Country Presentations

Malawi
Zambia - Edward D. Zulu, Rosemary M. Makano, Lilian S. Bwalya and Mwananyanda M. Lewanika
Lesotho - Ministry of Environment, Gender and youth Affairs
Namibia - Edward T. Kamboua and Sem T. Shikongo
Botswana
Swaziland
South Africa - D.P. Likely and G.T. Williams
Zimbabwe - Bellah Mpofu
Trade in agricultural and biological products in Zimbabwe - Carlson Mbegabolawe

The workshop then proceeded to presentations by country, which were focused on research and breeding activities, biotechnology research and capacity, trade in agricultural and biological products, and discussion of the formal and informal seed sectors.

A single paper was given to describe circumstances in each of the countries represented, except for Zimbabwe, on which there were two papers. Contact details for presenters at the workshop appear in the list of participants.

Malawi

Introduction

Countries have laws on Intellectual Property Rights (IPRs), which are aimed at protecting the rights of people on their inventions. Some of the aspects of the IPRs pertain to national and international trade and they include patent laws. With new advances in biotechnology, countries have different opinions on the scope of such patent laws, especially on whether biological materials should be patentable or not. This is reflected in Article 27.3(b) of the Trade-Related Aspects of Intellectual Property Rights (TRIPS) Agreement and the current negotiations to have it reviewed. The TRIPS Agreement forms a very important part of world trade and the main aspect at stake for Malawi is trade in biological materials, especially agricultural products.

Malawi agro-economic situation Research and breeding

Coverage of research and breeding. Various institutions are involved in research and biological materials. Some of the public institutions are the Department of Agricultural Research and Technical Services, University of Malawi, Forestry Research Institutions of Malawi (FRIM) and Monkeybay Fisheries Research Station. The private research institutions are Agricultural Research and Extension Trust (ARET) for tobacco and the Tea Research Foundation of Central Africa (TRF) for tea. The international research institutions operating in Malawi are the International Crop Research Institute for the Semi-Arid Tropics (ICRISAT) for groundnuts and pigeonpeas, and the International Institute for Tropical Agriculture (IITA) for cassava and sweet potatoes.

In Malawi, while research work is being carried out on the world's major food and industrial crops, breeding work is limited to just a few crops. The research work which is carried out is in the fields of agronomy, plant protection (pathology and entomology), processing and nutrition, storage and conservation, and breeding (for some crop species). As with plant breeding, the activity is quite limited in scope in that much of the work is on adaptation/performance evaluation on local landraces and materials introduced from other countries, especially CGIAR centres like CIMMYT, IRRI, IITA and ICRISAT. However, some breeding work is being done in crops like maize, rice, tobacco, cotton, coffee and cassava. This breeding work involves crosses made on local germplasm as well as that involving local and introduced material. Where introduced materials are used, they are mainly chosen for yield potential, while the local materials are chosen for their adaptability and consumer acceptability.

While breeding and evaluation activities in public research institutions are done on a number of crops, private seed companies target their work mainly on crops for which hybrid seed is produced - for example, maize and sunflower. This is because every year farmers have to buy a new stock of planting materials; hence there is a higher turnover to the company from the varieties.

Intellectual Property Rights issues. Malawi is in the process of developing regulations on Plant Breeders' Rights. A draft document was produced, which awaits final refining prior to implementation. As an interim measure, private seed companies multiplying varieties bred by public research institutions pay a minimal royalty based on the hectarage under production. While patent laws are in operation in Malawi, they are not being applied to biological materials.

Biotechnology research and capacity

Biotechnology refers to any technique that uses living organisms or substances from those organisms to make or modify a product, to improve plants or animals, or to develop microorganisms for specific uses. This includes the technology used in food fermentation, biological control, genetic engineering (recombinant-DNA technology) and new cells and tissue culture methods.

Although Malawi is not currently involved in basic research in developing biotechnology, it is applying technologies developed elsewhere. Nevertheless, several instances exist where research is being done to adapt the various technologies for effective/efficient application. The following are some of the fields involving active research or application of biotechnology.

1. Tissue culture. Bvumwe Agricultural Research Station is doing tissue culture work on sweet potato, Irish potato (white potato), cassava, yams and banana. This is done mainly for rapid multiplication of planting materials and viral disease cleaning. Bunda College of Agriculture is involved in rapid multiplication of planting materials of horticultural species (e.g. bananas), indigenous fruits (e.g. Uapaka kirikiana) and agroforestry species (e.g. Faidahebia albida). It also participates in tissue culture evaluation of plantlets of cassava and yams from IITA.

2. Vaccines and disease diagnosis. In Malawi, the Central Veterinary Laboratory is involved in the production of vaccine for East Coast Fever. The laboratory also produces materials (conjugates) used in diagnostic tests for African Swine Fever. The Ministry of Health, under the Expanded Programme on Immunization (EPI), has countrywide administration of vaccines including BCG, Diptheria toxoid, Tetanus toxoid and Poliomyelitis vaccine; the last three are combined as DTP vaccine.

3. Fermentation in dairy and brewery products. The Malawi Dairy Industry (MDI) and Dairyboard Malawi produce dairy products like cheese, yoghurt, ice cream and margarine. Microbes used in the production of yoghurt are Lactobacillus lactis and L. buraricus (acid-forming and aroma-forming bacteria, respectively). Streptococcus thermophilous is used in the production of cheese. The Carlsberg Brewery Company uses brewery yeast, Sacromyces carlsbergensis, for fermentation.

4. Fuel. The Malawi Industrial Research and Technology Development Centre (MIRTDC) is researching production of biogas by use of natural microorganisms. The biogas is used in gas stoves for cooking.

5. DNA analysis. The Bean-Cowpea Research Project at Bunda College of Agriculture has a DNA analysis laboratory, the main purpose of which is characterization of beans with respect to their leaf disease reaction.

Trade in agricultural products

Malawi's economy is heavily dependent on agriculture. Agriculture supports 85% of the population and contributes 37% of the GDP. Agriculture also contributes 90% of foreign exchange earnings, most of it coming from crops such as tobacco, tea and coffee.

The value of exports in agricultural products has always been over 90% of the value of total merchandise trade. Tobacco has been contributing over 50% of the value of exports in agricultural products. The contribution of fishery and forestry products to the value of exports has been minimal.

The total trade balance has always been a deficit, while that of the agricultural products has been a surplus. The value of imports of agricultural products has been rising, while the value for exports has been fluctuating.

Malawi's dependence on a few cash crops such as tobacco, tea and coffee makes it very susceptible to prices in the international markets. A fall in the price of tobacco affects the entire economy. Devaluation of the kwacha in August 1998 was a result of unfavourable prices in the tobacco market.

Value of trade in agricultural, fishery and forestry products

The value of exports in agricultural products has exceeded the value of imports, yielding a surplus balance of trade. The surplus obtained from the sale of agricultural products has been used to offset the deficit incurred in trade in other sectors. It should be noted that most of the agricultural products are sold raw, indicating that there is very little value added to them. Lack of transformation of the agricultural products into industrial products means that whatever Malawi trades cannot be patentable.

As stated earlier, Malawi is very vulnerable to price shifts in the world market. The country's economic base is so narrow that it cannot have any influence on the prices of the agricultural products in which it trades. The agricultural products exported by Malawi in the form of raw materials usually come back as imports in the form of processed products for consumption. For some crops, like mangoes, much of the agricultural produce spoils when in season. There is need for establishment of agro-industries for processing of such highly perishable agricultural produce. It is pathetic that Malawi, despite a very conducive agricultural environment, imports such food items from other countries within the region.

The value of exports does not include the trade that takes place informally, which is substantial. There is a lot of crossborder trade between Malawi and its neighbours Zambia, Mozambique and Tanzania and even beyond. It is difficult to account for this because the boundaries are merely rivers and roads. The value of imports does not account for this crossborder trade and the concessionary imports Malawi gets in form of food aid.

Recurrent droughts have forced Malawi to import a lot of food, using her scarce foreign exchange and in the form of food aid. In 1997, actual maize production was 1 534 462 million t, which was lower than domestic demand of 2 398 600 million t. The difference had to be offset by food aid and imports.

Malawi is very rich in flora and fauna, most of which is not fully exploited when it comes to trade. The contribution of forestry and fishery products to the value of trade has been minimal. In some instances, the surplus from the sale of agricultural products has been used to pay for the imports of the fishery and forestry products.

Malawi has concentrated on the sale of fish and timber over other biological products. It has not looked at the other products that are found in the lake, which could be exported. Traditions hinder the exploitation of these other species, as Malawians rarely use them for consumption.

In summary, Malawi needs to diversify the range of agricultural and biological products in which it trades. Its vulnerability stems from its dependence on a few agricultural products, which are exported without adding value to them.

Formal and informal seed sectors

The bulk of seed used by farmers in Malawi for subsistence production comes from the informal seed sector. For cash crops, most of the seed comes from the formal sector and is improved. The indigenous seed is unimproved and hence the yields obtained are very low. These low yields are a major contribution to food insecurity at the household and national levels. Use of improved seed could substantially improve household and national food security. It is apparent, though, that farmers will continue using indigenous seed, and the informal sector will continue being the source of seed for years to come.

