Article 11 3.b) of the Constitution of Kenya establishes that

(3) Parliament shall enact legislation to -

b)  recognise and protect the ownership of indigenous seeds and plant varieties, their genetic and diverse characteristics and their use by the communities of Kenya."

The Universal Declaration of Human Rights (UDHR) article 17 establishes that 

1. Everyone has the right to own property alone as well as in association with others.
2. No one shall be arbitrarily deprived of his property.

This means that, according to our Constitution, Kenyan farmers have the right to own, use, preserve, dispose of and bequeath their seeds and varieties. They may not be deprived of his or her possessions, except in the public interest and in the cases and under the conditions provided for by law, subject to fair compensation being paid in good time for their loss. We argue that the provisions in "The Act" are not in the interest of the people of Kenya and that no compensation is considered or even possible for innevitable loss of our plant genetic and cultural patrimony that will derive from a full implementation of all the articles of "The Act".

Specifically, the Seeds and Plant Varieties Act (Cap. 326), Cap 326 confers power to the Kenyan Government to, among other things, regulate transactions in seeds including indigenous seeds and plant varieties. The Act defines: 

• “Seed” as that part of a plant which is or is intended to be used for propagation and 
• “Sell” to include barter, exchange, offering or exposing seeds for sale. 

This definition of “sell” includes forms in which smallholder farmers share seeds including “seed exchange practices” hence exposing them to criminal suits for using indigenous seeds. 


The Act exposes Farmer Managed Seeds System (FMSS) to criminalization through various sections as follows:  

• Section 3(3)(c) of the Seeds Act provide that Seed Regulations may prohibit selling of uncertified seeds. We argue that if this section is not amended, then it exposes FMSSs to criminal suits as FMSSs do not fit within the Standards of Distinctiveness, Uniformity and Stability (DUS) used to certify seeds thereby affecting the right of the smallholder farmers to use indigenous seeds. DUS is in conflict with the use, enjoyment, preservation and possibility to enrich our plant genetic heritage.

• We further note that Section 3(3)(i) that Seed Regulations may provide for the integration and harmonization of the seed industry exposes FMSSs to criminal suits if not amended as integration and harmonization is based on DUS standards which FMSSs do not conform to, apart from aiming at creating a larger national seed industry and market at the expense of localized FMSSs. 

• Section 10(4)(f) provides that any person who offers for sale, seed that fails to meet the requisite standards or has been rejected at any seed certification stage shall be guilty of an offence and upon conviction, shall be liable to a fine not exceeding one million shillings or to imprisonment for a term not exceeding two years, or both. It exposes FMSS to criminal suits as the Act defines “sell” to include barter, exchange, offering or exposing seeds for sale which includes forms in which smallholder farmers share seeds including ‘seed exchange practices’ hence exposing them to criminal suits for using indigenous seeds. Seed exchange practices are at the centre of the use and preservation of our plant genetic diversity and cultural heritage.

Article 2(6) of the Constitution of Kenya  states:

(6) Any treaty or convention ratified by Kenya becomes part of Kenyan law under this Constitution.

In consequence, the Government of Kenya must align the Seeds and Plants Varieties Act Cap 326 with Article 9.3 of the ITGPRFA, Article 1 of the CBD, and Article 19 of UNDROP.

These articles grant smallholder farmers the right to save, use, exchange, and sell their farm-saved seeds or propagating materials, which are currently restricted under Sections 3(3)(c) and (i) and Section 10(f) of the Seeds and Plants Varieties Act Cap 326.

This means that Kenya needs to modify Sections 3(3)(c) and (i) and Section 10(f) of the Seeds and Plants Varieties Act Cap 326 to comply with Article 9.3 of the ITGPRFA, Article 1 of the CBD, and Article 19 of UNDROP. If these changes are not made, Kenya may face lawsuits that challenge the compatibility of the Seeds and Plants Varieties Act Cap 326 with these articles. Additionally, failing to comply could damage Kenya's reputation during Universal Periodic Review (UPR) processes, negatively impacting its foreign policy and its image as a nation that upholds the rule of law.

