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Kenya’s GMOs controversy: some thoughts on the law

In Agriculture, Issue No. 83 | Dec 2022
December 30, 2022
We have so many things that can kill us in the country. Being in this country, you are a candidate for death. And because so many things compete for death, there is nothing wrong with adding GMOs to that list. That is why we have deliberately allowed Genetically. Modified Organism until we are satisfied that we have enough maize, the staple food.1

A cabinet meeting chaired by late Kenya’s President, Mwai Kibaki, on 8th November 2012, directed the then public health minister to ban Genetically Modified Organism imports until the country was able to certify that they have no negative impact on people’s health. In a statement to the press, the cabinet said there was a “lack of sufficient information on the public health impact of such foods”. “The ban will remain in effect until there is sufficient information, data and knowledge demonstrating that GMO foods are not a danger to public health,” it added. The directive came just three years after the government’s establishment of the National Biosafety Authority (NBA), tasked with exercising general supervision and control of the transfer, handling and use of GMOs.

The then Ministry of Public Health (MOPH) Beth Mugo ordered Public Health Officials to remove all genetically modified (GM) foods from the market and to enforce a ban on GM imports. She pointed out that the ban undermines Kenya’s legal and regulatory system for agricultural biotechnology codified in its National Biosafety Act of 2009.2

This ban wasn’t applauded by many a mass of persons. One of the critics named Richard Okoth who was a biotechnology scientist based at Kenyatta University felt that the government’s imposition of a ban while continuing to fund research on biotechnology through the National Council for Science and Technology was a contradictory position. According to him, “The essence of GMO research is to provide a product that can complement efforts towards food security. This ban will discourage research, as the product for which the research is being conducted has been placed on import ban”. He added that courtesy of the ban on GMOs biotechnology research funding was going to be compromised as international donors could be reluctant to provide funds following the ban.3

Interestingly, there was another camp of persons who praised the move by the government to ban GMOs. African Biodiversity Network (ABN), a regional research network based in Kenya, supported the step taken by the government and called for the ban’s strict implementation. “The ban should be strictly implemented and the regulatory institutions should be empowered to enable them to do assessment on all imports to safeguard against the bypassing of the law. Kenya only has three biosafety officers, and poor infrastructure and human capacity may make implementing the ban very challenging,” Gathuru Mburu, ABN’s coordinator stated.

Picture: Cabinet Secretary Moses Kuria

That was the position ten years ago; this article is premised on the recent move by the Kenya Kwanza administration’s decision to lift the ban on GMOs. In a Cabinet memo dated Monday, October 3, 2022, President Ruto said the ban has been lifted in accordance with the recommendation of the Task Force formed to Review Matters Relating to Genetically Modified Foods and Food Safety.4 “In fidelity with the guidelines of the National Biosafety Authority on all applicable international treaties including the Cartagena Protocol on Biosafety (CPB), Cabinet vacated its earlier decision of November 8, 2012 prohibiting the open cultivation of genetically modified crops and the importation of food crops and animal feeds produced through biotechnology innovations. The Cabinet has effectively lifted the ban on Genetically Modified Crops,” read the memo. The memo indicated that by dint of the executive action, open cultivation and importation of White (GMO) maize is now authorized.5

It is said that the Cabinet lifted the ban after consulting widely, talking to various experts and looking at technical reports on the adoption of biotechnology. On the other hand, proponents of organic farming were furious terming the decision rushed and that more time was needed for public participation.6

Following the memo by the Cabinet, the incumbent Cabinet Secretary in charge of trade, industrialization and investments stated that the government was going to allow the importation of duty-free Genetically Modified Crops and non-GMO maize for the next six months. According to him, the move was aimed at mitigating the food crisis ravaging the country.7 This move by Moses Kuria attracted scathing criticism ranging from religious leaders, Azimio leaders and politicians who hail from Kenya’s maize basket, the Rift Valley region.

Uasin Gishu Senator Honourable Samson Kiprotich Cherargei in a press conference (on behalf of Members of Parliament from maize-producing regions) noted as follows:

We, demand for an immediate cessation of importation of 10 million bags of duty free maize into the county given that no official notice has formally and legally been issued. We are aware that there are plans by the ministry of trade to import 10 million bags of duty free maize into the county while this is the season of maize harvesting in major parts of the country. It has never happened before that maize is imported into the country during harvest season yet we understand that local maize production is always the first remedy. As members of Parliament from maize producing regions, we seek to know the reason as to why ships are already docking in Mombasa port without the laid down legal procedures in place. We are aware there was no cabinet approval on the importation of duty-free maize into the country. This will undermine the intention of guaranteed minimum return to framers which was championed by CS Moses Kuria.

The projection of the bumper harvest of maize this season is projected to be 42 million bags despite the high cost of fuel, ploughing, in fact we request that the cost of fertilizer of Ksh 7,000 should match the price of Kshs 7,000 per bag of maize. It seems there is a deliberate move to continue killing the maize farming in the country as was seen in the previous regime where even the sugar sector and other farming sectors were killed. It seems the cartels are now back into business and this time round, they appear more aggressive and ruthless. On the GMO issue, we don’t need to rush until we have proper laws, policies, rules and regulations to govern the use and importation of GMOs into the country, including but not limited to agricultural products. As parliament, we are ready to provide necessary support on the issue of GMO debate in the country with necessary consultations with necessary stakeholders, including members of the public.

