In a judgment delivered on October 12, 2023, the court said the petitioners did not provide evidence that GMOs harm the environment or human health.
“This court has not been shown any evidence to show 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,” said Justice Oscar Angote, who delivered the judgment virtually.
The Law Society of Kenya (LSK) filed the case on January 16, 2023, challenging the Kenyan government’s October 22 order lifting a 10-year ban on the cultivation and importation of GM crops.
The case raised several issues, including whether GMOs in general and Bacillus thuringienesis (Bt) maize in particular are safe and whether there was public participation before the Cabinet dispatch lifting the ban was released.
There was also an allegation that GM maize cultivation, importation, and exportation were undertaken without an Environmental Impact Assessment (EIA) report.
However, 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 these crops 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.
In contentment, 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.
The farmers will now have the opportunity to sample the technology we have been developing and increase their crop yields,” Prof Oduor said.
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.”
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.
Protection and safety guaranteed
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 safety procedures.
He detailed that the body 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 GM 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, and Bt corn which was approved by NBA in October 2022 and is now awaiting submission to the National Variety Release Committee (NVRC).
In addition, NBA said that virus-resistant cassava which is undergoing National Performance Trials by the Kenya Plant Health Inspectorate Service (KEPHIS) will be rolled out soon.
Justice Angote urged Kenyans to trust the institutions put in place and call them to order if they breach the law.
“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,” said the judge.
With the court case now settled, scientists and the National Biosafety Authority now have the authority to release the variety of GM crops that have been developed and approved and create more as the country struggles with food security challenges.