The legal fight of the Kenyan Peasants League against the lifting of the ban on GMO in Kenya
On October 3rd, 2022, the Kenyan Government lifted the ban on importation and cultivation of genetically modified organisms (GMO) that had been in place for ten years. The Kenyan Peasants League (KPL) reacted immediately and filled a lawsuit against that decision. They also asked the High Court for conservatory measures, which were granted on November 29th, the Court decided the ban will remain until the matter is judged in court. Those conservatory measures are a first victory for the peasants.
The Government appealed the decision, but the Court of appeal sided with the High Court and KPL and left the conservatory measures in place. In its decision, the Court cited the lack of public participation, which was one of the main arguments of KPL, argument based both on the Kenyan Constitution and on the UN Declaration on the Rights of Peasants and Other People Working in Rural Areas (UNDROP – Article 10). UNDROP is a tool largely used by KPL in this struggle, both in and out of courts.
The struggle is far from over, since a complete trial and judgment has not happened yet, but the first decisions by the court are a good sign and KPL is determined to have the Rights of Peasants recognized and protected.
Introduction
The lifting of the ban on GMOs importation and open cultivation, via a Cabinet Dispatch on 3 October 2022, was a direct attack on the peasants way of life not only in Kenya, but globally, since the struggle against forces hell-bent on dismantling the peasant managed seeds systems is ongoing worldwide.
The ban was put in place in after a series of actions by social movements calling for a ban on GMOs due to a recommendation for a better scientific knowledge of the harmful impacts of GMO on both health and the environment and for the protection of the agroecological practices of the small-scale farmers1. A specific study linking GMO to cancer was detrimental to the adoption of the ban.
To the Kenyan Peasants League (KPL), the lifting of the ban instituted 10 years prior, did not come as a surprise since the current President of Kenya William Ruto has in the past been advocating for biotechnology as a solution to the food crisis in Kenya. For instance, in 2008 during the All Africa Congress on Biotechnology, when he was Kenya’s Minister for Agriculture, he indicated his wishes to “see all African countries adopt an enabling policy and regulatory framework for the development and application of biotechnology2”. In 2014, this time as a Deputy President, he made the case for Africa to use biotechnology in food production to deal with hunger and poverty3 and in 2015, he announced that plans were underway to lift the ban on GMOs4.
So, to KPL, it was just a matter of “when” but not “if” the 2012 ban was going to be lifted. So, prior to the lifting of the ban on GMOs in Kenya, KPL had already established a Working Group on GMOs that included advocates.
In the Cabinet Dispatch that lifted the ban, the Cabinet stated that it had considered various expert and technical reports on adoption of biotechnology, including reports from the Kenya National Biosafety Authority (NBA), World Health Organization (WHO), the Food and Agriculture Organization (FAO), United States of America’s Food and Drug Administration (FDA), and the European Food Safety Authority (EFSA). Upon the lifting of the ban, KPL quickly called for an emergency meeting and organized a media briefing, where it announced its intention to challenge the lifting of the ban in court.
Petition to the National BioSAFETY AUTHORITY
In parallel, KPL also decided to present a petition to the NBA. A peaceful procession was organized on 12 October 2023 to present the petition to the NBA offices in Nairobi.
In the petition, KPL demanded that the NBA give access to the advisory it gave to the Cabinet and which was cited in the lifting of the ban. KPL also asked the NBA to avail the Prof Kihumbi Thairu Taskforce report5 commissioned right after the ban was enacted, to inform KPL whether the issues that were raised by Prof Kihumbu Thairu Taskforce had been addressed and that NBA provides evidence that there was a public consultation before lifting of the ban, as required under the article 10 of the United Nations Declaration on the Rights of Peasants and Other People Working in Rural Areas (UNDROP) and article 10 of the Constitution of Kenya.
On 15 November 2013, the taskforce released a report, where it came to the conclusion that the safety of GM foods had not been conclusively demonstrated to allow for the lifting of the ban. The taskforce gave some recommendations, which included: a need to develop guidelines for testing of GMOs, the priority of safety with regard to human health and the need to develop capacity for the determination of the safety of GMOs on a case-by-case basis through the national regulator – the NBA. Fundamentally, the taskforce noted that there was a need to develop adequate infrastructure for carrying out and where necessary, replicating, long term trials by Kenyan scientists funded solely by the Kenyan government.
In their response to KPL’s petition, the NBA stated that they were not involved in the process of lifting of the ban on GMOs and that they did not have the Taskforce report since the Taskforce was appointed by the Minister of Health and that the report was only submitted to the appointing authority. To KPL, this was a serious breach of the National Biosafety Authority Act and National Biosafety Regulations that places the role of regulating GMOs on the NBA and not on the Cabinet.
First victories : conservatory orders maintaining the ban
By the time KPL was filing the matter to the High Court, the NBA had not yet responded. Before the High Court, KPL argued that the NBA denied KPL the right to information, as stated under article 11 of the UNDROP; read together with article 35 of the Constitution of Kenya.
On 27 November 2022, the High Court granted KPL conservatory orders, reinstating the ban on GMOs until 15 December 2022, when the matter was coming up for hearing. On 15 December 2022, the High Court further extended the ban up to February 2023, despite protests from the government and the NBA. This suspension of the lifting of the ban was a first victory for the peasants. In March this year (2023), the Attorney General again lost a bid to have orders stopping the importation of genetically modified foods (GMO), issued by High Court Judge Mugure Thande last year, suspended.
