After the Genetically Modified Organisms (GMOs) ban was lifted, the Law Society of Kenya (LSK) was among the petitioners that challenged it.
Their challenge was on GM maize or BT maize and the case was filed at the Environment and Lands Court (ELC) in Nyahururu on January 16, 2023, which was transferred to the same division in Nairobi on March 28.
In their petition LSK sought redress over the violation of Kenyans' right to a clean and healthy environment as well as standard of health, right to clean, safe water and access to information.
It was centered on environmental issues and the impact of the open cultivation of BT Maize on the environment.
Justice Mugure Thande who was hearing the three petitions noted that section 165(5) strips the Human Rights division of the jurisdiction over matters relating to land and environment.
The government argued that all three petitions should be taken to the ELC court since the dominant issue in the petitions touched on matters environmental, namely GMO.
The petitioners opposed this move saying issues raised are purely human rights, judicial review and administrative law and outside ELC’s jurisdiction.
Justice Thande ruled that the petition by LSK be taken to ELC.
LSK argued that GMO maize genes could raise biosafety issues for human and animal health and the environment and there is a high possibility of the spread of the transgene to neighbouring conventional crops resulting in additional risks to maize genetic diversity, non-target species and increased resistant risk.
LSK said that farmers may unknowingly cultivate and consume GMO maize due to unintended genetic transfer and organic farmers would have to incur an extra cost to test and verify that their produce isn’t GMO.
It said there was inadequate assessment of threats to those intending to retain non-GMO identity and effects on non-target species such as butterflies, bees and other micro-organisms.
On its part, the government said that a study relied upon by the Mwai Kibaki regime to issue the ban on GMOs was retracted by its authors in 2014 after its findings were challenged and that it continues to educate Kenyans on GMOs.
The report, popularly known as the Dr Kihumbu Thairu report has never been made popular by the State to the public to this day.
Justice Oscar Angote dismissed this case calling for more trust in the institutions mandated to protect Kenyans.
“This court has not been shown any evidence to show that the respondents and the institutions named in the preceding paragraphs have breached the laws, regulations and guidelines pertaining to GM food and in particular the release in the environment, cultivation, importation and exportation of BT maize,” he said.