Africa - The New Frontier For The GE Industry

By Mariam Mayet
Third World Resurgence Issue #159-160

The Genetic Engineering (GE) industry is facing a shrinking global market as more and more countries adopt biosafety laws and GE labeling regulations. Moreover, as a result of widespread and mounting consumer rejection and the difficulties experienced by Monsanto in obtaining regulatory approval of its GE wheat, it has decided to pull out of the European cereal market.

Africa and Asia are the new frontiers for exploitation by the agro-chemical, seed and GE corporations. The potential for US agri-business to profit from hunger in Africa through, ostensibly the provision of food aid, technical assistance, capital investment, agricultural research and the funding of biosafety initiatives are enormous.

The United States’ Agency for International Development (USAID) appears to be at the forefront of a US marketing campaign to introduce GE food into the developing world. It has made it clear that it sees its role as having to “integrate biotechnology into local food systems and spread the technology through regions in Africa.”(1) Through USAID, in collaboration with the GE industry and several groups involved in GE research in the developed world, the US government is funding various initiatives aimed at biosafety regulation and decision-making in Africa, which if successful, may put in place weak biosafety regulation and oversight procedures.

USAID is also heavily involved in funding various GE research projects in a bid to take control of African agricultural research.(2)

Biosafety under threat

The Cartagena Protocol on Biosafety finally came into force, after years of negotiation, on 11 September 2003. This international binding environmental agreement is specifically designed to protect human health, the environment and biodiversity from the risks posed by GMOs. It was countries from the South, and the African group in particular, that consistently championed biosafety and reaffirmed the right of importing countries to ban or severely restrict imports of GMOs in the face of scientific uncertainty, based on the precautionary principle.

To date, 65 countries have ratified the Protocol, with many more ratifications expected before the first Meeting of the Parties to the Protocol takes place February 2004, in Kuala Lumpur, Malaysia (3). Only 18 countries in Africa have so far ratified the Protocol4 but many more could be persuaded to do so, in order for them to qualify for one or other of the numerous biosafety capacity building initiatives taking place on the continent.

However, the hard earned victories won under the Biosafety Protocol may be under serious threat from these GE ‘biosafety’ initiatives. There is an ever present danger that African countries will be overwhelmed by the volley of technical experts they are peppered with by USAID and GE industry money and expertise, that they will succumb, despite their valid concerns, to these formidable forces.

The fad is the drafting of national biosafety frameworks. With their failure to prevent the Biosafety Protocol from coming into existence, the opportunity to exploit the implementation of the Biosafety Protocol to promote weak and ineffective biosafety legal regimes and redirect capacity building towards GE rather than biosafety, has been seized in an attempt to garner much needed support for this dangerous technology.

Examples of USAID’s Biosafety Initiatives in Africa

USAID through the Association to Strengthen Agricultural Research in East and Central Africa (ASARECA) facilitates collaborative research between their 10 member countries (5), US public and private sectors and international agricultural research centres. It has developed a model for regional technical reviews within these member countries in close collaboration with national biosafety focal points. (6) The concern is that this initiative may well be used a launching pad to foster regional acceptance of GE through weak biosafety regulations, and thereby promote the technology transfer and private sector investment in GE in Africa.

USAID’s Agricultural Biotechnology Support Project (ABSP) has established a partnership with seven Southern African Development Community (SADC) countries - Malawi, Mauritius, Mozambique, Namibia, South Africa, Zambia and Zimbabwe - to similarly provide technical training in biosafety regulatory implementation. Its ostensible goal is to promote conformity with the science-based standards of the World Trade Organisation’s Sanitary and Phyotosanitary agreement and the Biosafety Protocol. (7) Needless to say, taking into account the US’s WTO challenge of the European Union’s de facto moratorium on GMOs, it is anticipated that every attempt will be made to ensure that biosafety regulations are consistent with the US interpretation of the WTO rules, rather than the Biosafety Protocol.