Before KPL filed the matter, senior counsel Paul Mwangi had filed an application over the lifting of the ban on GMOs before the same judge. The judge however declined to grant him conservatory orders. KPL studied the application by Paul Mwangi to establish why his application was declined. It emerged that the senior counsel based his arguments more on science when there is not yet an complete scientific consensus. KPL therefore decided to challenge the lifting of the ban on the basis of process, the right to information and to public participation. KPL argued that the Cabinet usurped the role of NBA, which had indicated that they were not involved in the process. KPL also stated that NBA abused the right to information by failing to provide information it had sought from them adding that there was no adequate public participation. Thus, the High Court agreed with KPL arguments and granted the conservatory orders. On 15 December 2022, all the cases were consolidated.
Meanwhile in December 2022, the Government of Kenya, through the office of the Attorney General, filed an application at the Court of Appeal seeking to reverse the order of the High Court that reinstated the ban on GMOs. In the application, the Attorney General argued that the ban would hamper government agencies from performing their responsibilities. KPL, in response, argued that the orders were prohibitory orders that are not to be executed, but to be abstained and therefore, there was no subject matter to be preserved and nothing to be rendered nugatory. On 31 March, the Court of Appeal decided to maintain the orders until the judgment of the case before the High Court. This was another victory to the peasants.
As this proceeding was going on, the NBA made an application at the High Court for a three-judges bench to be empaneled to hear the case on GMOs. This application was also thrown out by the High Court. Against that claim, KPL’s had argued that the NBA had not displayed issues that needed a three-judge bench to address and that could not be addressed by the current presiding judge, Lady Justice Mugure Thandi.
Meanwhile the Law Society of Kenya (LSK) had moved to the Environment and Land Court in Nyahururu over the same matter. The Government, through the Attorney General, has filed another application seeking that the ongoing cases by KPL and by LSK be heard at the Environment and Land Court (ELC) in Nyahururu, Kenya. KPL opposed the application by the Attorney General on grounds that the ELC court had no power to handle a case on violation of the constitution, while the Constitutional Court cannot hear a case on environmental pollution since its the jurisdiction of the ELC. The two are totally separate and distinct courts and matters are not transferrable between them6. The High Court is yet to pronounce itself on the matter. However, KPL believes that the latest move by the Government is an indication that it has lost the arguments and is seeking friendly judges who can be manipulated.
In March this year (2023), the Attorney General again lost a bid to have orders stopping the importation of genetically modified foods (GMO) suspended. Court of Appeal Judges on March 31, 2023 dismissed the application by the AG who was challenging the order issued by High Court Judge Mugure Thande last year.
Conclusion
Despite the victories in the corridors of justice, the KPL also views this case as a very good avenue for domesticating the UNDROP in local laws. KPL’s main arguments are premised on the UNDROP and also supported by the Constitution of Kenya. KPL submitted that lifting of the ban abused the rights of peasants enshrined in the UNDROP, especially articles 10 on the Right to Participation; article 11 Right to Information; article 12 Access to Justice; article 19 Right to Seeds and article 26 Cultural Rights and Traditional Knowledge. That this Declaration is at the centre of a high-profile case is already making the UNDROP more popular both locally and regionally. Other groups have moved to the East African Court of Justice on the same matter and grounds.
While the ban is still in place, the war is far from over given the machinations by the government and the total capture of the State by powerful corporations.
(A complete version of this article by Cidi Otieno, Ag. National Convener and Policy Chief and Advisor, Kenyan Peasants League first appeared on Defending Peasants Rights on 15 June 2023)
1 Kenya: Agricultural Lobbyists Demand a Stop to GMOs. Available from:<https://africa.peacelink.org/newsfromafrica/articles/art_12714.html> [6 June 2023]
2 ISAAA Inc. Kenya Agri Minister Calls for Clear Direction for Biotech. Available from:<https://www.isaaa.org/kc/cropbiotechupdate/article/default.asp?ID=3188>. [6 June 2023].
3 EXPOGROUP. Kenya Chooses GM and Biotech, But there are Smarter Ways to Feed Africa. Available from:<https://www.expogr.com/expokenya/detail_news.php?newsid=73&pageid=2>. [6 June 2023]
4 Citizen Digital. DP William Ruto Announces Plans to Lift Ban on GMOs. Available from:<https://www.citizen.digital/news/dp-william-ruto-announces-plans-to-lift-gmos-ban-97796>. [6 June 2023]
5 In November 2012, not long after the enactement of ban, the Public Health Minister, Beth Mugo, appointed a Taskforce led by Prof. Kihumbu Thairu to review and evaluate information on the safety of GMOs. This was after an outcry by the biotech industry following the ban.
6 The Standard. State Fight to Have GMO Freeze Cases Consolidated. Available from<https://www.standardmedia.co.ke/national/article/2001474532/state-fights-to-have-gmo-freeze-cases-consolidated>. [6 June 2023].; The Star. Court of Appeal upholds ban on GMOs importation https://www.the-star.co.ke/news/2023-05-25-court-of-appeal-upholds-ban-on-gmos-importation/?fbclid=IwAR3z-5RPfGNnj6NUgmn7oO7VdaZzQSRe8YBxkNW_dgJ18yDgvf7P-uTtDjo [25 May 2023]