Although Nigeria is a founding member of the World Trade Organisation (WTO), it does not have a plant variety protection system. In other words, Nigeria does not have an intellectual property rights (IPRs) system (either a patent, an effective sui generis system, or a combination of systems) for plant varieties as obligated under Article 27.3(b) of the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS). This is noteworthy because developing countries, including Nigeria, had up to 1 January 2000 to fulfil their obligations under TRIPS. Yet Nigeria has failed to meet this deadline.
Section 1.4(a) of Nigeria’s Patents and Designs Act of 1970 expressly prohibits patents for plant varieties. The country does not have an alternative sui generis plant variety protection system. Nonetheless, it has (non-IPRs) laws that regulate the release, registration and commercialisation of plant varieties, namely: the National Crop Varieties and Livestock Breeds (Registration, etc.) Act 1987 and the National Agricultural Seed Act 1992.
Why is Plant Variety Protection important in Nigeria?
Apart from its obligation under TRIPS, Nigeria’s agriculture sector transformation is another significant reason why the country ought to pay attention to plant variety protection. Nigeria’s agricultural policies particularly from 2011 have promoted private-sector led agriculture. This has incentivised national and multinational agribusiness investments in the country. Notably, the number of companies registered to produce certified seeds in Nigeria increased from 13 in 2011 to 134 in 2014. Examples of multinational agribusinesses operating in Nigeria include Cargill, Monsanto, and Syngenta.
Agribusinesses generally tend to push for national plant variety protection systems, particularly patents or the plant breeder’s rights systems in order to protect their business interests. Considering the increase in agribusinesses in Nigeria, it is unsurprising that there are recent changes to its plant variety protection status quo.
Recent Changes
First, Nigeria has an Industrial Property Commission (IPC) Bill, 2016 which includes plant variety protection provisions set out in Part D, from sections 171 to 187. The IPC Bill has passed through the First Reading (on 08 June 2016) and Second Reading (on 18 January 2017) stages at the National Assembly. It is currently at the Committee stage (Committee on Commerce, House of Representatives). Second, the International Union for the Protection of New Varieties of Plants (UPOV) publication No. 437 of 10 October 2017 states that Nigeria has been in contact with the UPOV office to ask for assistance with developing its plant variety protection laws based on the UPOV Convention.
Call to Action
Nigeria has the latitude to design and introduce any TRIPS-compliant plant variety protection system. While some bilateral, regional or free trade and investment agreements can constrain the type of system introduced in a WTO member state, Nigeria is currently not subject to any such constraints. Accordingly, Nigerian law and policy makers can creatively design and introduce a plant variety protection system suited to the country’s realities and future aspirations.
What this system should look like is open for discussion.
Government Ministries relevant to Plant Variety Protection
• Federal Ministry of Industry, Trade, and Investment: Trade Department, Commercial Law Department- Trademarks, Patents and Designs Registry
• Federal Ministry of Agriculture and Rural Development: Agricultural Research Council of Nigeria, National Agricultural Seed Council, National Agricultural Research Institutes
• Federal Ministry of Environment: National Environmental Standards and Enforcement Agency
• Federal Ministry of Science and Technology: National Biotechnology Development Agency, National Centre for Genetic Resources and Biotechnology, National Office for Technology Acquisition and Promotion