USAID has awarded the Program for Biosafety Systems (PBS), a consortium, $14.8 million to assist developing countries to enhance Biosafety policy, research, and capacity. (8) Included in this list of developing countries are a number of countries in East and West Africa. The International Service for National Agricultural Research (ISNAR) heads the consortium. The consortium is reported as having amongst its goals, the rendering of assistance “to governments in making science-based decisions about the effects on biodiversity of introducing GMOs into the environment” and assisting such countries in regulating and conducting experimental field trials. If this is the case, then these goals are preposterous as they are unashamedly aimed at usurping decision-making powers of countries and their sovereign rights to perform regulatory functions.

It is extremely ironic that the US, still not a Party to the Convention on Biological Diversity and cannot therefore ratify the Biosafety Protocol (and will not do so in the foreseeable future) should want to promote biosafety in Africa and the implementation of the Biosafety Protocol.

It appears that the US and the GE industry are pursuing a well-orchestrated strategy in Africa to lower resistance to GE and gain acceptance of this extremely controversial technology. These initiatives may be given considerable impetus by the New Partnership for Africa’s Development (NEPAD) plan to establish a high level advisory panel aimed at “facilitating trade in GM products between African countries by harmonizing biosafety regulations”. (9) However, this panel has not yet been established and its terms of reference made public. The direction that such panel would therefore take will reveal itself in the future.

It is worthwhile also to mention that the United Nation’s Environmental Program (UNEP) with funding from the Global Environmental Facility (GEF) is conducting a worldwide capacity building project involving more than 100 developing countries, several from Africa.(10) The main objective of this project is “the preparation of National Biosafety Frameworks in accordance with the relevant provisions of the Biosafety Protocol.”(11) Its overall efficacy in capacitating African countries to establish sound biosafety frameworks remains to be seen. Crucially, the nature of its linkages with the USAID/GE industry biosafety projects if any will also become apparent with the passage of time.

Finally, what remains to be seen, is the extent to which South Africa’s biosafety law will be used as a basis to harmonise biosafety laws on the continent. Zimbabwe, the only other country aside from South who has biosafety laws in Africa has already followed South Africa’s example. South Africa’s Genetically Modified Organisms Act is a poor example of biosafety regulation.(12) It is in effect, merely a permitting system designed to expedite GM imports into the country and releases into the environment. It specifically mandates that biosafety risk assessment involve no more than a paper audit, which entails a review of the ‘safety’ information generated by the corporations during product development.

Africa’s redeeming assets

While on the surface, this picture appears bleak; there is a groundswell of NGOs, consumers, farmers, government officials, parliamentarians and scientists opposing GE in Africa. Benin for example, has imposed a moratorium on the imports and cultivation of GMOs.

Last year, several countries in Southern Africa resisted and seriously questioned the donation by the US through USAID, of GE food aid. Zambia refused to accept the food aid and effectively took a decision to ban the distribution of food aid within its borders. Malawi, Mozambique and Zimbabwe requested that all US imported GE maize be milled prior to distribution in order to prevent its inadvertent use as seed. Lesotho and Swaziland authorized the distribution of non-milled GE aid but not before it warned the public that the grain should be used strictly for consumption and not cultivation. This saga played an important role in heightening the debate within Africa on the health, social, economic and environmental impacts of GE crops.

An offshoot of this is the publication by the SADC Advisory Committee on Biotechnology and Biosafety of their recommendations regarding GE food aid. These are significant because a key recommendation is that donors of GE food aid should comply with Prior Informed Consent principles and the notification requirements of the Biosafety Protocol. This is extremely important, given that the World Food Program has admitted that it has, since 1996 been delivering food aid that included GE food products, without warning the recipient countries. (13) It also calls for the African region to develop harmonized policy and regulatory systems based on the OAU African Model Law on Safety in Biotechnology (Model Law), and the Biosafety Protocol.

