Monsanto versus Africa – the politics of genetic engineering
Versions of these three articles were originally published in Organic NZ, September/October 2009
Monsanto engineers Africa
Under the apartheid regime in South Africa (1948-1994) state-funded agricultural research focussed on the industrial export models of farming practised by white farmers, (1) and hence South Africa was an early adopter and promoter of genetic engineering, setting up the South African Committee on Genetic Experimentation (SAGENE) in 1979. (2) SAGENE acted as a de facto government advisor and regulator of GE experiments and crops until being legally constituted as such just before the first democratic election in 1994.
The new government had no expertise in biosafety issues, which made it easy for the GE-promoters in SAGENE to write an extremely pro-GE law, the GMO Act of 1997. (3) The first commercial plantings of GE seed started in 1997 and ten years later GE crops (maize, soy and cotton) covered 1.4 million hectares. (4) Only four other countries have a greater percentage of their total arable land in GE crops. (5) South Africa now has one of Monsanto's six 'crop analytics' laboratories, which breed GE seed (6) and after buying out local seed companies Monsanto owns 40% or more of seed sources. (7)
Monsanto works hand-in-glove with industry front groups like AfricaBio (8), and a plethora of governmental and quasi-governmental organisations (9) dedicated to spreading GE crops and GE friendly laws and regulations not just in South Africa but in the rest of Africa as well. (10) In the other corner, David to Monsanto's Goliath, is the environmental organisation Biowatch, which was set up in 1997 to try and protect South Africa's biodiversity and natural heritage from the threats posed by genetic engineering. Biowatch's efforts to get information on GE plantings and regulatory decisions from government agencies were unsuccessful, and it resorted to court action to obtain the information only after being stonewalled for years. In 2005 Judge Dunn agreed that the Biowatch case was justified, and that it was entitled to most of the information it requested, but he also accepted Monsanto's argument that it had been 'forced' to go to court to protect its interests, and hence was entitled to costs. (11) This would have had the effect of putting Biowatch out of business. So a lot was hanging on the Constitutional Court's decision. Fortunately it affirmed not only the right to information, but also the right of citizens to form groups to act in the public interest regardless of whether that conflicts with private interests. (See Monsanto comes a constitutional cropper, below.)
Notes to 'Monsanto engineers Africa'
(1) Marais, Hein (2001) South Africa Limits to Change The Political Economy of Transition
London: Zed Books; Cape Town: University of Cape Town Press
(2) See http://www.spinprofiles.org/index.php/SAGENE for SAGENE's history and personnel.
(3) Mayet, Mariam (2001) Critical Analysis of Pertinent Legislation Regulating Genetic Modification In Food And Agriculture In South Africa, Biowatch South Africa http://www.biowatch.org.za/main.asp?include=pubs/articles.html
(4) Gruere, Guillaume P. and Sengupta, Debdatta (2008) Biosafety at the Crossroads An analysis of of South Africa's Marketing and Trade Policies for Genetically Modified Products, IFPRI Discussion Paper 00796, www.ifpri.org/pubs/dp/IFPRIDP00796.pdf
(5) Friends of the Earth International (2009) Who benefits from gm crops?, www.foei.org/en/publications/pdfs/gmcrops2009full.pdf
(6) Monsanto (2005) Cream of the Crop: Industry-Leading Crop Analytics Capabilities from Monsanto, www.monsanto.com/pdf/products/cropAnalytics.pdf
(7) Africa Centre for Biosafety (2005) A Profile of Monsanto in South Africa, p. 17
(8) Information on AfricaBio at http://www.spinprofiles.org/index.php/AfricaBio
(9) Read about them on Monsanto's site http://www.monsanto.co.za/en/layout/biotech/10_years.asp
and on the South /African government site - http://www.info.gov.za/aboutsa/science.htm#Biotechnology
(10) Fig, David, 27 June 2007, Is Africa being bullied into growing GM crops? http://www.scidev.net/en/sub-suharan-africa/opinions/is-africa-being-bullied-into-growing-gm-crops.html
(11) See the Biowatch site - http://www.biowatch.org.za/ - for briefings, media releases and other information on its court cases.
