KENYA PRODUCERS COALITION: THE SEEDS AND PLANT VARIETIES (AMENDMENT) BILL, 2011

THE SEEDS AND PLANT VARIETIES (AMENDMENT) BILL, 2011

A Bill for

AN ACT of Parliament to amend the Seeds and Plant Varieties Act
ENACTED by the Parliament of Kenya, as follows—
1. This Act may be cited as the Seeds and Plant Varieties (Amendment) Act, 2011.	Short title.
2. The long title of the Seeds and Plants Varieties Act, in this Act referred to as “the principal Act”, is amended – (a) by deleting the words “discovering new varieties” and substituting therefor the words “discovering and developing new varieties”; (b) by inserting the words “to establish a national centre for plant genetic resources” immediately before the words “to establish a Tribunal”	Amendment of the long title to Cap.326.
3. Section 2 of the principal Act is amended— (a) by deleting the definition of “authorized officer”; (b) by deleting the definition of plant variety” and substituting therefor the following— “plant variety” means a plant grouping within a single botanical taxon of the lowest known rank, defined by the expression of the characteristics resulting from a given genotype or combination of genotypes distinguished from any other plant grouping by the expression of at least one of the said characteristics and considered as a unit with regard to its suitability for being propagated unchanged; (c) by inserting the following new definitions in their proper alphabetical sequence—	Amendment of section 2 of Cap. 326.
“authorization” means the delegation of some or all aspects of seed certification and seed testing services by the Inspectorate to a competent private or public person; “breeder” means the person who breeds, or discovers and develops a seed or plant variety and includes the employer of such a person; “inspector” means a person appointed under section 3B(1)(a); “national variety list” means the list of all plant varieties which are for the time being exploited commercially;

“plant examiner” means a suitably qualified person appointed under section 3B; “protective direction” means the provisional protection given to applicants for rights while pending actual grant of rights under paragraph 1 of the Third Schedule in regard to an application for plant breeders’ rights;
“seed analyst” means a suitably qualified person appointed under section 3B; “seed crop” means a crop grown for the production of certified seed;
“seed field” means a field where registered seed crop is grown; “Service” means the Kenya Plant Health Inspectorate Service established by the Kenya Plant Health Inspectorate Service Order, 1996 or its successor;	L.N 305/1996.
(d) by deleting the definition of the words “positive direction”.
(e) by deleting the definition of the word “scheme” .

4. Section 3 of the principal Act is amended— (a) in subsection (1) by deleting the words “regulation and control of the” appearing immediately after the words “make regulations for the”; (b) in subsection (3)— (i) by inserting the following new paragraphs immediately after paragraph (g)—	Amendment of section 3 of Cap. 326.
(h) provide for governance of forestry seeds and other species including domestication of wild plants; (i) provide for the maintenance and propagation of varieties that are not commercially attractive to the private sector, and (j) provide for the integration and harmonization of the seed industry; (ii) by renumbering paragraph (h) a paragraph (k).
5. The principal Act is amended by inserting the following new sections after section 3—	Insertion of new section 3A in Cap. 326.

National designated authority.

3A. The Service shall be the national designated authority for matters relating to seeds and plant variety protection and shall, subject to the directions of the Minister, be responsible for the administration of this Act.

