The African Model Law for the Protection of the Rights of Local Communities, Farmers and Breeders...

Ethiopian Social Rehabilitation and Development Fund

 

Paper from Ethio-Forum 2002 Conference

 

The African Model Law for the Protection of the Rights of Local Communities, Farmers

and Breeders, and for the Regulation of Access to Biological Resource In Relation to

International Law and Institutions

 

 

 

  

   By Tewolde Berhan Gebre Egziabher

 

   February 14, 2002

 

   1.         Introduction

 

   The African Model Law for the Protection of the Rights of Local Communities, Farmers and

   Breeders and for the Regulation of Access to Biological Resources was inspired by the

   Convention on Biological Diversity (CBD) and prepared in 1997 by an Organization of African

   Unity (OAU) Task Force. The OAU Ministerial Session, followed by the OAU Summit of Heads

   of State and Government, adopted this Model Law in Ouagadougou in 1998, and

   recommended that it be the basis of African national laws.

 

   The International Treaty on Plant Genetic Resources for Food and Agriculture (ITPGRFA),

   which was finally fully negotiated and adopted in November 2001, has now recognized

   Farmers’ Rights as those determined by each national law.  The OAU, therefore, anticipating

   the finalization of the negotiations of ITPGRFA realized that its member states will need to

   include Farmers’ Rights, as a subset of Community Rights, in their national laws.  It thus

   developed the appropriate chapter to go with the Model Law approved in Ouagadougou.

 

   It also became obvious that those OAU member states which are also members of the WTO

   need a sui generis law for protecting plant varieties.  This sui generis law has to be

   consistent with the chapters on Community Rights and on the Regulation of Access to

   Biological Resources of the Model Law because these are the chapters adopted in the

   Ouagadougou Summit because they are vital for African societies.  That made it necessary

   for the OAU to develop the chapter of the Model Law on Breeders’ Rights. This enlarged

   Model Law was adopted in the July 2001 Summit in Lasaka, Zambia.

 

   Since the Farmers’ Rights chapter of the Model Law is consistent with the Community Rights

   chapter, changing it substantially would go counter to the decision of the OAU Summit of

   Ouagadougou.  Any attempt to improve the Breeders’ Rights chapter of the Model Law can

   thus not be allowed to go counter to the essence of the chapters on Community Rights, on

   Farmers’ Rights and on the Regulation of Access to Biological Resources of the Model Law.

 

   In a meeting at the AU/OAU Headquarters in Addis Ababa in May 2001, WIPO, UPOV, AFSTA

   and OAPI suggested changes to the Model Law.  Many of these suggestions were basic and

   they would have changed the decisions of the Ouagadougou and Lusaka Summits.

 

   In this paper, the Model Law will be reviewed in the context of the international scene, and

   in particular the Convention on Biological Diversity (CBD) and those laws that have emanated

   from it, in particular the ITPGRFA and the Cartagena Protocol on Biosafety; the WTO

   Agreements, especially the Agreement on Trade-related Aspects of Intellectual property

   Rights (TRIPs); and some of the views expressed by WIPO and UPOV in the May 2001

   meeting at the OAU.

 

   2.         The Essential Elements of the Model Law that Have Caused Debate

 

   The Model Law has 4 general chapters (on Objectives, Definitions and Scope, Institutional

   Arrangements, and Enabling Provision) and 4 specific thematic chapters (on Access to

   Biological Resources, Community Rights, Farmers’ Rights and Plant Breeders’ Rights).

 

   2.1       Objective

 

   The main objective, which is given in its specific components as well, is the conservation and

   sustainable use of, and sharing the benefits accruing from, biological resources and

   community knowledge and technologies in order to sustain all life support systems.  UPOV

   maintained that a statement to the effect that incentives for breeders is of importance equal

   to the broad aim of sustaining all life support systems should have been part of the main

   objective.  It obviously cannot be, and their criticism cannot be accepted.  Breeding is only

   one element in utilization. The recognition and protection of Breeders’ Rights had, however,

   already been incorporated in the Model Law as a specific objective (Part I, objectives (b)).

 

   2.2       Definitions and Scope

 

   Terms considered important for understanding the Model Law are defined.

 

   The elements included in the scope are biological resources and their derivatives; community

   innovations, practices, knowledge and technologies; local and indigenous communities; plant

   breeders; and benefit-sharing.

 

   Traditional systems of access, use and exchange of biological resources, knowledge and

   technologies are specifically excluded from the scope.  This is to protect these customary

   practices from disruption through external interference.

 

   2.3       Access to Biological Resources

 

   This chapter provides for a detailed system of access to, and benefit-sharing from, biological

   resources in a manner that ensures their conservation and sustainable use. It makes the

   relevant provisions of the CBD (Articles 1, 3, 6, 7, 8(j), 10, 11, 15, 16.1, 16.3, 16.5, 17,

   18.4, 19, 20.1) the bases of its provisions in a manner that is considered appropriate for

   Africa.

 

   The provisions of the Model Law which deal with the procedure for granting access are

   based on the recognition by the CBD (Articles 3 & 15.1) of the sovereign rights of states

   over their biological resources.

 

   The reciprocal relationships between access and benefit-sharing in the Model Law are based

   on Articles 15, 16.1, 16.3, 17, 18.4 and 19.1 of the CBD.

 

   Article 15 (iii, iv & v) of the Model Law, which deal with prevention of possible negative

   impacts on humans or the environment emanating from the unsustainable or in any other way

   inappropriate use of biological resources, are based on Articles 8(g), 8(h), 19.3 and 19.4 of

   the CBD and on the Cartagena Protocol on Biosafety.

 

   Those provisions of the Model Law that regulate access so as to protect biological resources

   and the environment, e.g. Articles 8.1(i), 8.1(vii), 8.1(viii), 8.1(ix), 14.1(v), 15, are based on

   Articles 1, 3, 10, 11 and 20.1 of the CBD.