Table 1 shows the percentages of improved and indigenous seed used in Malawi. It is evident that a large percentage of seed used by farmers for subsistence production is indigenous. For cash crop production, most of the seed is improved. Table 2 shows the source of seed used for selected crops. It is clear that on-farm saved seed contributes the highest proportion of seed for subsistence production.

Table 1. Quantities and types of seed used

Crop	Total land	Total quantity	Percentage by seed types
			Improved	Indigenous
Maize	1297062	32427	25	75
Groundnuts	140887	12678	1.6	98.4
Beans	148650	11892	8	92
Tobacco	114051	62	95	5
Rice	42189	3164	69	31
Wheat	2483	199	5	95
Pigeonpea	123088	984	30	70
Soyabean	40829	-	16	84
Cassava	151941	3404	34	86

Table 2. Seed sources (in percentages)

Crop	Formal		Informal
	Public	Private smallholder	Commercial	Saved seed
Maize	5	10	10	75
Groundnuts	0.2	0.4	1	98.4
Beans	3	1	4	92
Tobacco	0	95	0	5
Rice	69	0	0	31
Wheat	5	0	0	95
Pigeonpea	6	5	9	70
Soyabean	4	9	3	84
Cassava	10	24	0	66

Formal seed sector

Status of seed policy, seed and plant breeders' rights. Malawi has a national seed policy. Emphasis has been put on variety research and development, pre-basic, basic and certified seed production and commercial seed production and marketing.

The Seed Act was enacted in May 1988 but it is not fully functional because some of the seed regulations are still in draft form. However, the Seed Services Unit plays a major role in ensuring that the quality of seed is satisfactory. There are no Plant Breeders' Rights in Malawi yet but a process has been initiated to establish them.

Roles of participating agencies. Malawi has a National Seed Committee with membership from various stakeholders, both private and public. Its role is to establish a strong and collaborative link between the public and private seed sectors to ensure efficient planning and implementation of the national seed programme. Its functions include recommending policies and programmes for the development of the seed industry, promoting training and education in seed technology and implementation of a buffer seed stock programme.

A Variety Release Committee has been in place since the late 1970s. It is composed of breeders, agronomists, crop protection specialists, socioeconomists and user organizations. The committee reviews the history and performance record of nominated varieties, determines their potential contribution and makes recommendations pertaining to their release and entry into the seed multiplication programme.

Malawi has a Seed Quality Control and Certification agency known as the Seed Services Unit. The unit has services at four research stations at Boka, Lifuwu, Bvumbwe and Chitedze. Seed quality control is achieved through the introduction of seed certification schemes (rules and standards) and seed testing. The Seed Testing Laboratory has been accredited by the International Seed Testing Association (ISTA) since 1971 and follows the Organization for Economic Cooperation and Development (OECD) seed schemes.

Seed multiplication is done by commercial seed companies (ARET, TRF) and individual farmers. The commercial seed companies enter into contracts with commercial farmers. Seed producers are free to use any marketing channels for their seed.

Before liberalization, ADMARC was responsible for marketing all farm inputs, including from donors such as the European Union, and it facilitated the development of the smallholder commercial sector. NGOs also play an important role in providing start-up material for farmers to initiate smallholder seed programmes.

NSCM, Pannar Seed Limited and ARET are the private seed companies existing in Malawi.

The informal seed sector

Importance of the informal seed sector. About 90% of the national seed requirements are met from seed saved from previous crops in the informal seed sector. Dissemination of seed is on an exchange basis. Where the seed is sold, it is less expensive than the seed in the formal seed sector.

Government policy. Previous government policies restricted the availability of improved seed of most of the food crops other than maize. More relevant government policy would therefore be the liberalization of seed production and marketing, through the amendment of the Seed Act, which would allow smallholder farmers to multiply and trade in all seeds. Liberalization of improved seed neglected by commercial seed companies would mean it could reach farmers at affordable prices.

Sources of the seed in the informal sector. NGOs such as AID, Christian Service Committee, Concern Universal, Livingstonia Primary Health Care and World Vision International, and donor community bodies, such as the European Union, have initiated seed-production projects for smallholder farmers for open-pollinated crops such as maize, groundnuts, cowpea, pigeonpea, soyabean, cassava and sweet potato. The seed is produced in groups. The farmers give twice the seed they got from these NGOs as payment. The seed collected is redistributed to other farmers. The seed growers share the seed with their relatives or friends, sell some to the community and keep some for their own use.

Another source of seed in the informal sector is recycling and saving seed on the farm. To ensure high-quality seed, farmers dry it adequately, keep it under cool, dry conditions and protect it from pests by smoking it, treating it with wood ash and storing it in rat-proof containers. Tables 1 and 2 show the quantities and sources of seed used in the various sectors mentioned.

Sources of varieties in the informal sector. Some of the sources of varieties of seed in the informal sector include:

· Farm-saved indigenous varieties, which are often mixed and have been carried over for years
· Recycled seed of improved varieties
· Introduction from foreign countries through the formal sector
· Crossborder seed leakage
· Importations in food relief programmes.

Issues to be addressed

· Public awareness on CBD provisions, IU, TRIPS and breeders' rights

· Revision of Patent Act of 1958

· Finalization of plant breeders' rights; there is a need to consider animal breeders' rights

· Develop a national framework law on access to genetic resources and equitable benefit-sharing

· Enforcement of regulations on access to genetic resources and benefit-sharing through formulation of contract agreement documents

· Development of biotechnology and biosafety regulations

· Capacity-building, including training of personnel in relevant institutions

· Government/political will to commit financial resources.

Zambia - Edward D. Zulu, Rosemary M. Makano, Lilian S. Bwalya and Mwananyanda M. Lewanika

Introduction

Zambia is a member of the World Trade Organization (WTO) and actively participates in its meetings as per WTO's membership requirements. Zambia is also party to various international conventions and agreements that promote sustainable management and use of biodiversity. In particular, and to mention but a few, Zambia is party to the Convention on Biological Diversity (CBD), the Convention on International Trade in Endangered Species (CITES) and the International Undertaking on Plant Genetics Resources (IU).

Trade and patent legislation

Patent legislation and its scope

The Zambian patent law, Cap 400 of the laws of Zambia, has much in common with the British Patent Act. The Act regulates the granting of protection for inventions in Zambia and does not exclude any field of technology. However, the Registrar of Patents is given powers under this Act to deny protection to inventions deemed to be contrary to public morality or law. Further, substances used as food or medicine that are mere mixtures of known ingredients, or processes for obtaining such mixtures, are excluded from patentability (Section 38). Specifically, the Act excludes from patenting the following:

· any discovery, scientific theory or mathematical method

· a literary, dramatic, musical, or artistic work or any other aesthetic creation

· a scheme, rule or method for performing a mental act, playing a game or for doing business or a computer programme

· the presentation of information

· the patenting of any variety or animal or plant or any biological process for the production of animals or plants, not being a microbiological process or the product of such a process

· any invention whose exploitation may encourage offensive, immoral or antisocial behaviour.

· an item that is frivolous in that it claims as an invention a substance for which this is obviously contrary to well-established natural laws

· an item the use of which would be contrary to law or morality

· one that claims as an invention a substance capable of use as food or medicine which is a mixture of known ingredients possessing only the aggregate of those ingredients' properties, or claims as an invention a process for producing such a substance by mere mixture.

Areas requiring amendments have been identified, but the actual process of amending this legislation has not resumed. Since the exercise is just at the stage of identifying sections requiring amendment, this task is being undertaken by the Patent Office. Naturally the process of this review will be coordinated by the Patent Office, under guidance from the Ministry of Commerce, Trade and Industry. As per national legislative review requirements, all the relevant stakeholders will be involved in this process.

Amendment of the Patents Act would entail some substantial changes in its content and focus. At the moment it may appear that enforcement is not very strict and once the Trade-Related Intellectual Property Rights (TRIPS) Agreement is implemented in full, it will require adjustment in the conduct of business activities.

Protection of plant varieties under the patent laws

As indicated earlier, the Patents Act allows the registrar, on a discretionary basis, to refuse certain classes of applications for a patent. However, the Act is not very clear on plant variety protection. Therefore, by interpretation, it is possible for the registrar to grant a patent for a plant variety, but only if it can meet the criteria for an invention and if the complete specification "fully described the invention and the manner in which it is to be performed." Under such circumstances the questions of obviousness and reproducibility would need to be resolved.

The difficulty with protecting plants under the patent law is that this confers property rights which are private in nature. This means that under this law, once a patent is granted, the owner enjoys exclusive rights to his or her invention. Therefore, the grant of a patent for a plant variety would mean "to grant to the patentee, subject to the provisions of the Act, full power, sole privilege and authority by himself or herself, their agents and licensees during the term of the patent, to make use, exercise and vend the invention within Zambia in a manner that would ensure that he/she enjoys the whole profit and advantage accruing by reason of the invention during the term of the Patent."

This would mean that the patentee would be empowered to control in total the use of his or her plant varieties, including the saving of seed and its reuse on farms. The legislation does not, therefore, provide for "farmers' privilege."

To date, there have been no applications for patents on biological material or biotechnological processes and no patents have been granted for such.

Equally, there has been no variety protection granted under this Act and presently the Plant Breeders' Rights Act is being formulated to address the issues of plant variety protection (see details later in this paper).