Appointment of inspectors, analysts and examiners.	3B. (1) For the purposes of enforcing the provisions of this Act, the Service— (a) shall appoint seed inspectors, seed analysts and plant examiners; and (b) may authorize competent private or public persons to perform specified functions under this Act on its behalf: Provided that an authorization may be withdrawn in cases of misconduct. (2) The Service shall publish in the Gazette— (a) the names of the seed inspectors, seed analysts and plant examiners appointed or authorized under subsection (1)(a) or (b), and (b) the names of persons whose authorization is withdrawn. (3) Subject to the provisions of section 3 (2)(b) the Service shall specify the scope and aspects of authorized activities for inspectors in the instruments of appointment. (4) A person appointed under subsection (1)(a) shall not, while being so appointed, engage in any business connected with the production, processing, sale or distribution of seeds. (5) A person appointed under this section shall be issued with proof of identification in a form prescribed by the Inspectorate.
Power of inspectors.	3C. (1) An inspector may—
	(a) at all reasonable times and upon producing his identification issued under section 3B(5), enter any place or premises—
	(i) for the purposes of enforcing any provision of this Act;
	(ii) in which he reasonably believes a seed material to which this Act applies is being, or has been processed, stored or used;
	(iii) in which he reasonably believes there is seed material that is contaminated;
	(iv) which is used or capable of being used in the processing of seeds;
	(b) examine any seed or material found in any place or premises; (c) open any package found in any place or premises that he has reason to believe contains seed material; and
	(d) require any person to produce for inspection or for the purpose of obtaining copies thereof or extracts therefrom, any books, shipping bills, bills of lading, documents containing instructions, or any other document or papers concerning any matter relevant to the administration of this Act.
	(2) The owner or the person in charge of any place or premises referred to in subsection (1) shall give an inspector all reasonable assistance required to enable the inspector carry out his duties and shall furnish him with any information he may reasonably require for the purpose of enforcing this Act.
	(3) Any person who refuses entry to an inspector acting under this section or obstructs him from entering or inspecting, or who, without reasonable excuse, fails to produce any seed material for examination or any document required under this section shall be guilty of an offence.
Seizure and disposal of seeds and seed processing facilities.	3D. (1) Whenever an inspector reasonably believes that the provisions of this Act have been breached, the inspector may seize and detain any seeds in respect of which, the breach has been committed.
	(2) Any seeds seized under subsection (1) shall not be detained -
	(a) for a period exceeding fourteen days, in cases where, after investigation, the inspector finds that no provision has been breached; or
	(b) for a period exceeding six months, unless upon the inspector finding that a provision of the Act has been breached, proceedings have been instituted in court within that period, in which case the seeds may be detained until the proceedings are concluded.
	(3) A court may, upon convicting a person of an offence under this Act, make an order—
	(a) for the forfeiture or disposal of any seed in respect of which the offence was committed; or
	(b) requiring the convicted person to pay for the costs or expenses incidental to the analysis of any seed or seed processing facility in respect of which the conviction was obtained.
	(4) Where an inspector seizes any seed and the owner or person in whose possession the seed was at the time of the seizure consents, in writing, to its disposal, such seed shall be disposed of in such manner as the Service may direct, under the supervision of the Service, at the expense of the owner or person consenting to the disposal.
	(5) Any person who obstructs an inspector in the exercise of his powers under this section commits an offence.
Disclosure of confidential Information.	3E. (1) No person who is or who has been engaged in the enforcement of the provisions of this Act shall disclose, except for the purpose of the exercise of his functions or when required to do so by a court or under any written law, any information acquired in the exercise of functions under this Act.
	(2) Any person who contravenes the provisions of subsection (1) commits an offence.

6. Section 8 of the principal Act is amended in subsection (4) by deleting the words “agro ecological value” and substituting therefor the words “value for cultivation and use”.	Amendment of section 8 of Cap.326.
7. The principal Act is amended by inserting the following new section immediately after section 8—	Insertion of new section 8A in Cap. 326.

Maintenance of national plant variety list.

8A. (1) The Service shall cause the preparation of a national plant varieties list which shall comprise the names of plant varieties released for commercialization.

(2) The Service shall maintain and update the national varieties list and shall cause its publication in the Gazette and in such other manner as to afford access to it by members of the public.

8. Section 9 of the principal Act is amended—

(a) by deleting subsection (1) and substituting therefor the following new subsection—

Amendment of section 9 of Cap. 326.

(1) The Minister may, in consultation with representatives of such organizations as he deems to have a substantial relevant interest in the matter to be regulated, make regulations for the carrying out of national performance trials, and may by order apply such regulations to any class of plant varieties within the national varieties list and to any new varieties in that class.

(b) by deleting subsection (2) and substituting therefor the following new subsection—

(2) For the purposes of this section, a plant shall be deemed to be a new plant variety if it was not on the national variety list on the date of the coming into operation of an order under subsection (1), unless it had been exempted under subsection (3).

(d) in subsection (10) by deleting the word “index” and substituting therefor the words “national variety list”.

(e) in subsection (11) by inserting the following new paragraph immediately after paragraph (f)−

(g) for the conduct and management of performance trials and reports.

9. Section 10 of the principal Act is amended—

(b) in subsection (1) by deleting the word “index” and substituting therefor the words “national varieties list”;

Amendment of section 10 of Cap. 326.

