Abstract
A regulatory framework is among the major factors that determine the innovative capacity of a nation. It may block or ease innovative performance; it may scare away skills and expertise or may reverse brain drain and waste, it may attract and retain investment or lead to relocation of investors. The Ethiopian Biosafety Proclamation of 2009 has come under thorough scrutiny from all sides for its effect on innovation in biotechnology in Ethiopia. While it was expected to introduce a creative mechanism of compliance with international environmental agreements without upsetting the promising biotechnology research in Ethiopia, it conspicuously failed to strike a balance between the imperatives of promoting innovation and protecting humans and biodiversity. Contrary to the claims of the architects of the Proclamation, the legislation hardly entertained any national indigenous input other than adopting a more stringent version of the parent law—the Cartagena Protocol on Biosafety.
The article examines the Ethiopian Biosafety law and its impact on innovation in biotechnology and other emerging technologies that go by other names. It will discuss some striking parallels between EU biotechnology regulation and the Proclamation and in particular the U-turns Europe is taking. Broader issues of the linkage between regulation and innovation policy and the imperatives of expediting innovation are emerging as Ethiopia takes the road Europe is abandoning and even international biosafety regulation is revising. It will argue that the promotion of the responsible development of biotechnology in Ethiopia needs to be reinstated as a priority and not pushed aside as secondary interest.
Introduction
Beginning with a discussion of the background and contexts of the passage of the bill by the Ethiopian legislature, the paper seeks to provide an overview of the purposes, policies and institutions of the Proclamation and the recent developments in the governance of emerging technologies. The article then examines the reasons why it received the frosty reaction from sections of the biotechnology community in Ethiopia and foreign governments and agencies especially the US government. The article looks into the issue whether the failure to take into account the changes that have taken place in the science and technology arenas and the attendant policy issues may have contributed to such reception. This is followed by a section dealing with the technological developments and the policy shifts that unfolded mainly between the adoption of the Cartagena Protocol on Biosafety (hereinafter Protocol) in 2000 and the passage of the Ethiopian bill in 2009. It seeks to identify some of the parallels and divergences between the Ethiopian biosafety law and EU regulation of GM technology. In particular, the implications of the underlying policies of the Proclamation and the impact on the innovation dynamics at the national and regional levels will be analysed. Finally, the article will look into what the Ethiopian legislature should have taken into account while preparing the bill and offers suggestions for a review of the Proclamation to create an amenable environment for innovation.
Background to the Law
The Proclamation has been a long time coming. It comes six years after the ratification of the Cartagena Protocol by the Ethiopian Parliament. 1 The Protocol requires signatories to take necessary and appropriate legal, administrative and other measures to implement their obligations (Cartagena Protocol, Art2 (1)). The central objective of the Proclamation is to incorporate the Protocol into Ethiopian law. Under the equivocal Ethiopian law on the incorporation of international agreements, it is far from clear what status the Protocol had prior to the passage of the Proclamation by Parliament. A reading of Articles 9(4) of the Ethiopian Constitution gives the full impression that an international agreement becomes Ethiopian law without the need for an incorporating legislation (Mgbako et al., 2008, p. 269). Other provisions of the Constitution set out the power of ratification and possibly of separate acts of incorporation (Mgbako et al., 2008, p. 271). Given the state of the law under Ethiopian Constitution, the Proclamation does not come as a surprise and can even be considered a mere formal procedure.
However, for the biotechnology community in Ethiopia, it did come as a surprise. Among the controversies surrounding the Proclamation is the charge that it was not preceded by sufficient deliberation as its passage was rushed through Parliament just before it went into recess. It was not referred to the relevant parliamentary select committee; nor was it duly deliberated elsewhere. What is more was that it was promulgated in the shadow of the more controversial anti-terrorism proclamation that veered attention away from the less politically charged Biosafety Proclamation. In the call for a reopening of the debate, the biotechnology research community in Ethiopia invoked these same circumstances surrounding the passage of the Proclamation as grounds justifying an immediate review of the law (Addis Fortune, 2010).