Azimio leaders while commenting on the GMO issue called on President Ruto to re-impose the ban on Genetically Modified Crops. While citing a lack of public participation, Musyoka stated that should President Ruto fail to do so, Azimio will seek redress in the National Assembly. “On such a weighty matter especially as concerns food security, there should have been nationwide discourse through public engagement, education and participation. The government did not engage in public participation,” he said. He appealed to the President to reconsider his stand re introduction of GMOs saying the initiative is not a sustainable solution to reduce food shortage and it will have diverse health effects on Kenyans. 8

“It is therefore important that we demystify the impacts of GMOs and expose their propensity to be an existential threat to the biodiversity we pride in as a country and our health,” Musyoka stated. The Azimio La Umoja One Kenya Principal further called out the church on their silence following the lifting of the GMO ban yet they were among vibrant crusaders who called for the effecting of the ban in 2012. “Could it be that they have been pacified by this new administration and blinded to the moral and ethical question around GMOs that go against the 4 orders of nature? We urge our religious leaders and faith-based organizations not to sell their souls,” he posed. Musyoka also warned that the lifting of the ban will adversely affect trade with neighbouring countries since most have effected a ban on GMOs.9

Minority Leader in the National Assembly, Honourable Opiyo Wandayi as well opposed the lifting the ban on GMOs. Wandayi said GMOs are not a solution to fighting hunger which has ravaged several parts of the country. “There is no consensus on the safety of GMO foods to humans and their impact on the environment,” Wandayi said. Commenting on Moses Kuria statement that all and sundry are candidates of death he said, ‘That there is a falseness about this administration; a lack of empathy; a coldness and an arrogance that are at odds with the times Kenyans find themselves in. Kenyans deserve better.10

He added that the famine witnessed in the country is being used as an excuse to reintroduce GMOs. The Ugunja Constituency lawmaker further faulted the government for using the GMO issue to have ill-doings. “To defraud the country in a scheme very much similar to the Goldenberg scam of the 1990s,” he said. Wandayi, therefore questioned the rationale for imports of maize and also the duty-free imports. “Why has there been no effort to get ordinary maize from other parts of the world or was the importation of GMOs part of the pre-election deal between President William Ruto and foreign backers?” Wandayi posed. He also inquired into the future of local maize farmers.11

Picture Caption National Assembly Minority Leader, Opiyo Wandayi

Nyeri Diocese Catholic Archbishop, Anthony Muheria, on his part called for ‘sober’ engagements between the government and food experts to unlock the gridlock surrounding Genetically Modified Organisms (GMOs). Archbishop Muheria argued that the GMO debate should not be trivialized like it has and that an open forum bringing together experts in the field of agriculture and food should be engaged to offer a clear direction that the country should take before embracing the consumption of GMOs.12

“When we speak about GMOs, it is a matter that deserves deep, strategic, respectful and sober engagements. It is not for us to embrace them wholeheartedly without reservations nor do we want a situation where we reject their use even if it could be for a specific period of time,” said Arch Muheria. “We call for a good moment of engagement by government and the agriculture and food experts so that we may find the right path. We also need to discuss the dangers that Kenyans are exposed to, sometimes it is exaggerated, sometimes it can be contained and mitigated, we should not just discuss emotions, let us discuss scientific facts,” he added.13

The Nyeri Archbishop also weighed in on the food sufficiency matter and said that there was a need to find a long-term solution to the perennial drought situation. According to Muheria, the current famine situation was as a result of poor planning and the lack of strategy adding that the government should change its approach in order to make the country food secure. Further, he also called for improved agricultural and water harvesting practices which he said would contribute towards making the country food secure.14

Much has been said on this GMO issue internationally by authorities in the field of science. This piece will not regurgitate what experts have noted on GMOs but will only make an inference on the same. Of concern to this piece surround the legalities of the GMO spectacle.

Towards demystifying the origin of GMOs

A genetically modified organism (GMO) is an animal, plant, or microbe whose DNA has been altered using genetic engineering techniques. For thousands of years, humans have used breeding methods to modify organisms. Corn, cattle, and even dogs have been selectively bred over generations to have certain desired traits. Within the last few decades, however, modern advances in biotechnology have allowed scientists to directly modify the DNA of microorganisms, crops and animals.15

Conventional methods of modifying plants and animals selective breeding and crossbreeding can take a long time. Moreover, selective breeding and crossbreeding often produce mixed results, with unwanted traits appearing alongside desired characteristics. The specific targeted modification of DNA using biotechnology has allowed scientists to avoid this problem and improve the genetic makeup of an organism without unwanted characteristics tagging along. Most animals that are GMOs are produced for use in laboratory research. These animals are used as “models” to study the function of specific genes and, typically, how the genes relate to health and disease. Some GMO animals, however, are produced for human consumption. Salmon, for example, has been genetically engineered to mature faster and the U.S. Food and Drug Administration has stated that these fish are safe to eat.16