“(4) Any person who—

(a) with intent to defraud, gives false information to a seed inspector a seed analyst or a plant examiner,

(b) obstructs, hinders, interferes with or fails to comply with any lawful order given by any seed inspector in execution of his powers or duties under this Act;

(c) makes or causes to be made any false statement, false advertisement, and or produces or displays any certificates required to be produced or displayed, under this Act which are false in any material particular;

(d) while not registered as a seed merchant, imports, processes seed and packages seed for sale purposes

(e) sells or displays for sale any seed which does not correspond with the description in any certificate required to be produced or displayed under this Act;

(f) offers for sale, seed that fails to meet the requisite standards or has been rejected at any seed certification stage;

(g) otherwise contravenes any other provisions in this Act,

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 to both.

10. Section 11 of the principal Act is amended by deleting the word “Minister” and substituting therefor the word “Service”.	Amendment of Section 11 of Cap. 326.
11. Section 14 of the principal Act is amended by deleting the words “five thousand” and “six months” and substituting therefor the words “one million” and “two years” respectively. 12. Section 15 of the principal Act is amended by deleting the word “Minister” wherever it appears and substituting therefor the word “Service”.	Amendment of section 14 of Cap.326. Amendment of Section 15 of Cap. 326.
13. Section 16 of the principal Act is amended by— (a) deleting subsection (2) and substituting therefor the following new subsection— “(2) The Service may, with the approval of the Minister by order in the Gazette—	Amendment of section 16 of Cap.326.
(a) develop guidelines and protocols for the management of emerging technologies in seed production; and (b) apply this section to any area in Kenya where persons are engaged in growing crops for seeds of any type or variety of plant specified in the order, if he is satisfied that in that area satisfactory arrangements have been made for locating such crops so as to isolate them from crops or plants which might cause injurious cross-pollination. (b) by deleting the word “Minister” wherever it occurs in the section and substituting therefor the word “Service”.
14. Section 17 of the principal Act is amended by— (a) deleting all the words appearing after the words “in respect of” in sub section (1) and substituting therefor the words “varieties of all plant genera and species” (b) deleting subsection (4).	Amendment of Section 17 of Cap. 326
15. Section 18 of the principal Act is amended— (a) in subsection (1) by deleting the words “as respect” and substituting therefor the words “with respect to” (b) by deleting subsection (2) and substituting therefor the following new subsection— (2) An applicant for plant breeders’ rights must be the breeder, and the provisions of Part I of the Fourth Schedule shall have effect with regard to two or more persons who have independently bred, discovered and developed a plant variety. (c) by deleting sub section (4).	Amendment of Section 18 of Cap. 326.
16. Section 19 of the principal Act is amended— (a) by deleting subsection (1) and substituting therefor the following— (1) Breeders’ rights shall be granted for a fixed period of twenty years from the date of the grant, except in respect of trees and vines where the said period shall be twenty-five years from the date of the grant. (b) by deleting subsections (2), (3), (4), (5) and (8);	Amendment of section 19 of Cap.326.
17. Section 20 of the Principal Act is amended— (a) in subsection (1) by— (i) deleting the word “authorize” appearing in the introductory portion and substituting therefor the word “permit”; (ii) deleting paragraph (a) and inserting the following new paragraphs— (a) production or reproduction; (b) conditioning for the purpose of Propagation; (c) offering for sale; (d) selling or other marketing; (e) exporting; (f) importing, or (g) stocking for any of the purpose set out in the foregoing paragraphs. (iii) by renumbering paragraph (b) as paragraph (h). (b) inserting the following new subsections immediately after subsection (1) — (1A) the matters referred to in subsection (1) (a) to (g) in respect of harvested material, including entire plants and parts of plants, obtained through the unauthorized use of propagating material of the protected variety shall require the permission of the breeder, unless the breeder has had reasonable opportunity to exercise his right in relation to that propagating material. (1B) Subject to subsections (1) and (1A), the matters referred to in subsection (1) (a) in respect of products made directly from harvested material of the protected variety falling within the provisions of subsection (1) (b) through the unauthorized use of the said harvested material shall require the permission of the breeder, unless the breeder has had reasonable opportunity to exercise his right in relation to the said harvested material. (1C) The provisions of subsection (1) (a) to (c) shall in addition apply in relation to— (a) varieties which are essentially derived from the protected variety, where the protected variety is not itself an essentially derived variety; (b) varieties which are not clearly distinguishable from the protected variety, and (c) varieties whose production requires the repeated use of the protected variety. (1D) For the purposes of subsection (1C) (a), a variety shall be deemed to be essentially derived from another variety (“the initial variety”) where— (a) it is predominantly derived from the initial variety, or from a variety that is itself predominantly derived from the initial variety, while retaining the expression of the essential characteristics that result from the genotype or combination of genotypes of the initial variety; (b) it is clearly distinguishable from the initial variety, and (c) except for the differences which result from the act of derivation, it conforms to the initial variety in the expression of the essential characteristics that result from the genotype or combination of genotypes of the initial variety. (1E) Notithstanding the provisions of subsection (1), within reasonable limits and subject to the safeguarding of the legitimate interests of the breeder, farmers may use the product of the harvest which they have obtained by planting, on their own holdings, the protected variety (c) in subsection (2) by inserting the words: “and harvested material and products” immediately after the word “reproductive”; (d) in subsection (4) by deleting the word “authorizing” and substituting therefor the word “permitting”. (e) in subsection (5)— (i) by deleting the word “authorized” appearing in the introductory portion and substituting therefor the word “permitted”; (ii) by deleting the word “authorises” appearing in paragraph (a) and substituting therefor the word “permits”; (iii) by deleting the word “authorities” appearing in paragraph (b) and substituting therefor the word “permits”.	Amendment of section 20 of Cap. 326.