It makes an interesting observation that it was in such precarious circumstances that the EU ‘de facto moratorium’ on GM came into effect. The EU Commission, the powerful executive organ of the EU, was expected to decide on EU policy on GM. However, it was pre-occupied with extremely pressing matters concerning its own legitimacy when the moratorium slipped into EU policy. The Commission was not properly constituted when the decisions leading to the moratorium were taking shape. 2 There was no sufficient debate and the Commission had the minimal say in the policy. It failed to exercise its powers to pass a decision on the matter in what has been characterised as ‘a remarkable, probably unprecedented breakdown in the EU legal framework’ (Lee, 2008, p. 4).
There are lessons to be drawn for the Ethiopian biotech debate from the history of EU GM regulation. The EU Commission is now in a much better position and is flexing its rule-making muscle to correct past mistakes. It has re-opened the GM agenda. It is encouraging member states to go their own way by removing the semblance of moratorium (Poli, 2010, p. 339). The change being introduced by the EU Commission is being emulated by other bodies of the EU particularly the European Parliament. Labelling of GM food has been religiously pursued by the EU over the last decades. It was this very issue of labelling that was at the centre of the transatlantic trade war. The labelling of GM products was seen as a protectionist measure and the litigations raged for decades. In a complete U-turn on labelling policy, Members of the European Parliament (MEP) declined calls for labelling of meat from cloned animals drawing lessons from the GM trade war (Poulter, 2011). This is a stark example of how the GM debate impacted the debate on related emerging technologies.
It would be no surprise if there were no eyebrows raised at the Ethiopian bill on biosafety to come at such a time unheeding the lessons from the changes taking place at the hotspots of the GM debate. The call for the re-opening of the debate by the Ethiopian research community is justified given the developments in Europe and elsewhere. The Ethiopian Government has hinted at revising the law in its rather mixed reaction to the demands of the research community in Ethiopia (Wikileaks, n.d.). The Government will have to review the Proclamation against the backdrop of what is happening in Europe and elsewhere.
The Purposes, Norms and Institutions of the Proclamation
The purpose of the Proclamation is the implementation of the Protocol. Besides the direct reference to the Protocol, the Proclamation has liberally adopted the concepts and institutions of the Protocol like ‘modified organism’, ‘advance informed agreement’, ‘biosafety clearing house’, and ‘precautionary principle’ with little or no modification. It is not possible to dwell on an extended discussion of the contents of the Proclamation in a work of this brevity. We, thus, limit ourselves to a cursory look at how the Proclamation dealt with the concepts and institutions that were subjects of tremendous interest and debate at the global level. We begin with a comparative analysis of the purpose of the Proclamation and the international biosafety law as codified in the Protocol.
Purposes
The Proclamation provides that its purpose is the protection of biodiversity. The protection of biodiversity is a bundle that is loaded with many other sub-purposes and it is not unusual that policies having little or nothing to do with the protection of biodiversity are smuggled under a policy of the protection of biodiversity. It is to be recalled that the GM war that Europe even brought to the African turf was not merely based on environmental concerns to guard against the risk posed by GM technology to biodiversity. A whole raft of hidden agendas ranging from the protection of a non-GM organic market to the protection of sovereignty from further erosion by globalisation were pursued under the cover of GM risk regulation (Somsen, 2008b, p. 226).
In the Ethiopian context, the declared objective of the Proclamation is the protection of biodiversity. However, ambiguity abounds on the interpretation of this objective. On the one hand, it is interpreted to reflect the desire to keep Ethiopia a GM-free haven in the region. An official of the Ethiopian Environmental Protection Agency (EPA) is reported to have said that ‘Ethiopia is the only country in east Africa free of GMOs and the EPA management has every intention to stay on this track’ (Addis Fortune, 2010). Whether this is an official position is yet to be seen as there are conflicting signals on whether Ethiopia should embrace GM technology. The late Ethiopian Prime Minister, Meles Zenawi, is on record saying the following:
Should we rule out GM crops or biotechnology as a weapon in our arsenal? No. Why should we rule out any technology? GM technology is like every [other] technology. It could be used well, or it could be misused. The issue is how to use it well. I think it can be used well if it is used safely and if it does not increase the already big power of huge multinationals at the expense of the small-scale farmer. (IRIN, n.d.)