Put differently, genetically modified organisms (GMOs) can be defined as organisms (like plants, animals or microorganisms) in which the genetic material (DNA) has been altered in a way that does not occur naturally by mating and/or natural recombination. The technology is often called “modern biotechnology” or “gene technology”, sometimes also “recombinant DNA technology” or “genetic engineering”. It allows selected individual genes to be transferred from one organism into another, also between nonrelated species. Foods produced from or using GM organisms are often referred to as GM foods.17

GM foods are developed and marketed because there is some perceived advantage either to the producer or consumer of these foods. This is meant to translate into a product with a lower price, greater benefit (in terms of durability or nutritional value) or both. Initially, GM seed developers wanted their products to be accepted by producers and have concentrated on innovations that bring direct benefit to farmers (and the food industry generally). One of the objectives for developing plants based on GM organisms is to improve crop protection. The GM crops currently on the market are mainly aimed at an increased level of crop protection through the introduction of resistance against plant diseases caused by insects or viruses or through increased tolerance towards herbicides.18

While our ancestors had no concept of genetics, they were still able to influence the DNA of other organisms by a process called “selective breeding” or “artificial selection.” These terms, coined by Charles Darwin, describe the process of choosing the organisms with the most desired traits and mating them with the intention of combining and propagating these traits through their offspring. Repeated use of this practice over many generations can result in dramatic genetic changes to a species. While artificial selection is not what we typically consider GMO technology today, it is still the precursor to modern processes and the earliest example of our species influencing genetics.19

A ginormous quantum leap in GMO technology came in 1973, when Herbert Boyer and Stanley Cohen worked together to engineer the first successful genetically engineered (GE) organism20. The two scientists developed a method to very specifically cut out a gene from one organism and paste it into another. Using this method, they transferred a gene that encodes antibiotic resistance from one strain of bacteria into another, bestowing antibiotic resistance upon the recipient. One year later, Rudolf Jaenisch and Beatrice Mintz utilized a similar procedure in animals, introducing foreign DNA into mouse embryos.

Although this new technology opened up countless avenues of research possibilities, immediately after its development, the media, government officials, and scientists began to worry about the potential ramifications on human health and Earth’s ecosystems.21 By the middle of 1974, a moratorium on GE projects was universally observed, allowing time for experts to come together and consider the next steps during what has come to be known as the Asilomar Conference of 1975.22 At the conference,23 scientists, lawyers, and government officials debated the safety of Genetically Engineered experiments for three days. The attendees eventually concluded that the GE projects should be allowed to continue with certain guidelines in place.24

For instance, the conference defined safety and containment regulations to mitigate the risks of each experiment. Additionally, they charged the principal investigator of each lab with ensuring adequate safety for their researchers, as well as with educating the scientific community about important developments. Finally, the established guidelines were expected to be fluid, influenced by further knowledge as the scientific community advanced. Due to the unprecedented transparency and cooperation at the Asilomar Conference, government bodies around the world supported the move to continue with GE research, thus launching a new era of modern genetic modification.26

The rationalization for and against GMOs Arguments for GMOs

Manufacturers use genetic modification to give foods desirable traits. Potential advantages of GMO crops include increased attractiveness to consumers, for example, apples and potatoes that are less likely to bruise or turn brown, enhanced flavour, longer shelf life and therefore less waste, greater resistance to viruses and other diseases which could lead to less waste and increased food security; greater tolerance to herbicides, making it easier for farmers to control weeds; increased nutritional value, as in golden rice, which can boost the health of people with limited access to food, greater resistance to insects, allowing farmers to reduce pesticide use; ability to thrive in a harsh climate, such as drought or heat ability to grow in salty soil. Growing plants that are more resistant to diseases spread by insects or viruses will likely result in higher yields for farmers and a more attractive product. All these factors contribute to lower costs for the consumer and can ensure that more people have access to quality food.

According to Bayer, GM crop technology enables farmers to adopt more sustainable agriculture practices. This includes innovations like no-till farming, which pulls carbon out of the atmosphere and stores it in the soil where it supports healthier crops. That’s better for crops and the environment. Additionally, because no-till allows farmers to make fewer passes through the field using machinery, they also reduce their fuel use to curb their carbon emissions27. Thus, addressing the issue of climate change.

Damaging insects, invasive weeds and emerging diseases can have a devastating impact on farmers’ crops. To address this, GM innovation provides targeted protection against these specific threats without adversely impacting other organisms or the environment. But it doesn’t end there. In fact, because GM plants are better able to protect themselves, they require less pesticide. That helps farmers save time fuel and money. GM crops are helping farmers around the world accomplish more with less because these innovations are specifically developed to use precious natural resources like land and water more efficiently. By enabling farmers to meet the increasing global demand for food on their existing farms, GM crops are enabling them to preserve rainforests, prairies and other natural habitats.

Genetically modified crops have been successful in many countries, including Canada and the US, where they have increased yields, lowered labour and cultivation costs, and reduced the use of chemical inputs. Genetic engineering has the potential to enhance food security and nutritional quality in ways not possible with conventional technology. Because the technology is contained in the seed, it is easy to distribute to farmers.