18. The principal Act is amended in section 21— (a) by deleting subsection (3); (b) by adding the following new subsections at the end of the section— (7) The breeder’s right shall not extend to acts concerning any material of the protected variety, or of a variety covered by the provisions of section 20 (1) (a) which has been sold or otherwise marketed in Kenya by the breeder or with his consent, or any material derived from the said material, unless such acts— (a) involve further propagation of the variety in question; or (b) involve an export of any material of the variety, which enables the propagation of the variety into a country which does not protect varieties of the plant genus or species to which the variety belongs, except where the exported material is for final consumption purposes. (8) For the purposes of paragraph (a), “material” in relation to a seed or plant variety means— (a) propagating material of any kind; (b) harvested material, including entire plants and parts of plants, and (c) any product made directly from the harvested material.	Amendment of section 21 of Cap. 326.
19. Section 22 of the principal Act is amended— (a) in subsection (1) by deleting all the words appearing immediately after the word “varieties”, (b) in Subsection (2) by deleting the words “authorized officer” and substituting therefor the word “Service”.	Amendment of section 21 of Cap. 326.
20. Section 23 of the principal Act is amended by deleting sub section (4).	Amendment of section 23 of Cap. 326.

21. The principal Act is amended by deleting section 27.	Repeal of Section 27 of Cap. 326.
22. The principal Act is amended by inserting the following new section immediately after section 27—	Insertion of new section in Cap 326.

Establishment of National Plant Genetic Resources Centre.

27A. (1) There is established a National Plant Genetic Resources Centre which shall be responsible for the conservation and sustainable utilization of plant biodiversity in Kenya.

(2) The functions of the National Plant Genetic Resources Centre shall be to—

(a) protect the ownership of indigenous seeds and plant varieties, their genetic and diverse characteristics, associated indigenous knowledge and its use by the communities of Kenya;

(b) carry out inventories by evaluating and mapping plant genetic resources distribution in the country;

(c) conserve plant genetic diversity by devising and implementing management procedure, including ex-situ and in-situ maintenance;

(d) co-operate with international institutions on matters relating to plant genetic resources, including the administration of material transfer agreements;

(e) ensure safe custody and accessibility of all plant bred and naturally occurring germplasm;

(f) document and disseminate plant genetic resources data and information to users;

(g) collaborate with and institutions of higher learning to address adaptive, applied and strategic research;

(h) enhance capacity for the effective conservation of plant genetic resources; and

(i) advice the Government on policies governing the conservation and use of plant genetic resources.

(3) There shall be a National Plant Genetic Resources Centre Committee which shall provide oversight on matters relating to the centre.

(4) The Minister may make regulations to provide for the membership and functions of the Committee.