The Model Law is a set of holistic and stringent biosafety rules drafted by a number of African biosafety experts crafted specifically to protect Africa’s biodiversity, environment and the health of its people from the risks posed by GMOs. The African Union Summit held in Maputo during July 2003 pointedly encouraged African countries to use the Model Law as a basis for biosafety regulation.14 The adoption of the Model Law in Africa will give countries leverage to resist attempts by the powerful GE industry to use Africa as experimental and dumping grounds for their products. Africa’s biodiversity and the health of its people, can only be protected from the risks posed by GMOs if Africa as a whole, subscribes to common and uniform biosafety standards, based on the precautionary principle.

These gems are important contributions towards maximizing Africa’s chances to limit the risks posed by GE. It is clear, however, that much needs to be done. One of the key challenges for African civil society in particular, is to embark on strategies and initiatives directed at influencing and shaping policy, legislative and procedural frameworks on the continent and engage national and regional bodies such as SADC and NEPAD.

African Centre for Biosafety
Mariammayet@mweb.co.za

Footnotes

Bias Issue Faces Judge in Monsanto Case

By David Barboza
New York Times
January 9, 2004

A federal judge now presiding over a price-fixing case involving the Monsanto Company did not disclose to the parties in the case that in 1997 and 1998 he was listed as a lawyer representing Monsanto in a case that covered some of the same issues, according to lawyers and court documents.

The absence of disclosure that the judge and his former law firm had business dealings with Monsanto in the 1990's has raised conflict of interest questions among some lawyers in the price-fixing case.

Before his appointment to the court in 1998, the judge, Rodney W. Sippel, was chosen by his law firm, now known as Husch & Eppenberger, as one of three lawyers to represent Monsanto in a civil lawsuit against Pioneer Hi-Bred International, another big seed company.

The chairman of Husch & Eppenberger acknowledged that Judge Sippel was listed in court papers for five months as one of the main lawyers for Monsanto in that suit, but he said that Judge Sippel never actually did any work on the case.

The chairman, Joseph P. Conran, also said that Judge Sippel never did any work for Monsanto, one of the biggest clients of the 300-lawyer firm, when he worked there.

Legal experts say Judge Sippel probably did not violate the Judicial Code of Conduct for United States judges but that he should have disclosed his prior relationship with Monsanto to avoid even the appearance of a conflict of interest in the case.

"The fact that he didn't disclose it is troubling," said Deborah Rhode, a professor of law at Stanford University. "Courts are supposed to avoid the appearance of impropriety."

Professor Rhode and other legal experts also said that while Judge Sippel might not have billed Monsanto for work, his listing as a Monsanto lawyer suggested he still might have had access to confidential information and could have served as an adviser in the case.

Judge Sippel was the vice chairman of the litigation committee at Husch & Eppenberger at the time he was listed in the federal court docket as a lawyer representing Monsanto.

The Judicial Code of Conduct says that "a judge shall disqualify himself or herself in a proceeding in which the judge's impartiality might reasonably be questioned, including but not limited to instances in which: the judge has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding."

The code also says a judge should disqualify him or herself if "the judge served as lawyer in the matter in controversy, or a lawyer with whom the judge previously practiced law served during such association as a lawyer concerning the matter"

Apparently, lawyers now pressing a class-action price-fixing lawsuit against Monsanto, Pioneer and other big seed companies in Judge Sippel's courtroom say the 1997 case is similar enough to the price-fixing case to present conflict of interest problems for the judge.

Some of the plaintiff lawyers in that case recently sent a letter to Judge Sippel asking him to remove himself from the case, according to people who have seen a copy of the letter. The judge ordered the court clerk to file the letter under seal and scheduled a public hearing for January 30.

Lawyers for the lead plaintiff's law firm, Cohen, Milstein Hausfeld & Toll, declined to discuss the letter.

The move to disqualify Judge Sippel came three months after he ruled in favor of Monsanto, Pioneer and other seed companies by denying the price-fixing case class-action status.

Mr. Conran, the chairman of Husch & Eppenberger and one of the lawyers listed with Mr. Sippel as representing Monsanto in the earlier case, said Mr. Sippel was expected to do work on the case but never did so.

"His name was on the list of some pleadings," Mr. Conran said in a telephone interview, "but he never spent a minute on this case. We checked the billing records." A spokeswoman for Monsanto, based in St. Louis, said that as far as the company knew, Judge Sippel had not done any work for Monsanto.