Cons of GMOs

Slow food did present a position paper on demerits of GMO. The organization made reference to an array of demerits of GMO of which I will discuss below. Where they are grown, GM crops occupy large surface areas and are linked to intensive monoculture systems that wipe out other crop and ecosystems. Growing only one kind of corn for human consumption will mean a reduction in flavours, traditional knowledge and food security.28

Most GM crops fall into one of two categories: either engineered to resist chemical herbicides or engineered to produce insecticides themselves. When herbicides are used on resistant crops, over time the weeds develop resistance, leading to the use of even more chemicals. Crops engineered to produce insecticides on the other hand produce toxins that are not only harmful to pests but other insects such as butterflies, moths and insect pollinators.29

GM crops are patented, which allows a few multinational companies such as Monsanto, Bayer, Syngenta, DuPont and Dow to control the entire GM food chain – from research to breeding to commercialization of seeds. The multinational companies that patent and produce GMO seeds control the majority of the seed market and often also produce herbicides and fertilizers. Patenting genetic material has shifted the balance of economic power towards big business in their aggressive pursuit of profit.

GM crops denature the role of farmers, who have always improved and selected their own seeds. GM seeds are owned by multinationals to whom the farmer must turn every new season, because, like all commercial hybrids, second-generation GMOs do not give good results. It is also forbidden for farmers to try to improve the variety without paying expensive royalties. Furthermore, farmers risk being sued by big corporations if their crops are accidentally contaminated with patented GM crops. Pollen from crops like oilseed rape is easily spread via wind and insects to neighbouring fields. Hundreds of these farmers in the US have been sued by Monsanto, Syngenta, BASF and DuPont for illegally growing patented crops.

The role of small-scale agriculture in food sovereignty and security, protection of local areas and economies, the preservation of landscape and sustainability is becoming increasingly clear to consumers, governments and scientists. Governments should support these productions instead of heeding to the demands of big business.

Little is understood yet about the health effects of GMOs, but recent studies have shown animals fed with GM- containing feed can develop health problems. In many parts of the world including the EU, studies on GM crops can be carried out by the same companies that produce them, casting doubt on the quality and bias of data.

GM products do not have historical or cultural links to a local area. In Italy for example, a significant part of its agricultural and food economy is based upon identity and the variety of local products. Introducing anonymous products with no history would weaken a system that also has close links to the tourism industry.

Crops that are genetically modified will create seeds that are genetically modified. Cross-pollination is possible between GMO crops and non-GMO crops as well, even when specified farming practices are followed. Because many of  the crops and seeds that produce GMO crops are patented, farmers that aren’t even involved in growing these foods are subjected to a higher level of legal liability. Farmers that do grow GMO crops could also face liabilities for letting seeds go to other fields or allowing cross-pollination to occur.

Some genetically modified foods may present a carcinogen exposure risk. A paper that has been twice published, but retracted once as well, showed that crops tolerant to commercial pesticides greatly increased the risk of cancer development in rats. The information from this research study, though limited, has been widely circulated and creates the impression that all GMO foods are potentially hazardous.

Crops share fields with other plants, including weeds. Genetic migrations are known to occur. What happens when the genes from an herbicide-resistant crop get into the weeds it is designed to kill? Interactions at the cellular level could create unforeseen complications to future crop growth where even the benefits of genetically modified foods may not outweigh the problems that they cause. One example: dozens of weed species are already resistant to atrazine.

GMO crops may cause antibiotic resistance. Iowa State University research shows that when crops are modified to include antibiotics and other items that kill germs and pests, it reduces the effectiveness of an antibiotic or other medication when it is needed in the traditional sense. Because the foods contain trace amounts of the antibiotic when consumed, any organisms that would be affected by a prescription antibiotic have built an immunity to it, which can cause an illness to be more difficult to cure.

Cabinet decision to lift the ban on GMOs: a legal disquisition

This section delves into an examination of whether there was adequate public participation before the move by the Cabinet to lift the ban on GMOs as well it interrogates whether biosafety concerns were considered at great length before the same decision was arrived at.

I. Biosafety concerns

According to Biosafety Act, biosafety means the avoidance of risk to human health and safety, and the conservation of the environment, as a result of the use of genetically modified organisms.30 Biosafety describes the principles, procedures and policies to be adopted to ensure environmental and personal safety. Biosafety refers to containment principles, technologies and practices that are required to prevent unintentional exposure to pathogens and toxins, or their accidental release into the environment. Expressed differently, biosafety is a concept that refers to measures put in place to mitigate or protect human health and the environment from possible adverse effects of the products of modern biotechnology.31

A fundamental objective of any biosafety program is the containment of potentially harmful biological agents, toxins, chemicals or radiation. With the increasing emphasis on adoption of GE technique in different countries in their life science research and development activities, the biosafety issues are gaining importance to ensure safety of the public and the environment. Biosafety is not only a personal requirement,32 but essential collective efforts to ensure biological safety for a clean and safe environment. This certainly requires awareness among the public along with rules, regulations, monitoring bodies etc. Awareness among the researchers is a must so that biological safety can be well- taken care of at the grass root level.