Article 19 of the United Nations Declaration on the Rights of Peasants and other people working in rural areas (UNDROP) obligates the Kenyan government to guarantee farmers' rights to seeds including the rights to the protection of traditional knowledge relevant to plant genetic resources and to save, use, exchange and sell their farm-saved seeds or propagating materials, rights that are criminalized by Section 3(3)(c) & (i) and Section 10(f) of the Seeds and Plant Varieties Act Cap 326.

Article 19 establishes:

1. Peasants and other people working in rural areas have the right to seeds, in accordance with article 28 of the present Declaration, including: 

(a) The right to the protection of traditional knowledge relevant to plant genetic resources for food and agriculture;

(b) The right to equitably participate in sharing the benefits arising from the utilization of plant genetic resources for food and agriculture; 

(c) The right to participate in the making of decisions on matters relating to the conservation and sustainable use of plant genetic resources for food and agriculture; 

(d) The right to save, use, exchange and sell their farm-saved seeds or propagating material.

2. Peasants and other people working in rural areas have the right to maintain, control, protect and develop their own seeds and traditional knowledge. 

3. States shall take measures to respect, protect and fulfil the right to seeds of peasants and other people working in rural areas.

4. States shall ensure that seeds of sufficient quality and quantity are available to peasants at the most suitable time for planting, and at an affordable price.

5. States shall recognize the rights of peasants to rely either on their own seeds or on other locally available seeds of their choice, and to decide on the crops and species that they wish to grow.

6. States shall take appropriate measures to support peasant seed systems, and promote the use of peasant seeds and agrobiodiversity.

7. States shall take appropriate measures to ensure that agricultural research and development integrates the needs of peasants and other people working in rural areas, and to ensure their active participation in the definition of priorities and the undertaking of research and development, taking into account their experience, and increase investment in research and the development of orphan crops and seeds that respond to the needs of peasants and other people working in rural areas.

8. States shall ensure that seed policies, plant variety protection and other intellectual property laws, certification schemes and seed marketing laws respect and take into account the rights, needs and realities of peasants and other people working in rural areas. 
 

Article 9 of the International Treaty on Plant Genetic Resources for Food and Agriculture (ITGPRFA) recognizes the farmers' rights. Article 9.3 recognises their right to save, use, exchange and sell farm-saved seeds and propagating materials. These rights are criminalized by Section 3(3)(c) & (i) and Section 10(f) of the Seeds and Plant Varieties Act Cap 326.


PART III - FARMERS’ RIGHTS
Article 9 – Farmers’ Rights

9.1 The Contracting Parties recognize the enormous contribution that the local and indigenous communities and farmers of all regions of the world, particularly those in the centres of origin and crop diversity, have made and will continue to make for the conservation and development of plant genetic resources which constitute the basis of food and agriculture production throughout the world.

9.2 The Contracting Parties agree that the responsibility for realizing Farmers’ Rights, as they relate to plant genetic resources for food and agriculture, rests with national governments. In accordance with their needs and priorities, each Contracting Party should, as appropriate, and subject to its national legislation, take measures to protect and promote Farmers’ Rights, including:

(a) protection of traditional knowledge relevant to plant genetic resources for food and agriculture;

(b) the right to equitably participate in sharing benefits arising from the utilization of plant genetic resources for food and agriculture; and

(c) the right to participate in making decisions, at the national level, on matters related to the conservation and sustainable use of plant genetic resources for food and agriculture.


9.3 Nothing in this Article shall be interpreted to limit any rights that farmers have to save, use, exchange and sell farm-saved seed/propagating material, subject to national law and as appropriate.

Article 1 of the "Nagoya Protocol on access to genetic resources and the fair and equitable sharing of benefits arising from their utilization to the convention on biological diversity" of the Convention on Biological Diversity (CBD) obligates the Kenyan government to ensure sustainable use of the seed components, rights that are criminalized by Section 3(3)(c) & (i) and Section 10(f) of the Seeds and Plant Varieties Act Cap 326.

Article 1 

OBJECTIVE


The objective of this Protocol is the fair and equitable sharing of the benefits arising from the utilization of genetic resources, including by appropriate access to genetic resources and by appropriate transfer of relevant technologies, taking into account all rights over those resources and to technologies, and by appropriate funding, thereby contributing to the conservation of biological diversity and the sustainable use of its components.