The Legal, Moral & Ethical Issues Arising from Plant Variety Protection: An Analysis of the Kenyan Situation

Abstract

Kenya is a signatory to various international instruments including some that touch on Intellectual Property under its various branches. Those that touch on Plant Variety Protection include the TRIPS agreement, the Convention on Biological Diversity as well as UPOV. At the time of ratification of these specific instruments, Kenya, under its then constitution was a dualist state which meant that it had to enact and/ or amend existing legislation for the instruments to have effect within her borders. These instruments contain different provisions and as a single member of the respective instruments, some of these provisions and differences are bound to be played out at the domestic front. This paper seeks to find out if they do so in Kenya and if so, how this has been resolved. The paper also evokes moral and ethical concerns relating to the grant of plant breeders’ rights that are monopolistic in nature as are the other IP rights as well as potentially presenting individuals with power to determine the farmers who cultivate their varieties and how this is done including storage. In addition, most of the research into plant varieties is conducted by public institutions using public funds. The paper looks at whether this is informed by any moral and ethical justification as well as the growing trend to incorporate co-operation between the private and public sectors in research in Kenya. The benefits derived from the granting of PBRs are well documented but remain a relatively new area in Africa. A UPOV commissioned report illustrates that Kenya has benefitted economically from granting PBRs. This research paper delves into the contents of the report to examine what varieties have made this contribution and whether this has in turn strengthened food security in the country. The results of the research are encouraging and show that plant variety protection as well as the grant of PBRs has so far been effective and efficient though loopholes exist within the existing legal framework which could be sealed in order to strengthen this IP regime. At the end of the research paper recommendations are made where gaps appear.