 

   Article 9 of the Model Law prohibits the patenting of life forms and biological processes.  This

   is consistent with the provisions of the CBD.

 

   The CBD was signed in 1992, 2 years before TRIPs.  Since awareness on the new GATT

   negotiations, and especially on the issue of TRIPs, was virtually non-existent in the South,

   the reference to patenting, e.g. in Article 16.2 of the CBD, was not understood by Southern

   delegates to apply also to living thing.  Judging by the declarations made during the signing

   of the CBD, no developing country referred to intellectual property rights in relation to any

   living things or even to biotechnology (genetic engineering).  It seems, however, that at

   least some of the Southern delegations were aware of the effort by the North, through

   Article 22, to make the CBD subjugated to the WTO Agreements.  This is found in the

   declarations of Chile, Columbia and Cuba.  On the other hand, the European Union, France,

   Ireland, Lichtenstein, Switzerland and the United States of America declared that

   biotechnology transfer will occur only under conditions that fully respect intellectual property

   rights.1  This shows that, in contrast to developing countries, the industrialized countries

   meant the reference to the respect of patents in Article 16.2 to apply to patenting living

   things.  The whole South believed that patenting in that article referred to machines and

   machine parts, e.g. those used in gene banks. There was not even one Southern country

   that had laws allowing the patenting of living things.

 

   Since, thanks to slavery and colonialism, all attributable to Western Europe and North

   America, technical capacity is low in the South, the North accepts obligations in virtually all

   international law to help the South.  In the CBD, this figures in many articles, and particularly

   in Article 18.  What technical assistance can be expected when hood-winking is involved in

   the negotiations?  If the North really means business, it should lend disinterested capacity to

   help the South during the negotiations, not capacity to extract the heart without shedding

   blood, as in Shakespear’s Shylock. And patenting living things takes the heart of the rural in

   the South, which is essentially rural.

 

   In fact, even at that level of lack of awareness, the Southern delegates negotiated

   effectively to create a fall-back position in case they had made mistakes.  They fought hard

   to retain Article 16.5, which states that patents and other intellectual property protection

   systems may go counter to the aims of CBD and that then, Parties have to ensure that this

   does not happen.  The aims of the CBD are the conservation and sustainable use of

   biological diversity and the fair and equitable sharing of benefits accruing from using it.

 

   Is the patenting of living things supportive of the conservation of biodiversity?

 

   The COP of CBD, in its Decisions II/12, which was made in Jakarta, Indonesia, in 1995, III/17,

   which was made in Buenos Aires, Argentina, in 1996 and IV/15, which was made in

   Bratislava, Slovak Republic, in 1998, have emphasized the need to study Paragraph 9 of

   patents in relation to the aims of the CBD.  For example, Paragraph 9 of Decision IV/15

   states the issue clearly.  “The COP stresses the need to ensure consistency in implementing

   the Convention on Biological Diversity and the World Trade Organization Agreements,

   including the Agreement on Trade-Related Aspects of Intellectual Property Rights, with a

   view to promoting increased mutual supportiveness and integration of biological diversity

   concerns and the protection of intellectual property rights, and invites the World Trade

   Organization to consider how to achieve these objectives in the light of Article 16, Paragraph

   5, of the Convention, taking into account the planned review of Article 27, Paragraph 3(b) of

   the Agreement on Trade-Related Aspects of Intellectual Property Rights in 1999.”

 

   The invitation of the COP of the CBD to WTO to cooperate with it on this and related issues

   started in its second meeting as stated in its Decision II/12, and was repeated in Decision

   III/17.  The invitation in Decision IV/15 is, therefore, the third.  The tangible reaction of

   WTO in relation to the issue, as clearly presented by Kenya for the African Group in the WTO

   Ministerial Conference in Seattle in 1999, was a total refusal to consider it.  The result was

   the collapse of the Seattle Ministerial Conference of the WTO. Of course, other factors also

   contributed to that collapse.

 

   Decision IV/15 of the COP of the CBD is, similarly, a third time statement of the lack of

   information to enable a decision as to whether the patenting of life forms and life processes

   is harmful in the context of Article 16.5 of the CBD.  In a paper I have written2 on Farmers’

   Rights, I have shown that, by making the farmer relinquish control of the seed to the patent

   holder, patenting crop varieties leads to the expansion of monocultures and thus reduces

   agrobiodiversity in agriculture. The issue is complex, and that is why I have treated it in a

   separate paper. Therefore, it goes counter to conservation, one of the aims of the CBD.  It

   also undermines the role farming communities. Article 8(j) of the CBD clearly shows the

   indispensable role of local [including farming] communities for the sustainable use of

   biodiversity.  Therefore, it also goes counter to another aim of the CBD, that of bringing

   about of the sustainable use of biological diversity.

 

   There is thus no doubt that patenting life forms and life processes violates Article 16.5 of

   the CBD.  Africa’s ban of the patenting of living things and life processes in the Model Law

   and in the common African position on TRIPs is, therefore, aimed at limiting the damage

   ushered in, presumably inadvertently, by TRIPs. That TRIPs is often unfair to the local

   communities of the South is internationally well appreciated.3

 

   Those who oppose Africa’s position will, no doubt, refer to Article 22 of the CBD on

   relationships with other international conventions which states, “The provisions of this

   convention shall not affect the rights and obligations of any contracting party deriving from

   any existing international agreement, except where the exercise of those rights and

   obligations would cause a serious damage or threat to biological diversity.”