The TRIPS Agreement on Article 27.3(b)

Article 27.3(b) of TRIPS states that members may also exclude from patentability plants and animals other than microorganisms, and essentially biological processes for the production of plants or animals other than non-biological and microbiological processes. However, members shall provide for the protection of plant varieties either by patents or by an effective sui generis system or by any combination thereof. The provisions of this subparagraph shall be reviewed four years after the date of entry into force of the WTO Agreement.

By interpretation, this article may be understood to provide inter alia that plants, animals and essentially biological processes for the production of plants or animals are patentable, but that these may be excluded from patentability, depending on a country's preference. However, members are obliged to provide protection for plant varieties either by patents or by an effective sui generis system, or by a combination thereof.

Implications of patenting plant varieties and life forms

Article 27.3(b) has been viewed as one that will make developing countries lose control over their own biodiversity and the benefits they derive therefrom if patenting of plant varieties and life forms is permitted. Developing countries are endowed with rich biodiversity and allowing monopolies over these resources through patenting will curtail the enjoyment of these benefits by communities. Opting to extend the patent laws to plant varieties will be setting up a system of private rights for certain individuals and to prevent others from making, using or selling the protected variety or any product that might have patented genetic information. Consequently, farmers will not to be able to access freely or reuse their seed, nor will they be able to save and/or exchange seed.

Patenting of plant varieties does not provide for benefit-sharing, as this will be a private right of the patentee to the exclusion of anybody else. Major companies will have monopolies and secure ownership of plant varieties that contain genetic information obtained from the farmers' own fields in the developing countries, which would then be sold back to the farmers with a royalty charge added.

The sui generis system

Article 27.3(b) also provides for the protection of plant varieties through an "effective sui generis system." This term has, however, not been defined sufficiently. It is difficult to determine what an effective sui generis system for plant varieties will entail.

It appears most likely that it might be along the lines of the system inspired by the International Union for the Protection of New Varieties of Plants (UPOV). However, a sui generis system that allows developing countries like Zambia to provide for the protection of plant varieties should be developed and this should, in addition, accord recognition to innovations of indigenous peoples and local communities. In terms of definition, such a statute should define innovation to include any inventive input done collectively, accretionally, intergenerationally and over a period of time, in relation to genetic resources. The intellectual ownership rights of farmers and indigenous peoples over their plant varieties and seeds should be recognized and rewarded.

Africa regional initiative on the sui generis system of protection

Delegates to the "Africa Regional Workshop on Understanding Biodiversity-Related International Instruments," held in Lusaka, Zambia, on 11-15 January 1999, set up a Task Force to draft an African Model Sui generis Protection System for biological resources, indigenous knowledge and innovations embodying the lifestyles of indigenous peoples and their local communities. The draft African Model Sui generis Protection System will be discussed at an African Regional Meeting later this year, under the auspices of the Organization of African Unity (OAU), where it shall be adopted by the African countries.

Plant variety protection through Plant Breeders' Rights Act

The Zambian agricultural industry has in general undergone remarkable transformation, evolving from a highly centralized and government-controlled one to one that is liberalized. These liberalization policies have stimulated investment in the seed sector, where the private sector and non-governmental organizations (NGOs) have taken an active role in seed production, marketing and distribution. These changes have significantly influenced the thinking and the direction of the seed industry in general and have in turn initiated policies related to plant variety protection.

In Zambia, plant variety protection was not a common subject for discussion in agriculture until about 1991, when policies of economic liberalization were introduced. As a result of these policies, many seed companies opened businesses in Zambia.

As these new investors started operating, they noticed that Zambia did not have mechanisms to protect their varieties from being "stolen" by other companies. The Ministry of Agriculture, Food and Fisheries also became concerned that its varieties stood a high risk of biopiracy from some seed companies, some of which did not have superior materials at the time and were interested in gaining access to the Zambian public varieties.

Arising from these fears and the resulting pressure from industry, it was decided that a suitable piece of legislation should be put in place to address the various concerns.

Currently, plant variety protection is formally recognized as an essential tool in the development of the agricultural sector and the seed industry in particular because the system provides the following benefits:

· Encouragement of investment in plant breeding
· Attraction of foreign varieties and technologies
· Multiplication of foreign varieties in the country
· Development of varieties adapted to specific conditions of each country
· Maintenance of varieties
· Protection of own varieties against appropriation by others
· Disclosure of technologies.

Currently, Zambia is in the process of enacting law on plant breeders' rights to address issues related to the protection of plant varieties. To this effect, the Ministry of Agriculture, Food and Fisheries has drafted a Plant Breeders Act, which has yet to take legal effect. In line with government procedures on formulation of legislation, the draft Act is receiving public input from all the relevant stakeholders.

The draft had fair input from UPOV and the comments given were often timely and useful. The draft is mainly based on the UPOV Act 1978. This model law was very useful and has remained useful reference material.

Some of the major concerns expressed by the public were that the draft Act did not comprehensively protect community-owned landraces (farmers' varieties) and other plants of various uses that the communities have kept for generations. It was also felt that the Act was biased toward cultivated plants and made little or no reference to other useful plants. It was further noted that the draft Act seemed to have narrowed its scope, placing emphasis on protecting the rights of individuals, mainly breeders and seed companies, and remaining silent on collective community knowledge and intellect. It was no wonder the draft Act was called the "Plant Breeders' Rights Act." The Act does not seem to recognize the intellectual rights of communities and, with the current government policy on promotion of the informal seed sector, clearly this was found not to be in harmony with government policy; it therefore needed to be revisited.

As a result of the above concerns, the draft Act on Plant Breeders' Rights has briefly been put on hold in order to allow for wider consultations to take place. Furthermore, this delay also gives Zambia an opportunity to incorporate into the Act the recommendations from the Lusaka Task Force and the OAU Draft Model Legislation on Community Rights and Access to Biological Resources. It is expected that inputs from all these sources will assist the country to take into account the aspirations of communities and their cultures so that their collective intellectual and ownership rights are protected.

Membership of UPOV

Zambia's understanding of the UPOV Act of 1991 provisions is that these introduce a somewhat patent-like system in a way that will give exclusive and private ownership rights on plant materials. This would, in turn, prohibit farmers from growing protected varieties and exchanging seeds on a non-commercial basis. The system would, in addition, require that farmers pay royalty fees for every seed they purchase. Further, according to this Act, farmers using a protected variety without paying royalty fees could lose their produce as the breeder or originator could claim ownership.

Unless our interpretation of these provisions is wrong, Zambia fears that if the 1991 provisions are left in their present form, it might be difficult for Zambia to achieve the goals of integrating the formal and informal seed supply systems, which is the current government direction. It is further feared that with this Act, government's commitment to the Convention on Biological Diversity (CBD) might be compromised.

Another point requiring consideration is the cost of becoming a member of UPOV and the subsequent fulfillment of its obligations, which Zambia, and perhaps many developing countries, might not easily afford. There is no doubt that the benefits of being a member of UPOV abound, but UPOV may wish to reconsider incorporating some of the provisions of the 1978 Act into the 1991 Act to make the conditions a bit more acceptable.

Given the above scenario, Zambia has no immediate plans to become a member of UPOV. The country is currently developing an informal seed supply system that emphasizes on-farm seed production and farmer-to-farmer seed exchange. There are fears that membership in UPOV might affect the efforts directed at promoting informal seed production and rural seed entrepreneurship. The deadline of April 1999 as regards closure to further accession to UPOV 1978 in favour of UPOV 1991 needs careful thought before an attempt is made to join.

Zambia will, at the moment, cautiously follow these developments and will decide whether to join UPOV at the appropriate time when her concerns are cleared.

The seed supply system

Zambia's seed production and supply system essentially comprises the informal and formal sectors, and it has been a matter of government policy to promote an integrated seed provision system. The informal seed sector is therefore being promoted following the failure of the formal seed sector to supply seed adequately to remote parts of the country.

A number of reasons have been advanced for that failure. The formal sector prefers trading in hybrid seeds, which have an inbuilt assurance for repeated sales. In addition, the formal sector has found it difficult to operate in rural areas owing to poor road infrastructure. Because of the high prices associated with hybrid seeds, small-scale farmers are also unable to afford them.

In order to address this problem, government is now promoting on-farm seed production by the farmers themselves, either individually or through community groups. It is envisaged that on-farm seed production will ensure availability of seeds either through barter or cash transactions or through free exchange among the farmers themselves. The system is expected to evolve with the development of village seed entrepreneurs, who would take the lead in seed marketing within their rural communities.

The government of Zambia has indicated, as a matter of policy, that it will recognize and support an integrated seed supply industry comprising the informal and formal sectors complementing each other to achieve crop diversification and household food security.

The informal and formal seed sectors

The informal sector is characterized by use of traditional varieties (farmers' varieties) and, to some extent, recycled improved seed, which may earlier have been certified. This system accounts for well over 70% of national seed provision, especially for non-hybrid varieties. This sector is mainly driven by farmer communities and NGOs. Seed quality control in this sector is not as stringent as in the formal seed sector. The seed classes moving in this sector are mainly those of Quality Declared (QD), which are generally lower than certified seed classes.

The formal sector has been dominated by the use of improved and certified varieties, especially hybrids. Supply systems under this sector account for about 30%. The major suppliers have been seed companies, which have marketed the seed through a network of seed stockists, agencies and NGOs scattered throughout the country. The system is more organized than the informal seed sector and quality control is quite stringent.