Even after the promulgation of the Proclamation, the official position of the government was hard to pin down as divergent views were presented by government officials on the need to review the Proclamation (Wikileaks, n.d.). This ambivalence is not peculiar to Ethiopia. Europe while boasting about establishing ‘the most rigorous pre-marketing assessment in the world’ (Commission Press Release, 2003), has never dared to play down the intention to use biotechnology as one of its strategic technologies in its bid to become ‘the most competitive and dynamic knowledge-based economy in the world’ (Lisbon European Council, 2000). The trumpeting about ‘the most rigorous assessment’ has backfired and the result is evident from the stance taken with respect to meat from cloned animals mentioned above—a stance which would have been inconceivable given Europe’s risk-averse history.
The Precautionary Approach
One of the major policies and institutions that the Proclamation endorses is the Precautionary Principle. The Protocol mentions the Principle in its non-operative part—the Preamble, while the Proclamation places it in the operative clause in Art 9(1) as a risk management principle to guide the making and contained use of modified organisms. It is the least arguable point that the Principle is central to the Protocol and the Proclamation. Of the Protocol, Cass Sunstein noted that it provides for the strong version of the Precautionary Principle (Sunstein, 2005, p. 20). The version of the Principle the Protocol and the Proclamation adopt is derived from the 1992 Rio Declaration on Environment. The Declaration provides for one of the most influential formulations of the principle: ‘lack of scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation’ (UNEP, 1992).
The Precautionary Principle, despite serving as the mainstay of international environmental law, cannot be said to have been followed consistently. Owing to its questionable conceptual integrity and its deleterious effect in ‘paralysing decision-making’, the Principle has lost much of its appeal and needs to be replaced by better workable concepts. The criticisms of the Precautionary Principle are well rehearsed and no attempt will be made to rerun them here. However, it should be noted that a differential application of the Principle is not uncommon. The Nuffield Council on Bioethics (2004, pp. v, xv) stressed the possible interpretation of the Principle for purposes of allowing the use of GM crops in developing countries. The debate on the Proclamation will certainly involve a debate on the Precautionary Principle and its application in the Ethiopian context.
Penalties
Of all the Proclamation’s clauses, the ones that startled the biotechnology community most in Ethiopia appear to be the provisions on penalties. It is on penalties that the Proclamation may be said to have added something that is not specifically provided for in the Protocol. Contraventions of the provisions of the Proclamation could attract imprisonment of up to fifteen years. In Art 20(1) of the Proclamation it is stipulated that a deliberate transaction with harmful intentions shall be punishable by ten to fifteen years rigorous imprisonment. The research community in Ethiopia has singled out this particular clause to launch an attack on the entire Proclamation (Addis Fortune, 2010).
There are several reasons to treat the response from the biotechnology research community on this point as an overreaction. For starters, such a penalty is not new and there is a harsher penalty, for example, for the smuggling of biogenetic resources out of the country—a much less serious offence relative to the intentional endangering of biodiversity that the Proclamation criminalises. Second, there is an oversight on the part of the biotechnology community on the specifics of this penalty. It is a penalty for those engaging in transactions with harmful intentions. For other offences, the Proclamation provides far too lenient non-custodial fines. It is upon the biotechnology community to abide by the Hippocratic Oath—‘first do no harm’ and it is this principle that the Proclamation is enforcing. The biotechnology community must have already signed up to this ethical requirement at the moment of joining the profession. Offences involving ‘transactions with harmful intentions’ committed by members of a profession should indeed be considered as aggravated offences with the appropriate penalty tags. The Protocol and the international environmental law in general are said to be largely ineffectual in terms of civil and criminal liability and the Proclamation should not mirror this (Kohm, 2009, p. 145).
The more significant value that the Proclamation offers is the deterrent effect of the penalties: Given the weak infrastructure and the low capacity that the state or civil society can muster in developing countries, the appropriate warning should be sent to those engaging in biotechnology activities with ‘harmful intentions’. Moreover, in the absence of robust liability regimes in case of damage to biodiversity in international environmental law, the punishment cannot be said to have been set too high. Since the harm done to biodiversity is more likely to be irreversible, the deterrent effect of the punishment is more to be desired than any other intended purpose. The biotech industry worldwide is notorious for being the focus of public mistrust. Legislating commensurate punishment for the breach of trust by the professionals will help assuage the hostile public attitude that the industry had to endure. In this respect, the Proclamation can be understood as protecting the industry form its own excesses and the consequent backlashes. It would be a ludicrous demand if biotechnologists engage in transactions with harmful intentions and want to be excused.
