Intellectual property in plant genetic resources: the implementation of article 11(3) (b) of the constitution of Kenya

Abstract

The aim of this research is to interrogate the sufficiency of protection given to plant varieties in Kenya particularly in view of the need to have equitable exchanges of material as envisioned in the Constitution of Kenya. While the doctrine of sovereignty of states is a cornerstone of international relations , the developed world which is technologically advanced but diversity poor has prevailed upon the under developed southern hemisphere which is diversity rich to enter in agreements and treaties that are disadvantageous to the south. Such arrangements allow the north to access the assets of the south without corresponding benefits to the south. The Trade Related Aspects of Intellectual Property (TRIPS), is the most comprehensive international agreement on intellectual property and is a minimum standards regime with inbuilt flexibilities which allowing member countries to adopt their regimes to their needs. Countries such as the United States of America have adopted a dual protection system that allows both patenting of plants as well as plant breeders rights which ensure the maximum commercial benefits are harnessed particularly due to the protection afforded under TRIPS . Perhaps nations such as Kenya ought to take the same direction to ensure that sanctions afforded under TRIPS can be applied to cases of Bio piracy and bio prospecting. The Constitution of Kenya 2010 has recognised the rights of the Kenyan people to their intellectual property and further has placed an obligation on parliament to legislate to create appropriate mechanisms for protection within 5 years from the promulgation date. The Seeds and Plant Varieties Act was amended in the year2012. This research shall examine whether the obligation has been met or more needs to be done and propose appropriate way forward.