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Monsanto comes a constitutional cropper
The Monsanto Company - producer and seller of genetically-engineered (GE) seed and associated agricultural chemicals - goes to court a lot. Sometimes it is to defend itself against charges of bribery and corruption (1) or false advertising (2) or toxic pollution (3). It usually loses these cases, because it is indeed guilty of all these things. But more often it initiates court cases it can win. Cases against farmers, and cases against citizens seeking information about or redress from their state concerning Monsanto's products and activities. Monsanto has an in-house staff of 70 plus and lots of contract workers dedicated to spying on and catching farmers in breach of Monsanto's rules, and it spends some US$10 million a year on these activities. In the US alone it has sued hundreds of farmers for infringement of its patent rights, or violations of the Technology Agreements that farmers using Monsanto GE seed have to sign. It has collected over US$20 million in judgements from farmers this way, and over US$100 million in out-of-court settlements. (4)
Thanks to its ability to influence lawmakers, the judiciary and other businesses in its favour Monsanto is a major threat to democracy and citizen's rights in the US, and to human rights elsewhere. (See Monsanto lays down the law, below.) Until this year it seemed to be in an equally powerful position in South Africa. (See Monsanto engineers Africa, above.) That was until the 3rd of June 2009, when a full bench of the South African Constitutional Court brought down an historic unanimous judgment (5) It found that Monsanto had no right to have its court costs paid by the environmental group Biowatch, and that the state respondents to the case (the Registrar of Genetic Resources, the Executive Council for GMOs, and the Minister of Agriculture) were liable for Biowatch's costs instead.
In this shot across the bows of all pirate corporations seeking to deny the people the right to know what their government is doing in their name (and with their money), the Constitutional Court affirmed that South African citizens have rights to information under section 32 of the Constitution and that the state has a duty to provide it. (6) These rights are expressly provided for in the Promotion of Access to Information Act of 2000. Further, the Constitutional Court found there was no right for costs to be awarded to other parties merely because they had joined in litigation in the alleged defence of their assumed rights, and that the High Court had been constitutionally wrong to order Biowatch to pay Monsanto's costs.
As well as setting an extremely important precedent for more open and robust democracy in South Africa, the judgement also has international significance. It represents the first time that Monsanto, a global company, has been told at the highest state level anywhere in the world that it does not have a preemptive right to commercial secrecy if and when exercising that right interferes with the rights of citizens to have the information they need to protect their other rights. In the Biowatch case, the other rights which Biowatch was seeking to protect on behalf of the public were the environmental rights guaranteed to South African citizens under Section 24 of the Constitution. (7)
Although unique in defending the right to know about the use of GMOs as a constitutional right, the South African case is not the first time that Monsanto has been told it has a duty to provide information which the public has a valid right to know, in the interests of public health and safety. After a three year legal battle in which first the German authorities and then Monsanto denied public access to a study on rats which fell sick when fed its GE maize variety MON863, a German court ruled in June 2005 that Monsanto had to make the study available to Greenpeace, which promptly published it on the Web. Subsequent analysis of the study by independent scientists in France and Germany showed that concerns that this GE maize variety is toxic to animals were justified. (8)
But by then the damage had been done around the world. Food Standards Australia New Zealand (FSANZ), for example, had already approved MON863 maize for human consumption in Australia and New Zealand in 2003. It presumably felt the need to be consistent and predictably dismissed the French analysis when it came out. It did this without even seeing the original study - it said it didn't need to. After a public outcry in 2004 it did ask Monsanto for the raw data in the study (over 1,000 pages) plus the summary and supplemental analyses. After nine days it sent the whole lot back, having decided that it could not agree to Monsanto's condition that it all be kept confidential. (10) FSANZ insists that it read all the data in that time, and found that everything was just fine.
Not many countries have the rights of citizens to know what the state is doing in their name and with their money and resources protected via a constitution, like South Africa. Nevertheless, a good many states do have laws which enshrine these rights, and institutional methods of exercising them. The South African case should serve as an encouragement for those who want their own state to be more responsive to citizens and less subservient to corporations, and may suggest ways of going about it.
