In November 2013, the second election for a new Constituent Assembly (CA) paved the way for a breakthrough in Nepal’s political deadlock, which had been halting the promulgation of a widely-accepted, inclusive and sustainable development-oriented new constitution. If CA members are to address what Thomas Jefferson considers every citizen’s ‘unalienable rights’, among which are the rights to ‘life, liberty and the pursuit of happiness’, they must take unprecedented moves. One issue that merits significant attention from CA members is the recent civil society protest against Monsanto, a US-based multinational seed company.

This issue concerns a large section of farmers and consumers and has a strong possibility to drive out the farmer-managed seed system that contributes more than 90 percent to total seed supply and use in the country. Since the 2007 Interim Constitution has provided every citizen with “the right to food sovereignty” as a fundamental right, the time has come for CA members to find a way out to resolve this issue through legal measures. In this respect, the following three issues, which explain the history and nature of the Monsanto debate in Nepal, remain important.

The octopus in Nepal

First, Nepal’s struggle against the giant corporate seed sector has a history of more than a decade. In 2003, Nepal was in the final stage of accession negotiation for membership to the World Trade Organization (WTO), the most powerful rules-based multilateral trade body of the present time. All of a sudden, the Nepali government delegation was pressured by the US to join the International Union for the Protection of New Varieties of Plants (UPOV), which is not a WTO requirement and favours strengthened intellectual property rights (exclusive monopoly rights) to breeders/companies at the cost of farmers’ rights. At that time, due to support from civil society groups, the Nepali delegates negotiated well to fend off such pressure. In Nepal’s Accession Protocol for WTO membership, the government did not commit to join UPOV but opted to devise a separate freestanding act to protect the rights of related stakeholders (in Nepal’s case, obviously, the rights of farmers).  

Second, companies like Monsanto follow an octopus route to control seed business, if not through the WTO, then through bilateral/regional trade agreements or agencies that support their interests. In Nepal’s case, the basis of Monsanto’s well-designed entry has been a Trade and Investment Framework Agreement (TIFA) with the US. Stricter intellectual property protection in areas such as software and agriculture is one of its major features. Nepal signed such a TIFA in April 2011. As it takes time for a TIFA to eventually result into a comprehensive agreement, a few months later in 2011, the United States Agency for International Development (USAID) came to the forefront with a pilot maize production project that targeted to introduce hybrid maize seeds from Monsanto. This led to “No to Monsanto” and “Stop Monsanto” civil society campaigns on a wide scale, first drawing significant media and public attention and finally motivating the government to reject Monsanto’s hybrid seeds.

Third, following an advertisement in a national daily on December 13, 2013 calling for bulk buyers of Monsanto seeds by CG Seeds and Fertilizers, a Nepali subsidiary of Chaudhary Group (CG), the octopus nature of Monsanto has become more visible. The civil society protest, which widened from 2011 with greater support from the media, played a major role in forcing CG to clarify that they would never import genetically modified (GM) seeds even if their current deal is to market hybrid seeds.

Measures to consider

The debate has taken a new turn following a decision from the Supreme Court, which issued an interim order on January 8, 2014 to ban the import of GM seeds, including from Monsanto. However, since this order was directed until January 16, after which the court has yet to decide whether hearings should continue or not, it is not too late to consider the following issues by CA members, defendants, judges and lawyers, civil society, farmers’ groups, private sector and

public at large.  

First, arguments that Nepal’s WTO membership and other international agreements oblige the country to provide entry to GM seeds are wrong. Countries, including Nepal, have policy space to decide which seeds to import and which to ban, depending on, for example, whether such seeds negatively affect farmers’ rights and livelihoods; plant, animal and human health or life; the environment; or socio-cultural and religious norms and values.

Second, Nepal cannot legislate a ‘no’ to Monsanto or other seed companies but can legislate a ban on seeds in view of scientific, socio-economic, cultural, religious, ethical, moral, public health and environmental reasons, and implications for, among others, farmers’ rights to save, exchange, reuse and sell seeds. Given the global controversies and lack of domestic capacity to identify, use and withstand the projected impacts of GM seeds, the import or use of such seeds needs to be banned in Nepal for a certain period of time.

This demands, among others, amendments to and harmonisation of relevant policies and laws to avoid conflicts and confusion. For example, while the National Agriculture Policy 2004 states that the use of GM organisms will be regulated, the Seed Regulations 2013 provisions for the registration of GM seeds on the basis of bio-safety report/details and bans only seeds with terminator genes. Due to pressure, though CG Seeds and Fertilizers as well as the government denied that they would import GM seeds, these provisions undoubtedly do not ban GM seeds as of now.

Reconcile and regulate

Third, public investment for the research and breeding of seeds, including locally-developed hybrid seeds, must be committed and increased, as banning hybrid seeds could impact food security and farm incomes. The government, however, can regulate the use of hybrids, making them region-specific or specific to certain crops and vegetables. As an alternative sustainable option, public investment needs to be increased for programmes like participatory plant breeding to increase the yield and performance of local seeds, and, as far as possible, replace hybrid seeds.

Fourth, Nepal must promote as well as regulate the private sector’s participation in the seed business. This must include strict regulation of informal/illegal trade of seeds via the open border and mandatory compensation mechanisms in cases of misinformation or supply of bad seeds to farmers.

Fifth, Nepal urgently needs to enact a freestanding act on farmers’ rights to seeds that addresses farmers’ preferences and demands, and deals with all types of seeds that are under the domain of farmers and the private sector and under the management and control of the state or national and international gene/seed banks.

Adhikari is a PhD scholar at the Australian National University, Canberra ([email protected])