 

   As already explained, when this provision is seen from the CBD as the vantage point,

   patenting of life forms and biological process should not be allowed.  But, seen from the

   vantage point of TRIPs, Article 27.3(b) enables the effective control of the use of, and

   hence trade in, some technologies mostly owned by the North. What should a country which

   is party to both agreements do?  It should decide which of the two is the more valid

   instrument for helping it benefit from its biological resources and conserving them for

   posterity, for maximizing benefits for its indigenous and local communities. It should also

   evaluate the impact of its decision on its economic and social life.  TRIPs looks merely at the

   trade side when it allows IPR protection, not as to whether this affects the diversity of life

   or not.  If the IPR protection, by its nature, becomes harmful, obviously there should be no

   trade in it, or, if it is at all traded in, that trade should be strictly controlled as is the case

   with poisons and armaments: life precedes, and being alive is a precondition, for trade,

   whether you are the human being that trades, or the other life forms that are traded.

 

   Africa has banned the patenting of life forms and biological processes because it wants to

   keep its people alive and enjoying the diversity of other life forms that they have always

   enjoyed living with and living on.

 

   Africa needs to keep its farming communities free to make their own decisions about food

   production influenced, of course, by their own governments. It cannot have fought against

   colonialism only to surrender the decision of what and how its farmers produce food to the

   whim of a distant foreign-based large and, in the local context unwieldy, corporation. The

   African Union and all Africans should, therefore, continue to insist that there will be no

   patenting of living things or life processes within Africa.

 

   Of all the provisions in the Model Law, it is the rejection of patenting that has upset WIPO,

   though they are upset by the Farmers' Rights chapter also in sympathy with UPOV. WIPO’s

   annoyance arises, as stated by their representative at the OAU in Addis Ababa on 9-11 May

   2001, from the fact that WTO has given them the role to oversee the implementation of

   TRIPs. Their representative did not say so, but it is obvious that they see the rejection of

   patenting living things as a major attack aimed at destroying their turf. It is a sad comment

   on the times that a UN body is upset because the most miserable of the Earth take a tiny

   step to protect what is theirs from privatization by the most mighty of the earth!

 

   2.4       Community Rights

 

   The chapter of the Model Law on Community Rights is consistent with Article 8(j) of the CBD,

   which recognizes that national law can be used to respect, preserve and maintain

   knowledge, innovations and practices of indigenous and local communities. Article 8(j) also

   stipulates that the knowledge, innovations and practices can be used only with the approval

   of the communities. It also stipulates that the communities have the right to a fair share of

   the benefits arising from the use of their knowledge, innovation and practices. Article 10(c)

   of the CBD states that each Contracting Party shall, as appropriate, “Protect and encourage

   customary use of biological resources in accordance with traditional cultural practices…,”

   thus reinforcing Article 8(j).

 

   Articles 11 and 20.1 of the CBD give states the responsibility to provide incentives for the

   conservation and sustainable use of biological diversity. When seen together with Articles

   8(j) and 10(c), therefore, countries are expected not only to recognize and protect the

   rights of local and indigenous communities, but also to give them incentives in order to

   encourage them to continue providing humanity with biodiversity and methods of its

   sustainable use.

 

   Based on these, Decision III/14 of the Third and Decision IV/9 of the Fourth COPs of the CBD

   have gone into a lot more detail on how countries should implement the Community Rights

   enshrined in Article 8(j) and the other related articles. Paragraph 1 of Decision IV/9, in

   particular, has created an “Ad Hoc Open-ended Inter-sessional Working Group" to further the

   implementation of these articles. Its functions include, among others, "to provide advice as a

   priority on the application and development of legal and other appropriate forms of protection

   for the knowledge, innovations and practices of indigenous and local communities embodying

   traditional lifestyles relevant for the conservation and sustainable use of biological diversity."

 

   The Community Rights chapter of the Model Law has done for Africa what the advice of the

   Ad Hoc Committee is expected to do globally. It should be pointed out that the Ad Hoc

   Committee has already met and is continuing to meet, and that the African Model Law is one

   of the documents available to it.

 

   The central provisions of the Model Law with regards to Community Rights are Article 16(vi),

   which recognizes the collective rights of local communities, and Articles 17 and 23.2, which

   place the responsibility of determining what constitute those rights upon the local

   communities themselves. Many opponents have expressed the view that Community Rights

   violate the intellectual property rights provisions of TRIPs. It should be noted, however, that

   the 4th Preambular Paragraph of TRIPs states that TRIPs applies only to private rights. What

   I think they mean but dare not say is that if Community Rights are legally protected,

   individuals will be stopped from appropriating as their own private intellectual properties

   technologies that are communally generated. Of course, that is one of the intentions of

   protecting Community Rights: private rights should restrict themselves to the realm of the

   private, not to that of the community.

 

   2.5       Farmers’ Rights

 

   Article 9 of ITPGRFA puts the responsibility of the legal recognition of Farmers' Rights upon

   national legislation. It gives some possible elements that national law could incorporate, but

   it leaves the list open ended. These possible elements include: the protection of community

   knowledge and technologies, entitlement to the fair share of benefits upon the utilization of

   plant genetic resources, the right to participate in decision making and the right to use

   farm-saved seed.

 

   It is clear that these elements are consistent with the provisions on Community Rights and

   Farmers’ Rights of the Model Law. The open-endedness of the enumeration of the elements

   enables Africa to add any other elements it identifies as appropriate for its farming

   communities.