23. Section 29 of the Principal Act is amended—

(a) in subsection (i) by inserting the following new paragraphs at the end of subsection (1) immediately after (f)—

(g) regarding certification; or

(h) regarding compensation arising from seed production and sale.

(b) by inserting the following new subsections immediately after subsection (1)—

(1A) A duly certified copy of any determination or order of the Tribunal may be filed in the High Court by any party to the proceedings before the Tribunal, and on such filing the determination or order may, subject to any right of appeal conferred by or under this Act, be enforced as a decree of the court.

(1B) The Tribunal shall, upon filing a copy of a decision under subsection (1A) transmit to the court its record of the proceedings before it, and the record shall be filed by the court along with the certified copy of the determination or order.

Amendment of section 29 of Cap 326.

24. The principal Act is amended in section 30 by deleting subsection (7) and substituting therefor the following—

Amendment of section 30 of Cap. 326.

(7) Any person who—

(a) fails to comply with the provisions of subsection (5);

(b) gives a false statement in relation to any material particular; or

(c) obstructs or impedes, or attempts to obstruct or impede, any authorized officer from exercising the powers conferred by this section,

commits an offence and shall be liable on conviction to a fine not exceeding fifty thousand shillings or to imprisonment for a term not exceeding one year or to both.

25. The principal Act is amended by deleting repealing 33 and replacing it with the following new subsection—

Repeal and replacement of section 33 of Cap. 326.

General Penalty.

33. A person who is convicted of an offence under this Act for which no other penalty is provided shall be liable to a fine not exceeding twenty thousand shillings or to imprisonment for a term not exceeding six months, or to both.

26. The principal Act is amended in Part II of the Fourth Schedule by deleting paragraph 2 and substituting therefor the following new paragraph—

Amendment of the Fourth Schedule to Cap. 326.

2. A variety shall be deemed to be new if, at the date of filing of the application for a breeder’s right, propagating or harvested material of the variety has not been sold or otherwise disposed of to others, by or with the consent of the breeder, for purposes of exploitation of the variety—

(a) in Kenya, for a period of more than one year; or

(b) outside Kenya, for a period more than four years,

or, in the case of trees or vines, for a period of more than six years.
27. The principal Act is amended by repealing the Fifth Schedule.	Repeal of the Fifth Schedule to Cap. 326.
28. The principal Act is amended in the Sixth Schedule by deleting the word “advocate” and substituting therefor the words “person qualified to be appointed as a judge of the High Court”.	Amendment of the Sixth Schedule to Cap. 326.

MEMORANDUM OF OBJECTS AND REASONS

The object and purpose of this Bill is to amend the Seeds and Plant Varieties Act, (Cap. 326) to introduce necessary reforms in the seeds sub-sector to harmonize it with the current policy environment in order to promote a modern and competitive seed industry.

Clause 1 provides for the short title of the Bill.

Clause 2 seeks to amend the long title of the Act to make it more inclusive.

Clause 4 seeks to amend section 3 by introducing three new areas in which the Minister may make further regulations for better management of the industry.

Clause 5 seeks to amend the Act, by introducing the following new sections—

(a) section 3A names the Kenya Plant Health Inspectorate Service as the designated authority for the purposes of the Act.

(b) section 3B provides for the appointment of seed inspectors by KEPHIS;

(c) section 3C provides for the powers of the seed inspectors and enjoins concerned persons to render them the necessary assistance for the performance of their functions.

(d) section 3D provides for seizure and disposal of seeds in respect of which offences have been committed under the Act.

(e) section 3E restricts unauthorized disclosure of confidential information.

Clause 6 seeks to amend section 8(4) (a) of the principal Act to clarify and broaden the requirement for new varieties entering commercialization.

Clause 7 seeks to insert a new section 8A to empower the Minister to cause the maintenance and updating of a National Plant Varieties List.

Clause 8 seeks to amend section 9 of the Principal Act—

(a) in subsections (1) and (2), to empower the Minister to cause the development and operationalization of regulations on performance trials;

(b) in subsection (9), by reducing the period between the testing of new varieties and their release and making the testing period sensitive to the crop cycle rather than the calendar year;

(d) in subsection (11) to widen the powers of the Minister to make regulations for better governance of the sector.

Clause 9 Seeks to amend section 10 of the Act to provide more deterrent penalties to check malpractices in the seed industry.

