Post-Doha African Challenges in the Sanitary
and Phytosanitary and Trade Related
Intellectual Property Rights Agreement
Hezron Nyangito
KIPPRA Occasional Paper No. 4
November 2002
1
Post-Doha African Challenges in the SPS and TRIPS Agreement
KIPPRA IN BRIEF
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2
Abstract
The World Trade Organization agreements on sanitary and phytosanitary (SPS)
and Trade Related Intellectual Property Rights (TRIPS) present various
challenges and opportunities for sub-Saharan African countries to expand
international trade in their products. The main challenges for the SPS Agreement
include capacity for participation in standards setting and implementation,
protectionist use of the Agreement by developed countries, and high compliance
costs for developing countries. The challenges arising from the TRIPS Agreement
include counteracting the side effects arising from compulsory licenses and patent
rights, use of geographical indications, and developing measures to cover
traditional knowledge. Opportunities arising from SPS Agreement include
investments in infrastructure and technical skills to improve competitiveness
in trade of products from sub-Saharan Africa, while opportunities for the TRIPS
Agreement include the need for impact assessment of the effects of TRIPS on
industries as well as clarification of patenting needs for the region. These
challenges need to be taken into account and opportunities exploited if sub-
Saharan Africa countries are to benefit from trade liberalization and post-Doha
negotiations.
3
Post-Doha African Challenges in the SPS and TRIPS Agreement
This paper was first presented during the Annual
Bank Conference for Development Economics
(ABCDE)–Europe Session–on the Real Opportunities
and Constraints to African Development Induced by
the New Round of Trade Negotiations, held in Oslo,
Norway, 2002
4
CONTENTS
1. Introduction........................................................................ 7
2. Sanitary and Phytosanitary (SPS) Agreement ............... 8
2.1  African concerns and Doha Declarations on SPS .. 8
2.2   Challenges from Doha Declarations ..................... 10
3. Trade Related Intellectual Property Rights (TRIPS) ... 13
3.1   African concerns and Doha
         Declarations on TRIPS ........................................... 13
3.2   Challenges from Doha Declarations on TRIPS ... 15
4. Conclusion ........................................................................ 17
References ......................................................................... 19
5
Post-Doha African Challenges in the SPS and TRIPS Agreement
6
1.  Introduction
Africa’s participation in the Uruguay Round processes that introduced
major changes in international trade were marginal. In particular, sub-
Saharan Africa lacked the capacity to engage substantially on the wide
range of issues on the Uruguay Agenda. African countries were
overwhelmed by the complexity of the negotiations and lacked the
negotiating experience and expertise in economic policy analysis and in
international law (Economic Commission for Africa (ECA), 1999).
Because of the complexity of the entire system, African countries made
commitments beyond their administrative and institutional capacity to
implement.
As a result of the above factors, Africa has not experienced improved
market access, particularly on agricultural commodities. At the
conclusion of the Uruguay Round in 1994, the United Nations
Development Program (UNDP) had calculated that world income would
grow by US$200-500 billion within six years. However, these gains would
go mostly to the industrialized countries and that sub-Saharan Africa
would lose US$1.2 billion a year during the period. Besides problems of
market access, the weak industrial and technological bases in Sub
Saharan African countries have also been major obstacles to taking
advantage of the opportunities availed by liberalization of trade (ECA,
1999).
Africa’s capacity to participate in the subsequent rounds of trade
negotiations (Seattle and Doha rounds) greatly improved largely because
of policy analysis efforts made by African governments and regional
and international bodies. Consequently, many African countries and the
continent at large presented position papers on a number of issues such
as the Agreement on Agriculture (AoA), Sanitary and Phytosanitary (SPS)
and Trade Related Intellectual Property Rights (TRIPS). Some of the
issues raised by African countries, such as trade and debt and trade and
7
Post-Doha African Challenges in the SPS and TRIPS Agreement
technology transfer formed part of the Doha Declaration. The focus in
this paper is on the challenges for sub-Saharan Africa arising from Doha
Declarations on SPS and TRIPS Agreements.