 

   Of all the chapters of the Model Law, it is that on Farmers' Rights that has upset UPOV the

   most as expressed by their representatives in a meeting at the OAU in Addis Ababa on 9-11

   May 2001. But their annoyance should then be with the world as a whole since the African

   version of Farmers' Rights is fully consistent with Article 9 of the ITPGRFA. I have written

   more on the context of and rationale for Farmers’ Rights in another paper.2

 

   2.6       Breeders' Rights

 

   The main aim in the chapter on Breeders' Rights is that of making it consistent with the

   chapter on Farmers' Rights. Achieving this aim has been seen by WIPO and UPOV as going

   against the UPOV Convention and against TRIPs. But both UPOV and TRIPs deal with private

   rights and cannot thus be affected by Community Rights unless what they consider are their

   private rights are in fact communal and they have been privatizing them in the absence of

   the formal protection of Community Rights.  It then becomes a matter of what is redress for

   Africa being seen as infringement by them.  It then becomes a matter of political will, not of

   international law. For Africa, it is a matter of the survival of its communities, its functional

   units of society, and it can thus have no option but to muster all its political will to

   implement Community Rights.

 

   3.         Development

 

   We all use the word “Development”. We in the South are tantalized by it. Most of us dream

   of it as good. Only a few of us are horrified by it and run away from the more “developed”

   areas in our countries. Then, even our people call us primitive. Those from the developed

   North are proud of development. They tell us that, if we persevere and work as hard as they

   have done, we will indeed achieve it. Many of them do not want us to develop because it is

   to their advantage if we do not develop. This is because if we fail to develop, we will also fail

   to use as much of the resources of the earth as they now consume. They know that, if we

   also develop, there will be a serious shortage in most of those resources.

 

   They do not say so, but they act so. The recent rejection by the United States of America

   of the Kyoto Protocol because the undeveloped South is not reducing its fossil fuel burning

   from its already very low level illustrates this fact. If the United States insists in this, it is

   obvious that it wants to prevent us from development.

 

   But what is development? A look at any dictionary will show that the word has many

   meanings. I had a look at the Oxford Dictionary, and I think that 2 of the many meanings

   apply to our use of the word in the context of the North – South divide. One is the idea of

   realizing one's potential fully. The other is that of coming gradually into existence, or into a

   visible state. I think that we use both these meanings. The first meaning applies to desirable

   individual or social change, and the second to economic growth.

 

   The assumption that makes us want development is that it is positive, that it is an

   improvement over our present condition. But is change always positive? Is it always

   desirable? For example, the individual can usually be trained to be a killer, or to be a

   defender of the weak. Both are potentials. In order to develop do we need to maximize the

   expression of both traits? I believe that that potential trait the realization of which we must

   maximize is that which will benefit society maximally. Which society do we consider in such

   maximization? All? Only the industrial society since that is what we are trying to change our

   respective societies into? Or our respective present-day societies? The answers to these

   questions are usually confused in our minds when we consider development.  In fact, we

   usually do not ask these questions.

 

   Examining what is possible for us to do and get might help in answering these questions.

   Once we accept that economic development is desirable, the decision of what economy to

   develop is determined by the natural resources that exist, and the social development that is

   required. When it comes to Africa, we are the best endowed of continents in natural

   resources4, though, obviously, some of our countries are less endowed than others and

   some, to the extent known, are natural resources poor. Surmounting these imbalances

   should not be a serious problem for Africa now that it is transforming itself into a Union.

   Therefore, the question of the appropriateness of the growth that will determine economic

   development in Africa is that of the capacity of the individual and the society.

 

   The views of development in the South, and, on the whole also in the North, are that it is

   linear: the Northerners have developed, we Southerners want to develop, we must follow

   their footsteps; even where they have stumbled, we have to accept to stumble.

 

   Assuming that development is linear, we should closely examine the path that the North took

   so that we may both shorten the time needed to go along that path, and try to avoid the

   excessive pollution, depravation, antagonism, social unrest and other problems that

   accompanied its industrialization. We should especially try to avoid the alienation of the

   individual and the breakdown of community mutualism.

 

   But, why should we think that development is linear? This view is based on the  adaptation

   of "biological evolution" to human social development. This line of thinking has been given the

   names "biological determinism" or "social Darwinism". A good and concise review of the abuse

   that can result from the unwarranted inferring from biological evolution to determine what

   individual and social development should be like has been published by Rose, Lewontin and

   Kamin5 .

 

   It is this line of inappropriate evolutionary thinking that gave rise to the Eugenics movement

   which advocated the breeding of human beings by selecting the best in order to produce a

   better race. The Nazi movement took this thinking to its logical nationalist tragedy. But,

   even after Nazism, the philosophy of racial superiority has been extensively pursued,

   especially to downgrade Blacks, but to a lesser extent, also others. The argument used by

   those who refuse to learn from past tragedy and continue with belief in racial superiority is

   that the laws of nature do not bend to accommodate human wishes, that, therefore, they

   have to be accepted as they are irrespective of what we perceive subjectively.  I entirely

   agree with this argument. But the very argument calls for complete objectivity and for the

   use of all available information. It also calls for caution. If a theory about bacteria goes

   wrong, it will be corrected in due time; the bacteria will take no note of the theory. If a

   theory about human superiority-inferiority goes wrong, it will be understood by other humans

   and it can cause serious disruptions and wars, as happened, for example, in South Africa

   under Apartheid. And, as Rose and his colleagues6 point out, even august professors of

   august universities as recently as 1960 e.g. "the eminent zoologist Agassiz [of Harvard

   University] claimed that ‘the brain of the Negro is that of the imperfect brain of a seven

   months infant in the womb of the white’ ”. Every biologist knows that this is rubbish, that

   the brain sizes of all humans are the same7, and that, in any case, the Neanderthal man,

   which whites with their brains not bigger than the blacks’ outwitted, outcompeted and

   brought to extinction had the same brain size as them8. I cannot resist the temptation to

   include a striking quotation on the issue from Rose and his colleagues9, “If biological

   determinism [social Darwinism] is a weapons in the struggle between classes, then the

   universities are weapons factories."

 

   Capitalism has also used social Darwinism as the justification for the rich getting richer at the

   expense of the poor, and, therefore, the North getting richer at the expense of the South.