In a faxed response to written questions about his prior association with Monsanto and the conflict of interest questions, Judge Sippel said that he could not discuss the matter because he was considering the plaintiff's request that he disqualify himself from the case.

"The code of conduct for United States judges prohibits judges from publicly discussing the merits of any pending matter," the fax said.

He then added: "Both the U.S. code and the code of conduct set forth the conditions under which a judge should disqualify himself from consideration of matters pending in his court. Any party in litigation before me may file a motion for consideration of this issue, or if I have already ruled, may appeal my decision to the U.S. Court of Appeals for the Eighth Circuit."

Legal experts say that there is at least the appearance of bias on the judge's part and that they are troubled by his decision to seal the letter requesting that he recuse himself from the case.

"I don't know of any motions to disqualify judges that are under seal," said Judith Resnik, a professor of law at Yale University. "Why is it under seal?"

Prof. Stephen Gillers at New York University Law School, however, said that while Judge Sippel probably should have disclosed his relationship with Monsanto, there did not appear to be enough evidence to disqualify him from the price-fixing case because the earlier case - even if he had worked on it for Monsanto - was not the exact same case.

"These are not sufficiently connected to be the same matter," Professor Gillers said, referring to the code of conduct. "The judge has not violated the code of conduct but he could have and should have told the parties about his prior relationship."

The class-action suit is not Judge Sippel's first case involving Monsanto. Last year, he awarded Monsanto $2.9 million in damages --- the maximum allowed --- from a Tennessee farmer whom Monsanto had accused of violating its patent.

In that case, according to lawyers, Judge Sippel disclosed that he had worked as a lawyer at Husch & Eppenberger, which represented Monsanto, before he became a federal judge. But, they added, he said that the Husch lawyers representing Monsanto in that case had joined the firm after he left it.

James Robertson, a lawyer who represented the farmer, said he did not question Judge Sippel's integrity.

Judge Sippel, 47, joined Husch & Eppenberger in 1981, shortly after graduating from law school at Washington University in St. Louis and working on Senator Thomas Eagleton's 1980 election campaign.

He worked for Husch until 1993, when he left to serve as an administrative aide to Representative Richard A. Gephardt, Democrat of Missouri. He rejoined Husch & Eppenberger in 1995; he was one of about 45 lawyers in the litigation department.

Before Mr. Sippel became a federal judge, Husch & Eppenberger worked for Monsanto on about 16 lawsuits, though Mr. Sippel's name does not appear in any suit other than the 1997 Pioneer case, according to court records.

That case was filed in federal court in Wisconsin. It was moved to St. Louis in August 1997, and a few weeks later the names of Mr. Sippel, Mr. Conran and one other Husch lawyer were entered into the court docket as representing Monsanto.

Three months earlier, in May 1997, President Bill Clinton nominated Mr. Sippel to fill a vacancy at the federal courthouse in St. Louis. Representative Gephardt had recommended Mr. Sippel for the job.

Mr. Sippel's nomination was confirmed on November 8, 1997. His name was removed as a Monsanto attorney in court papers on January 30, 1998.

Sowing Seeds Of Resistance To GM

by Peter Melchett
The Scotsman, UK
January 8, 2004

The past 12 months have seen some extraordinary developments in the sorry saga of genetically modified crops. A series of government reports have, mostly to our - and the Government's - surprise, come out with verdicts on GM that range from neutral to downright hostile.

In the space of a few months we've had: a government review of the science; an economic study by Tony Blair's Strategy Unit; the results of the Farm Scale evaluations of GM crops and wildlife; a report on co- existence between GM and organic, and on liability for damage from GM crops; and last, but certainly not least, the GM public debate.

The Government's science review, undertaken by a panel outrageously stacked with pro-GM scientists, still concluded that there are key uncertainties and unknowns in our understanding of GM. For example, the report says that in respect of research detecting "the potential human health effects of food... there is nothing yet available for GM foods in any country".

