Court of Appeal Bars Ruto Govt From Importing GMOs

Elizabeth Mueni selling maize to deputy president William Ruto on Wednesday, July 21, 2021.
Elizabeth Mueni selling maize to deputy president William Ruto on Wednesday, July 21, 2021.
William Ruto Twitter

President William Ruto, on Thursday, May 25, lost a case in which his government was seeking the Court of Appeal's nod to import Genetically Modified Organisms (GMO) maize into the country.

In the 21-page ruling, the Court of Appeal found no merit in the case, which the Office of the Attorney General argued in favour of the State.

The court argued that the matter was of serious public interest, and it was wrong for the government to make such decisions without considering the concerns raised.

"Applicant must establish the first two aspects, that is, the arguability test and the nugatory aspect.

Maize Flour on Supermarket shelves
Maize Flour on a supermarket shelf on April 4, 2023.
Ken Aseka

"The public interest test was not meant to stand alone or replace either of the two tests. In our opinion, the Supreme Court introducing the public interest consideration did not dislodge the other considerations.

"See in Law Society of Kenya v Bloggers Association of Kenya & 6 Others (2020) eKLR. In the end, we find no merit in the application as the applicants did not satisfy us on all three limbs," read part of the ruling.

On December 23, 2022, Attorney General Justin Muturi moved to the Court of Appeal seeking orders that would lift a ban on the importation and distribution of genetically modified crops. 

The ban was imposed by the High Court in March 2023, following a petition by a coalition of civil society groups.

The government argued that the ban is unlawful and will have a negative impact on food security. The government also argued that the ban is based on outdated information and that there is no scientific evidence to support the claims that GMOs are harmful.

The ruling that was delivered by Justices Warsame Mohamed, Ali Arone and John Muting'a Mativo recoginsed that the High Court was yet to determine a similar matter before it. 

The three-judge-bench further ordered that even though they declined to stay the orders based on the strict requirements set out in Rule 5(2)(b), they directed the intended appeal be listed for hearing on a priority basis.

"Conservatory orders, therefore, are not, unlike interlocutory injunctions, linked to such private-party issues as the prospects of irreparable harm occurring during the pendency of a case; or high probability of success in the supplicant’s case for orders of stay.

"Conservatory orders, consequently, should be granted on the inherent merit of a case, bearing in mind the public interest, the constitutional values, and the proportionate magnitudes, and priority levels attributable to the relevant causes," read part of the ruling. 

GMO debate 

Arguments in favor of GMOs claimed that the importation could help increase crop yields, which can help to address food insecurity.

The government stated that GMOs can be engineered to be resistant to pests and diseases, which can reduce the use of pesticides and herbicides.

While arguing against the fears presented before the court the State noted that GMOs can be engineered to have improved nutritional content, which can improve public health.

However, Civil Society groups countered the State's narrative, noting that on October 3, 2022, the Cabinet directive was a blanket lift of the restrictions and the controlling measures put in place previously, without the establishment of measures to preserve and protect indigenous seeds and other indigenous genetic resources and is a threat to the sovereignty of the people of Kenya and in particular food security in the country in violation of the provision of the Constitution.

"It is not in dispute that on the 15th of December, 2022 parties appeared before the court. However, parties have given differing accounts of what transpired in court. 

"Parties do agree that the court issued several directives on steps to be taken by the parties including consolidation of the two matters," read part of the ruling. 

File photo of Milimani Law Courts in Nairobi
File photo of Milimani Law Courts in Nairobi.
Judiciary of Kenya