Seed/variety quality control and certification

Seed/variety quality control and certification is controlled under the Seeds Act, which provides regulations regarding the release of varieties, testing of seeds, inspections and imports of seeds. It also gives conditions for sale of seeds in the country. Under this Act, only varieties that have been adequately tested under Zambian conditions and are entered into the official variety list are eligible for marketing in the country.

Seed quality control and certification was until recently done by the government. The private sector was not allowed to participate. Following the liberalization of the economy, the Seeds Act was amended to allow for participation of seed companies in this activity by licence. The certification scheme recognizes voluntary and compulsory certification. Hybrid varieties fall into the compulsory category of certification and the implication is that seed cannot be sold from such varieties unless it is certified.

Variety release

According to the Act, only released varieties can enter seed production. A variety will normally require two seasons of independent testing before it can be released. There is a Variety Release Committee, which decides on whether or not a variety can be released. The committee also sets the release procedures and recommends varieties for removal from the list if they are found to be obsolete.

Seed certification

Field inspections are done for all seed crops and the intensities differ depending on whether the crop is hybrid or open-pollinated. All the seed allowed to be traded on the Zambian market is tested for germination, physical purity, moisture, weed content and other parameters. The tests are done in compliance with the International Seed Testing Association (ISTA) rules.

Crop breeding

Crop/plant breeding has mainly been in the hands of the public. The majority of crop varieties available on the Zambian seed market are bred at government research institutions. These varieties are in turn forwarded to Zambia Seed Company (ZAMSEED) Limited, which was given the sole right to commercialize the materials.

Foreign companies have not established variety development and improvement programmes in Zambia. All their varieties are bred outside the country. Most foreign companies are merely trading in seeds and do not undertake research and development in Zambia. There is one private local Zambian company involved.

Seed production and marketing

Seed production is mainly done by the private sector, financed by seed companies and to some extent NGOs. Government does not participate in seed production but has an interest in the strategic seed reserves, which it finances through ZAMSEED. Similarly, marketing is done by seed companies through a network of seed stockists and agents.

Plant genetic resources conservation

The National Plant Genetic Resources Centre (NPGRC) was established in 1989 charged with the following specific responsibilities:

· To gather, through exploration and collecting missions carried out in different ecological zones, information and materials of plant genetic resources of all indigenous and adapted exotic crops, their wild relatives as well as useful or potentially useful wild species

· Characterization and evaluation, rejuvenation, maintenance, multiplication and documentation of collected and stored material in collaboration with the Regional SADC Plant Genetic Resources Centre (SPGRC)

· Preserving, through in situ conservation, other useful wild plant species

· Maintaining active collections under short- to medium-term storage for indigenous and adapted plant genetic resources.

Plant genetic resources legislation

Zambia has no specific legislation to regulate the collecting, conservation and use of plant genetic resources. This is taken care of under the various pieces of legislation that regulate the management and use of Zambia's biological resources, such as the Forests Act, the Natural Resources Conservation Act and the National Parks and Wildlife Act, to mention but a few.

With respect to international agreements, Zambia is party to the CBD and the IU pursued under FAO. Zambia also shares the intention and aspirations of the FAO Draft International Code of Conduct for plant germplasm collecting and transfer, an administrative draft document which has been put in place. This document, although not legally binding, seeks to provide the following:

· To regulate the collecting, conservation and use of plant genetic resources in ways that respect the environment, local traditions and cultures

· To avoid overharvesting of germplasm that may lead to permanent loss of genetic resources

· To promote safe exchange of plant genetic resources as well as related information

· To provide standards of conduct and define obligations of collectors and others handling plant genetic resources

· To bring recognition, incentives and respect to local communities who manage and make available plant genetic resources

· To ensure that all collecting activities and transfer of germplasm are officially sanctioned by the National Plant Genetic Committee.

In the absence of the revised IU, Zambia will follow the provisions of the CBD in its handling of issues on genetic resources. In this regard, Zambia supports the African position on farmers' rights, access and benefit-sharing issues being discussed under the IU.

Zambia's position on Article 27.3(b) of TRIPS

Zambia is not in favour of and does not support the use of patent laws to protect plants and animals, including patenting of all life forms. Instead, the country will remain committed to protecting plants and animals using a well-designed and effective sui generis system, which will be broadbased enough to recognize the rights of farmers and communities at large who have over the years conserved various plants and animals.

Considering that Article 27 of the TRIPS Agreement hinges on matters that concern both the enhancement of trade, on one hand, and conservation and preservation of the environment, on the other, it is imperative that the review of Article 27.3(b) of the TRIPS Agreement take into account the protection of the rights of the custodians of the knowledge base, who have worked consistently and sacrificed to conserve these biological resources.

As a country whose rural communities depend solely on agriculture, Zambia has expressed the following concerns as regards the TRIPS Agreement in its present state:

· Lack of recognition of indigenous knowledge within the provisions of the TRIPS Agreement

· No clear explanation of the provisions of Article 27.3(b) on the conservation and sustainable use of biological materials

· No clear definition of what constitutes the sui generis system of protection.

Since most of the least developed countries depend much on farming, there is a need to recognize the contribution of farming and indigenous communities to genetic resources conservation and enhancement. The right to compensation for the commercial use of their materials should be provided.

In view of the foregoing concerns, reviewing of Article 27.3(b) in favour of patenting will undermine the very existence of small-scale farmers who form the majority of the Zambian population.

Conclusion

As the world integrates and calls for equitable sharing of benefits derived from the global trading system, and as it calls for the conservation and sustainable use of biological resources, countries the world over are faced with a number of challenges to attain these objectives.

Considering that Article 27.3(b) of TRIPS hinges on matters that concern both the enhancement of trade and the conservation and preservation of the environment, it is imperative that the review of Article 27.3(b) take into account these world concerns.

As a country whose population is solely dependent on agriculture, our concerns still hinge on:

· The double standards that Article 27.3(b) wishes to pursue in relation to conservation, equitable sharing and sustainable use of biological resources contrary to the spirit and aspirations of the CBD

· Lack of clarity on the content and provisions of Article 27.3(b)

· Lack of recognition of indigenous knowledge with respect to the management of biological resources.

Zambia is looking forward to agreeing on a system that does not deprive farmers and communities of their rights over the biological resources. In this respect, Zambia is in favour of recognizing the contribution of farmers and local communities to genetic resources conservation and enhancement, and of protecting their intellectual rights accordingly.

Lesotho - Ministry of Environment, Gender and youth Affairs

Patent legislation

Background

The protection of Industrial Property Rights in Lesotho was based on a "dependent system" before 1984. Under this system whatever was registered in the United Kingdom or the Republic of South Africa automatically applied to Lesotho upon application for registration. This meant that a citizen of Lesotho who wanted to protect an invention would have to apply first in the UK or RSA in order to get protection in his or her own country.

In 1984, the government passed the Patents Act 1984 and the Trademarks Act 1984. Both these laws had deficiencies that made their implementation impossible.

In 1986 Lesotho requested the World Intellectual Property Organization (WIPO) to assist in the drafting of modern legislation on the protection of industrial property. WIPO sent consultants on missions to Lesotho in 1987, 1988 and 1989. Although this exercise was done at the initiative of the Attorney General's chambers in the Ministry of Law and Constitutional Affairs, other ministries and institutions were also involved, such as: the Appropriate Technology Section, Ministry of Health, Lesotho Pharmaceutical Corporation and the Lesotho National Development Corporation (LNDC). As a result of these discussions and consultations, the Industrial Property Order 1989 was passed in 1989 and came into operation on 22 May 1990.

The Industrial Property Order 1989

This legislation is divided into seven parts, as follows:

Part I - Short title, commencement, interpretation
Pat II - Patents
Part III - Utility Model Certificates
Part IV - Industrial Designs
Part V - Marks
Part VI - Acts of Unfair Completion
Part VII - General Provisions

The law defines a patent as title granted to protect an invention. In order to be patentable an invention must satisfy three requirements, namely:

1. It must be new.
2. It must involve an inventive step.
3. It must be industrially applicable.

· Discoveries, scientific theories and mathematical methods

· Plant or animal varieties or essentially biological processes for the production of plants or animals, other than microbiological processes and the products of such processes

· Schemes, rules or methods of doing business, performing purely mental acts or playing games

· Methods for treatment of the human or animal body by surgery or therapy, as well as diagnostic methods practised on the human or animal body. This provisions shall not apply to products for their use in any of those methods.

Ninety-eight patents have been registered through the African Regional Industrial Property Organization (ARIPO). Only one ARIPO patent is on biological material.

A process is under way to reform the patent law in regard to new obligations under the TRIPS Agreement. A model law on the Protection of New Varieties of Plants, prepared by the International Union for the Protection of Plant Varieties (UPOV), is currently being discussed by the Ministry of Law, Ministry of Agriculture, Ministry of Trade, Ministry of Environment and the Department of Science and Technology.

Plans are under way to include the National University of Lesotho (NUL), especially the Faculty of Science and the Faculty of Agriculture, as well as the Ministry of Health and the Ministry of Education in future discussions of the model law.

There is a major problem on the understanding of the subject matter. We also foresee a problem with regard to dissemination of information on upcoming changes in patent protection to all stakeholders because of the complex nature of the subject matter. We feel that there is a need for in-depth discussions and several consultations before we can attempt to implement the changes, as envisaged by Article 27.3(b) of the TRIPS Agreement. Plans are under way to hold a national seminar at which consultation from international organizations will be requested to assist in the exercise.

