Kenya small scale Farmers appeal ruling on GMOs

Kenya small scale farmers forum and six other petitioners have challenged the High Court’s decision that dismissed their petitions opposing the Cabinet’s 2022 resolution to lift the ban on the cultivation, importation, and sale of Genetically Modified Organisms (GMOs) in Kenya.

They argue that the ruling, which declared the matter res judicata, opens the door for irreversible actions that could undermine their fundamental rights and the rights of all Kenyans.

In the petition filed before the Court of Appeal under a certificate of urgency, the petitioners seek conservatory orders stopping the lifting of the ban previously granted on December 15, 2022 which had temporarily halted the implementation of the Cabinet’s decision.

They allege that without these protective measures, the ongoing rollout of GMO crop trials across the country will render their intended appeal futile, as the impacts of GMO cultivation and importation would be irreversible, even if their appeal succeeds.

“The application is extremely urgent as immediately after the consolidated petitions were struck out and conservatory orders discharged, the National Biosafety Authority have started Rolling out GMO Crops trial across the country in preparation for mass production,” read the court documents.

The petitioners argue that the Cabinet’s 2022 decision to lift the decade-old ban on GMOs “is a threat to the rights or fundamental freedoms in the bill of rights”.

They further allege that the decision removed all regulatory barriers that had been established for the protection of people of Kenya.

The original ban, instituted in 2012, was based on concerns about the safety of GMOs and insufficient scientific data on their public health impacts.

The petitioners maintain the striking out of the petitions paved the door for the impugned cabinet decision to be implemented.

“The striking out of the consolidated petitions effectively discharged the conservatory order given on 15th December 2022 and thereby opening the door for the impugned cabinet decision to be implemented,” argue the Petitioners.

The petitions were struck out by the High Court on the grounds that the issues raised in the consolidated petitions were incompetent and untenable.

This conclusion arose from a related case, filed by the Law Society of Kenya (LSK) and determined by the Environment and Land Court (ELC).

In that case, the ELC had addressed similar questions regarding the Cabinet’s decision to lift the GMO ban.

The court had ruled on these matters, prompting the High Court to hold that the issues in the consolidated petitions had already been litigated and decided.

The petitioners had initially sought to have their case heard before the ELC division to be heard together with the other matter.

However, the High Court found that the issues raised were not within the purview of the ELC court directing the consolidated petition be heard before the constitutional and human rights division.