Science Wins as Kenyan Court Dismisses Landmark Case Against GMOs

By Godfrey Ombogo

Kenya is now free to roll out the cultivation and importation of genetically modified organisms (GMOs) after the Environment Court dismissed the case challenging the same. 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.

Big win for scientists, farmers and Kenyans

The Law Society of Kenya (LSK) filed the case on January 16, 2023. It was challenging the Kenyan government’s October 22 order lifting a 10-year ban on the cultivation and importation of GM crops.

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,” Prof Oduor said on the phone. “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.

“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.”

Done without an Environmental Impact Assessment report
Hon.-Justice Oscar Amugo AngoteThe case 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 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.

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.

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. One more consolidated case by lobby groups is still pending before the High Court.

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 virusresistant cassava. Dr. James Karanja, a research officer from Kalro, says the TELA Bt corn is the answer to Kenya’s food insecurity situation because it has a guaranteed yield of 10 more bags per acre without pesticide use. It also assures quality grain and reduces aflatoxin contamination. “Corn production in Kenya has decreased by 35 percent from 2018 to 2022 because there is no insect- or pest-tolerant variety in the market,” said Dr Karanja during a recent meeting between Kenyan editors and biotechnology experts in Nairobi.

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. 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.

Godfrey Ombogo is an editorial consultant, consulting science editor, and writer for Media for Environment, Science, Health and Agriculture (MESHA) in Kenya.