President William Ruto is keen to have the High Court okay the rollout of Genetically Modified Organisms (GMOs) in the country.
The government wants four constitutional petitions at the High Court Human Rights Division challenging the adoption of GMOs thrown out.
They want the court to instead adopt a decision by the Environment and Land Court that okayed the cultivation of BT maize (GMO maize).
The submission made by Attorney General Justin Muturi seeks to have Justice Lawrence Mugambi adopt the decision that was delivered by Justice Oscar Angote on October 12, 2023, that gave greenlight to the rollout of BT maize.
Initially, five petitions had been brought before Justice Mugure Thande for consolidation and hearing.
After considering the nature of the disputes and submission from the lawyers, Justice Thande directed that the petition by the Law Society of Kenya (LSK) challenging the adoption of BT Maize be heard at the Environment and Land Court.
The cases were filed after a Cabinet memo on October 3, 2022, lifted the ban that was in place since November 8, 2012, on the open cultivation of food crops and animal feeds arising out of biotechnology innovations.
The parties appeared Justice Lawrence Mugambi to argue whether or not the Judgment by Justice Angote dismissing the LSK case had any bearing on the pending four consolidated petitions.
Agriculture Cabinet Secretary Mithika Linturi while seeking to have the cases dismissed faulted the petitioners saying that they were forum shopping for a more favourable decision than the decision by the Environment and Land Court.
“In sum, creating or entertaining the spectre of two confliction decisions from two courts of equal status can only embarrass our system of justice,” argued the CS's lawyer Muthomi Thionkolu.
Dr Thionkolu submitted that Justice Angote already addressed all the issues raised in the pending petitions and the Lands Court was competent enough to enforce the Bill of Rights.
Linturi argued that the LSK did not challenge the constitutionality of laws governing GMOs and therefore it confirms that they are sufficient to provide the necessary safeguards needed for adoption.
He said LSK did not prove whether institutions charged with the rollout and control of GMOs breached any laws, regulations or guidelines.
The CS submitted that Kenyans should not be worried about their health or environmental safety since there is a robust legal framework to be adhered to before rollout.
The National Biosafety Authority and Trade CS Rebecca Miano accused the petitioners of engaging in a fishing expedition since the Environment Court addressed the matters raised in the four petitions.
They want the Court to summarily rule that the pending cases have been overtaken by events.
The Kenya University Biodiversity Consortium and the Association of Kenya Feeds Manufacturers agree with the position taken by AG Muturi.
Lawyer Paul Mwangi appearing as the 1st petitioner argued that the Judgment by the Environment Court was not binding on the four pending petitions.
Mwangi argued that a good number of the constitutional principles interpreted in the LSK petition judgment instead fall under the Human Rights Division of the High Court, faulting the Lands Court for going outside its jurisdiction.
He argued that amongst the issues that were not pleaded by LSK and were not part of the issues set out for determination was whether there was public participation in removing the barriers governing the rollout of BT Maize.
Secondly, whether the Cabinet dispatch that lifted the GMO ban was a statutory instrument and therefore subject to the procedure under the Statutory Instruments Act.
He also cited the question of Kenyans' right under Article 35 of the Constitution to access information on every GMO seed and food that will be adopted in the country for them to make an informed decision.
Lawyer, Kevin Oriri, representing the Kenyan Peasants League (KPL) argued that the case at the Environment Court as filed by LSK was different from the pending cases.
He said the LSK case focused specifically on the question of the adoption of BT maize as regulated by the Biosafety Act, 2009, while the consolidated petitions challenge the constitutionality of the Cabinet decision to lift the ban on GMOs.
According to the lawyer, the lifting of the GMO ban was done without involving the stakeholders and their case highlights the consequential violations or threats to fundamental human rights that arise from this policy shift.
KPL argues that such a critical decision has far-reaching ramifications and ought to have been first subjected to intense and robust debate amongst Kenyans.
According to the lobby group, the discussion ought to have happened due to the global trend to ban the adoption of the said substances.
It represents the interests of peasant farmers, who they say produce over 80 per cent of the food consumed locally.
KPL further argued that farmers' rights to seed, food, biological diversity and food sovereignty were under direct threat if the GMO policy was adopted.
The Biodiversity & Biosafety Association of Kenya and the Council of Governors who are in support of the petitioners’ case argued that there are a lot of critical issues pending determination by the High Court
Justice Lawrence Mugambi will deliver a ruling on October 31, 2024.