   Rose and his colleagues10 have given a quotation form John D. Rockefeller that expresses

   this very well, “The growth of a large business is merely a survival of the fittest….This is not

   an evil tendency in business. It is merely the working out of a law of nature.”  Alexander11

   has quoted what George Kennan, Chief Planner of the State Department of the United States

   of America, said in 1948, just after Nazism got defeated, and just after GATT was fully

   negotiated, about the North - South aspect of wealth and poverty. “We have about 50% of

   the world's wealth, but only 6.5% of its population .…  In this situation, we cannot fail to be

   the object of envy and resentment. Our real task in this coming period is to devise a pattern

   of relationships which will permit us to maintain this position of disparity without detriment to

   our national security. To do this, we will need to dispense with all sentimentality and

   day-dreaming; and our attention will have to be concentrated everywhere on our immediate

   national objectives. We need not deceive ourselves that we can afford today the luxury of

   altruism and world-benefaction.… We should cease to talk about vague and - for the Far

   East - unrealistic objectives such as human rights, the raising of the living standards, and

   democratization. The day is not far off when we are going to have to deal in straight power

   concepts. The less we are then hampered by idealistic slogans, the better.”

 

   Socialism, like capitalism and racism, accepts the linear view of development but in a more

   precise formulation by Marx and Engels12. In their work, “Feuerbach. Opposition of the

   Materialistic and Idealistic Outlook”, they have given us a hierarchical view of development:

   tribal, ancient, feudal and capitalist. As can be seen from the many other works of Marx and

   Engels, this linear development was going to continue into socialism regulated by a

   dictionarial state, followed by a stateless condition: communism. Of all the existing levels

   featuring in their linear system of development hierarchy, the local community, which is

   presumably what they are calling “tribal”, is the nearest to the mutualism they envisage in

   communism13. If their exhortation of Feuerbach14 that "Empirical observation must in each

   separate instance bring out empirically and without any mystification and speculation, the

   connection of the social and political structure with production," were to be heeded, one

   would have dispensed with a state for the dictatorship of the proletariat, and used a

   modified community or “tribal” model as the starting point for going towards communism. This

   would be the logical step if, as all natural scientists and social scientists avow, they heeded

   Occam’s Razor, which states that things or actions should not become more complicated

   than they must be. I can imagine socialists and communists saying: "But tribal people have

   no specialization of labour, and their organization does not allow its development."  Partly

   true, but why not try to change community (“tribal”) organization to deviate from its present

   nature only to the extent necessary to bring about the required specialization of labour?

   After all, appropriately taught and trained starting very early in life, many a tribal child

   performs as well as her/his counterpart from an industrialized society. Why take society

   through all 5 sets of forceful overthrows of previous systems (tribal to ancient to feudal to

   capitalist to socialist ?to communist), when just one transformation, even if difficult, would

   do? Occam's Razor would indicate to the world, if it finds communism attractive, to start

   from the local community and move across globally to all such communities in order to create

   a communist society. It really is counter intuitive to start from the antithesis of a

   community, a dictatorial state, even if the dictatorial rule is in the name of the poorest. Of

   course, understandably, as history has already shown us, a dictatorship by the poorest ends

   up in the style of the mightiest. But then, the socialist (aspiring communist) thinkers that

   chose dictatorship as the way to communism were products of the Northern culture, and to

   them, local communities were tribal, or at most ancient, and thus irrelevant for the

   avant-garde mission of building in the North a new system of mutualism to end all injustice,

   including that in the South.

 

   In short, the Northerners who see development as linear are racists who want to leave us

   down the line, capitalists who want to justify their disproportionate use of the Earths'

   resources, or socialists who accept that we will develop towards becoming like them, but of

   course, we have nothing worth contributing to the re-discovery after industrialization of our

   despicable tribal form of mutualism.

 

   How about the Southerner who accepts the linear view of development? I think that the

   Southern view of the linear nature of development arises both because the Northerners have

   said that it is so, and because no Southerners have said otherwise loud enough to be heard

   enough. It is time that Southerners intensify thinking and writing about the non-linear nature

   of development and about the good traits of even tribal societies that would do credit to

   industrial societies.

 

   4.         Development Is Not Linear

 

   I find it odd that people can think that development has been linear. Each people has its own

   language except when colonialism has forced the vanquished to learn the language of the

   conqueror; even then, usually, the reverse has been true and the conqueror has ended up

   speaking the language of the conquered. Religions are still diverse, though a small number of

   them have been expanding at the expense of others. The state structure is still different

   from country to country, even among industrialized countries, e.g. United Kingdom, Japan,

   France, Germany, United States have their respective unique state structure even if with

   commonalities. Among the various civilizations of the world, the differences are even greater.

   For example, killing a slave was punishable by death among the Aztecs of pre-Columbus

   Mexico, but it was the norm in Europe and post-Columbus America, demonstrably old

   Mexico's more powerful counterparts.15

 

   The Ethiopian state had no standing army until the last decade of the 19th century.

   Whenever an invasion was attempted from outside, all able bodied people joined the fight.

   And yet, Ethiopia effectively warded off attempted Turkish, Egyptian, British and Italian

   invasions. In fact, it was in 1935-1940, when Ethiopia had established a standing army, that

   an Italian attempt at occupation lasted as long as 5 years.

 

   One could say a lot more about how different societies have made successful attempts at

   development starting from the diverse realities within them. One may wonder, however, if

   the industrial culture of the North is unique, and if we should thus perhaps imitate Europe,

   and in particular England where the industrial revolution took place, if we are to industrialize.

   I can only point out that Japan, which is the second most powerful industrialized country,

   developed because it consciously chose to adapt and adopt some technological and other

   related systems from the European industrial culture, not because it simply aped Western

   Europe. The way Japan developed has been covered by many writers, e.g. by Toynbee16

   and with even more detail by Hayashi.17  In fact, there is no example of a successful

   industrialization through complete imitation.