Clause 10 seeks to amend section 11 of the Act to acknowledge KEPHIS as the administrator of the Act.

Clause 11 seeks to amend section 14 Act to enhance penalties to deter tampering with seed samples.

Clause 12 of the Act seeks to amend section 15 of the Act to recognize KEPHIS as the administrator of the Act.

Clause 13 seeks to amend section 16(2) of the principal Act to provide for guidelines and protocols for management of emerging technologies.

Clause 14 seeks to amend section 17 to broaden the scope of crop varieties eligible for protection by removing the requirement for protection.

Clause 15 seeks to amend section 18 to embrace the meaning of the word “breeder” in line with the new definition for purposes of plant variety protection and in line with UPOV 1991 Convention.

Clause 16 seeks to amend section 19 of the principal Act to extend the period of grant of plant breeder’s rights to a fixed non-extendable period to conform to the UPOV 1991 Convention and in line with the current international practice.

Clause 17 seeks to amend to section 20(1) of the Act—

(a) in subsection (1) by replacing “authorize” with “permit” in order to avoid confusion with authorization by the KEPHIS as provided for in the definition;

(b) by broadening and clarifying the exercise of rights granted under the Act;

(c) by extending rights exercisable to harvested material and products of harvested material where the breeder has not had an opportunity to exercise his rights on propagated material in line with UPOV 1991 Convention. It also seeks to clarify essential derivation and provides for the protection of the breeder from loss of rights due to minor changes in his variety due to essential derivation;

(d) by providing for farmers’ privilege to use farm saved seed on their own holdings in addition to requiring the Minister to make regulations governing farmers’ privilege in the use of protected varieties.

(e) by extending the application of rights beyond the propagating material to harvested material and products where the breeder has not had an opportunity to exercise his rights on propagated material in line with UPOV 1991 Convention;

(f) and (g) by clarifying the differences between “authorizing” and “permitting” in order to avoid confusion with authorization by the National Designated Authority as provided for in the definition;

Clause 18 seeks to amend section 21 of the Act by deleting subsection (3) to allow for protection of all plant species and genera in line with UPOV 1991 Convention.

In addition it clarifies the limitation to which the breeder can exercise his rights under specific circumstances.

Clause 19 seeks to amend section 22 (1) of the Act to remove any exemptions from the provisions of the sub section in order to compel the holders of Plant Breeders Rights to avail reproductive material specified under the Act.

Clause 20 seeks to amend section 23 of the Act to remove the provision for schemes in relation to compulsory licensing for stocking the market with propagating material.

Clause 21 seeks to repeal section 27 of the Act to remove ambiguity of the definitions of ‘seed”, ‘plant’ and ‘reproductive material’ in the Act with that of ‘propagating material’ as conventionally used in plant variety protection.

Clause 22 introduces a new section 27A to establish a National Plant Genetic Resources Centre.

Clause 23 seeks to amend section 30 of the Act to provide for enforcement of the Orders of the Tribunal.

Clause 24 seeks to amend section 30 (7) of the Act to introduce deterrent penalties against giving false information and defining penalties for such offences

Clause 25 seeks to amend section 33 of the Act to provide and enhance penalties for general offences under the Act.

Clause 26 seeks to amend the Fourth Schedule to clarify the definition of ‘novelty’ requirement for plant variety protection in line with the UPOV 1991 Convention. Further, the amendments effect changes by removing matters that relate to schemes amended by earlier clauses.

Clause 27 seeks to repeal the Fifth Schedule. This will remove the limitation on extension of rights in special cases for specific crops as provided for in Clause 15 (c).

Clause 28 seeks to amend the Sixth Schedule by replacing “advocate” with “a person qualified to be a judge of the High Court” in order to provide for relevance, experience and competence in the chair of the Seeds and Plant Tribunal.

The enactment of this Bill may occasion additional expenditure of public funds, which shall be provided for through the estimates.

Dated the 28th November, 2011.

SALLY KOSGEI,

Minister for Agriculture.