Notes to 'Monsanto comes a constitutional cropper'
(1) Monsanto got its Bt cotton seed into Indonesia by bribery and stealth - see
Monsanto fined $1.5m for bribery, BBC News, Friday, 7 January, 2005, http://news.bbc.co.uk/2/hi/business/4153635.stm;
Bill Guerin, Asia Times Online, January 20, 2005, The seeds of a bribery scandal in Indonesia, http://www.grain.org/btcotton/?id=264; Antje Lorch (2005) Food. Health. Bribery http://gencontrol.org/food-health-bribery; Monsanto’s Bt Cotton Fails in Indonesia, http://www.historycommons.org/context.jsp?item=gm-78
(2) In 1997 Monsanto was investigated by the Attorney General of New York state for claiming in its advertisements that Round Up is totally safe and causes no harm to people or the environment. Monsanto agreed to drop the words 'biodegradable' and 'environmentally-safe' from its ads and to pay the Attorney General's costs of $50,000. (Monsanto Agrees to Change Ads, http://www.holisticmed.com/ge/roundup.html) In France ten years later Monsanto was fined 15,000 euros for misleading the public about Roundup by presenting it as biodegradable and claiming that it left the soil clean after use. Monsanto's French distributor was also fined 15,000 euros. The defendents were also ordered to pay damages totalling 8,000 euros to the environmental groups which brought the initital charges. The fines were upheld in 2008 after Monsanto appealed them. (Monsanto Fined in France for 'False' Herbicide Ads, Agence France Presse, Jan 26, 2007, http://www.organicconsumers.org/articles/article_4114.cfm; Monsanto condamné en appel pour publicité mensongère, L'Express, 29/10/2008, http://www.lexpress.fr/actualite/environnement/monsanto-condamne-en-appel-pour-publicite-mensongere_656001.html)
In South Africa in June 2008 the Advertising Standards Authority ordered Monsanto SA to withdraw an advertisement which included the false claims that 'No negative reactions to GM food have ever been recorded', and that GE foods contain enhanced proteins, vitamins and anti-oxidants and remove allergens. (Trevor Wells, Farmers Legal Action Group-South Africa (2008) Falsified GM food safety claims rejected by South Africa, http://www.flag-sa.org/blog/2008/01/falsified-gm-food-safety-claims.html)
(3) In August 2003 a court in Alabama held Monsanto liable for $700 million in damages, clean-up costs, medical costs and other reparations payments arising from the toxic pollution caused for over forty years by its chemical plant in Anniston. (Monsanto Fined $700 Million for Poisoning People with PCBs, http://www.organicconsumers.org/Toxic/monsanto_pcbs.cfm)
(4) Center for Food Safety (2007), Monsanto vs U.S. Farmers November 2007 Update,
Washington D.C. and San Francisco: Center for Food Safety
http://www.centerforfoodsafety.org/Monsantovsusfarmersreport.cfm
(5) A summary of the judgement and the full judgement can be read at http://www.constitutionalcourt.org.za/site/Biowatch-Trustees.htm
(6) 'Section 32 of the Constitution provides that: (1) Everyone has the right of access to - (a) any information held by the state; and (b) any information that is held by another operson and is required for the excerices or protection of any rights.' (Constitutional Court of South Africa, Case CCT 80/ 08 [2009] ZACC 14, p. 6)
(7) 'Section 24 of the Constitution provides that: (1) Everyone has the right - (a) to an environment
that is not harmful to their health or wellbeing; and (b) to have the environment protected for the benefit of present and future generations, through reasonable legislative and other measures that -
(i) prevent pollution and ecological degradation; (ii) promote conservation; and (iii) secure ecologically sustainable development and use of natural resources while promoting economic and social development.' (Constitutional Court of South Africa, Case CCT 80/ 08 [2009] ZACC 14, p. 6)
(8) Greenpeace (2006) The MON863 case - a chronicle of systematic deception,
www.greenpeace.or.jp/campaign/gm/documents/doc070313e.pdf
(9) For the dissing see Review of the report by Séralini et al., (2007) at
www.nzfsa.govt.nz/consumers/gm-ge/fsanz.pdf
and for the original Séralini study go to 'A New Analysis of a Rat Feeding Study with a Genetically Modified Maize Reveals Signs of Hepatorenal Toxicity', Archives of Environmental Contamination and Toxicology, Volume 52, Number 4 / May, 2007
http://www.springerlink.com/content/02648wu132m07804/?p=02bf4277179d4a27bb276f5e96803358&pi=18
See Séralini/CRIIGEN's December 2007 refutation of FSANZ's review at 'CRIIGEN answers to "Food Standards Australia New Zealand” (FSANZ) critique' at
http://www.criigen.org/content/view/142/99/
(10) Greenpeace Australia Pacific (March 2007) MON863 Corn: A case study in incompetence
www.greenpeace.org/raw/content/australia/.../mon863-FSANZ.pdf; GE Free NZ media release 29/07/2007, FSANZ Clearance of GE Corn Plays Russian Roulette with Our Health. http://www.gefree.org.nz/press/20070721.htm
Monsanto lays down the law