2. Sanitary and Phytosanitary (SPS) Agreement
The SPS agreement sets out the rights and obligations of members of
World Trade Organization (WTO) in relation to the health of plant and
plant products and animal and animal products that may restrict
international trade. The basic aim of the SPS Agreement is to maintain
the sovereign right of any government to provide the level of health
protection it deems appropriate while ensuring at the same time that
these sovereign rights are not misused for protectionist purposes and
do not result in unnecessary barriers to trade. The Agreement includes
several provisions such as notification and making known factors
considered in establishment of new standards to prevent abuse of rights
of using SPS measures. It also provides a loophole that allows countries
to introduce measures that result in a higher level of protection than
would be yielded by those based on international standards for as long
there is scientific justification for departure (Oyejide et al. 2001).
2.1 African Concerns and Doha Declarations on SPS
The African experience with the SPS Agreement is that the Agreement
is not effectively implemented because of a number of problems. Some
of the problems faced are:
(i) Lack of adequate information about health, sanitary and
phytosanitary regulations/standards applicable to their
products in target markets.
(ii) Arbitrary and sometimes discriminatory application of SPS
measures.
8
Sanitary and Phytosanitary Agreement
(iii) Use of measures to disguise trade restrictions.
(iv) Little efforts by developed countries to deal with negative
trade effects of legitimate regulation, particularly at the
multilateral level.
The main issues focused on by African countries and the Doha Ministerial
Declaration on the SPS Agreement are summarized in Table 1. The
African position focused on the need for transparency on the part of
developed countries on notification and setting of standards; flexibility
in introduction of SPS measures; review of Article 12.7 that deals with
operation and implementation of SPS; facilitation of members at different
levels to participate in development of international standards; and
provision of technical and financial assistance to African and other
developing countries to respond adequately to introduction of new
measures that may have significant effects on their trade.
Table 1: Comparison of Africa concerns and Doha Declarations on SPS
SPS Issue African Concerns Doha Declaration
Notification and standards Developed countries to Phased introduction for less than six
setting (Article 7 and Annex B) provide notification months and member consultation where
obligations taking into account problems occur
interests of developing
countries
SPS implementation (Article Compensation if wrongly Not addressed
13) invoked
Time frame for reasonable Reasonable time for Less than six months taking into account
interval for introduction of implementation and peculiar circumstances and actions
measures (Article 10) invocation required
Implementation of Article 12.7 Adequate implementation Review operation and implementation at
on administration of operation required least once every four years
and implementation
Comprehensiveness of Article Assess extent special interests WTO Director General to facilitate
12 on administration of African countries are taken members with technical and financial
into account support but priority to LDCs
Review of SPS Agreement and Technical assistance and Members to provide technical and
implementation programs for African financial assistance to LDCs for adequate
countries response to new measures that affect
trade
9
Post-Doha African Challenges in the SPS and TRIPS Agreement
2.2  Challenges from Doha Declaration
In general, the Doha Declaration took into consideration the issues of
concern to sub-Saharan African countries. The main challenges facing
these countries are mainly on capacity problems to participate in
standards setting and implementation, protectionist use of the measures
by developed countries, and high costs of compliance.
Capacity problems include limited expertise to participate in
international standards setting, testing and risk analysis, and training
and dissemination of information regarding required standards to firms
and farmers. The problem is made worse by limited resources to
undertake these activities (Nyangito et al., 2002; and Jooste et al. 2002).
Most African countries have different capacities (organization,
infrastructure and technical) in standards setting and implementation
related to SPS (standards setting, risk analysis, testing, surveillance,
training and dissemination). More advanced countries like South Africa
have adequate capacity while others like Kenya have a modest capacity;
the least developed countries have a low capacity. In general, the
effectiveness of implementation of SPS requirements is constrained by
available funds and technical skills. The challenge therefore is to create
adequate human, capital, and physical capacity for SPS related work.
The Doha Declaration for technical and financial support on these areas
offers an opportunity to sub-Sahara African countries to enhance
implementation of the SPS Agreement.