The long title to Cap. 326 which it is proposed to amend—

An Act of Parliament to confer power to regulate transactions in seeds, including provision for the testing and certification of seeds; for the establishment of an index of names of plant varieties; to empower the imposition of restriction on the introduction of new varieties; to control the importation of seeds; to authorize measures to prevent injurious cross-pollination; to provide for the grant of proprietary rights to persons breeding or discovering new varieties; to establish a Tribunal to hear appeals and other proceedings; and for connected purposes

The definitions of “authorized officer” and “plant variety” which it is proposed to delete—

"authorized officer", in connexion with any provision of this Act, means a public officer authorized by the Minister by notice in the Gazette to exercise the functions specified in such provision;

"plant variety" means an assemblage of cultivated individuals which are distinguished by any character (morphological, physiological, cytological, chemical or others) significant for the purpose of agriculture, horticulture or forestry, and which when reproduced (sexually or asexually) retain their distinguishing characters;

Subsections (1) and (3) of section 3 of Cap. 326 which it is proposed to amend—

3. (1) The Minister, after consultation with representatives of such organizations as he deems to have a substantial interest in the matter to be regulated and of such other interests as appear to him to be concerned, may make regulations for the regulation and control of the production, processing, testing, certification and marketing of seeds, and without prejudice to the generality of this power, the regulations may, in particular, be made for any or all of the following purposes—

(2) Without prejudice to any other provisions of this section, seeds regulations may—

(a) require information to be given in a prescribed manner, which may include the giving of it on any label, container, or package, as regards seeds which are sold, and may require the seller to deliver a statement, containing prescribed particulars, to the purchaser within such time as may be limited by the regulations;

(b) require any of the particulars contained in such statement to be particulars ascertained on a test of the seeds;

(c) prohibit the selling of seeds which have not been certified in the prescribed manner, or which contain more than a prescribed proportion of weed seeds, or of weed seeds of a prescribed kind, or which lack any other prescribed quality factor;

(d) prohibit the use, in relation to the sale of seeds, any prescribed name, designation or description except where the seeds have been grown or selected under the prescribed conditions;

(e) require persons who deal in seeds to supply to the prescribed authority information as to, and to keep records of—

(i) transactions in seeds generally or in seeds of specified kinds;

(ii) statutory statements given or received by them, and other statements or invoices given or received by them in connexion with the sale of seeds;

(iii) processes or treatments applied to seeds;

(iv) the results of tests of seeds, and authorize prescribed persons to call for production of such records;

(f) where persons who deal in seeds also grow seeds, require such persons to supply to the prescribed authority information as to, and to keep records of—

(i) acreages sown;

(ii) the yields of the crops, and authorize prescribed persons to call for production of such records;

(g) regulate the procedure to be observed at, and the conduct of testing stations and other establishments at which tests may be carried out for the purposes of the regulations;

(h) regulate the manner in which tests are to be made for the purposes of this Part.

Section 8 (4) of Cap. 326 which it is proposed to amend—

(4) Except as provided by paragraph 3 (3) of the First Schedule, an application for the inclusion of a plant variety in the appropriate section of the Index after it has come into force shall be granted only -

(a) when the agro-ecological value surpasses that of the existing ones in some aspect according to the results in official tests;

(b) is sufficiently distinguishable from any other variety whose existence is a matter of common knowledge at the time of application;

Section 9 (1), (2), (9), (10), and (11) of Cap. 326 which it is proposed to amend—

(1) The Minister may, by order, bring this section into force for any class of plant varieties within the Index, and thereafter this section shall apply to any new plant variety within that class.

(2) For the purposes of this section, a plant variety shall be a new plant variety if it was not in the Index on the date when the order under subsection (1) came into force, unless it has been exempted under subsection (3).

(9) The time limit in respect of an annual crop for the purposes of subsection (8) shall, except so far as seeds regulations may otherwise provide for any class or part thereof, be three years from the date on which the performance trials commence.

(10) Entries made in a section of the Index after an order under this section has come into force in relation thereto shall –

(11) Without prejudice to any other provision of this Part, seeds regulations may provide—

(a) for the manner of making applications under subsection (3) and of making applications for submitting plant varieties for performance trials;

(b) for the information to be afforded by an applicant and the materials to be submitted at the time of application or subsequently;

(d) for the compiling of a register of applications for the submission of seeds for performance trials, of the reports of the results of such trials and of the dates of publication of the reports, and for including entries which will show the date when the time limit under subsection (8) will fall;

(e) for requiring the publication of notice of any direction under subsection (7) and of any class where a report is not published within the time limit under subsection (8);

(f) for the payment of fees in respect of matters under this section.