The debate on the Proclamation need not linger on entertaining the wrangling about the penalties as it did thus far. The penalty provisions have been unnecessary distractions taking discursive resources away from the more important issues of fostering the development of the technology. The biotechnology community should pool its resources in negotiating incentives, in simplifying licence application procedures, in designing robust and accountable decision making mechanisms and in many other areas where the Proclamation fails to deliver.
Modified Organisms
The Proclamation provides for the following definition of ‘modified organisms’:
‘modified organism’ means any biological entity which has been artificially synthesized, or in which the genetic material or the expression of any of its traits has been changed by the introduction of any foreign gene or any other chemical whether taken from another organism, from a fossil organism or artificially synthesized.
The definition of ‘modified organisms’ in the Proclamation is as comprehensive as it can be and its scope is much wider than the Protocol. ‘Modified organisms’ are not confined to those made using any particular procedure such as the recombinant DNA or gene-splicing method that the Protocol recognises as ‘modern biotechnology’ (Cartagena Protocol, Art 3(i)). While the term the Protocol uses is the narrowly qualified ‘living modified organisms’ (LMOs), the Proclamation uses the sweeping expression ‘modified organisms’ with its broader signification including bulk commodities for direct uses as food, feed and processing. The latter commodities are subject to the less rigorous procedures of the Protocol than LMOs are. The Proclamation did not provide for this differential application of the law and brings LMOs and modified bulk commodities under the same regime. The result is that the milled modified maize and the seed from modified maize are subject to the same procedure. No specific reason is given for doing away with the differentiation the Protocol makes. Chairman of the Ethiopian Academy of Sciences, Prof. Shibiru Tedla, has called for separate regulations for food crops and non-food crops very much in line with the Protocol’s categorisation of LMOs and bulk commodities (Reporter, 2013).
The Proclamation’s definition of modified organisms has set the scope of the law in such a way as to cover the various emerging technologies that are being introduced ranging from molecular breeding to synthetic biology as discussed below. It took the first meeting of the Parties to the Protocol to widen the definition of modified organisms so as to include synthetic biology and other technologies. Both the Protocol and the Proclamation seem to have foreseen the arrival of technologies that need to be regulated under the rubric of modified organisms.
While the popular acronym, GM, is avoided by both the Proclamation and the Protocol, the GM label continues with its negative connotations. The changes brought about by the arrival of new technologies do not seem to allay the entrenched bias that the term GM carried with it. The provisions of the Proclamation reflect and enact these biases. The Proclamation has in fact adopted a more stringent stance against GM technology in a manner that renders the Ethiopian legislature ‘more catholic than the pope’. The unstated objective of the Proclamation is indeed advancing an anti-GM policy. In this regard, it has succeeded in painting GM technology black with its punitive clauses and prohibitive financial and administrative burdens on researchers. It has no single word mentioning biotechnology in a positive way. This is in contrast to the Protocol that clearly recognises the importance of biotechnology and its ‘great potential for human wellbeing’ (Cartagena Protocol, Preamble). Is there a chance for the Ethiopian legislature to recognise this potential and to take alternative approaches for the implementation of the Protocol?
What the Ethiopian Legislature Could Have Done
The Ethiopian legislature did not have the full control over what it may legislate on matters of biosafety as it is bound by the Protocol and the Convention on Biodiversity (CBD) already signed and ratified by Ethiopia. However, it has room to manoeuvre within the frameworks of the Protocol to address the local sensitivities and priorities without defaulting on its obligations under the Protocol. Was this the case under the Proclamation? There are good reasons to answer this in the negative and the best way to approach the issue is by asking what novel institutions, modifications or innovative adaptations of the Protocol has the Proclamation introduced.