Plant variety protection/seed registration

There is no comprehensive seed legislation in Lesotho. However, there is a draft Lesotho Seed Bill. Seed production in the country is done following binding international standards under the supervision of the Seed Multiplication Unit, in the Division of Crops in the Ministry of Agriculture, because there is no formal national seed service. These standards cover potato seed production and certification and include rules for seed production of wheat, peas, beans and highland maize.

For other seed activities, certification schemes and rules of other international organizations are being utilized although Lesotho is not a member of these organizations. For certification, the Organization for Economic Cooperation and Development (OECD) scheme is being followed and International Seed Testing Association (ISTA) rules are adhered to for seed testing.

The SADC region embarked on the programme of "Harmonization of seed laws in the SADC Region" following the findings and recommendations of a commission which conducted a feasibility study on regional seed production and supply commissioned by the SADC Food Security Unit in the late 1980s. Resolutions on this programme were made in 1994 and it is up to member states to implement these resolutions accordingly. Lesotho has therefore been able to make some alterations in its draft Seed Bill in line with the SADC resolutions.

There is no plant breeding programme in the country. The Agricultural Research Department under the Ministry of Agriculture conducts adaptive research on seed material from regional and international breeding institutions to screen the most suitable varieties for Lesotho. This is done in collaboration with these institutions, mainly through the SADC network. The practice has so far been successful.

The Department of Crop Science of the Faculty of Agriculture in the National University of Lesotho has initiated a sorghum breeding programme. This is done in close collaboration with the Agricultural Research Department of the Ministry of Agriculture.

Ninety-nine percent of the seed planted in Lesotho is supplied by the seed companies of the Republic of South Africa under the Agriculture Sector Investment Programme. As noted, there is no formal breeding programme in the country. However, plans are under way to establish a National Seed Service. Again, the Office of the Registrar General in the Ministry of Law and Constitutional Affairs is in the process of reviewing the Industrial Property Order 1989, which will encompass agricultural resources and products.

As indicated above, there is ongoing discussion on the model law on the Protection of New Varieties of Plants, which is still at an infant stage. Agricultural activity on grains seed in Lesotho is mainly for subsistence.

So far Lesotho has not yet encountered any problems in acquiring propagation material, but that is likely to become a problem in the future. In its endeavour to harmonize seed laws, the SADC region also has made a recommendation that all member states adopt a form of protection of Plant Breeders' Rights. This has been lacking in the region because most of the plant breeding research has always been done by government.

Access legislation

There is no legislation regarding access to biological material. However, the draft Environment Bill has a provision on access to biological resources. The provision provides for access to genetic resources by both citizens and non-citizens of Lesotho and for the sharing of benefits derived from genetic resources.

There is a need to enact a specific law on access and Lesotho will need expertise in the drafting of access legislation.

Namibia - Edward T. Kamboua and Sem T. Shikongo

Namibia is one of the driest countries in sub-Saharan Africa and is located on the southwestern coast of Africa. This dryness is due to the presence of the cold Benguela Current along the coast of the country. Two other important geographic features of the country are the Namib Desert along the west coast and the Kalahari Desert along the eastern side.

The total surface area of the country is 823 144 km². Ninety percent of this surface area is arid or semi-arid, leaving a very small percentage of arable land suitable for crop farming. Of this 82.3 million ha surface area, 15.3% is not suitable for farming. Nearly 14% has been proclaimed as government nature reserves, 44% is commercial farming area and 41% communal land. Only 34% of the available farmland is suitable for dryland crop farming and only 1.4 % of this is actually utilized. Rainfall is very variable, ranging from an annual mean of 2 mm in the extreme west to 700 mm in the extreme northeast. Rainfall in Namibia occurs mainly during the summer months of December to March.

Namibia has a population of over 1.6 million with a high growth rate of over 3.3% per annum. At that growth rate it is estimated that the population of Namibia doubles every 23 years, which will result in a population of 2.8 million within another 15 years. This is leading to increasing demands on Namibian natural resources to provide for the needs of the nation.

From this brief overview of Namibia, it is clear that Namibia has a fragile arid environment/ecosystem, but the above factors also contribute to the unique endemic fauna and flora found in the country. Namibia, like many other countries in Africa, has a growing number of people interested in its biodiversity. It is foreseeable that this will increase further as a result of developments in the biotechnology industry, which uses biological resources as raw material for rapidly advancing gene technology, with great potential profit value. The biotechnology industry also claims to be able to feed the world more effectively than the traditional diversity-based systems of agriculture, which in Namibia are still used by many subsistence farmers. This claim, however, is debatable and still needs to be objectively tested.

Should the foregoing hypothesis be proven true, it thus becomes clear that somehow we have to protect our natural resources as well as ensure sustainable use and maintenance of our biodiversity if we wish to keep up with the internal and external pressures on our biodiversity.

In this regard, Namibia has taken a bold step and is well on her way to ensuring that this will be the case. She is one of the very few countries in the world that specifically refers to biodiversity in its constitution:

"The state shall actively promote and maintain the welfare of the people by adopting, inter alia, policies aimed at the following: Maintenance of ecosystems, essential ecological processes and biological diversity of Namibia, and utilization of living natural resources on a sustainable basis for the benefit of all Namibians, present and future."

Despite these general provisions, however, Namibia urgently needs to revise and consolidate its policy and legislation in order to ensure that all the stipulations above are met and safeguards are in place. Until recently the policies and legislation relating to these issues were not well developed or were poorly implemented or enforced. Namibia is now only nine years old after obtaining independence from South Africa in 1990. In most cases South African laws inherited from the pre-independence era are still applicable in Namibia and these are often outdated and not specific enough for Namibian conditions.

We will now take a look at some of the actions being taken to deal with these gaps and loopholes with regard to Namibian policy and legislation to protect our natural resources effectively.

The country is rich in indigenous crop landraces, especially of pearl millet. These landraces are particularly well adapted to the relatively dry conditions under which they grow. Information on the use of these landraces is not quantified but it is well known from experience that farmers still like to grow traditional varieties of pearl millet, first because not enough seed of improved varieties is available, and second because these varieties yield enough grain during normal years and farmers prefer some of their qualities, like taste or stalk length.

Wild relatives of crops found in Namibia have only very recently been investigated as to their potential in improvement of cultivated varieties. Owing to the arid environment in which these species occur, they may be useful in breeding for drought tolerance.

The main sector that uses improved cultivars of the various crops being produced is the commercial farming sector. There is only one improved variety of pearl millet available to subsistence farmers. The government is in the process of establishing a seed testing and distribution system, but no formal market exists in Namibia for small-scale producers.

Currently it seems that unless seed supply systems are fully operative and more cultivars become available, farmers will most probably keep their landraces. Although farmers indicated their eagerness to try new varieties at the same time, they would, however, not replace their local varieties but rather plant them simultaneously with improved varieties. This shows the power of their traditions and convictions in conserving our important agricultural genetic diversity.

Namibia does not have any phytosanitary legislation of its own. The South African laws that were applicable in Namibia before independence are still in force. Namibia also does not have any quarantine facilities. Plant material that is imported into Namibia is subject to the issue of an import permit. Currently plant material that requires quarantine is imported through South Africa, where it will be quarantined. Any other plant material that enters the country must comply with the import conditions stipulated on the import permit, including a phytosanitary certificate from the country of origin. Plant material leaving Namibia must be issued with a phytosanitary certificate. It is up to the exporter to ensure compliance with the import conditions of the destination country.

The constitution of Namibia, Article 95(1), protects natural resources in general and promotes their sustainable use, but no legislation specifically to protect landraces exists. In 1990 the National Plant Genetic Resources Centre (NPGRC) was established within the Ministry of Agriculture, Water and Rural Development. Through the programmes in this centre, the government aims to ensure protection, conservation and utilization of the country's indigenous plant genetic resources.

With regard to plant genetic resources, intellectual property rights and international agreements, the Convention on Biological Diversity raises issues such as access to genetic resources and technology, sharing of the benefits arising from the use of genetic resources between the providers and the users of such resources, and the so-called "Farmers' Rights" (rights arising from the past, present and future contribution of rural farmers in conserving, improving and making available plant genetic resources, particularly those in the centres of origin or diversity).

Namibia, as mentioned, is also a signatory to the WTO, meaning that the country must in principle abide by the WTO Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS). Under this agreement, countries are obliged to adopt a system of intellectual property rights to protect new varieties of plants either by patent law or a sui generis system, or by a combination thereof.

The Namibian National Biodiversity Programme was established in 1994 under the auspices of the Ministry of Environment and Tourism with support from the Global Environment Facility and GTZ. This programme is currently dealing with the policy and legislation issues pertaining to biotechnology, biotrade and bioprospecting, traditional knowledge and other issues. The programme is led by a multidisciplinary and multisectoral task force. Its functional units are working groups consisting of members from relevant NGOs, government agencies, tertiary institutions, the private sector and other interested stakeholders.

The task force has recently published a Namibian country study on the biological diversity of the country, which has been received very well both locally and abroad. The task force is currently working on the National Biodiversity Strategy and Action Plan based on the findings of the country study. Input to this National Strategy and Action Plan is being developed and workshopped by the various working groups.