In 1998 all 14,000 copies of the September issue of The Ecologist magazine were mysteriously pulped by the magazine's regular printers, without the publisher's knowledge or consent. This issue just happened to contain articles critical of Monsanto's environmental record. When the publisher found another printer, leading news agents in Britain refused to stock the issue. Monsanto wouldn't admit to what it did to put the frighteners on, but some good came from its evil - the issue went on to be The Ecologist's best-seller ever. (1)
Monsanto had better luck when a class action anti-trust case first brought against Monsanto and other GE seed companies for price-fixing in 1999 failed to proceed in 2003, when the judge firstly considered whether the plaintiffs could take a class action, and decided they could not. He then considered whether they could make an anti-trust case, and decided against that too. (2) Funnily enough, the judge concerned just happened to have once worked for a law firm that worked for Monsanto, and to have made a previous judgment in favour of Monsanto. (3) Monsanto had another big win in the courts the following year, when the Canadian Supreme Court brought down a bare majority ruling in May 2004 that effectively extended US patent law to cover Canadian farmers, and find them liable for planting GE seed no matter how that seed was obtained (including by unwanted cross-pollination, or by saving next generation seed) and regardless of whether the farmer intended or even wanted to use GE seed. (4) In North Dakota citizens had already taken action against Monsanto ruling their state and interfering with their farming by passing a law against corporate agents abitrarily entering and inspecting farmer's fields - the first step in keeping Monsanto's GE wheat out of the state. (5) Unfortunately Monsanto got its political allies (it funds them generously) (6) on to the job of stopping other states doing this. The ringleader was the GE-boosting Iowa governor Tom Vilsack, named Governor of the Year in 2001 by the gene-jockeys' industry group, the Biotechnology Industry Organization. In 2005 he initiated the seed pre-emption bill to prevent state governments from instituting local bans and restrictions on GE seeds and crops. (7) (In 2009 Barack Obama made Vilsack US Secretary of Agriculture.)
A further victory for Monsanto and a blow to citizens's rights came in 2008, when the US Supreme Court refused to hear an appeal by a Mississippi farmer, Homan McFarling, against lower court decisions in favour of Monsanto's rights to second-generation seeds which still contained their patented GE traits. Hence an opportunity to test the extent and validity of US laws on patenting life forms has been lost. (8) In 2009 a small ray of legal light shone on the American people struggling against Monsanto's might - the Ninth Circuit Court of Appeals ruled the injunction on Monsanto selling Round Up Ready alfalfa seed must remain until the government has completed an environmental impact study on its use. (9)
Notes to 'Monsanto lays down the law'
(1) Ronnie Cummins [1998] Monsanto Under Attack (Part 1), http://www.inmotionmagazine.com/monprob.html
(2) Aglaw Update, National Agricultural Law Center (October 2003)
Class action for anti-trust law and tort dims relating to transgenic crops
www.nationalaglawcenter.org/assets/aala/10-03.pdf;
A.V. Krebs, The Agribusiness Examiner, January 4th, 2000, Farmers Launch Anti-Trust Suit Against Monsanto http://www.corpwatch.org/article.php?id=574
(3) Duncan Campbell , The Guardian, Saturday 10 January 2004
Trial judge worked for firm that acted for Monsanto
http://www.guardian.co.uk/business/2004/jan/10/usnews.science
(4) ETC Group (News Release Friday, May 21, 2004)
Canadian Supreme Court Tramples Farmers' Rights -- Affirms Corporate Monopoly on Higher Life Forms, http://www.etcgroup.org/en/materials/publications.html?pub_id=106
(5) Ted Nace (2006), Breadbasket of Democracy, Orion magazine, May/June 2006,
http://www.orionmagazine.org/index.php/articles/article/171/
(6) For details on Monsanto's official spending on the 2008 US election cycle (over US$300,000) see http://www.opensecrets.org/pacs/pacgot.php?cycle=2008&cmte=C00042069 and for particular candidate donations (averaging around US$2,500 per Monsanto-favoured candidate) see http://www.opensecrets.org/pacs/lookup2.php?strID=C00042069&cycle=2008. Then there is the money spent by the Biotechnology Industry Organization on lobbying politicians , which came to US$7, 680,000 in 2008. (http://www.opensecrets.org/lobby/clientsum.php?year=2008&lname=Biotechnology+Industry+Organization&id=)
(7) See more on Vilsack and his career at http://www.spinprofiles.org/index.php/Tom_Vilsack
(8) Tom Philpott, 17 Jan 2008, Monsanto’s latest court triumph cloaks massive market power,
http://www.grist.org/article/dominant-traits/
(9) Gina Keating, June 24, 2009, U.S. court cuts off appeals in Monsanto alfalfa case
http://www.reuters.com/article/GCA-GreenBusiness/idUSTRE55N5QH20090624