Section 10 (1) of the Bill which it is proposed to amend—

10. (1) If any information submitted by or on behalf of—

(a) a person making an application or representations in respect of any matter connected with the compilation or alteration of the Index; or

(b) an applicant under subsection (3) of section 9, is false in any material particular, and the person giving such information knows that it is false, or gives such information recklessly, he shall be guilty of an offence.

Section 11 of Cap. 326 which it is proposed to amend—

11. The Minister shall, either alone or in conjunction with any other body, establish one or more official seed testing stations.

Section 14 of Cap 326 which it is proposed to amend—

14. If any person—

(a) tampers with any seeds so as to procure that a sample taken in the manner prescribed by seeds regulations for any purpose does not correctly represent the bulk of the seeds; or

(b) tampers with any sample so taken; or

(c) with intent to deceive, sends, or causes or allows to be sent, to any testing station, to be tested for any purpose, a sample of seeds which to his knowledge does not correctly represent the bulk of the seeds,

he shall be guilty of an offence and liable to a fine not exceeding five thousand shillings or to imprisonment for a period not exceeding six months or to both.

Section 15 of cap. 326 which it is proposed to amend—

15. (1) If it appears to the Minister that it is necessary or expedient that he should be able to exercise the powers conferred by this section for the purpose of preventing the importation into Kenya—

(a) of seeds which, if used as reproductive material in Kenya, will or may cause deterioration of domestic types of varieties of plants by cross-pollination, physical admixture or other means; or

(b) of seeds which are unsuitable for use in Kenya because they are of a type or variety which have been developed in countries with different climate, different hours of daylight or other different conditions,

he may, by order, apply this section to seeds of any type or variety specified in the notice.

(2) An order under this section may provide for excepting from a specified type or variety any description of seeds defined in any manner and, in particular, any description of seeds defined by reference to the country or territory where they were grown or from which they have been consigned to Kenya, or any seeds which are the subject of a prescribed certificate.

(3) The importation of all seeds to which this section applies is prohibited except under the authority, and in accordance with the terms, of a licence granted by an authorized officer, and any person who imports or attempts to import any seeds in contravention of this subsection shall be guilty of an offence and liable to a fine not exceeding ten thousand shillings or to imprisonment for a term not exceeding two years or to both.

(4) A licence under subsection (3) may be, to any degree, general or specific, and may be modified or revoked by an authorized officer at any time.

(5) An order under this section shall be made after consultation with representatives of such interests as appear to the Minister to be concerned and may—

(a) include provision as to the methods by which importers may be required to prove whether consignments of seeds fall within any exception specified in the order;

(b) prescribe the form and manner in which applications are to be made for licences and the form of licences, and the fees payable therefor;

Section 16 (2) of Cap. 326 which it is proposed to delete—

(2) The Minister may by order bring this section into force in an area in any part of Kenya in which persons are engaged in growing crops of seeds of any type or variety of plant specified in the order, if he is satisfied that in that area satisfactory arrangements, whether legally enforceable or not, have been made for locating such crops so as to isolate them from crops or plants which might cause injurious cross-pollination.

Section 17 (1) of Cap. 326 which it is proposed to amend—

17. (1) Rights may be granted in accordance with this Part in respect of plant varieties of such species or groups as may he specified by a scheme made by the Minister under this Part.

Section 17 (4) of Cap. 326 which it is proposed to delete—

17. (4) Before making a scheme, the Minister shall consult representatives of such organizations as he deems to have a substantial interest in the matter to be regulated and of such other interests as appear to the Minister to be concerned, and any scheme—

(a) may make different provision for different species or groups of plant varieties;

(b) may contain such supplemental, incidental and transitional provisions as appear to the Minister to be appropriate;

so, however, that the variation or revocation of a scheme shall not prejudice a grant of plant breeder's rights made before the variation or revocation takes effect.

Section 18 (1) of Cap. 326 which it is proposed to amend—

18. (1) The conditions laid down in this section must be fulfilled as respect both the applicant for plant breeder's rights and the plant variety to which the application relates.

SOURCE : kenyalaw.org

KENYA PRODUCERS COALITION

Pages

Monday, 17 September 2012

THE SEEDS AND PLANT VARIETIES (AMENDMENT) BILL, 2011

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