Earlier this year a very successful national conference on developing a national Biosafety Framework was opened by our president, His Excellency Dr Sam Nujoma. The conference brought many important issues to the forefront. Next month two workshops relevant to today's meeting are planned to develop draft national policy and legislation for biosafety and biotrade. It is essential for us in Namibia, as elsewhere, to control the development of the new genetic engineering technology so that it serves the public good and is not abused to increase corporate power and control of society's food and medicine.

Namibia is therefore moving quickly to develop national policies and legislation to safeguard rural farmers' and communities' rights and revenue from biopiracy, from corporate exploitation and from careless biotechnology applications that may put human or environmental health at risk. If we in Africa can achieve this in our respective nations and put the necessary mechanisms in place, we will ensure that Africa's enormous biological wealth is used for its own development and food security, rather than for the sake of the world's global corporations. Namibia is hoping to have most of the legislation and policies with regard to these issues in place by the end of 1999.

The Environmental Legislation Project within the Ministry of Environment and Tourism has been tasked with the review and revision of Namibia's environmental legislation. This unit works closely together with the National Biodiversity Programme and other related sectors.

The Ministry of Environment and Tourism has prepared a draft Environment Management Act, which will function as an umbrella Act setting out the national policy on the management, conservation and utilization of the environment and natural resources, and on pollution control. This ministry is also working on the development of the legislation necessary to comply with the international environmental treaties to which Namibia is a party.

Intellectual property rights over genetic resources are not in place in Namibia. It is said that this is because there was no need for them until recently. However, awareness of intellectual property rights is on the increase in the many relevant sectors.

The key ministries involved in genetic resources and intellectual property rights issues in Namibia are the Ministry of Agriculture, Water and Rural Development, the Ministry of Trade and Industry (Unit of Companies, Patents, Trade Marks and Designs), and the Ministry of Environment and Tourism.

The Ministries of Environment and Tourism and of Trade and Industry agree that a sui generis system needs to be developed in the country, one especially tailored for the particular needs and priorities of Namibia and its farmers, while complying with international agreements. Such a system should be designed and implemented by the Ministry of Agriculture, Water and Rural Development in close collaboration with the other relevant ministries. In fact the process of consultation and drafting of the policy and legal framework for a sui generis system of protection that is compliant with TRIPS has been ongoing since 1998.

The patent laws in Namibia have been inherited from South Africa. These laws must be reviewed and adapted to suit our needs. To date no patents on biological material or biotechnological processes have been applied for in Namibia, thus no such patents have ever been granted. However, patents on Namibian biological material - for example, the devil's claw plant, Harpagophytum procumbens - have been granted in Europe. The patents office within the Ministry of Trade and Industry does not grant patents on biological material or biotechnological processes.

A draft Intellectual Property Rights Act is currently being formulated in the country under the auspices of the Ministry of Trade and Industry, assisted by the Ministry of Justice. The protection of new varieties of plants is not planned for inclusion in this legislation, which mainly deals with patents, trademarks and traditional intellectual property rights.

In Namibia, the following are not regarded as "inventions" for the purposes of the Act and patents will thus not be granted for them:

· a discovery
· a scientific theory
· a mathematical method
· a literary, dramatic, musical or artistic work or any other aesthetic creation
· a scheme, rule, or method for performing a mental act, playing a game or doing business
· a programme
· the presentation of information.

· For an invention, the publication or exploitation of which would be generally expected to encourage offensive or immoral behaviour.

· For any variety of animal, plant or any essentially biological process for the production of animals or plants, which is not a microbiological process or the product of such a process.

While the review process avails all of us an opportunity to address the substantive issues of the provision, it should also address the plight of the developing countries pertaining to the difficulties they are facing in complying to TRIPS.

Botswana

Background

In 1991 the government of Botswana promulgated a National Agricultural Development Policy, the main objectives of which included, inter alia, food security at the national and household levels and diversification of agricultural markets, products and technology in order to minimize the risk of smallholder agricultural production.

Accession to the WTO regimes will further expose small-scale farmers to international trade in agricultural commodities. This is both an opportunity and a risk and may therefore lead to the worsening of the terms of trade for the major staples. Any regimes that make the costs of production high will typically work against farmer interests.

In Botswana the majority of the rural population is dependent on agriculture as a source of sustainable livelihood (76% of the rural population is in agriculture). Pressure to absorb as much of the annual increment of the surplus labour force, estimated at 25 000, is ever increasing on the national government. The search for alternative sources of sustainable livelihoods is wider and subsistence agriculture with all its risks can no longer be relied upon to meet the demand for food in the medium to long term.

Agricultural production in Botswana is a fragile business, constrained largely by semi-arid climatic conditions characterized by low and variable rainfall. The soils are poor, which effectively narrows the choices in risky agricultural production to a few staple crops. The major crops grown include sorghum, maize, millet, cowpea, groundnuts, sunflower, bambara groundnut, mung bean, melon, cotton and soyabean (Table 1). On average, production of these staples can hardly meet local consumption, resulting in the bulk of staple consumption being met through imports. Sunflower and groundnuts are grown on a small scale as cash crops.

Table 1. Total crop production over a 10-year period (in thousands of metric tonnes)

Crop	1983	1984	1985	1986	1987	1988	1989	1990	1991	1992-93
Sorghum	5000	6000	15000	16000	18000	94000	53000	38200	10797	255997
Maize	9000	500	1500	3600	3300	7300	20000	12000	2976	48524
Millet	500	700	1800	1300	400	3700	2000	1700	1624	13724
Pulses	300	400	400	600	100	2300	2500	2000	530	9130
Sunflower	200	400	500	200	100	200	200	240	113	2153
Groundnut	800	600	800	200	100	200	500	540	126	3866
Other crops	15800	8600	20000	21900	22000	107700	78200	54680	423	329303

Given such an abysmal arable performance, a greater premium is increasingly being placed on the National Agricultural Research systems (NARs) and the technology-transfer systems to develop risk-efficient biotechnologies and to diversify and expand production possibilities. The capacities of these systems are continually being stretched to provide such diverse choices as would afford minimum food and income security to households. The development of biotechnology and other technologies is therefore seen as offering opportunities for increasing production and enhancing trade competitiveness of small-scale farmers. Trade in intellectual property rights therefore becomes of crucial importance to Botswana. Inasmuch as it can be used for advantage, without proper safeguards it can equally impact adversely on small-scale producers. For example, it can bias the terms of trade against these producers so that they can scarcely access improved seeds and other biotechnologies.

Fortunately, Botswana - like most of sub-Saharan Africa - has rich biodiversity (natural resources) to develop as well as to share with the rest of the world on terms that are both remunerative and fair to the bulk of its owner communities. Conservation and sustainable use of these natural resources are of equal importance to government.

Trade in agricultural and biological products

Botswana is a net importer of most agricultural and biological products consumed domestically. The majority of these imported products come from the Republic of South Africa, Zimbabwe and other neighbouring countries. Trade in biological products other than maize, sorghum, wheat and millet is quite minimal. Medicinal plant products and products of the pharmaceutical industry are largely imported except for a few exports of grapple plant (Harpagophytum procumbens); Lippia javanica, L. scaberrima, Artemisia afra (known locally as mosukujane, mosukudu and lengana, respectively), and truffles, which are currently exported to other countries in processed form. These exports do not form a significant proportion of the country's exports but are significant to resource-poor communities as income sources. These medicinal plants are exported to Germany, South Korea, Taiwan, France, the United Kingdom and Italy. Truffles are mainly exported to Germany and income from sales is paid directly to the local communities.

Appendix A of the 1997 Trade Statistics shows the bulk of imports from a number of countries, including the Republic of South Africa, Zimbabwe, Ghana, Namibia, Lesotho, the United Kingdom and New Zealand, with the majority - 72.2% of the total imports - coming from South Africa.

Despite being a net importer, as noted Botswana also exports a number of agricultural products and medicinal plants to neighbouring countries and also European countries. Table 2 shows exports for the veld products for 1996-99. There is as yet an untapped potential for agricultural exportables and the ongoing policy refinement and programming should assist in improvement of the country's trade competitiveness. To this end, and through the assistance of an Israeli team of experts, government is embarking on an Agricultural Development Masterplan, which will serve as a long-term investment programme to drive technological change well into the next millennium.

Table 2. Export values of veld products by country of destination, (in thousands of pula)

Country	1996	1997	1998	1999 (est.)	Total
South Africa	40	40	60	100	240
Germany	210	220	340	500	1270
S. Korea	100	100	150	150	500
Taiwan	40	40	80	80	240
Others	-	-	20	20	40
Total	390	400	650	850	2290

Source: Thusanyo Lefatsheng, a local NGO that collaborates with local communities in the harvesting and export of the grapple plant.

Table 3. Listing of products for each trade schedule

Schedule	Products
First	Cabbage, fresh milk, maize, maize products, onions, oranges, potatoes, pulses, sorghum, sorghum products, tomatoes and wheat
Second	Same as in schedule 1 except that import is for personal consumption
Third	Castor beans, groundnuts, maize, maize products, millet, millet products, pulses, sorghum, sorghum products, sunflower and wheat

Relevance of TRIPS for biological diversity

Background on TRIPS

The World Trade Organization (WTO) was set up in 1993 to promote and oversee global rules on trade. The institution is particularly concerned with removing what it determines to be "trade distortions" or "barriers to trade." TRIPS under WTO was expressly designed to ensure that intellectual property rights could be universally applied to all "technologies," especially those which had been previously declared unsuitable for monopoly rights at the national level. These include pharmaceutical products and biological materials such as plants and microorganisms. TRIPS establishes minimum universal standards concerning patents, copyrights, trademarks, industrial designs, geographical indications, integrated circuits and undisclosed information (trade secrets).