Recognizing the need of biosafety in GE research and development activities, an international multilateral agreement on biosafety “the Cartagena Protocol on Biosafety (CPB)”33 has been adopted by 167 parties, including 165 United Nations countries, Niue, and the European Union. The Protocol entered into force on 11 September 2003, and its main objectives are (i) to set up the procedures for safe trans-boundary movement of living modified organisms, and (ii) harmonize principles and methodology for risk assessment and establish a mechanism for information sharing through the Biosafety Clearing House (BCH). Kenya adopted Cartagena Protocol on 29th January 2000.

The Cartagena Protocol on Biosafety provides a comprehensive and holistic regime designed to ensure that the development, handling, transport and use of products of modern biotechnology are undertaken in a manner that maximizes benefits while preventing or reducing risks to the environment and human health. The Protocol is a subsidiary agreement to the UN Convention on Biological Diversity (CBD).

Kenya signed the Biosafety Protocol in 2000 and fulfilled the ratification requirements in 2003. One of the key obligations expected from the Parties to the Protocol is promotion and facilitation of public awareness, education and participation in biosafety activities as stipulated in article 23. The Biosafety Act 2009 of the Laws of Kenya has established the National Biosafety Authority (NBA) as the competent authority to exercise general supervision and control over the transfer, handling and use of genetically modified organisms with a view to ensuring: safety of human and animal health; and provision of an adequate level of protection of the environment. The Authority coordinates all activities involving genetically modified organisms and consults with regulatory agencies.

Some of the roles of the Authority include receiving, reviewing and making approval or rejection decisions on applications to introduce biotechnology products for research or commercial purposes into the country based on risk assessment. Regulatory agencies include Kenya Plant Health Inspectorate Services (KEPHIS), Department of Public Health, Department of Veterinary Services (DVS), National Environment Management Authority (NEMA), Kenya Bureau of Standards (KEBS), and Pest Control Products Board (PCPB) among others. It is recommended that genetically modified organisms and derived products to comply with product specifications, labelling, codes of practice, food safety assessment and credible methods for detection and quantification prescribed by Kenya standards. Kenya standards are complementary to the Biosafety Act 2009 of the laws of Kenya.34

National Biosafety Authority is mandated to among other things: consider and determine applications for approval for the transfer, handling and use of genetically modified organisms, and related activities in accordance with the provisions of the act; co-ordinate, monitor and assess activities relating to the safe transfer, handling and use of genetically modified organisms in order to ensure that such activities do not have adverse effect on human health and the environment; co-ordinate research and surveys in matters relating to the safe development, transfer, handling and use of genetically modified organisms, and to collect, collate and disseminate information about the findings of such research, investigation or survey; identify national requirements for manpower development and capacity building in biosafety; advise the Government on legislative and other measures relating to the safe transfer, handling and use of genetically modified organisms; promote awareness and among the general public relating to biosafety; establish and maintain a biosafety clearing house to serve as a means through which information is made available facilitate the exchange of scientific, technical, environmental and legal information on, and experience with, living modified organisms.

Before the Cabinet Decision to lift the ban on GMOs the above-mentioned authority had not shared information on biosafety concerns relating to GMOs in the country. Even though it is said the cabinet decision was arrived at following wider consultations with the stakeholders’ one finds it funny that the same information wasn’t shared with the public,

yet it is a public interest issue at stake. Moreover, the same information hasn’t been shared with the general public so that the members can make an informed decision on matters of GMO debate. Leaving this matter to a few people to make decisions at the behest of the opinions and views of the wider majority is bad manners in the words of E. Z Ongoya.

The government as well has an overriding duty to ensure the safety of its citizens. Governments should make food safety a public health priority, as they play a pivotal role in developing policies and regulatory frameworks and establishing and implementing effective food safety systems. By the virtue that there are scientists who raise biosafety concerns on GMO, does it mean that the government is out to kill its citizens? More questions can arise, why is it that so many countries in Africa have not embraced GMO? What is their main contention? Why can’t we learn from them? Maybe it is another plot for another scandal for this new government. For even before Moses Kuria signed a legal notice for importation of GMO maize there was a ship in Mombasa dock which had bags of maize.

Honestly, farmers from maize-producing regions are harvesting their maize yet the government is keen on making sure that GMO maize gets into the country. Is this government the key enemy of farmers in this country? How can one explain that phenomenon? Kenyan farmers should be protected from external forces who want to control the market. Since the ban on GMO as well no research has been shared to show whether the GMO can thrive in the country and be able to produce the desired results.

GMOs potentially have novel genetic traits that may impact the way in which these organisms interact with their environments. Potential human effects include allergens, transfer of antibiotic resistance markers, unknown effects, potential environmental impact: unintended transfer of transgenes through cross pollination, unknown effects on other organizations and loss of flora and fauna biodiversity. These potentially new interactions represent potentially new risks that have to be assessed and/or managed appropriately before a GMO is released into the environment. Unfortunately, the same wasn’t carried out. I dare say it was a perfect dereliction and illegal move by the Executive.

