Every cloud has a silver lining. It’s heartening to see how we are awakening from our slumber and actively exercising our rights as engaged citizens by critically questioning laws and actions. Who could have anticipated that an Act passed in 2012 would spark public discourse and even a court petition by farmers? This situation underscores a significant challenge for lawmakers and those involved in the legislative process: the need for laws that address the unique needs of our citizens. It’s a stark reminder that public participation must be genuine and informed by our history to effectively shape our current and future legal landscape.
Many of us have either farmed or interacted with farmers at some point. Whether dealing with crops or livestock, it’s common to see farmers take pride in the quality of their seeds and practice the tradition of conserving and sharing them freely. Farmers would trade or exchange seeds informally, a practice that has long been part of agricultural life. This tradition reflects a deeply rooted way of life.
Farmers often believe that the quality of a crop is closely linked to the quality of seeds used, and that seeds from neighboring farms can influence their own yields. This belief can be substantiated by science and especially our biology lessons on cross-pollination: if a neighboring farm’s crop is of lower quality, there’s a risk that it may cross-pollinate with your seeds, affecting their quality.
However, the enactment of the Seeds and Plant Varieties Act has criminalized these traditional practices and almost brought the party to a stop. This Act, which became law in 2012, regulates seed transfers through certification, testing, and the creation of a plant variety index. It also controls seed importation, guards against harmful cross-pollination, grants exclusive rights to new plant breeders, establishes a center for plant genetic resources, and creates a tribunal for appeals and related issues.
At Section 3(c) of the Seeds and Plant Varieties Act stipulates that seed regulations may prohibit the sale of uncertified seeds, seeds containing excessive weed seeds, or seeds lacking prescribed quality factors. Sections 10(4)(e) and (f) criminalize the sale or display of seeds that do not match certification descriptions or fail to meet standards. The Act defines “sell” to include barter, exchange, and offering. Violators of these provisions face fines of up to one million shillings, imprisonment for up to two years, or both.
In stark contrast, the Constitution of Kenya which asserts the sovereignty of the people and the supremacy of the Constitution, declares any law inconsistent with it as invalid, mandates under article 11(2)(c) the state to actively promote intellectual property rights, including those related to seeds. It further emphasizes the importance of culture, which includes the preservation of indigenous seeds and plant varieties under Article 11(3) (b. Additionally, Article 43(c) guarantees the right to adequate food of acceptable quality, implicitly acknowledging the role of seeds in food security.
On the international front, article 19(1)(a) of the United Nations Declaration on the Rights of Peasants and Other People Working in Rural Areas (UNDROP) guarantees peasants the right to save, use, exchange, and sell their farm-saved seeds or propagating materials.
The disconnect between the Seeds and Plant Varieties Act, 2012, and the provisions of the Constitution of Kenya and the United Nations Declaration on the Rights of Peasants and Other People Working in Rural Areas (UNDROP) highlights a complex and troubling issue. The Act’s provisions, which criminalize certain traditional practices like seed sharing and trading, seem to conflict with constitutional guarantees and international rights aimed at protecting traditional farming practices and food sovereignty.
Seemingly the Seeds and Plant Varieties Act was designed to regulate seed quality, protect intellectual property rights, and ensure that seeds meet specific standards. However, it appears that the Act’s regulatory focus may have overlooked or undervalued traditional practices and the cultural significance of seed sharing among farmers.
The Act may also have been influenced by commercial interests and the need to standardize seed quality for market purposes which clearly clash with the traditional and communal practices that have long been part of farming communities.
Another concern would be if before enactment of this law, adequate consultation with farmers and other stakeholders was undertaken? It might seem that either their views were never looked at or a particular demography did not have their views taken or their traditional practices disregarded.
In terms of the relationship of the national and international laws, there may be gaps in how the Act integrates with existing constitutional and international frameworks. The Act’s provisions may not have been harmonized with broader legal and human rights obligations, leading to inconsistencies and the failure to align with the lived realities of those it affects.
Legislation that fails to align with the lived realities of those it affects can lead to problems of implementation as well as open a flood gate of litigations.
It is this disconnect that got farmers petitioning the court, and challenging sections of the Seeds and Plant Varieties Act on the grounds that they criminalize seed sharing. They argue that this restriction violates their customary rights to exchange indigenous seeds and hinders their ability to access seeds, particularly for those unable to afford certified seeds. They contend that limiting access to climate-resilient seeds could jeopardize food security both for farmers and for Kenya as a whole.
The Petitioners advocate for the government to recognize and incorporate traditional seed conservation methods used by small-holder farmers. They find the Act as discriminatory and repressive, arguing that it disproportionately impacts small-scale farmers who cannot afford certification fees. This, they claim, affects their economic well-being, as the inability to access seeds impedes their capacity to produce food and generate income.
The disconnect between the Seeds and Plant Varieties Act and constitutional and international provisions highlights the need for a more inclusive and balanced approach in agricultural legislation. It underscores the importance of aligning legal frameworks with both modern regulatory needs and traditional practices to ensure that laws support and protect the rights and practices of all stakeholders involved in agriculture.
We shall follow the progress of the Petition to its logical conclusion and keep you informed.
Authored by
Stella Orengo and Amy Ondari