Restriction of market access for products from Africa to developed
countries on basis of SPS measures is a common feature. Examples
include fisheries bans from East Africa countries and Mozambique in
1997 to European Union (EU) countries due to Cholera outbreaks and
from East African countries between 1999 and 2000 because of the
inability of the countries to enforce Hazards Analysis and Critical
Controls Points (HACCP) management systems as required for the EU
10
Sanitary and Phytosanitary Agreement
market. Some of these requirements are legitimate with respect to food
safety but most African countries find it difficult to meet the standards
because of technical and resource capacity constraints. Others restrictions
over the past years include exports from sub-Saharan Africa of meats to
the United States of America (USA), dairy products to EU, and products
of animal origin to Japan on health grounds. These restrictions are
considered discriminatory by the affected countries because the
restrictions are not specific but depend on inspections that are undertaken
at the time. Another case is the EU’s zero analytic minimum residual
levels (MRLs) for pesticides on horticulture from developing countries.
Products with MRLs above the zero analytic will not be allowed into EU
markets once the requirement comes into force.
The losses to African countries due to restrictions to market on SPS basis
can be enormous. For example, Otsuki et al (2001) have estimated the
loss in revenue for African countries from implementation of low
aflatoxin levels required by EU under a new stringent standard than the
international standard set by Codex Alimetarius Commission at about
US$400 million for cereals, dried and preserved fruits, and nuts. The
same study indicates that trade flow of these products from Africa could
increase by nearly US$700 million if an extension of current international
Codex standard is used rather than the EU one.
The challenge for sub-Saharan Africa is to develop the capacity to
undertake HACCP as required and to improve the ability to negotiate
with developed countries on some of the new measures. The countries
also need to participate effectively in the international meetings for
standards setting. The developed countries on the other hand need to
provide technical assistance necessary to enable sub-Saharan African
countries respond adequately to the new SPS measures as proposed in
the Doha Ministerial Declaration.
11
Post-Doha African Challenges in the SPS and TRIPS Agreement
Compliance costs associated with implementation of the SPS Agreement
may be prohibitive to sub-Saharan countries. This is because the need to
comply with new measures requires investments in new facilities and
expertise, which increases the costs of production. For example,
compliance with the HACCP EU requirements for fisheries by the East
African countries in 1999-2000 forced governments to invest in new
competent authorities together with equipment and technical capacity
to inspect fish and implement quality control measures. These are costly
investments, which most countries cannot afford. Uganda for instance,
had to solicit funds from the United Nations Industrial Development
Organization (UNIDO) to invest in the competent authority and
associated facilities (Rudaheranwa et al, 2002). At the firm level,
enforcement of the standards required firms to invest in new facilities
(fishing and processing) and in education. The processors in Kenya were
forced by this requirement to start up a private fisheries organization to
assist fishermen and processors meet the required standards (Nyangito
et al 2002). Other costs that are incurred under compliance are decline in
production. Low use of pesticide in horticulture production as required
by EU standards will for example result in low yields.
On-going studies on standards compliance costs in Kenya (Nyangito et
al, 2002) indicate that to grow flowers using high investments that are
capable of conforming to the EU MRLs standards costs 10 times more
than when traditional conventional methods are used. It has also been
estimated that to upgrade a honey processing plant in Uganda to conform
to ISO standards will require US$ 300 million (Rudaheranwa et al, 2002).
Likewise, to produce quality coffee that conforms to standards increases
the costs of firms by 200 percent.
The challenge with respect to compliance to the SPS Agreements is for
sub-Saharan countries to set aside resources to meet the requirement of
SPS Agreement both at the national and firm levels. However, the
Agreement also creates opportunities since investments in infrastructure
12
Sanitary and Phytosanitary Agreement
and technical skills improve the competitiveness of products in both the
domestic and export markets.
3. Trade Related Intellectual Property Rights
(TRIPS)
The TRIPS Agreement stipulated minimum standards for protection of
intellectual property rights. The Agreement covers a wide range of objects
of creations of the human mind and intellect, which include patents,
copyrights, and industrial designs. It also covers trade and service marks,
and brand names that are used to distinguish products. Several
provisions of the Agreement impose obligations upon members to
provide minimum protection to intellectual property rights. Members
are free to determine the appropriate method of implementation of the
provisions of the Agreement within their own legal systems and practice
and they must accord the National and Most Favored Nation treatment
to the nationals of other states.
