as the reality of the difference.’
(Enwezor and Bester 2013: 24)
UPOV91 legitimises the view that ‘real plant breeders’ wear white coats and work in a sparkling laboratory with the latest instruments, while projecting that farmer breeders are barefoot, dirty, and semi-literate. They cannot produce DUS (distinct, uniform, stable) seeds and therefore, they are not breeders. The Gates Foundation’s Programme for African Seed Systems (PASS) call their seeds ‘weak’ and ‘recycled’, ‘used for decades’. Like apartheid benches ‘for whites only’ in the parks and on the beaches, only a breeder of DUS seeds can sit on the laboratory stool as a recognised seed breeder; farmer breeders do not qualify.
LEGAL ENFORCEMENT OF APARTHEID
‘To be African is to know that your access to the city will be severely policed, and that the slightest violation of the rules of segregation will result in dramatic measures of police harassment.’ (Enwezor and Bester 2013: 24)
The pass laws, restricting the movement of Africans at all times, became a core impetus for organising against apartheid from the Defiance Campaign (1952) through ‘making the townships ungovernable’ (1980s). Any ‘non-white’ without a pass could be detained for 90 days, or more, without trial or notification of any lawyer. To emphasise the similarities, the above quote simply has farmers inserted:
‘To be [a farmer breeder”> is to know that your access to the [UPOV protected seed”> will be severely policed, and that the slightest violation of the rules of segregation will result in dramatic measures….’
Farmer breeders will not be summarily detained, but Canada has already made violation of its UPOV-based law a criminal act, not a civil offense. The U.S. courts have upheld Monsanto’s allegations against hundreds of farmers that they stole a ‘Monsanto gene’, when most often, pollen carried by wind fertilised the farmers’ crops. With these precedents, the economic apartheid of UPOV91 will most likely be strictly enforced by the courts.
Civil society and farmers across the African continent are organising against UPOV91, but the threat of the looming European trade agreements (EPAs) remains. Just as civil society resistance in the North changed the context for domestic apartheid, the international community needs to voice and organise rejection of this apartheid seed law.
The UN Food and Agriculture Organisation recognises two seed systems: the formal one and farmers’, because all breeders are essential to cultivate new food varieties in this time of climate change. Further, farmers are even more advanced than formal sector breeders, for their new seeds are already ‘field tested’, whereas laboratory seeds often fail during field trials, not expressing the traits desired. Let us not allow UPOV to gain any ‘sensibility of normalcy’ in segregating and denigrating farmer seed breeders:
‘Apartheid … transformed and maintained institutions for the sole purpose of denying and depriving Africans of rights and access…. [As does the UPOV seed law that deprives farmers of rights and access”>. But the viability of such a system required more than the instruments of law….It necessitated a continuous process of socialisation and institutionalisation until it acquired a sensibility of normalcy….’ (Enwezor and Bester 2013: 25)
The international community’s vociferous and sustained rejection of this new economic apartheid would protect the future of food for us all.
* Carol Thompson, PhD, is Professor, Political Economy, Northern Arizona University, USA. She is a Member of AGRA-Watch, Seattle, Washington, and currently works in Zimbabwe.
 This book replicates the exhibit and page references are from it: Okwui Enwezor and Rory Bester, eds. 2013. Rise and Fall of Apartheid – Photography and the Bureaucracy of Everyday Life. New York: DelMonico Books.
 Mark Klaver. 2015. “Africa Seed Index Raises Bigger Yield Hopes for Farmers”.BBC News (13 March). http://www.bbc.com/news/science-environment-31857458
 Monsanto’s highly publicised genetically modified WEMA (water efficient maize) has not performed well at all. African Centre for Biodiversity. 2015. Profiting from the Climate Crisis, Undermining Resilience in Africa. Gates and Monsanto’s Water Efficient Maize for Africa (WEMA) Project (May). http://tinyurl.com/pbpuktz
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