 

   5.         The Course the South, and Specifically Africa, Should Take

 

   For these reasons, the South should stop to expect to develop by imitating the North. It

   should start from its local communities: they are its indigenous units of social organization. It

   should then adapt and adopt new ways selectively so that the good in its social values is

   safeguarded and modified as appropriate, and the technological and commercial skills needed

   for development are incorporated, just as happened in Japan16,17. If the South clearly

   identifies what its globalized impediments are and what it needs to do about them, the North

   should heed and give it the needed political room to protect those of its local socio-political

   conditions that are essential for its development but are not yet robust enough to compete

   effectively globally. If the North refuses to give the needed leeway, the South should

   consider no other choice but to reject the international norms that thus hinder its

   development. Otherwise, it will always trail linearly behind the North, handing over its

   valuable natural resources as cheap export commodities, never able to add sufficient value

   to them to compete effectively globally.

 

   I will now look specifically at Africa in order to be specific about some of the issues and

   norms that affect development. At the moment, I cannot do this for the whole South for lack

   of information.

 

   6.         Africa and England

 

   It would be instructive to compare the local communities of England before the industrial

   revolution with the commonalities of the diverse African local communities to see what basic

   differences exist, and to speculate how these differences can be used to advantage in

   Africa's development. This could give an insight as to whether peculiar ancient English local

   community traits were essential to produce an industrial revolution, and if so, whether Africa

   could learn from them in its efforts to industrialize.

 

   As already pointed out, the socialist thinkers that gave rise to the now failed Soviet

   experiment had pointed to the need for us to repeat what the English and other Western

   Europeans did to industrialize. Perhaps as a reaction to their socialist rivals, the capitalists of

   the 20th century had maintained that their position of advantage was proof of their superior

   fitness or even their superior race. For this reason, I decided that it would be less likely to

   be deliberately biased by these notions if I read a description of the English local

   communities written before the Soviet experiment was started. Therefore, I read a very

   instructive book by Green, first published in 1874, though re-issued in 199218 .

 

   The functional unit of organization of the ancient English was, as in Africa, the village. It had

   freemen of higher class (eorls) and of lower class (ceorls). The village elderman (ealdorman)

   was elected from the higher class. In many African local communities the leadership resides

   in a hereditary chief, the lowest level aristocrat in a feudal system; in some others, the

   village head is elected. More recently, many a bureaucratizing modem African state,

   insensitive to the wishes of its rural people, has started appointing the local community head

   and administrative officials. From this comparison, we can conclude that, with respect to

   local governance, there is no difference between the ancient English and present day African

   local communities.

 

   Land was inherited in the ancient English local communities only by males. This is the case

   now virtually throughout Africa, the modern state having decided so, no doubt, in imitation

   of Europe. In the past, in much of Africa, women were co-owners of the right to the use of

   land and to other property. The owner was the whole local community. In many African

   countries, the colonial administrations extended the chief’s right to coordinate the

   management of the community’s land to a right to take it as his own property,19 thereby

   disinheriting all the other members of the local community.

 

   Major decisions on what affects the whole English village, e.g. war, murder, were made by

   the council of wise men (the witan). This is what gave rise to the modem Parliament. A

   similar council is found in virtually all African local communities. African states could

   effectively use these councils as local Parliaments. It may already be too late to do that in

   many African states because other bodies have already been put in place. But, there must

   be a local body that is entrusted with what used to be the responsibility of the council, and

   however that local body has been created, it can be modified to become representative. The

   responsibilities that the village council used to have should then devolve to it. The fast

   development needed if we are to be at par with the rest of the world cannot be expected to

   take place without the full participation of the people; and people will participate fully only

   when they know that their participation counts.

 

   The English village was clustered around a hill or a holy tree, isolated from neighboring

   villages by stretches of forest. Anybody going past the forest and about to enter the village

   had to blow a horn. If not, he was killed on sight. On the whole, if there are no topographic

   barriers, an African village openly communicates with the outside world. Any visitor is

   welcomed. This African tolerance is preferable.

 

   Perhaps it is for this reasons that endogamy at the level of cousins is still allowed among the

   English. Exogamy is compulsory in African local communities.

 

   Because of the compulsory exogamy, there rarely are tribes in Africa in the sense that the

   local community has a common ancestor. The ancient English were tribal, belonging to

   Angles, Saxons and Jutes, each with its own common ancestor. It is ironic that Europe

   derogatorily calls Africans identified by common languages "tribes".

 

   These comparisons show that in the treatment of women and of outsiders to the community,

   Africa should cherish its more universal community values and retain them into and beyond

   industrialization.

 

   It is perhaps because of the inward looking self-identity which fails to notice commonalities

   with others that made the invasion by the English when they moved from Northern Germany

   to England in the 5th century brutal. The part of Britain occupied by the English was the only

   Roman province where the conquered peoples, the Celts, were exterminated. In contrast,

   the African local communities are tolerant of others, and even the massacres that have

   taken place in Rwanda and Sierra Leone arose largely from interference by external forces.

   Africans have indeed often occupied other Africans; but, this has been followed by

   miscegenation to produce one people speaking one language and identified by one culture.

   Only in a small number of cases have the conquerors retained a distinct identity for more

   than one or two generations. This is definitely a trait Africa should maintain into its

   industrialization.

 

   Even in the village of clustered dwellings, the family in the ancient English local community

   has been self-contained. The people were individualistic, minimizing interaction with

   neighbours except, of course, in village-wide matters of common concern. In the words of

   Green20, "As every freeman was this own judge and his own legislator, so he was his own

   house priest; and the common English worship lay in sacrifice which he offered to the god of

   his hearth."