II. On public participation

The promulgation of the constitution in 2010 ushered a new era of citizen participation in Kenya by embedding public participation as a principle of governance that binds all state and public officials. Public participation, therefore, refers to the processes of engaging the public or a representative sector while developing laws and formulating policies that affect them. The processes may take different forms.35

Effective public participation has become an indispensable element of democracy and people-centred development. It is the very foundation for democracy which not only strengthens the state by legitimizing governmental actions but is also important for good and democratic governance. Robust participation is credited with a range of benefits—from strengthening individual behaviours and attitudes toward democracy, to shaping bargaining dynamics among political decision-makers, improving constitutional content, and strengthening longer-term outcomes for democracy and peace.

Recognizing the benefits of public participation, the constitution of Kenya created new spaces for interaction, declared the citizen sovereign, and demand that the public must be involved in every aspect of public governance. Article 10 of the constitution lists public participation as one of the national values and principles of governance that binds all state organs, state and public officers, and all persons in Kenya whenever any of them applies or interprets the constitution, enacts, applies or interprets any laws, or makes or implements public policy decisions.

The Supreme Court in Petition No. 5 of 201736 delimited the following framework for public participation: Guiding Principles for public participation

(i) As a constitutional principle under Article 10(2) of the Constitution, public participation applies to all aspects of governance.

(ii) The public officer and or entity charged with the performance of a particular duty bears the onus of ensuring and facilitating public participation.

(iii) The lack of a prescribed legal framework for public participation is no excuse for not conducting public participation; the onus is on the public entity to give effect to this constitutional principle using reasonable means.

(iv) Public participation must be real and not illusory. It is not a cosmetic or a public relations act. It is not a mere formality to be undertaken as a matter of course just to ‘fulfill’ a constitutional requirement. There is a need for both quantitative and qualitative components in public participation.

(v) Public participation is not an abstract notion; it must be purposive and meaningful.

(vi) Public participation must be accompanied by reasonable notice and reasonable opportunity. Reasonableness will be determined on a case-to-case basis.

(vii) Public participation is not necessarily a process consisting of oral hearings, written submissions can also be made. The fact that someone was not heard is not enough to annul the process.

(viii) Allegation of lack of public participation
does not automatically vitiate the process. The allegations must be considered within the peculiar circumstances of each case: the mode, degree, scope and extent of public participation is to be determined on a case-to-case basis.

(ix) Components of meaningful public participation include the following:

a. clarity of the subject matter for the public to understand;

b. structures and processes (medium of engagement) of participation that are clear and simple;

c. opportunity for balanced influence from the public in general;

d. commitment to the process;

e. inclusive and effective representation;

f. integrity and transparency of the process;

g. capacity to engage on the part of the public, including that the public must be first sensitized on the subject matter.37

Chief Justice Emeritus, Dr. Willy Mutunga, expounded on the principle and traced the place of the People in the constitution-making process thus:

In the entire history of constitution-making in Kenya, the participation of the people was a fundamental pillar. That is why it has been argued that the making of Kenya’s Constitution of 2010 is a story of ordinary citizens striving to overthrow, and succeeding in overthrowing the existing social order, and then defining a new social, economic, political, and cultural order for themselves. It is, indeed, a story of the rejection of 200 Parliamentary amendments by the Kenyan elite that sought to subvert the sovereign will of the Kenyan population. Public participation is, therefore, a major pillar, and bedrock of our democracy and good governance. It is the basis for changing the content of the State, envisioned by the Constitution, so that the citizens have a major voice and impact on the equitable distribution of political power and resources. With devolution being implemented under the Constitution, the participation of the people in governance will make the State, its organs and institutions accountable, thus making the country more progressive and stable. The role of the Courts, whose judicial authority is derived from the people of Kenya, is the indestructible fidelity to the value and principle of public participation.38

The role of the public in the law-making process was as well reiterated in Doctors for Life International v. Speaker of the National Assembly and Others [2006] ZACC 11. In this decision the Constitutional Court of South Africa stated as follows:

“The participation by the public on a continuous basis provides vitality to the functioning of representative democracy. It encourages citizens of the country to be actively involved in public affairs, identify themselves with the institutions of government and become familiar with the laws as they are made. It enhances the civic dignity of those who participate by enabling their voices to be heard and taken account of. It promotes a spirit of democratic and pluralistic accommodation calculated to produce laws that are likely to be widely accepted and effective in practice. It strengthens the legitimacy of legislation in the eyes of the people.

Finally, because of its open and public character it acts as a counterweight to secret lobbying and influence peddling. Participatory democracy is of special importance to those who are relatively disempowered in a country like ours where great disparities of wealth and influence exist.

Therefore our democracy includes as one of its basic and fundamental principles, the principle of participatory democracy. The democratic government that is contemplated is partly representative and partly participatory, is accountable, responsive and transparent and makes provision for public participation in the law-making processes. Parliament must therefore function in accordance with the principles of our participatory democracy.39

Having emphatically stated the vital role of public participation, in contextualizing the concept to this paper one may beg to ask the question of whether the public asked to give their views before the decision was arrived at. It was not given priority. Mind you Article 1 enumerates that sovereign will belongs to the people of Kenya and must be exercised as per their will. Moreover, the three of arms of government, including the Executive, are exercising delegated power to the extent that their power is merely donated and thus they must reflect the will of the populace.