It has to be questioned whether the chief negotiator of the Protocol for Ethiopia and other developing countries, Dr Tewolde G/Egziabher, was honest on whether there was emphasis on ‘local characteristics’. He was quoted saying that the bill was prepared ‘based on the international bio-safety law, with local characteristics’ (The Biofuels Journal, 2009). Except the penalties, the ‘local characteristics’ he mentions are nowhere to be seen. The Proclamation reaffirms the applicability of the Protocol by direct reference to specific clauses and more importantly in the blanket application of the Protocol as per Ethiopian constitutional law that any treaty ratified by Ethiopia shall be applied throughout the territory of Ethiopia. 3
There was the chance for the Ethiopian lawmakers to make these institutions less rigid and more conducive for fostering biotechnology research without compromising biosafety. The cautious and creative tampering of the Protocol by national legislatures is considered by some commentators as the right approach given the circumstances of its negotiation. South African law on GMOs, for example, has clearly subordinated biosafety under the promotion of biotechnology to make it amply clear that the promotion of the responsible development of the technology is not a peripheral objective (Barron and Couzens, 2004, p. 19). A similar stance is taken by Egypt unambiguously promoting biotechnology for over two decades (Le Chalony and Moisseron, 2010).
As in South Africa and Egypt, the Ethiopian legislature should have found a way to ensure that some of the ground lost during the negotiation of the CBD and the Protocol is recovered. While the Protocol, like any other international agreement, is supposed to be an outcome of compromise, its final form like its negotiation has not been in favour of developing countries in many respects. The atmosphere during the negotiation and adoption of the Protocol was such that it has given rise to a scenario whereby ‘a handful of countries are deciding for the rest’ (Kelso, 2003, p. 251). Ethiopia’s own representative to the negotiations and the chief architect of the Proclamation, Dr Tewolde G/Egziabher, himself, is witness to the ‘arm-twisting and threats’ and utter imbalance in the negotiation process (Kameri-Mbote, 2002, p. 62). When legislating on its implementation, national legislatures have the chance and responsibility to put right the indecorums that characterised the negotiation of the Protocol. The Ethiopian legislature has failed to seize this opportunity opting for the straightforward and orthodox adoption of the Protocol without introducing clauses to enable the country’s needs in supporting its promising biotechnology sector. African scientists are now appealing that Africa ought to make its own solution to its own problem and pursue biotechnology on its own terms (BBC, 2008). Others impute that the resistance to GM technology is partly due to the fact of its being imported from outside and not developed within Africa and the developing countries (Paarlberg cited in Azadi and Ho, 2010, p. 164).
The Proclamation, like the Protocol, is a piece of legislation about risk regulation for the protection of biodiversity, and, as such, it is not expected to include provisions on how to incentivise the relevant technology. However, its impact on biotechnology research should be duly considered. At best, it should have been made clear that research is not to be negatively affected. While the international conventions require a more or less harmonised process of biosafety regulation, it is with minimal disruption that the conventions seek to achieve this outcome (van Zwanenberg, 2011, p. 169). The Proclamation has missed its targeted objective by its failure to re-enact the central objective of the Protocol—the safe development of biotechnology as clearly spelled out in the Preamble of the Protocol stressing the benefits of modern biotechnology:
… modern biotechnology has great potential for human wellbeing if developed and used with adequate safety measures for the environment and human health
The Protocol’s further elaboration in a subsequent document suggests that measures are required in order to foster the technology including the introduction of incentives and directed investments. [The Protocol and its Supplement] are seen as playing a function of preventing damage on the one hand and as a further confidence-building measure on the other, in the development and application of modern biotechnology. It advances the enabling environment for deriving maximum benefit from the potential of living modified organisms by providing rules for redress or response measures in the event something goes wrong and biodiversity suffers or is likely to suffer damage (The Nagoya–Kuala Lumpur Supplementary Protocol on Liability and Redress to the Cartagena Protocol on Biosafety).
Following the lead from the CBD and the Protocol, Africa’s Science and Technology Consolidated Plan of Action (NEPAD Office of Science and Technology, 2006, p. 14) has categorised the safe development of biotechnology as one of its flagship research and development programmes. The Proclamation, on the other hand, has consistently left out the objective of promoting the responsible development of biotechnology succumbing to the anti-GM campaign. A lot has changed since the early days of anti-GM campaign and the dust is now beginning to settle to allow space for rational debate on the science of the technology, its benefits and risks. The time has come to challenge the entrenched ‘culture of irrationality’ that blighted the entire biotechnology endeavour that is also threatening other emerging technologies (Morris, 2007). The voices from developing countries are largely muted by the traditional risk-averse arguments. However, the greater risk these days paling all other risks is the risk of missing the train and being left out from the benefits of technological progress.