 

   In the African local community, most life activities are communally carried out, and

   interaction with everybody in the same vicinity is the norm. This highly individualistic attitude

   of the ancient English is probably what gave industrialization a highly personalized focus, why

   even groups of people have now to identify themselves as legal persons (individuals) to be

   recognized by the industrial legal system. It cannot be argued that industry requires loners

   to run it. The reverse would seem to be indicated in that the shop floor requires close

   communication among the workers and precise coordination of their activities. A well

   developed skill of interaction which community life confers would thus help, not hinder, this

   shop floor process. This mutualism among its people is an asset that Africa must carry into

   its industrialization. I predict that mutualism will become even more useful in an industrialized

   Africa.

 

   The religion of the ancient English was animist, worshiping gods of air and rain (Woden),

   thunder (Thor), peace and fertility (Frea), death (Twi), dawn (Eostre) etc. Such animism is

   not very different from what prevailed before colonialism and even still prevails in much of

   Africa. In my view, however, there is no intrinsic value in this or any kind of religion in Africa

   that makes us consider it as a variable that can influence industrialization. There are also a

   number of other similarities and differences which I, at this stage, do not think matters. In

   comparing the English and the African local communities, I only wanted to show the positive

   African differences. If I have shown this clearly, I will have helped the reader to shift focus

   from solely the European society as a template for the future, to her/his own society as the

   foundation for the future to be constructed by the local communities themselves.

 

   7.         In Defense of the Models Law

 

   The aim of the Model Law is to protect the African local community from predation of its

   biodiversity, technology and knowledge, and to foster its development towards an

   appropriate industrialization that does not only have economic growth, but also the steady

   improvement of the wellbeing of every African as its dictate.

 

   North America and Western Europe developed their industrial base on slavery21 and

   colonialism22. They still continue to benefit from Africa's natural resources which they import

   as cheap commodities thanks to the colonial machinery of South-North resource extraction

   which, even now that Africa is independent, continues to function23.

 

   In all this, the African small-holder farmer, the pastoralist and the gatherer, the member of

   the local community, has kept her/his right to decide what to do with her/his agriculture and

   other activities that use biological resources, their parts, or components, and how to do

   them.

 

   Now, that right is seriously threatened. Spearheaded by the United States of America, the

   North has embarked upon patenting living things. The claim to the patentability of living

   things is weak, and I have written my arguments as to why it is weak24. Nevertheless, the

   compulsory patenting of bacteria, and the optional but usually coerced patenting of varieties

   of plants and breeds of animals is enshrined in Article 27.3(b) of TRIPs.

 

   Especially those who have developed new varieties through genetic engineering claim that

   they have invented the varieties and, therefore, they must be allowed to patent them. Their

   aspiration is to lure the African farmer into using their genetically engineered and patented

   varieties and have all her/his farm operations and incomes determined and controlled by

   them25.

 

   Genetically engineered plants, animals and microorganisms may cause safety problems as

   now internationally recognized by the Cartagena Protocol on Biosafety. Africa should strictly

   regulate the import of genetically engineered varieties, especially of crops with a large local

   gene pool. That is why the OAU has developed a Model Law on Bisosafey. Given the coming

   into force of the Cartagena Protocol, Africa can thus protect itself against risks to human

   and environmental wellbeing.

 

   The more intractable problem is that of protecting the farmers from direct control from

   abroad via the seed of a patented variety or of a variety with a patented gene. It is often

   argued that nobody will force the farmer into using patented seed or seed with patented

   genes. But any gene from a patented variety, or the gene introduced into the patented

   variety and used as the reason for the patent, easily gets transferred to any other variety

   by natural pollination. Then the unsuspecting farmer will be criminalized as a patent infringer,

   as has already happened to Mr. Schmeiser, a Canadian farmer26. That is why, among many

   other reasons, that I believe that the acceptance of patenting living things by Africa will kill

   the base of livelihood of its local communities. What else has Africa got to use for its

   development, or even to develop for? That is why that Article 9 of the African Model Law

   prohibits patenting of life forms, parts, components or life process, and that is why WIPO

   and UPOV, obviously standing proxy for Northern entrepreneurs, have condemned Africa.

 

   Both WIPO and UPOV also want Africa to accept UPOV, and to have only whatever is left

   over from UPOV to be recognized as Community Rights or Farmers’ Rights.  Though the

   control of farmers that would ensue from UPOV is slightly weaker than that that would ensue

   from patents, Africa should continue to insist on Breeders’ Rights being subjugated to

   Farmers’ Rights, i.e. only consisting of what is left over from Farmers’ Rights.  The whole

   world, which has agreed to Article 9 of the ITPGRFA, will be forced to stand by Africa’s side

   on this issue.

 

                                      Endnotes

 

   1.             The United States of America introduced domestically the patenting of hybrid

   varieties in 1956 and the patenting of genes in 1994. No other country patented any living

   thing or life processes until after the creation of the WTO in 1980.  Doyle, J., 1985.  Altered

   Harvest: Agriculture, Genetics and the Fate of the World’s Food Supply, Viking Penguin

   Inc.: New York, NY, pp. 300-338, maintains that such patenting was deliberately created so

   that United States companies would have a head start on companies from other countries

   and dominate the world.  It was when the world, especially the countries of the South, were

   unaware of this United States design that the recognition of patents in general in the CBD,

   and the requirement for patenting bacteria and bacterial biological processes as well as the

   recognition of the optional patenting of other life forms and processes in the TRIPs, were

   sneaked in.

 

   2.             Tewolde Berhan Gebre Egziabher, 2001. “Farmers’ Rights, Food Sovereinty, Life

   Patenting and Globalization.” Unpublished.

 

   3.             For example, United Nations Development Programme, 2001. Human

   Development Report 2001, Oxford University Press: New York, p. 102-108.