Public Participation is the cornerstone of constitutional democracy. With this tenet vouchsafed in the constitution, the Executive cannot act whimsically and with bravado disregarding the views of the public and impose policies and decisions which insult the intelligence of the citizens. The decision by the Cabinet to lift the ban on GMO fails this test. Actually, what the Cabinet did can be equated to mangling the constitution. Mind you the Constitution is the grund norm. The Constitution outlines the rights and duties of both the state and the citizens and limits thereof.

Petition by Kenyan Peasants League over cabinet’s position on GMO and the ruling by the High Court Kenyan Peasants League did file a petition in the High Court, the petitioners opposed the importation, cultivation and consumption of GMO crops and foods arguing that they pose a deadly health hazard to Kenyans, particularly the poor and those of low income. In his affidavit, Mr Cidi Otieno who is the Leader of the Kenyan Peasants League relied on the recent statements by Moses where the CS stated that ‘there was nothing wrong with adding GMOs to the list of the things that can kill Kenyans.’ He argued that such statement from the Cabinet Secretary meant that GMOs were indeed dangerous for human consumption and that the actions of the government threaten the health and human life contrary to the provisions of the Constitution of Kenya.

Cidi Otieno further argued that if indeed the government was keen on combating hunger, it was free to import safe maize from neighbouring Tanzania or other countries, rather than import food that would lead to long-term diseases unto the consumers.

Lady Justice Mugure Thande delivered her ruling on this issue on 28th November 2022. She ordered that pending the hearing and determination of the application filed by Kenyan Peasants League, the government and the Cabinet Secretary in charge of Agriculture, livestock and fisheries is temporary prohibited from gazetting or acting upon the contents of dispatch from the Cabinet authored by the Executive Office of the President of Kenya, regarding the lifting of the ban on the genetically modified organisms (GMO Crops). The lady Justice went further to issue conservatory orders, pending hearing and determination of the suit, preventing the respondents or their agents or through such other person acting under their instructions from allowing or permitting the importation of the GMO crops and food into the country as well as distributing GMO crops and food in the country.

Mr Kevin Oriri who is the lawyer representing Kenyan Peasants League stressed that the injunctive orders prohibiting the government from gazetting the Cabinet decision that lifted the ban on GMOs in Kenya are spot on. The orders also prohibit the government, either directly or through any other entity from importing or distributing any GMO crops and foods in the country. He further stated that no public participation led to the lifting of the ban on GMOs in Kenya. Mr. Otieno Cidi declared that the Kenyan Peasants League shall push on with the struggle to promote peasant agroecology for food sovereignty and that they will continue fighting against the neoliberal tendencies that kill local agriculture, threaten food safety and alienate ordinary producers and consumers from decision-making on agriculture and food.

The ruling by the High Court is timely due to the current events taking place in the country. What will be interesting to watch is how the President and his lieutenants will react to the said decision by Learned Lady Justice Thande. The President promised to abide by the rule of law and his sentiments on the same will be worth noting.

Conclusion

As candidates of death, it is imperative to note that GMOs are emerging as very important tools to solve several current problems so they say. However, the adoption of modern biotechnology products needs to be balanced with adequate biosafety safeguards. So far, information regarding the safety of GMOs has not been availed to the wider public. Ann Maina notes that there is no sufficient evidence that GM technology would help the country combat food insecurity and have socio-economic benefits. Kenya also lacks sufficient capacity to regulate GM because the National Biosafety Authority is limited in human and financial resources. Be it as it may, one persuaded to be for or against GMOs should take a keen interest in the legalities of embracing GMOs in Kenya.

Odhiambo Jerameel Kevins Owuor is a law student at University of Nairobi, Parklands Campus.

in Nairobi).

1Chemilil Sugar FC and Kenyan Premier League Limited v. Nick Mwendwa, Barry Otieno and Football Kenya Federation, Petition No. 7 of 2020.; Sports Disputes Tribunal Appeal No. 2 Of 2015, Charles Kariuki Wambugu v. The National Olympic Committee of Kenya (NOCK).

2Ibid

3Charles Wambugu Kariuki v National Olympic Committee of Kenya, Sports Disputes Tribunal Nairobi
Appeal No. 2 of 2015.

4Constitution of Kenya, 2010, Article 159.

5Supra n3; N.B. Reference to section 59 of the Sports Act pre-2017 is to be interpreted as referring to section 58 as the 2017 and 2019 revisions renumbered the provision to section 58 without a change in its content.

6Maqbull Abdi Karim -v- Gor Mahia Football Club, Sports Disputes Tribunal Nairobi Appeal No. 6 of 2018.

7Ibid; Also see Article 59 (2) of the Fifa Statute

8Sports Disputes Tribunal Nairobi Appeal No. 6 of 2018.

9Peter Omwando -vs- Nick Mwendwa & others (sued as officials of Football Kenya Federation) SDT Pet No. 25 of 2016

10Milton Nyakundi -v- FKF Electoral Board and 4 others, Sports Disputes Tribunal Nairobi Appeal No. 11 of 2020.

11Chemilil Sugar FC, Kenyan Premier League Limited v. Nick Mwendwa, Barry Otieno and Football Kenya Federation, Petition No. 7 of 2020.

