The Legal and Economic Implications of Economic Partnership Agreements in Kenya's Trade Arena: Assessing Liberalization of Agriculture and Food Security

Abstract

This paper examines the concept of Reciprocal Trade Liberalization – the common objective of Economic Partnership Agreements, and its legal and economic effect on Kenya’s Agricultural Sector/Industry within the purview of the General Agreement on Trade in Services (GATS). The study is premised on the fact that EPA’S are beneficial and within the ambits of WTO’S rules of reciprocal trade among member states, however, it advocates for legal caution and prudence on the same considering that Kenya is a developing Nation with higher economic obligations and ambitions than that of its trading partner the European Union (EU). The review particularly focuses on the International Convention for the Protection of New Varieties of Plants (UPOV) in relation to EPA negotiations and implementation. It then assesses whether the EPA framework has adequately addressed, food security and biosafety with respect to farmers and plant breeders’ rights, sustainable development, access and benefit sharing (ABS) and protection of traditional knowledge in agriculture. The place of the UPOV is of utmost significance in Kenya’s Agriculture sector because Kenya is a signatory of the 1978 UPOV Act whereas there is in place the 1991 UPOV Act (the basis of EPA negotiations on Agriculture) which has broader objectives and features, with respect to plant varieties and the time frame for protection on the same. Currently, Kenya’s Agricultural policies, legislations and institutions reflect the objectives of UPOV 1978. This essentially means that should Kenya decide to accede to UPOV 1991 which is more EPA compliant, first, it will have to amend its laws governing agriculture and intellectual property rights to adjust with its new commitments under UPOV 1991, and secondly to be in tandem with relevant plant variety protection clauses in the EPA framework. In view of the above, there good chances for policy and legislative conflict with the possibility of distorting Kenya’s trade performance. Therefore, what mechanisms are available to bridge the gap so as to ensure it is compliant with the ESA-EU EPA provisions? If there are available mechanisms, are the same viable to vouch Kenya’s competitiveness in the EPA trade arena?