Smallholder seed sovereignty — the OAPI/ARIPO regimes and what farmers can save

<p>Two regional intellectual-property organisations cover most of the African continent. The Organisation Africaine de la Propriété Intellectuelle (OAPI) covers 17 mostly francophone states. The African Regional Intellectual Property Organization (ARIPO) covers 22, mostly anglophone, with overlapping membership at the edges. Both have plant-variety protection (PVP) regimes — frameworks for protecting commercial seed varieties as intellectual property. Both have, over the last fifteen years, moved in directions that tighten farmer rights to save, exchange, and replant seed.</p> <p>The OAPI Bangui Agreement Annex X, revised 2015, adopts UPOV 1991-compatible provisions. UPOV 1991 — the International Union for the Protection of New Varieties of Plants — restricts the farmer&#x27;s exemption from PVP. Under UPOV 1991, a smallholder who replants protected seed on their own holding remains technically liable for royalties on the saved seed in most crop categories. The exemption is narrow and implementation-dependent.</p> <p>The ARIPO Arusha Protocol on Plant Varieties, adopted 2015 and operationalised more slowly, has similar UPOV 1991-style provisions. Civil society opposition from groups like AFSA (Alliance for Food Sovereignty in Africa) and the African Centre for Biosafety has slowed ratification in several ARIPO member states. By May 2026, Tanzania, Mozambique, Rwanda, and Ghana have implementing legislation; Kenya, Uganda, and Malawi are in legislative pipeline; Ethiopia and South Africa (not ARIPO members) operate parallel national regimes.</p> <p>Why does this matter beyond IP-law specialists? Because it interacts directly with the dominant African seed-system topology, which is informal and farmer-to-farmer for the vast majority of crops and varieties. World Bank data put informal seed exchange at 70-90% of the cereal and legume seed traded across smallholder African agriculture. A PVP regime that criminalises seed-saving in any commercial-variety category creates legal exposure for tens of millions of farming households. In practice, enforcement is rare. In principle, the legal architecture exists for selective enforcement that would be politically devastating.</p> <p>There is a third path that some African states are quietly exploring. Ethiopia&#x27;s seed law (proclamation 782/2013) and Eswatini&#x27;s Seeds Act both create distinct categories for *farmer varieties* with use-rights protections that PVP regimes do not contemplate. These are domestic-law innovations that have not been challenged at WTO TRIPS level and probably could not be — TRIPS Article 27(3)(b) explicitly allows *sui generis* plant-variety regimes that are not UPOV-compliant. The political question is whether African states use that flexibility. So far the institutional pull has been toward UPOV harmonisation. The countervailing pull from farmer organisations is real but structurally underfunded.</p>