“Farming is not a crime”: Kenya’s smallholder farmers are challenging a law preventing them from sharing Indigenous seeds

Image description: A seedling in a cage against an abstract background colored in Kenya’s national colors red, green and black. This background also contains excerpts of a petition against smallholder farmers superimposed with an image of a field.

For 30 years, Peninah Ngahu, 58, has practised subsistence farming on her one-acre farm in Elementaita village, 175 km west of Kenya’s capital Nairobi. Ngahu, who practises organic farming, says that “accessing indigenous seeds was easy because farmers would share, sell, buy and exchange them freely.”

“A farmer who had a surplus of indigenous seeds would freely share out to those who lacked, and this ensured that every farmer had something to plant, and this guaranteed our food security,’’ Ngahu tells  Minority Africa.

According to Ngahu, things changed when a new law regulating the distribution of indigenous seeds came into force. 

“Currently, I cannot take my seeds and distribute them to farmers across the village because the law bars me,’’ she says. “[One] can only do that clandestinely. This has literally limited the smallholder farmers’ ability of producing food.’’ 

In 2012, Kenya’s parliament passed a law to set out regulations for the country’s production, processing, testing, certification and marketing of seeds.  The Seeds and Plants Varieties Act also sought to impose restrictions on the introduction of new varieties, control seed importation and grant proprietary rights to persons breeding or discovering new varieties.

However, smallholder farmers in Kenya are currently engaged in a legal battle with the government pushing for the review of the regulation which has been in force for 12 years.  Some 15 smallholder farmers, in September 2022, filed a petition at the country’s High Court seeking to compel the government to review sections of a law that bans the sharing and exchange of uncertified and unregistered seeds.

Smallholder farmers in Kenya acquire seeds through farmer-managed systems that encourage informal seed saving and sharing, a practice the Seeds and Plant Varieties Act opposes. 

Veronica Kiboino, a smallholder farmer from Baringo County, west of the capital, Nairobi, observes that with seed sharing and exchanging, she is guaranteed planting and harvesting every other season. 

“If I have millet seeds and my neighbour has maize seeds, we can simply exchange a portion of what we have and get what we lack,’’ she says. “Seed sharing and exchange is money-free, which makes it cost-effective for any smallholder farmer.’’

According to the law, any person found sharing, exchanging, selling, producing and multiplying uncertified seeds is liable to a prison sentence of up to a maximum of 2 years or a fine of up to KES 1,000,000 or both.

In the petition that is currently active in court, the farmers, led by Richard Opete, are arguing that the seed law “has denied them their traditional right of freely exchanging indigenous seeds.’’

“As smallholder farmers, all we want is for us to be allowed to freely share our indigenous seeds like our forefathers did without the fear of being jailed or fined,’’ says Opete.

Opete notes that exchanging and sharing seeds among farmers remains the only option for many “who cannot afford to buy certified seeds from registered seed companies or dealers.”

“If we are talking about realising food and nutrition security for the country, then we must allow farmers to use whatever seeds that grow well on their soil. We cannot talk about food security while limiting the farmer from sharing climate resilient seeds,’’ Opete adds.

Francis Gika, who practises organic farming, says that the government should tap into the traditional methods used by smallholder farmers to multiply and preserve seeds to adapt to “changing weather patterns.’’ 

“The government should help us improve on what we are doing rather than criminalise it,’’ he says. Gika terms the seed law as selective, oppressive and anti-smallholder farmers. “Where will a smallholder farmer like me get the Kshs. 200,000 needed to register and get certification for a seed variety as the law demands?” 

Gika warns that the punitive law directly affects the economic well-being of smallholder farmers because “without seeds, they cannot produce enough food to sell and make money.”

Sovereignty of Seed Management

Greenpeace Africa, an interested party in the petition, says that “the current seed law favours big multinationals by giving them room to exploit local resources and that the law sold Kenya’s food system to the highest bidder.’’

Elizabeth Atieno, a food campaigner at Greenpeace Africa, observes that due to the seed law, Kenya’s food system has been rendered unstable due to over-reliance on major seed companies for seed supply’.

“When you restrict a farmer from sharing and exchanging seeds they can freely and easily access, the result is diminishing production, less food and starving populations,’’ says Atieno. “Certified seeds come at a cost, which works against most smallholder farmers, and at times, the supply fails to meet the demand.’’ 

Atieno explains that a win in the court will pave the way for integrating the farmer seed management system into the law to enable smallholder farmers to share and exchange indigenous seeds.

For farmers like Francis Ngiri, instead of punishing the farmer, the seed law should be keen on documenting all Kenyan indigenous seed varieties to protect their sovereignty and history. 

“Multinational seed breeders are a threat to our indigenous Kenyan seed varieties through exploitation and this is what the seed law should instead be dealing with,” Ngiri opines.

Stakeholder Push

Experts pushing for the review of the seed law argue that restricting farmers from sharing and exchanging non-certified seeds is simply stopping them from using and sharing indigenous seeds, akin to putting biodiversity at risk.

Agronomist Ben Wanyoro says using indigenous seeds enhances the sustainability of food systems and natural resources. “Indigenous seeds are naturally adapted to the environment, and restricting their use puts our biodiversity at risk, especially in this era of climate change,’’ he says.

The Participatory Ecological Land Use Management (PELUM), Kenya, says the move by farmers to file the petition is in the interests of indigenous seed varieties, which should be protected at all costs.

“Special attention must be accorded to the farmer-managed seed system because they have the capacity and knowledge to nurture indigenous seeds, and any prohibitive laws should be scrapped to allow continuity,’’ says Rosinah Mbenya, country coordinator, PELUM Kenya.

In October 2022, the Kenyan government approved the use of Genetically Modified Organism (GMO) seeds, citing “the need to address the effects of drought and improve food security through the adoption of crops resistant to pests and disease,” a move that was criticised by organic farmers in the country.

Kenya’s agriculture sector contributes 33% of the Gross Domestic Product (GDP) and another 27% indirectly through linkages with other sectors. Agriculture employs more than 40% of Kenya’s population and 70%  of Kenya’s rural people. 

Indigenous farmers are arguing that continued enforcement of the seed law is putting indigenous seeds at risk of extinction. Seed Savers Network Kenya is a grassroots smallholder farmer network championing the use and preservation of indigenous seed varieties in Kenya through community seed banking, exchange and sharing.

Seed Savers Network advocacy officer Dominic Kimani argues that criminalising informal seed exchange and sharing encourages biopiracy and reduces plant genetic diversity.

“The current law reduces diverse seed access and aggravates food and nutritional insecurity in the country,” Kimani laments. He adds that forcing farmers to rely on hybrid seeds poses a big threat to food biodiversity and traditional food cultures.

Local farmers are still awaiting the outcome of the petition. Ngahu hopes that the court process will be favourable to smallholder farmers like her.

“Farming is not a crime, and therefore, I look forward to an outcome that will grant me the freedom to plant whatever seeds I deem fit for my land without any fear,’’ says Ngahu. “As a person, I cannot attain food and nutrition security when I have limitations on the types of seeds I can plant on my own farm.’’ 

Edited/Reviewed by PK Cross, Samuel Banjoko, Uzoma Ihejirika, and Caleb Okereke.