No wonder the British Medical Association says it is "concerned that at present not enough evidence has been presented in order for us to be sure that GM food is safe".

Even more surprising than the scientists' acknowledgement of uncertainty were the Farm Scale trial results. The fact that two crops, GM oilseed rape and sugar beet, will do even more harm to wildlife than their conventional equivalents shocked the Government and the pro-GM lobby, and made global headlines.

GM maize came out ahead of conventional maize, but here the trials have been criticised for failing to use realistic chemical treatments.

In commercial use, GM maize is generally sprayed with at least two weedkillers, but only one was used in the trials. And the GM crop was compared with non-GM maize sprayed with a weedkiller so poisonous that is now being banned by the EU. It's hardly surprising the GM maize came out better - but hardly relevant to the real world either.

Tony Blair's own strategy unit did a thorough and fair job looking at the economic impact of growing, or not growing, GM crops. They concluded that there is no immediate economic case for GM crops. This is because there is no market for GM crops.

The report stated that those farmers who choose to grow GM could face a "low market price, or in the extreme, no market at all". It also said that growing GM crops would lead to contamination of other crops, with associated costs to non-GM farmers.

To no-one's surprise, the public debate on GM clearly showed that the British people don't want the crops and won't eat the food. The debate concluded that people are "generally uneasy about GM". Worse for the pro lobby, the more people look into GM issues "the harder their attitudes become and the more intense their concerns". So much for the GM industry libel that public opposition is based on ignorance - in fact, the more we know, the less we like it.

It is worth remembering that this is neither an honest nor a fair struggle. For example, the representative of the GM industry signed-up to a unanimously agreed report on the GM public debate - then rubbished the report just before it was published.

For bare-faced cheek, the prize goes to the pro-GM members of the Government's Agriculture and Environment Biotechnology Commission, who, when faced with the fact that it would be impossible to stop GM crops contaminating organic farms, simply decided that the definition of "organic" must be changed. Out would go the consumer-supported "organic food means no GM" definition; in would come the new, GM-friendly definition of organic food where almost one in a hundred mouthfuls can be GM.

Out of the 26 scientists appointed to the Government's Science Review Panel, groups like Friends of the Earth, Greenpeace and the Soil Association were between them allowed to nominate just two scientists. One resigned saying he feared for future funding of his work if he continued to speak out against GM on the panel.

This may sound far-fetched, until you discover from the Government's own minutes of the Science Panel that the second scientist nominated by the anti-GM groups had indeed had his funding in EU science threatened by another, pro-GM scientist associated with the Science Review.

If the Government does push ahead with the commercialisation of GM crops, it has to make two crucial decisions: first, how to ensure that non-GM and organic crops can continue to be grown, and second, when GM crops cause damage to non-GM and organic farmers, who pays?

In November, the Government got advice on both these questions from the Agriculture and Environment Biotechnology Commission. This Commission includes strongly pro and anti-GM members, and, of course, they didn't agree about everything - in fact, they set out two visions of the future.

The first, supported by the Soil Association, is one where organic farmers can continue to produce food that is free of GM down to the levels it can be reliably detected, and where any damage caused by GM is paid for by the GM companies who stand to profit.

The alternative, proposed by GM industry representatives and their allies, would lead us into a nightmare world. In this future, GM would be everywhere. Everyone could end up eating GM whether they like it or not. Organic farmers and consumers would have to pay all the extra costs of trying to avoid GM contamination - and for any damage GM caused them.

Now the Government must choose between these two alternatives. If you want to influence them, write to your MP asking him or her to pass it on to Environment Minister Margaret Beckett and ask them to let you see the Government's response.

Many people will assume that the Government has already made up its mind, and certainly some ministers and particularly their scientific advisors are determined pro-GM campaigners. But the story of GM food has, so far, been a story of the triumph of ordinary citizens over multinational companies and some of the world's most powerful governments.

With determination, and a willingness to go on fighting, we can continue to win. At the end of the day, it is not President Bush, Monsanto, the EU or the British Government who decide what you eat - you do.

Peter Melchett is policy director of the Soil Association.

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