Strategic litigation on seeds sovereignty

Emily Kinama

8 November 2023

Outline

• 1. Facts of case
• 2. Who filed the case?
• 3. Evidence and expert witnesses v. paid science?
• 4. The use of constitutional procedural law to support the case.
• 5. Public awareness- court advocacy + media advocacy
• 6. Network building + Food coalition v. backlash

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1. Facts of the case

• The case was filed by 16 Farmers in Kenya challenging provisions of the Seeds and Plants Varieties Act and the

Seeds and Plants Varieties (Seeds) Regulations.

• We had started drafting a case to file in court on seeds sovereignty after working closely with the food coalition in Kenya. However, at that time there were so many other issues on food in contention such as the GMO case. As we dealt with that we found out a case had been filed in Machakos by 16 farmers challenging the same seeds sovereignty case so instead of wasting the research we sought to represent BIBA Kenya as an Interested Party. Deals with seeds sovereignty
• Right to culture and promotion of traditional knowledge management systems
• Criminalisation of farmers who exchange seeds vs dominance of companies. Other laws have made exemptions such as the Ethiopian seed Proclamation of 2013 and this exclusively makes it clear that farmer seed and their seed systems are exempted from the law.
• Seed banks held mostly by women traditionally
• Difference between regulation commercial seeds and indigenous seeds.

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Cont.

• -Mischief behind the amendment of the laws to change provisions in the Seed and Plants Varieties Act

i. Seeds are a business in Kenya. The exception is maize, where Kenya Seeds Company holds the market share

ii. This case also involves Plant Variety Protection- Foreign seed companies that want to enter Kenya can only market seeds with laws which regulate the marketing and sale of seeds.

- Seeds, right to life and farmers’ rights by Michael Fakhri – see the report by the UN Special Rapporteur on the right to food submitted to the Human Rights Council

-The law should clearly state that it regulates seed from the commercial seed sector and not all seed. Indigenous seeds should not be regulated as these belong to a different seed system. See also the above report by UN Special Rapporteur Michael Fakhri

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Cont.

• International law we will analyse
• The International Treaty on Plant Genetic Resources for food and agriculture affirms the rights of farmers to save, use, exchange, and sell farm-saved seed and other propagating material and to participate in decision-making regarding, and in the fair and equitable sharing of the benefits arising from, the use of plant genetic resources for food and agriculture.
• The United Nations Declaration on the Rights of Peasants and Other People Working in Rural Areas provides that peasants and other people working in rural areas have the right to seeds including the right to save, use, exchange, and sell their farm-saved seed or propagate material.

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2. Who filed the case?�

• The case was filed by 16 Farmers in Kenya challenging provisions of the Seeds and Plants Varieties Act and the Seeds and Plants Varieties (Seeds) Regulations.
• -The First Interested Party is Green Peace Kenya
• -The Second Interested Party is the Biodiversity and Biosafety Association of Kenya (BIBA Kenya)- the party we represent.
• -Both the Interested Parties have joined the case to support the Petitioners

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3. Evidence and expert witnesses v. paid science?�

• Does not show up here much because it is more a challenge on points of law.
• However experts had to explain to us provisions within the Act which are scientific but the mischief is the criminalization of farming traditions passed from generation to generation.
• GMO linkages with the seeds case- already Bayer which bought Monsato wants to take over the seeds spaces in Kenya and eventually traditional foods won’t be protected.

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4. The use of constitutional procedural law to support the case.�

• Here the challenge is on the enactment of amendment provisions as being unconstitutional and contrary even to international laws that Kenya has ratified.
• How do your socio-economic rights cases interlink?
• E.g Mitubell and the role of strategic litigation in socio-economic rights and how it will impact other cases
• Piece meal litigation.

5. Public awareness- court advocacy + media advocacy�

• Our strategy here is silence- we do not want the big corporations to know the case even exists.
• It has been filed in a town outside of the capital city

6. Network building + Food coalition v. backlash�

• So far, no backlash because of silence as a strategy
• There is a right-to-food coalition that follows on issues related to food sovereignty and seed sovereignty
• The coalition consists of scientists, farmers, NGOs and CBOs who work on food systems, consumer protection and farming methods to protect the rights of farmers and inevitably those living in Kenya
• Why are foreign seed companies insisting on taking over our food systems and what will the implications of GMOs introductions and removing seeds sovereignty an issue in Kenya

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