Article 27 of TRIPS

Article 27.1 of TRIPS states:

"Patents shall be available for any invention, whether products or processes, in all fields of technology, provided that they are new, involve an inventive step and are capable of industrial application."

Article 27.3(b) allows the members of WTO to exclude from patentability plants and animals (that are not microorganisms), essentially biological processes for the production of plant and animals (that are not non-biological and microbiological processes); however, members must (shall) provide for the protection of plant varieties either by patents (TRIPS) or by an effective sui generis system - that is, an alternative effective intellectual property law regime.

The implications of Article 27.3(b) for Botswana

The standards adopted in the TRIPS Agreement mirror those in force in the industrialized countries, particularly the US patent laws. Such standards significantly reduce the scope of Botswana to devise systems of IPR protection suited to our own conditions and development needs. Botswana has, however, enacted IPR legislation that is of the standard required by TRIPS.

Industrial Property Act No. 14 of 1996

This Act provides for the protection of industrial property through patents, utility model certificates, industrial designs, marks, collective marks and trade names. The patent law under this Act excludes from patenting the following: a discovery; scientific theory or mathematical method; a scheme, rule, or method for doing business, performing a mental act or playing a game; methods for the treatment of the human or animal body by surgery; and a diagnostic method practised on the human or animal body. The Act also does not provide for the patenting of life forms and plant varieties, or the patenting of an invention. However, it gives government the flexibility to exercise its discretion in the interests of the public, national security and national commerce. This freedom for Botswana to determine the areas of patentability, the duration of the terms of patents and the set of exclusive rights conferred on patent-holders will be taken away when Botswana actually implements the TRIPS Agreement in the year 2000. This would mean that Botswana cannot decide the patent laws according to her social and economic development objectives.

The TRIPS agreement in its entirety has been included in the Act through a schedule, but it is not yet operative and is therefore for the time being not enforceable.

Botswana will also be faced with the need to review policy and legislation dealing with competition and consumer protection. Patent law aims directly at primary sector production, namely agriculture, mining, etc. Most of the policy and legislation in those areas has been designed to empower citizen growth in industry and technology and has therefore been formulated with discrimination where absolutely necessary in favour of Botswana's development. This type of discrimination is prohibited under TRIPS, which bans discrimination and gives exclusive private rights irrespective of origin.

Patenting of biodiversity

The Industrial Property Act does not provide for the patenting of biological diversity. In other words, the Botswana Act excludes the patenting of plant genetic resources (they are not an invention but may be a discovery, which is explicitly excluded) and plant varieties.

From the year 2000, Botswana will have to provide patent protection for pharmaceutical products without discrimination as to the place of invention, field of technology, or whether the product is locally produced or imported.

Plant variety protection

Article 27.3(b) requires that Botswana provide patents on products or processes from any field of technology that are new, represent an inventive step and are capable of industrial application. There are exceptions to this rule. Botswana may limit the availability of patents on any inventions the commercial use of which would offend public order or morality (Article 27.2). Under Article 27.3(b), Botswana may exclude plants and animals from IPR protection, but not plant varieties. Botswana is under a legal obligation either to provide for patents on plant varieties or to provide for an effective, alternative intellectual property legal regime of protection.

Seed production

Seed production in Botswana is the sole responsibility of the government. There are no private seed-producing companies. Seed production is done through the Department of Agricultural Research (DAR) by the Seed Multiplication Unit (SMU).

Botswana has a Seed Certification Act, which was established in 1976. The Act provides for better testing and the control of the sale, export and use of seeds. It also allows for contract seed growers with SMU. However, like most Acts for developing countries, it needs to be revised in line with the current developments in the international community on seed legislation and TRIPS.

Patenting of plant varieties

Legal provision of patents for plant varieties will mean for Botswana's biological diversity some of the following:

· Legal contradiction in legislation. TRIPS provides for the allocation and protection of private rights over plant genetic resources. The Convention on Biological Diversity (CBD) recognizes collective rights to plant genetic resources. Both TRIPS and the CBD are legally binding documents; the difference is that TRIPS deals with the use of plant genetic resources by individuals for private monetary gain, while CBD deals with collective sustainable use and conservation of plant genetic resources and recognizes community rights and corresponding collective benefits. Private use discourages community management and sustainability.

· Restricted and reduced flow of information and germplasm flows from the private to the public sector.

· Decreased role of public plant breeding as varieties further selected by farmers and government (DAR) will be considered genetic derivations falling under the extensive legal ownership of the original IPR holder.

· Increased seed prices for government and farmers.

· Loss of control and benefits from our biodiversity as corporations will be able to secure legal ownership of plant varieties which contain genetic information obtained from farmers' fields. Corporations will be able to sell to us with an added royalty charge.

· Farmers' rights to save and exchange seed will be legally restricted, if not prohibited because of protection granted to the IPR holder.

· Disturbance of the traditional use of food and medicinal biodiversity, which in Botswana has been regulated through community rights of use and access to biological resources.

Taking into account the biodiversity prevailing in this country, the stage of economic and technological development, community rights to biological diversity and other matters of benefit to the nation, Botswana recommends a sui generis system that includes at least the following elements:

· Farmers should be allowed to reuse (on a non-commercial scale) seeds which they have obtained from the cultivation of protected varieties (if they are capable of re-germinating!)

· Title-holders should provide compensation to traditional farmers who have supplied landraces or knowledge for the development of the protected variety

· Compulsory licensing should be provided for in cases of public interest.

There is no access legislation in Botswana. The National Plant Genetic Resources Committee is currently preparing guidelines for access to the plant genetic resources of Botswana. At the same time Botswana anticipates enacting access legislation that will be largely based on the OAU Draft Model Legislation on Community Rights and Access to Biological Resources. Botswana presented the OAU Draft Model Legislation in a workshop on "Understanding the CBD and Related International Instruments," in Lusaka, Zambia. Botswana has been requested to be a member of the Task Force set up by SADC to look into the OAU Draft Legislation. When the OAU Draft Legislation has been reviewed by SADC, Botswana will look into enacting access legislation on the basis of the OAU Draft Legislation.

Swaziland

Introduction

Swaziland is a small country located between Mozambique in the east and adjoined by South Africa for the rest of its perimeter. It measures 17 200 km². It is mainly an agriculture-based country, boasting clinalistic agricultural systems comprising highly sophisticated title deed lands (TDL) and less sophisticated Swazi national lands (SNL). The country has four district agro-ecological zones and hence a wide diversity in plant genetic resources.

Research

Agricultural research is conducted by both private and public sectors, for different crops. The public sector conducts research mainly on food crops, such as maize, grain legumes, horticultural crops, root and tuber crops, and minor crops. In addition, two cash crops - cotton and tobacco - are under the public sector domain. The private sector is involved in export cash crops, which include sugarcane, pulp, citrus and pineapple.

The private sector accounts for most of the country's foreign receipts, which are estimated at about 25%; when agro-processing is combining with raw exports, the real contribution of this sector becomes highly significant in the economy of the country.

Meanwhile the SNL, on the other hand, represent a sector of low inputs, low capital investment and low productivity, concentrating mainly on subsistence crops, with maize being the most dominant cereal crop, followed by cotton, other cereals like sorghum and rice in some small-scale irrigation schemes producing only marginal output.

Low SNL productivity has led government to pay more attention to this sector. Government, in recognition of the low productivity of this sector, has initiated a number of short- and long-term initiatives in an attempt to stimulate SNL to be more competitive and raise the income stream to arrest ever-increasing rural poverty. The national initiatives are embodied in the short run in the Economic and Social Reform Agenda (ESRA) and in the long term in the National Development Strategy (NDS), representing the three and twenty-five years, respectively.

The country has seen since independence that its greatest resource is agriculture. Since independence, there has been a steady increase in focus on this sector. Before independence, research was investing heavily in cash crops and less in food crops. At independence, government shifted resources to food crops research. At first the main kind of work was applied research, and later, in the early 1980s, there were moves toward the (adaptive) Farming System Research Approach, with emphasis on capacity-building in terms of strong human investment and extension services.

Breeding activities

The country does not have breeding programmes for food crops, even for maize, which is the main staple crop; but cotton breeding is in place within the public sector. Maize production is estimated to be close to 100 000 ha annually. The area was found to be too small to justify a full-scale maize breeding programme. The country relies on the importation of improved maize hybrids from its neighbours, South Africa and Zimbabwe, which have strong maize breeding programmes. The researchers in the Ministry of Agriculture and Cooperatives (MOAC) are mainly evaluating the crop germplasm acquired from regional and international research centres such as CIMMYT, ICRISAT, IITA, etc. The varieties and maize hybrids identified for high yields and adaptability under local climatic conditions are recommended for release and registration. The varietal release committee releases the varieties and hybrids.

The Seed Quality Control Unit (SQCU), which is under the MOAC, is charged with seed certification following the American Seed Testing Association (ASTA) standard. The unit functions autonomously, independent of the Seed Multiplication Unit, which is responsible for production of basic and certified seed. The unit has its own seed inspectors, who are responsible for both open-pollinated and self-pollinated species.

