Genetic Resources

The article analyses the High Court’s decision in Wathome & 14 others v Kenya Plant Health Inspectorate Service & another; Greenpeace Environmental Kenya & 2 others (Interested Parties) [2025] KEHC 18166 (KLR) (the Wathome Decision), focusing on the arguments advanced and the Court’s response to the tension between plant variety protection and farmers’ rights. Finally, it reflects on what a more balanced legal and policy framework might entail, while also engaging with emerging challenges related to the place of genetically modified crops and the growing reliance on toxic agrochemical inputs in food production.

In late November 2025, the Machakos High Court in Kenya issued an unprecedented judgment that was noteworthy. The judgment was not limited to legal correction; it struck down the key provisions of the Seed and Plant Varieties Act (SPVA). It was a strong assertion of humanity’s dignity, culture, and the right to eco-justice. The Court aligned Kenyan law with constitutional values and international human rights obligations by declaring unconstitutional the laws that criminalized the saving, sharing, and sale of farm-saved and Indigenous seeds. The UN human rights experts have recognised this judgement as a landmark for the rights of peasants and food security, and declare it a strong rebuttal against the international trade of seeds through restrictive IP regimes.

While WIPO’s technical assistance programme has been seen as less biased than much of the bilateral assistance on offer from the EU and the US, the history that Africa has with WIPO concerning cooperation in the provision of IP technical assistance can be said to have led to the introduction of Western-style IP norms across the continent. Our leaders and negotiators, therefore, need to proceed with caution in negotiating the AfCFTA IP protocol and the kind of technical assistance they receive. They must consult broadly and court the services of African scholars and experts on the matter.

Traditional medicines have an equally important role as vaccines, therapeutics and medical devices protected through classical IPRs such as patents. For this reason, it is important to include traditional medicines within the scope of IPR protection, including within the WTO’s TRIPS Agreement. Doing so would go beyond the classical debate of protecting medicines, vaccines and therapeutics mainly through patents as currently understood within the TRIPS Agreement.

governments need to ensure that the interventionary measures they seek to implement must be tempered with and evaluated against the special needs and dynamics of their countries. The fragility of our economies, the growing debt levels, the development challenges they pose, and the social and economic vulnerability of a significant segment of our populations ought to be important considerations in developing response and containment measures against Covid-19.

On 22 April, the President of Madagascar Andry Rajoelina, launched what he called a cure for coronavirus, Covid Organics (CVO). The announcement drew interest from a few African countries and to date countries like Tanzania, Guinea Bissau, The Gambia and Senegal have already received shipment of CVO. While some have been sceptical about the remedy, others have praised it as an example of traditional medicine, reigniting a discussion around traditional medicine and intellectual property rights.

Given the central relevance of TK to African countries, it is necessary to design effective mechanisms for its protection. One key rising trend in TK lawmaking is its incorporation in bilateral and free trade agreements.