The Protocol may have ‘silenced’ the biotech firms from the North that were intent on aggressively marketing GM to the South. That should not be the function that we should be focusing on in the implementation of the Protocol these days. We need to re-examine the wisdom of letting poor Zambians undergo the indignity and physiological trauma of starvation turning down the offer of GM maize which rich Koreans are happily shopping for to meet their grain shortfall. Europe played the crucial role in blocking GM food aid reaching starving nations effectively bullying them with the possibilities of losses in trading opportunities if they allow GM crops into their territory. Some were right in questioning Europe’s motivations while purporting to support the right of African nations to refuse GM crops in the guise of protecting their agriculture while undermining the same sector by running a massive subsidy system that eliminates the market opportunities of African farmers (Shelley, 2006, p. 85).
Due attention needs to be paid to the benefits of the technology which is proven to have benefitted consumers in the North. As Ingo Potrykus, chairman of the Golden Rice Humanitarian Board, observes, if GM crops were harmful, it would have long been known in the US where they are widely grown and consumed, and where there is a strong appetite for fault-finding and the litigious society that constantly whets it (Potrykus, 2010, p. 561). The risk-averse rhetoric against GM has played with two cards: one casting doubt on the science and the other on its governance. While a neat delineation of the two issues is difficult, a rational reappraisal of the issues is the right way forward.
While we should indeed join Dr Tewolde G/Egziabher in condemning Monsanto’s bid to monopolise control over access to GM technology through various means including the use of the terminator gene, it does not follow that whatever Monsanto does is all bad. The terminator gene and other Genetic Use Restriction Technologies (GURTs) may be the technologies that the Protocol envisages as a technology required for biosafety (Cartagena Protocol, Art 22(1); Sateesh, 2008, p. 418). The terminator gene technology can be used to control the movement of transgenes and prevent contamination in as much as it can be used to protect Monsanto’s property rights.
Sifting out the issues and tackling them issue by issue is the way to systematically deal with biotechnology and its emergent forms. This is indeed the trend that is unfolding with respect to emerging technologies. Jeremy Rifkin’s tack with respect to a new technology is marked by the commitment to take a focused approach that delineates the attack on the science from the attack on its governance. He is now concentrating on issues of access and patents. The control and ownership issues of GM technology and the many other emerging technologies should be the battlegrounds where the fight over technology should be carried out. The Ethiopian legislature should have paid more attention to the governance issues relating to ownership and control in the context of the changes that took place in the policy arenas and at the technology front.
Beyond GM: Developments in Technology Triggering Shifts in Policy
The decade after the opening of the adoption of the Protocol has witnessed the proliferation of a whole new generation of more efficient and more effective technologies. The early debate on GM dwells much on the gene-splicing procedure. The gene-splicing technique involves the insertion of selected genes from other organisms of the same or different species into the genes of another organism. The traditional laborious gene-splicing technology, though ‘a crude approach’, remains an important technology for its unique advantage that other technologies cannot offer as yet. Scientists argue that the gene splicing technique is needed because the required improvements in the specific organism can be achieved only through this technique for the time being. Thus, it is only by gene-splicing that soybeans can be fortified with omega-3 fatty acids or crops can be made frost-resistant. 4
However, the gene-splicing method that used to be the hallmark of genetic engineering in general is now being overhauled and replaced by emerging technologies triggering a new round of debate with new terms of reference. The list of new generations of biotechnology is long and inexhaustible as they are being rolled out continually at breakneck speed. Meanwhile the gene-splicing technique itself is exceeding initial expectations through the increased use of genomics (automated sequencing and analysis of genes), bioinformatics (analysis of DNA information) and proteomics (analysis of protein functions and their relationship to genes) powered by the new information technologies.