The seed bill with all the relevant information awaits parliamentary approval. The new seed bill is intended to update the 1954 Plant Protection Act, which was established to govern exportation of some of some of the country's indigenous plant species. The new seed bill will be more in line with the TRIPS Article 27.3(b).

Biotechnology research and capacity

The country does not have any national biotechnology research. The major constraints facing Swaziland are lack of financial resources, human capital, equipment and laboratories. The country does have the capacity for major returns on investments in biotechnology research, due to a demand for high-value crops and the limited land size compelling intensive production as the only option.

Formal and informal seed sectors

The country has two systems of seed distribution. The formal seed sector is dominated by the private seed companies. In the past these companies have concentrated on hybrid maize varieties and they will continue to do so, because of the high yield due to heterosis and the low viability of offspring. The other seed crops that are handled by the formal seed sector are mostly vegetables, mainly the exotic ones, which are often difficult to produce or which require expensive investment in infrastructure for adequate seed production.

All the self-pollinating grain legumes and some cereals, such as open-pollinated maize varieties and sorghum, are distributed through the informal seed sector. Farmers keep their own seed after harvest to ensure seed availability when needed. However, the quality is not always high. Government has initiated on-farm seed production for these crops. One NGO is assisting in organizing farmer groups. The GTZ and ICRISAT provide financial assistance.

South Africa - D.P. Likely and G.T. Williams

South Africa is to a large extent self-sufficient in respect of the production of basic food products, such as maize, wheat, oilseeds and sugar. Certain products like red meat must, however, be supplemented with imports from time to time. Since recurrent drought is perhaps the most important constraint in agricultural production, research and breeding programmes have primarily focused on the development of drought-resistant cultivars.

As a result of scientific and technological progress, agricultural and forestry products feature prominently in South African exports. Depending on the volume of output, a large percentage of the local production of wool, maize, sugar, citrus, deciduous fruits, wine, preserved products, paper and viscose pulp is exported. In processed as well as unprocessed form, agricultural and forestry products normally account for about one-third of total export earnings. Trade in plant propagating material is not well documented, as traders in such resources, for strategic business reasons, are reluctant to release and share information on their sales.

Because most South African breeding material originates outside the country, very little attention has been paid to indigenous plant material as a potential source of new crops. Accessories of indigenous plant genetic resources are, therefore, very poor. This may have been acceptable in the past, but with the rapid increase in population growth and the fact that genetic material from abroad is becoming less accessible, South Africa will have to rely more on its previously unexplored indigenous genetic resources as a potential food source.

Patent legislation

· Patent Act of 1978 (Act No. 57 of 1978) - Administered by Department of Trade and Industry

Intellectual property rights in South Africa fall mainly in the traditional areas of patents, trademarks and designs, and copyright. The patenting of biological material is addressed in the Patent Act of 1978 (Act No. 57 of 1978). Section 25 of the Act details patentable inventions, in subsection 1; that which is not considered an invention, subsections 2(a)-(g); and those inventions for which patents may not be granted, in subsections 4(a) and (b). In particular, subsection 4(b) excludes the granting of a patent:

"for any variety of animal or plant or any essential biological process for the production of animals or plants, not being a microbiological process, or the product of such a process."

The Plant Breeders' Rights Act of 1976 (Act No. 15 of 1976) provides for the granting of rights in respect of new varieties of various kinds of plants which would otherwise not qualify for protection in terms of the Patents Act.

· The Plant Breeders' Rights Act (Act No. 15 of 1976) - Administered by Department of Agriculture

Countries which have no Intellectual Property Rights for plant material, or which have some legislation but where there is no respect for ownership, will not have access to modern varieties of self-pollinated species from any country. In addition, abuse of Farmers' Privilege (farm-saved seed) might threaten access to international varieties of self-pollinated or vegetatively produced species and will violate WTO/TRIPS Article 27.3 and UPOV.

Plant Breeders' Rights are very important for South Africa, which has a relatively small plant breeding industry compared with many developed countries and therefore relies heavily on foreign markets to obtain new, improved material. South Africa became the tenth member of UPOV in 1978 and signed the instrument in 1991, and breeders' rights are managed under the Plant Breeders' Rights Act, Act No. 15 of 1976. Some 1400 varieties, some 40% having been bred locally, presently enjoy protection for a period of 20-25 years, after which it expires and they become public property.

South African companies make extensive use of foreign varieties and germplasm for research and this is handled under licence or contract agreements. Foreign companies are very sensitive in dealing with their varieties and require beneficiary countries at least to have control through legal means or regulations so as to be able to protect their IPRs against deliberate violations. Although it is the responsibility of the holder to protect these rights and not that of government, the latter can notify the holder should it be aware of any violations.

South Africa is currently preparing new legislation for reforming plant variety protection. The Plant Breeders' Rights Act will be amended during 1999-2000 and a new section on Farmers' Rights will be incorporated into the Act. South Africa is collaborating with WTO, UPOV, etc. There are no specific problems. The main feature of the new section on Farmers' Rights will be to grant Farmers' Rights to farmers' varieties and landraces that have been maintained by communities during the ages and to recognize contributions that were made by such communities.

IPR on Indigenous Knowledge

Currently, a process is under way in South Africa to develop a regulating regime to protect the access to and use of indigenous knowledge. A draft bill has been prepared and released for public comment.

Research and breeding activities

Private work has largely taken over plant breeding, especially in hybrid crops. The extent of private breeding depends on the crop; for example, little is done on potatoes, papaya, mangoes and peanuts, which constitute a small market. The Agricultural Research Council (ARC) is still strong in self-pollinated crops like peanuts, dry beans, lupins and some grasses, and they do good work on winter cereals. They also develop materials which are further improved by private breeders.

Agricultural research and breeding is mainly carried out by the ARC, which is predominantly funded by government and some private research contracts. Part of the research is carried out by universities, other institutions and the private sector. The major crops in which breeding is undertaken are deciduous fruit, vines (grapes), tropical and subtropical fruit, maize, sunflower, soyabean, groundnuts, dry beans and certain vegetables. Given the declining level of research funding, there is an increasing need to target existing research expenditure better and to create incentives for the private sector to fund research. Foreign breeding companies play a major role in providing new improved varieties to South Africa.

Seed supply and production in the country

South Africa has the advantage of a diversity of soil types and climatic conditions, providing production facilities for a large variety of seed. Water resources are, however, a limiting factor and rainfall is variable. Recognition of an integrated seed system which takes into account the activities of both the formal and informal sectors is essential for the country. Local and foreign seed companies provide seed of new cultivars, which is essential for agricultural progress.

Informal sector

Access to commercial seed by small-scale farmers is often a problem as most commercial seed companies have only extended their distribution networks to the commercial farming sector and have established distribution points close to these centres. An appreciable amount of the industrially improved seed is used by smallholder, rural farmers, with the bulk of their seed sourced on-farm. There has been little or no emphasis on the informal seed supply and not much is known about its operation. As a result, very little is documented with regard to this sector.

Formal sector

At present South Africa has a well-established and functional formal seed-supply sector operating under various schemes and utilizing the most updated technology in seed production, seed quality and seed health. There are currently 906 registered dealers in seed, 137 seed cleaners, 118 pre-packers of seed and 29 laboratories for the testing of seed, all of which mainly service this formal sector.

The following Acts are administered by the national Department of Agriculture for different regulations in the seed trade in South Africa.

· The Plant Improvement Act 1976 (Act No. 53 of 1976)

All seed species of importance have been included under the Plant Improvement Act (which regulates the seed industry). The purpose of the Act is to promote the availability of plants and propagating material of superior quality in order to obtain optimal crop production and sustainable resource utilization. Major species have official variety lists and minor ones are open, which means any variety can be sold. Official seed certification is voluntary and is managed by South African National Seed Organization (SANSOR) for the government. The percentage of seed certified is about 25%, ranging from zero to 70% for different species. Crop production is a crucial part of national food security and economic prosperity, and therefore propagation material of inferior quality may have devastating results.

As regards application of the Act, the Plant Genetic Resources Auditing Division ensures that the legislation is applied, striving for the above goals, and its auditors are provided with authority to:

· require registration of premises where plants are grown for sale or where propagating material is being sold, cleansed and prepacked

· prescribe the minimum requirements with which plants and propagating material must comply in order to be sold

· prescribe information requirements (labelling) of containers and records of plants and propagating material which are sold

· provide auditing officers responsible for the application of this Act with certain powers

· establish a variety list to control the genetic trueness and purity of plants and propagating material which are sold

· establish certification schemes for plants and propagating material, with the object of maintaining quality and ensuring usefulness for agricultural and industrial purposes, for example, the S.A. Seed Potato Certification Scheme applied by the Independent Certification Council for Seed Potatoes, the S.A. Seed Certification Scheme applied by the South African National Seed Organization, etc.

Seed testing at the Official Seed Testing Station in South Africa is done according to the rules as specified by the International Seed Testing Association (ISTA). Consequently, all private laboratories that wish to become registered for the purpose of testing seed are also under obligation to use these rules.

After government's decision to curtail expenditure, change to a rationalized scheme and transfer some of its activities with regard to seed testing to the private sector, private seed testing laboratories were established. These laboratories are responsible for the testing of samples for their own purposes - in order to determine the quality of seed for the mark