3.1 African Concerns and Doha Declaration on TRIPS
Most African countries recognize adequate protection of intellectual
property rights as fundamental for economic growth and therefore the
need for recognition of adequate protection of the property rights that
should produce tangible benefits to every member. However, the entire
modern evolution of intellectual property rights protection has been
framed on principles and systems that are biased against developing
countries (ECA, 1999). The principles have for example left aside a large
sector of human creativity, namely ‘traditional knowledge’  in the use of
and application of genetic, biological and natural resource, and the
management and conservation of such resources and the environment
in ways that have economic, commercial and cultural value. Further,
patenting of living organisms and materials of medicinal value is also
13
Post-Doha African Challenges in the SPS and TRIPS Agreement
an issue of concern, especially the extent to which such patenting would
grant rights to multinational drug and chemical companies at the expense
of local communities. The African concerns during the Doha Round and
the declarations made by the Council of Ministers are shown in Table 2.
Most developing countries consider the TRIPS Agreement to be a
protection measure on technologies developed by developed countries.
For instance, full implementation of TRIPS will strengthen intellectual
property rights that will lead to payment of high level of royalties which
most developing countries may not afford (South Center, 1997). The likely
impact is to make technology acquisition more difficult for developing
countries and this may have serious implications for trade and
investment in developing countries. Furthermore, the TRIPS Agreement
brought together all previous conventions on intellectual property rights
under one umbrella without much negotiation and participation of
developing countries. For this reason, most developing countries argue
Table 2: Comparison of African concerns and Doha Declaration on TRIPS
TRIPS Issue African Concerns Doha Declaration
TRIPS Council work Stagger for effective Council to examine scope and
participation by African modalities and give
countries recommendation
Transitional period for Extend to allow sufficient time Extended to 10 years
implementation to address difficulties with
Agreement
Article 62.2 on technology Regular review to ensure Monitor implementation and
transfer operationalization of developed countries to provide full
commitments by developed reports on incentives
countries
Article 27.3(b) on protection of Clarification and substantive Review
plant varieties review
Article 23.4 on geographical Extend to include agricultural Be addressed by TRIPS Council
indications products, food stuffs and
handicrafts
Traditional Knowledge and Develop measures to safeguard Include in Council work
new developments and include
Essential drugs Automatic licensing by Allowed under Public Health
countries Declaration
14
Trade Related Intellectual Property  Rights
that the TRIPS Agreement should be harmonized with provisions of the
Convention on Biological Diversity (CBD) and the International
Undertaking on Plant Genetic Resources. Developed countries have
further achieved the level of property protection bound by WTO while
developing countries will require several years of reforms and physical,
institutional and human capacity efforts to reach the level of protection
assumed in the agreements.
The Doha Ministerial Declaration focused on three main areas. First,
implementation and interpretation of the TRIPS Agreement in a manner
supportive of public health. Second, the Council on TRIPS was mandated
to complete work on Implementation of Article 23.4 to negotiate for
establishment of a multilateral system of notification and registration of
geographical indications for wines and spirits and extension of the
principle to other products. Third, review of Article 27.3 and
implementation of the TRIPS Agreement to include relationships
between the TRIPS Agreement and the Convention on CBD and other
relevant new developments raised by members.
3.2 Challenges from Doha Declarations on TRIPS
The Public Health Declaration recognizes the potential side effects of
the TRIPS Agreement and gives room to African countries to counteract
the side effects. Measures include the right to grant compulsory licenses,
which override patents and the freedom to determine the grounds upon
which such licenses are granted. This means that the Doha Declaration
provided a road map to use flexibilities of the TRIPS Agreement to protect
public health. This however might not benefit countries with insufficient
capacity or no capacity to manufacture pharmaceuticals because the
Agreement requires production under compulsory license to be
authorized predominantly for the supply of the domestic market
(Panagariya, 2002). The Declaration has instructed the Council for TRIPS
15
Post-Doha African Challenges in the SPS and TRIPS Agreement
to find an expeditious solution to this problem and report to the general
Council before the end of 2002.