The advent of new technologies has kicked off a new debate with some abandoning their former arguments. One of the promising technologies that even the diehard anti-GM crusaders passionately promote is molecular breeding especially the technique known as Marker Assisted Selection (MAS). Jeremy Rifkin, a veteran anti-GM activist is now compelled to take an ‘amazing twist’ after considering the promises of the MAS technique. Instead of transferring genes from one species to another, MAS simply speeds and improves traditional plant breeding. Researchers search through maps of a plant’s genome for sequence markers that are consistently associated with desired traits such as improved yield or disease resistance. Those markers can then be used to screen breeding stock and the progeny of traditional crosses even before they are grown or planted in the field. Rifkin argues that this new technology should replace GM technology which he calls ‘primitive science’ (Stokstad, 2006, p. 1586). In his words, MAS ‘may succeed where GM has failed’ (Rifkin, 2006).
The other emerging technology is synthetic biology where the aim is no longer modifying existing organisms but creating new organisms from scratch (Jones, 2008, p. 245). With synthetic biology instead of transferring genetic material from other organisms, scientists are making artificial DNA and inserting it into the organism removing the entire DNA of the recipient organism. Synthetic biology promises to have organisms with desired traits that may not exist in nature in any form.
Synthetic biology and other molecular technologies are treated as sub-disciplines of nanotechnology—the atom-by-atom manipulation of matter whether biotic or abiotic. Nanotechnology is a general purpose platform technology evolving into an über-science subsuming other disciplines as its sub-disciplines. Rebranding research in GM technology as belonging to new technologies like nanotechnology or bio-nanotechnology is an expedient way to dissociate research form the much maligned GM technology. Hence, in Thailand, one of the hotspots of GM-bashing, scientists insisted on their work being recognised as nanotechnology research even though their research is on modifying strains of rice (South Bulletin, 2004).
The instrumentation and other facilities that have been possible with the help of nanotechnology are changing biotech research for the better. With nanotechnology transforming GM technology, nanotechnology and GM technology are converging and will be ‘wholly intertwined’ (Shelley, 2006, p. 109). As one of the vociferous organisations in the campaign against GM put it
Agro-nano connects the dot in the industrial food chain and goes one step further down. With new nanoscale techniques of mixing and harvesting genes, genetically modified plants become atomically modified plants. (ETC Group quoted in Shelley, 2006, p. 109)
There are now a host of techniques that may ‘provide a way to bypass many of the cultural and political hurdles associated with GM crops and may turn out to offer the most valuable use of the technology’ (Boyd, 2003, p. 57). However, the stigmatisation of the whole biotechnology industry remains a hurdle. The Proclamation has done little by way of removing this hurdle to the development of biotechnology by subscribing to a rigid application of the Protocol. Having dropped the few ideas that the Protocol offers about the promotion of biotechnology, it has made it clear that the biotechnology endeavour or, ‘adventurism’, as Dr Tewolde G/Egziabher dubs it, is either unwelcome or not encouraged (Gebre Egziabher, 2003, p. 13). The stigmatisation does not rub off easily even where opponents change their mind and approve the technology they have been battling with. Same is true when the industry caves in to the arguments of the opponents of the technology and takes measures to correct it. That was the case with golden rice where intellectual property (IP) was a major issue. As Matt Ridely (2003) noted even after the withdrawal of IP rights by Ingo Portykus and the patent holding companies, the opposition to golden rice has not stopped.
In an article not dismissive of GM technology on the whole, Tewolde cautions against what he called ‘adventurism’ in applying GM technology in the South. Accordingly, he recommends ‘a wait and see’ approach (Gebre Egziabher, 2003, p. 13). The Ethiopian government minister for agriculture has also pleaded for the same ‘wait and see’ approach while defending the Proclamation (Wikileaks, n.d.). However, the pace of technology is such that it does not make allowance for ‘a wait and see’ approach. Scientists are fond of using the metaphor of the ‘Red Queen Effect’ from Lewis Carroll‘s novel Through the Looking Glass, the Red Queen, tells Alice that it ‘takes all the running you can do, to keep in the same place’ (Carroll, 1999, p. 20). The bottom line is that promoting indigenous research is simply a matchless alternative even for purposes of maintaining existing levels of innovation. Some are calling upon African scientists to develop GM crops themselves rather than adopt those developed in the industrialised world (Wendo, 2001, p. 1970).