 

   4.             Any text on economic geology will have this information, e.g. Skinner, B. J.,

        1976.  Earth Resources, 2nd Edition.  Prentice-Hall, Inc: Englewood Cliffs, New

        Jersey, USA.  The importance of Africa for minerals is well know.  But, inspite of the

        image of a desert that the North has of Africa, according to Skinner, the highest

        potential for hydropower generation is found in Africa, followed by South America.

 

   5.             Rose S., R. C. Lewontin and L. J. Kamin, 1990.  Not in Our Genes: Biology,

        Ideology and Human Nature. Penguin Books Ltd: Harmondsworth, Middlesex. 322 pp.

 

   6.             Rose et.al., op.cit., p. 27.

 

   7.             Rose et.al., op.ci.t, pp. 51-54 discuss the attempts at attributing intelligence to

        differences in brain size or even to physiognomy.  They state that the minor differences

        observed among males and females in general, and among the dives groups of peoples

        in particular, disappear when the differences in body size are taken into account:

        bigger bodies require bigger nervous systems.

 

   8.             A publication by the British Museum, 1980.  Man’s Place in Evolution.  British

        Museum (Natural History): London, p. 100, gives the brain size of the fossil hominid,

        Neanderthal Man, as averaging 1330 ml, and Schwemmler, W., 1989.  Symbiogenesis:

        A Macro-mechanism of Evolution.  Walter de Gruyer: Berlin & New York, p. 158,

        gives the range in the size of the human brain as 1250-1600 ml., which is comparable

        with that of the Neanderthal Man.

 

   9.             Rose et.al., op.cit., p. 30

 

   10.         Rose et.al., op.cit., p. 26

 

   11.         Alexander T., 1996. Unravelling Global Apartheid: An overview of World

        Politics. Polity Press in Association with Blackwell Publishers Limited: Cambridge, U.K.,

        p. 1.

 

   12.         Marx, K., and F. Engels, 1969. “Feuerbach. Opposition of the Materialistic and

        Idealist Outlook.” in Selected Works, Vol. I. Progress Publishers: Moscow. p. 16-80.

 

   13.         Marx, K., 1969.  “Manifesto of the Communist Party,” in Marx, K., and F. Engels,

        op.cit., pp. 98-137.

 

   14.         Marx, K., and F. Engels, op.cit., p. 24.

 

   15.         Prescott, W., 1994.  The History of the Conquest of Mexico.  The Folio Society:

        London. p. 23. Note that this book was first published in 1843.

 

   16.         Toynbee, A. J., 1963. A Study of History, Vol. 8. Oxford University Press: London.

        pp. 127-8.

 

   17.         Hayashi, T., 1984. “Some lessons from the Japanese Experience of Modernization,”

        in M. Nagai (ed.) Development in the Non-Western World, United Nations University:

        Tokyo, pp. 87-121.

 

   18.         Green, J. R., 1992. A Short History of the English People.  The Folio Society:

        London.  Note that this book was first published in 1874.

 

   19.         Sorrenson, M. P. K., 1968. Origins of European Settlement in Kenya, Oxford

        University Press: London, pp. 177-179. See also endnote 22.

 

   20.         Green, J. R., op. cit., p. 4.

 

   21.         Frank, A. G., 1979, in his Dependent Accumulation and Under-development.

        Monthly Review Press: New York, pp. 2-26, shows how dependent Western Europe and

        later on North America were on Africans taken as slaves to work on plantations in the

        New World to trade and accumulate capital to industrialize.  This shows the continuing

        incredible arrogance of Western Europe and North America that they are still refusing to

        apologize to Africans for slavery when they have apologized to the Jews for the

        holocaust, and recently, exemplified by the Pope, even to Arabs killed in the crusades

        of so long ago!

 

   22.         Robinson, R. R., and J. Gallagher, 1965.  Africa and the Victorians: the Official

        Mind of Imperialism.  MacMillan & Co. Ltd: London, pp. 491 gives a good summary of

        how the U.K. colonized most of Africa. Frank, A. G., op.cit., shows the importance of

        the colonies in the industrialization of Europe.

 

   23.         Bedjaoui, M., 1979.  Towards a New International Economic Order. UNESCO:

        Paris, has shown with much detail and convincing analysis how international law and

        institutions still serve the old colonial masters and how unfair they are to the

        developing countries.

 

   24.         Tewolde Berhan Gebre Egziabher, 2001.  The Inappropriateness of the Patent

        System for Life Forms and Process.  Third World Network: Penang. pp. 28.

 

   25.         Tewolde Berhan Gebre Egziabher, 2001.  “The use of genetically modified crops in

        agriculture and food production, and their impacts on the environment - a developing

        world perspective.”  Submitted to the Conference of the Royal Swedish Academy of

        Agriculture and Forestry, on “Genetically Modified Crops – Why? Why not?”,

        Stockholm, 14-15 May 2001.

 

   Schmeiser, P., 2001, personal communications.  Perey Schmeiser maintains that he planted

   non-genetically engineered rape (canola).  Pollination from other fields introduced Monsanto’s

   Round up Ready Canola genes into his field of rape.  Monsanto took him to court for

   infringement.  In return, he sued Monsanto for contaminating his field.  The judge found

   Schmeiser guilty, saying that however the genetically engineered gene got into his crop, the

   fact that it is there is sufficient guilt on his part! Mad, but that is what comes out of a

   combination of patenting a gene or a species, and adhering to Article 34 of TRIPs, which

   assumes that the accused is an infringer unless he can prove otherwise.  How can any body

   prove or disprove that a bee or a butterfly flew from Monsanto’s field to Schmeiser’s? Would

   it not make sense to accept what happens in nature as true rather than what TRIPs says?

   Which is more likely to be wrong: the law of nature, or the law of industrial man?

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