The High Court has called on Kenyans to trust their own government institutions on matters of health even as it dismissed a case challenging the cultivation and importation of Genetically Modified crops.
Environment and Land Judge Oscar Angote said no evidence has been brought before the court to show that state agencies have breached the laws and guidelines pertaining to GM food, and in particular the approval of the release in the environment, cultivation, importation, and exportation of Bt maize.
Bt maize is genetically engineered to express insecticidal proteins from the bacterium Bacillus thuringiensis. Bt maize is used extensively by South African farmers to reduce yield losses caused by lepidopteran larvae.
The case before Angote was filed by the Law Society of Kenya. It was named the Attorney General, National Biosafety Authority, NEMA, and the Kenya Agricultural and Livestock Research Organization (KARLO) as respondents in the case.
LSK had alleged that the cultivation, importation, and exportation of GMO maize was being undertaken without an EIA license. But the judge thrashed this claim saying it was prematurely made since the said project had not commenced.
"No evidence placed before his court by LSK to show that KALRO, is already undertaking cultivation of food, feed and processing, import, export and transit of MON 810 event in maize varieties in Kenya without an EIA License," said Angote.
He reiterated that KALRO cannot commence the project until it obtains an EIA license from the National Environment Management Authority Nema.
He said the evidence in court shows that the National Biosafety Authority has the capacity to identify foods that should be subject to risk assessment and recommend appropriate approaches to safety assessment.
The Biosafety Act stipulates that the national biosafety authority should work in close collaboration with the Department of Public Health, which safeguards the health of consumers through food safety and quality control, surveillance, prevention and control of foodborne diseases.
The Judge cited institutions such as the Department of Veterinary Services, KEBS, Kenya Plant Health Inspectorate Services (KEPHIS), Nema which conducts environmental impact assessment of GMOs intended for release into the environment and Kenya Industrial Property Institute (KIPI) which is responsible for addressing intellectual property issues arising from modern biotechnology.
"With all these institutions, save for Nema which has not issued an EIA License, we should be confident that our health and environment are in good hands," he said
"It cannot be true that they have all conspired to expose the rest of the population to the calamities alluded to in the petition, at least not from the evidence on record," he added.
In regards to public participation, there is evidence on record that the national biosafety authority had a session with the public at KICC and received their views.
As to whether there was public participation before the cabinet dispatch of October 2022, the judge said he has not been shown any law or authority that requires the cabinet to engage the public before arriving at its decisions.
“In any event, there was no public participation before the ban on GMOs was imposed by the cabinet in the year 2012,” he said
Based on further evidence produced in court, the judge said the country has put in place robust frameworks with inbuilt structures that must be met before they consider and determine applications for approval of the transfer, handling, and use of genetically modified organisms.
A similar case was filed at the constitutional and human rights division by a lobby group identifying itself as Kenya Peasnats League.
In this case, Justice Mugure Thande barred the government from gazetting any directives regarding GMOs or acting on the Cabinet dispatch that announced the lifting of the ban on GMOs. Aggrieved, the Attorney General challenged Tande's decision at the Court of Appeal.
The AG sought to suspend that order arguing the decision of the court was not based on any scientific evidence and has interfered with the freedom and rights of Kenyans who want to trade and consume GMO products.
They claimed the order had far-reaching legal, economic and food security ramifications.
But the Court of Appeal Justices Mohamed Warsame, Abida Ali Aroni and John Mativo declined to suspend the Thande order and instead directed that the intended appeal be listed for hearing on a priority basis.
They said they are not satisfied that if they don’t lift the order stopping the importation then the appeal will be rendered useless.