Removing disincentives for researchers and biotechnology entrepreneurs is a vital measure that a national innovation regime cannot afford to defer. Especially, creating research opportunities in areas where Northern firms have no interest of even exploring is what regulators and lawmakers in the South should actively promote. For the multinational Northern firms like Monsanto and Pioneer, it is not profitable to develop biotechnology in the developing world (Azadi et al., 2011, p. 8). The gap thus created needs to be filled by indigenous research to say the least.
The anecdotes discussed above are distinctive for the dramatic policy changes following developments in technology. Several less dramatic changes were introduced by the many jurisdictions that ratified the CBD and the Protocol. Ratification does not entail a letter-by-letter adherence to the treaty instruments. Parties to the treaty are left with room to manoeuvre in carrying out their obligations under the agreements. Parties will naturally take measures not to jeopardise their science and technology efforts when devising their compliance mechanisms. This is where the difficult task of the Parties lies—striking the right balance between compliance without causing disruptions to their science and technology endeavours. The homework for the Ethiopian legislators was the challenge of finding a balance between the opportunities for greater flexibility and innovation in the biosafety governance and limiting the adverse consequences of failing to regulate.
The EU experience is instructive in this respect. EU member states have opted for various mechanisms that significantly modify the Protocol yet remain compliant with the Protocol and the EU legislation implementing the Protocol (European Commission, 1998, 2001, 2003). 5 If we take the experience in the Netherlands, we find a dynamic biosafety regulatory regime in place. The Dutch government, having monitored the effect of its biosafety regulation on the biotech industry and witnessing the flight of firms out of the country, has introduced a series of changes to relax the legal conditions. It abolished the requirement of permit for ‘contained use’, shortened the procedure for licensing and standardised the risk assessment conditions (Somsen, 2008a). Another interesting reform is the appeal system the Dutch introduced. The Dutch biosafety regulation provides for a judicial review (Somsen, 2008a).
The Dutch experience is interesting because the Ethiopian Proclamation lacks such a system leaving the biotech researcher or firm at the mercy of the Ethiopian Environmental Protection Agency with its unmistakable anti-GM reputation. There is no recourse in case of grievances over a decision given by the Agency implementing the Proclamation. Judicial remedy and even administrative appeal is unavailable under the Proclamation. The Proclamation could have introduced an appeals system and that is of great significance as the decisions by the implementing authority could be far from ideal having regard to the capacity building task that has yet to be done in developing countries in general. An appeals system will greatly improve the quality of decisions that may be affected by the lack of capacity prevalent in developing countries like Ethiopia.
Conclusions
The Proclamation’s anti-GM bias is not denied even by its architects. What is strange about it is that the law was passed at a time attitudes towards modern biotechnology are changing across the globe especially in Europe that was leading the anti-GM resistance for the past few decades. The architects of the Ethiopian bill have chosen to ignore the prevailing scientific community’s view of modern biotechnology and have fallen for the noisier anti-GM campaign. The Proclamation has, thus, institutionalised the ‘culture of irrationality’ that dominated the GM debate thus far. The least the Proclamation should be expected to achieve was overcoming this culture and move on with the science. It should have cleared the way for emerging technologies instead of replaying the old debate. As Ugandan President, Yoweri Mussevini, rightly noted the debate has ‘gone on for a very long time while other parts of the world have moved to other technologies like nanotechnology’ (Wamboga-Mugirya, 2008).
It is upon the state to ensure that its regulatory environment is conducive for innovation. A country’s science, technology and innovation policy plays a critical role and this is even more critical in a developing country context. The Ethiopian biosafety law has implications far beyond the intents of the architects of the law. It portrays the wrong image about the entire national system of innovation the country seeks to put in place. It will affect all emerging technologies as it sends the wrong signal for researchers and entrepreneurs having plans to engage with new technologies. The reaction of the research community and the government’s own ‘flip-flopping’ and unconvincing response are clear indications that a great deal of work is ahead. There remains the task of rectifying the bill by aligning it with international practices and developments, and, above all, paring it down to the level of the stringency of the Protocol that it purports to implement. The Protocol has left it to the national legislatures to decide on the degree of stringency they want to pass as law without unduly impacting their biotechnology research and development. Ethiopia needs to incentivise its promising biotechnology research not quash it with burdensome regulation.