The review of Article 23.4 on geographical indications (GI) is a challenge
to developing countries. African countries want TRIPS to confirm
principles, objectives and measures which developing countries can use
to exercise sovereign rights over their biological resources. However,
Rangnekar (2002) observes that divisions exist on the issue of extending
GIs to other goods given the strong level of protection allowed for wines
and spirits. The most important question that arises is whether the
applicability and effectiveness of widening the scope of application of
high-level geographical indications will deliver economic returns. It is
believed in Africa that extension of the principle to products such as
agricultural products, foodstuffs and handicrafts will pay. However,
detailed analysis of the pros and cons may be required to show the actual
benefits.
The review of Article 27.3 on TRIPS Agreement is an opportunity for
Africa because a considerable amount of uncertainty remains on the
economic impact of the TRIPS Agreement in developing countries. The
effects of TRIPS on industry and technology vary according to the
countries’ level of development and the need for, and benefits of, stronger
patent protection, incomes and technological sophistication (Lall, 2002).
Assessing the impact of TRIPS in developing countries therefore requires
a clear distinction on the levels of development. There is no clear case
that most developing countries below the stage of newly industrializing
economy will gain in net terms from TRIPS; the least developed countries
are most likely to lose (op cit). This therefore calls for a differential
approach to intellectual property rights regime. It is in light of this that
the 10-year extension granted to LDCs to comply with the TRIPS
Agreement offers an opportunity to be exploited by most sub-Saharan
African countries.
16
Conclusion
Evidence on the impact of TRIPS in Africa is scanty but Adeyemo (2002)
indicates that Nigerian firms largely acknowledge that intellectual
property rights require them to pay more but for as long as the firms are
allowed to procure the technology, they are willing to pay the cost because
of the higher costs of research and development, the long time it takes
to generate [something is not clear] and the high risks involved. This
might as well be the case for most sub-Saharan African countries. The
challenge with respect to technology acquisition is therefore to strengthen
the intellectual property rights environment, and particularly legislation
to facilitate trade.
The mandated Review of Article 27.3(b) also provides an opportunity to
clarify patenting needs of genetic resources for food and agriculture. A
large number of African communities depend on locally saved seed and
local livestock breeds for their food security and sustainable agricultural
production systems. Flexibility is required to implement sui generis
options so that they can protect the farmers’ rights. The TRIPS Agreement
also needs to be made compatible with the International Treaty on Plant
Genetic Resources for Food and Agriculture, and with provisions of the
Convention on Biological Diversity based on informed consent and
benefit sharing.
4. Conclusion
The Doha Declaration on SPS and TRIPS offers diverse challenges and
opportunities for sub-Saharan African countries. These challenges and
opportunities need to be exploited if sub-Saharan countries are to benefit
from trade liberalization as a result of Post-Doha negotiations. Improved
technical and capital capacities and financial support is key to better
exploitation of the opportunities offered.
17
Post-Doha African Challenges in the SPS and TRIPS Agreement
Research on how best African countries can benefit from opportunities
offered by the Doha Ministerial Declarations on SPS and TRIPS is also
required. This is because available information on how this can be done
is limited. Information from research can assist African countries take
advantage of available opportunities and also help them prepare
adequately for negotiations during the Doha Round.
18
References
Adeyemo, A. (2002). Intellectual property rights and technology import in
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Jooste, A. et al (2002). Bridging the standards divide: Challenges for improving
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Lall, S. (2002). “Indicators of the relative importance of patents to
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Oyejide, T.A., E. O. Ogunkoba and A. Bankole (2001). “Quantifying the
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Panagariya, A. (2002). Developing countries at Doha: A political economy
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19
Post-Doha African Challenges in the SPS and TRIPS Agreement
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model. Alemayehu Geda, Stephen N. Karingi, Njuguna S. Ndung’u,
Marien van Schaaijk, Maureen Were, Willis Wassala and John Obere.
WP No. 5, 2001: ISBN 9966 949 26 7.
A situational analysis of poverty in Kenya. Paul Kimalu, Nancy Nafula,
Damiano Kulundu Manda, Germano Mwabu and Mwangi S.
Kimenyi. WP No. 6, 2002: ISBN 9966 949 29 1.
Budget reforms and the Medium-Term Expenditure Framework in Kenya.
Jane Kiringai and Geoffrey West. WP No. 7, 2002: ISBN 9966 949 21 6.
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Post-Doha African Challenges in the SPS and TRIPS Agreement
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