12’Guide To The Sports Tribunal – Sports Tribunal NZ’ (Sportstribunal.org.nz, 2022) <https://sportstribunal.org.nz/guide-to-the-sports-tribunal/> accessed 20 July 2022.

13Ibid.

14András A Gurovits, The Sports Law Review (Law Business Research Ltd 2017).

15Ibid.

16Supra n13.

17’Committee Told That Sport Arbitration Tribunal Is Much Needed – Parliament Of South Africa’ (Parliament.gov.za, 2022) <https://www.parliament.gov.za/news/ committee-told-sport-arbitration-tribunal-much-needed> accessed 20 July 2022; Kariuki Muigua, Promoting Sports Arbitration in Africa; A discussion Paper for the Chartered Institute of Arbitrators (Kenya Branch) (2nd Annual Lecture on the theme ‘Promoting Sports Arbitration in Africa’ held on Thursday 28th November, 2019 in Nairobi).

18Ibid

19Gabriel Rangel, From Corgis to Corn: A Brief Look at the Long History of GMO Technology (9th August 2015) Available at https://sitn.hms.harvard.edu/flash/2015/ from-corgis-to-corn-a-brief-look-at-the-long-history-of-gmo-technology/ Accessed on 27th November 2022

20Cohen, S. et. al. “Construction of Biologically Functional Bacterial Plasmids In Vitro.” PNAS, November 1973. http://www.ncbi.nlm.nih.gov/pmc/articles/PMC427208/ Accessed on 27th November 2022

21Committee on Recombinant DNA Molecules, “Potential Biohazards of Recombinant DNA Molecules.” PNAS, July 1974. http://www.ncbi.nlm.nih.gov/pmc/articles/ PMC388511/?page=1 Accessed on 27th November 2022

22Berg, P. et. al, “Summary Statement of the Asilomar Conference on Recombinant DNA Molecules.” PNAS, June 1975. http://www.ncbi.nlm.nih.gov/pmc/articles/ PMC432675/pdf/pnas00049-0007.pdf Accessed on 27th November 2022.

23Ibid

24“Biotechnology.” Encyclopedia Britannica, 2015. Available at http://www.britannica.com/technology/biotechnology#ref926019 Accessed on 27th November 2022

25Ibid

26Supra

27Bayer, ‘The Many Benefits of GM Crops’ Available at https://www.bayer.com/en/agriculture/article/benefits-gm-crops Accessed on 27th November 2022

28Slow Food is a global, grassroots organization, founded in 1989 to prevent the disappearance of local food cultures and traditions, counteract the rise of fast life and combat people’s dwindling interest in the food they eat, where it comes from and how our food choices affect the world around us. Since its beginnings, Slow Food has grown into a global movement involving millions of people in over 160 countries, working to ensure everyone has access to good, clean and fair food. Slow Food believes food is tied to many other aspects of life, including culture, politics, agriculture and the environment. Through our food choices we can collectively influence how food is cultivated, produced and distributed, and change the world as a result.

29Beyer, P., et al. Golden rice: Introducing the β-carotene biosynthesis pathway into rice endosperm by genetic engineering to defeat vitamin A deficiency. Journal of Nutrition 132, 506S–510S (2002)

30Biosafety Act

31Available at https://www.google.com/search?q=synonmn+of+put+differently&rlz=1C1BNSD_ enKE977KE979&oq=synonmn+of+put+differently&aqs=chrome..69i57l2j69i59l2.5506j0j7&sourceid=chrome&ie=UTF-8 Accessed on 27th November 2022

32Prabhu KV, Use of GMOs Under Containment, Confined and Limited Field Trials and Post-Release Monitoring of GMOs In: Biosafety of Genetically Modified Organisms: Basic concepts, methods and issues. Chowdhury MKA, Hoque MI and Sonnino A (Eds.). pp. 157-220. © FAO 2009.

33Cartagena Protocol On Biosafety To The Convention On Biological Diversity, 2000

34Supra

35Kaps Parking Limited & another v County Government of Nairobi & another [2021] eKLR

36British American Tobacco Kenya, PLC (formerly British American Tobacco Kenya Limited) v Cabinet Secretary for the Ministry of Health & 2 others; Kenya Tobacco Control Alliance & another (Interested Parties);Mastermind Tobacco Kenya Limited (The Affected Party) [2019] eKLR

37British American Tobacco Kenya, PLC (formerly British American Tobacco Kenya Limited) v Cabinet Secretary for the Ministry of Health & 2 others; Kenya Tobacco Control Alliance & another (Interested Parties);Mastermind Tobacco Kenya Limited (The Affected Party) [2019] eKLR

38In the Matter of the National Land Commission

39British American Tobacco Kenya, PLC (formerly British American Tobacco Kenya Limited) v Cabinet Secretary for the Ministry of Health & 2 others; Kenya Tobacco Control Alliance & another (Interested Parties);Mastermind Tobacco Kenya Limited (The Affected Party) [2019] eKLR.

Jerameel Kevins Odhiambo Owuor
/ Published posts: 3

He is a law student at University of Nairobi, Parklands Campus.

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