Kenya may just be free to roll out the cultivation and importation of genetically modified organisms (GMOs) after the High Court dismissed several petitions filed against the government’s 2022 order lifting a 10-year ban on GMOs.
In a judgment delivered on November 7, 2024, the High Court said the matter had been dealt with by the Environment and Land Court on October 12, 2023. The Environment and Land Court had said the petitioners did not provide evidence that GMOs harm the environment or human health.
“This court has not been shown any evidence that the respondents and the institutions named have breached the laws, regulations, and guidelines about GM foods, and in particular the approval of their release in the environment, cultivation, importation, and exportation of Bt maize,” Justice Oscar Angote said in the October 12, 2023 judgment.
The Law Society of Kenya (LSK) filed a case on January 16, 2023, challenging the Kenyan government’s order lifting a 10-year ban on the cultivation and importation of GM crops. There was also an allegation that GM maize cultivation, importation, and exportation were undertaken without an Environmental Impact Assessment (EIA) report.
In the November 7, 2024 judgment, Justice Lawrence Mugambi said the Environment and Land Court had ruled that the government had put in place safety measures to address concerns raised by the petitioners. “Because of the above, the court hereby finds that the current petition is res judicata. The same is struck out without any order as to the costs,” Justice Mugambi said.
One of the petitioners, Paul Mwangi, an attorney, argued that the lifting of the ban was done without public participation, was hurried, and violated the rights of consumers and small-scale farmers. He claimed that lifting the ban on GMOs would lead to the disappearance of indigenous seeds and the commercial practice of protecting the patent rights of GMO seeds.
But Justice Mugambi said the Environment and Land Court considered the implication of lifting the ban and the safety measures put in place and concluded that the current laws were in harmony with the need for a clean and healthy environment.
“The Biosafety Act stipulates that the National Biosafety Authority should collaborate closely with the Department of Public Health, which safeguards consumers’ health through food safety and quality control,” Justice Angote said in the October 2023 judgment.
Big win for scientists, farmers and Kenyans
After the October 2023 judgment, Prof Richard Oduor, the chair of Kenya University Biotech Consortium (Kubico) and Acting Registrar, Research, Innovation and Outreach at Kenyatta University, said he was “overly excited” by the judgment, as it was a big win not just for scientists but also for farmers and Kenyans in general.
“I am thrilled. The farmers will now have the opportunity to sample the technology we have been developing and increase their crop yields. I am grateful to the Kenyan government for finally allowing us to see how we can use this technology to benefit us, farmers, and this country,” Professor Oduor told the Alliance for Science in a telephone interview.
Prof Oduor said the GMO technology has survived for nearly 30 years, and Kenya can borrow a leaf from other countries that have tested its efficacy and safety and adopted it. “The first GMO product was commercialized in 1994. We cannot be here as a country still discussing a technology commercialized 29 years ago. It’s becoming redundant very soon,” he said.
“There are examples all over the world; there are countries that have used it. At least we have had 30 years, post-release, of understanding this technology and so-called environmental impact.”
A study by the Alliance for Science found that Kenyans are subjected to the worst misinformation in the world when it comes to GMOs.
Environmental Impact Assessment report
The cases raised several issues, including whether GMOs in general and Bacillus thuringiensis (Bt) maize in particular are safe and whether there was public participation before the government lifted the ban.
In October 2023, the court found that the petitioner did not challenge the domestic and international laws governing GMOs and that the regulatory barriers that govern the importation and cultivation of GMOs remain in force and are presumed to be constitutional until otherwise proved. “The evidence before me shows that the country has put in place a robust framework with inbuilt structures, which must be met before they consider and determine applications for approval of the transfer, handling, and use of GMOs,” said Justice Angote.
Intended to guarantee protection
The judge said that in addition to the Biosafety Act 2009 and regulations, the National Biosafety Authority (NBA), which was the second respondent, has adopted guidelines that govern the procedures for environmental release and placing of the market of GMOs, the procedure for receiving, administrative screening and handling GMOs. “All of these are intended to guarantee protection of the right to a clean and healthy environment,” he said.
According to NBA, Kenya has approved 58 GMO projects – 40 for contained use in the laboratory or greenhouse, 15 for confined field trials, and three for environmental release or commercial cultivation.
The three that have been approved for commercial cultivation are Bt cotton, which was commercialized in January 2020; Bacillus thuringiensis (Bt) corn, which was approved by NBA in October 2022 and is now awaiting submission to the National Variety Release Committee (NVRC); and virus-resistant cassava, which is undergoing National Performance Trials by the Kenya Plant Health Inspectorate Service (KEPHIS).
Developed and approved
Four varieties of Bt cotton have been recommended for release by the National Performance Trials Committee (NPTC). At the same time, six have undergone NPT and Distinctness, Uniformity, and Stability (DUS) testing, but the court case had slammed the breaks on their release.
In Africa, at least ten countries have GM crop approvals, with South Africa approving GM cotton, corn, and soybeans, and Nigeria, Ethiopia, Kenya, Sudan, Eswatini, and Malawi allowing pest-resistant cotton, cowpea, corn, and brown streak virus-resistant cassava.
Collaborate closely with the Department of Public Health
According to the Food Security and Nutrition Analysis Unit (FSNAU), food insecurity is a recurring issue, with 3.2 million Kenyans in the arid and semi-arid regions facing high levels of acute food insecurity as of September 2022.
According to a report by the Alliance for Science, in 2018, 18 million farmers in 26 African countries chose to grow GM crops, which helped to reduce poverty and hunger by benefitting more than 65 million people.
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Clay Muganda is the Managing Editor of Alliance for Science.