The Geographical Indications movement: How does Africa play its hand?

According to Voltaire, “each player must accept the cards life deals him or her; but once they are in hand, he or she alone must decide how to play the cards in order to win the game.” This quote best encapsulates The legal construction of geographical indications in Africa by Titilayo Adebola discussed in this post.

The legal construction of geographical indications in Africa is published in the Journal of World Intellectual Property and highlights a hugely important aspect of the movement to promote and protect Geographical Indications (GIs) in and across Africa: GIs are neither so good nor so bad and despite external, non-African influences and support, Africa has room to play the hand it’s been dealt for its own benefit. Whether or not GI protection is good for Africa depends on how Africa constructs the protection landscape to leverage on the benefits of GIs and avoid the pitfalls of GI protection that are not readily visible (due to the manner in which the GI protection cards have been dealt). 

...Play the hand

From inception, the GI protection landscape has been influenced by the national commercial and socioeconomic interests of colonial administrations that held sway during the colonial era when treaties such as the Paris Convention of 1883, Madrid Agreement of 1891, and Lisbon Agreement 1958 were adopted. As Adebola points out in the case of Africa, the “European colonial administrators did not introduce IPRs to promote domestic creativity or innovation in their colonies… and the IPRs laws were not intended for the benefit of the colonial subjects”. Rather, European national laws and preferences shape the foundation and legal framework for GIs as furnished under the relevant treaties and international agreements.

One major contribution of Adebola’s work here is the underscoring of the ways in which history and local contexts contributed and could contribute to the construction of GIs in Africa. A good portion of Adebola’s article engages in a deep, incisive analysis of the history of international GI protection and its journey into Africa, pointing out European influences on the law and practice in this field. A significant contribution of this ‘exposé’ (by Adebola) is that it shows African countries that it is both possible and laudable to set out, and embark on a self-serving agenda to adopt its GI preferences suited to its context. Apart from pointing out Africa as “a site for Europe’s agenda-setting for GIs”, Adebola calls on African governments to critically select competitive African products that can perform favourably in local and foreign markets as opposed to a wholesale adoption of the GI protection system for all its products. In her view, this would ensure that GI systems deliver on socioeconomic gains and not dispossess small-scale farmers that cannot compete in large crossborder trade transactions.

There are several aspects to this call: first, it behoves on African governments to engage with their national and institutional contexts in determining how they adopt and/or introduce GI protection. Failure to do so may mean that GI protection would not result in promoting rural development as alleged/promised. For GI protection to deliver for Africa, there is need for more than just maintaining the quality, reputation or characteristics of the products and developing product awareness in international markets. There has to be establishment of institutional and organisational structures to support the legal protection regime. In Nigeria, this would mean exploring ways to address the insecurity in its northern region to ensure that available potential GI products (e.g., kilishi) are exportable. In Cameroun, this may mean making available infrastructure for clean water for farmers to wash Penja pepper and satisfy the conditions to qualify for GI protection.

Second, the article calls on African governments to be mindful of the ways in which GIs is promoted and the ways in which narratives for GI products may foster social injustices and marginalisation of various groups in the society. Pointing at narratives around South Africa’s Rooibos tea, Adebola observes that: WIPO presents a skewed representation of GIs for Rooibos tea, stemming from its suggestion of the unity of a people and a nation. While Rooibos was identified as ideally suited for GIs because of the connection of the tea to its territory based on ecological characteristics, local production practices and local culture, WIPO's limited portrayal ignores the colonial histories and postcolonial continuities of social discrimination, dispossession and racial legacies underpinning its cultivation”. The lesson here is to not view GI protection with rose-coloured glasses but to be watchful of both its benefits and pitfalls.

One other advantage of this approach and attitude as Adebola points out, is that it sets the tone for how foreign interventions and support is accepted in Africa – in a way that priorities Africa similar to how their foreign counterparts prioritise their own national domestic interests.

On that front, Adebola suggests that while there are several products that are protectable as GIs, a careful selection is necessary and crucial. Bearing in mind the infrastructural constraints (think electricity for storage, think lack of farmers’/agricultural subsidies, etc.) that plague most African countries and in view of the infrastructural demands of GI protection standards, careful selection is essentially an exercise in promoting for GI protection, products with the highest potential for domestic and international success. 

However African governments choose to heed the wise counsel  in Adebola’s paper, the idea is that the hand that Africa has been dealt is one in which it is coming to the ‘GI table’ after the international GI architecture has been framed. But, it can choose how it plays that hand and as Adebola sagely recommends, they “can develop a bottom‐up approach to interpreting and implementing their treaty obligations by customising the laws introduced to suit domestic contexts” and “as sovereign states, [they] can strategically control their approach to receiving ‘capacity building’ and ‘technical assistance programmes’ from Europe by ensuring that they produce outcomes that benefit Africa, thereby avoiding or limiting the pitfalls of GIs”.