In 2023, on 7-8 February, the ACB finally had a court hearing in the High Court in Pretoria, after five years of protracted legal proceedings since we lodged the application for a review. The aim has been to overturn the decisions of the South African Executive Council: GMO Act (EC), the GMO Appeal Board, and the Minister of Agriculture, Forestry and Fisheries, approving Monsanto/Bayer’s genetically modified (GM) drought-tolerant (DT) maize variety MON 86470 for commercial cultivation in SA.
The ACB is satisfied that it had a fair hearing and had the benefit of excellent representation by Legal Aid for which it is extremely grateful. The judgment of the presiding Judge, Justice Tolmay was handed down on 27 June 2023 in which she rejected the ACB’s concerns that the EC failed to conduct a rigorous scientific assessment and evaluate and engage critically with the paucity of information furnished by Monsanto, particularly about unsubstantiated claims of drought tolerance, to satisfy itself that the general release of MON87460 ought to have been approved.
According to Mariam Mayet, Executive Director of the ACB: “The court failed to grasp the precautionary principle and the judgment shows little deference to the constitutional order in which we live in, with its commitment to ensuring that environmental decisions do not result in activities being authorised that pose a threat to human health and environment.”
The ACB, supported by Legal Aid, will seek leave to appeal against the decision, and if granted, will take the matter on appeal to a full bench or the Supreme Court of Appeals.
With the approval under appeal, Monsanto has been forced to put on hold the commercial cultivation of this trait, which in itself is a huge victory for the ACB, civil society, farmer networks, and consumers.
The court case follows many years of campaigning and advocacy work by the ACB, other organisations, and members of the public, fiercely challenging Monsanto’s unproven claimed benefits of drought tolerance, going back to 2007, when the field trials involving the drought tolerant trait first commenced. This trait was ostensibly to be offered to small-scale farmers via the Gates-funded Water Efficient Maize for Africa (WEMA) project, targeting several countries. Thus, our court case could have far-reaching impacts not only for South Africa but the rest of the continent. Here is a timeline from the first application for trial release to the present.
2007 – DT GM variety trials approved in South Africa
In March, the South African GMO authorities gave Monsanto permission to conduct open field trials in South Africa involving the alleged drought tolerant (DT) GM maize variety MON 87460. Due to limited opportunity for civil society to intervene in GMO permit applications, we were prevented from objecting timeously, but in May we placed on record our concerns about the granting of field trial permits.
Without any proof it was safe and effective, and with at least a decade away before commercialisation, the biotech machinery prematurely and shamelessly punted their DT GM maize as a quick fix to address hunger and help poor African farmers, with the field trials in SA used to win Monsanto credibility in Africa.
2008 – WEMA launched, based on DT maize
Following on from the launch of the GM DT maize trials in SA, the five-year Water Efficient Maize for Africa (WEMA) partnership launched, purportedly to help farmers manage the risk of climate change related drought and increase yield in drought conditions. This allegedly philanthropic initiative was spearheaded by the African Agricultural Technology Foundation (AATF) – as part of their Drought Tolerant Maize for Africa (DTMA) Project – involving a partnership between the national agricultural agencies of Kenya, Uganda, Tanzania, Mozambique and South Africa; the Maize and Wheat Improvement Center (CIMMYT); and Monsanto. Funding is primarily from the Bill and Melinda Gates and Howard G. Buffet Foundations, and USAID.
In the former Drought Tolerant Maize for Africa (DMTA) project, involving 12 African countries, the CIMMYT identified DT maize germplasm for WEMA use. This maize germplasm comes from Africa’s diversity of maize, holding valuable traits for the future of our agriculture and food supply and, from a private sector perspective, for commercialisation and profits. Monsanto could access this elite germplasm, and that donated by the national gene banks in WEMA countries, without any information as to what safeguards against biopiracy and what benefit-sharing agreements would be in place.
2010 – Objection to application to extend trials of DT GM maize
In response to Monsanto’s application to extend field trials of DT GM maize MON 87460 in SA, we objected, calling for the trials to be discontinued, after viewing an extremely limited “non-confidential-business-information” version of Monsanto’s appeal document. Issues we raised, included:
- Drought tolerance in plants is very complex, involving up to 60 genes
- Risks: horizontal gene transfer, use of antibiotic resistance marker genes and cross pollination with conventional varieties
- Yield – Monsanto admitted that under conditions of extreme drought, MON 87460’s yield “can be reduced to zero”.
Monsanto submitted a response to the ACB objection
In our response to Monsanto’s concerns, submitted to the Department of Agriculture, Forestry and Fisheries, we reiterated Monsanto’s own expression of doubt as to potential yield benefits of MON 87460, and asked again how these meagre benefits could be justified when considering the considerable risk that the MON 87460’s introduction into the environment could entail.
Information crucial to a thorough and independent assessment of the transgenic event was once again kept out of the public realm under the dubious moniker of being ‘confidential business information’. In addition, South African regulatory authorities failed to make public through the Biosafety Clearing House its original decision, in direct contravention of its obligations as a party to the Cartagena Protocol on Biosafety.
Objections were also submitted by the Lutzville community in the Western Cape, the Surplus People’s Project and the Food Sovereignty Campaign.
Africa’s Green Revolution Drought Tolerant Maize Scam
In a 2010 briefing, the ACB called out the DT maize scam that underpins WEMA, as the next phase in the Green Revolution push in Africa. We challenged the hype that this project would be a panacea for hunger, in the guise of philanthropy, and highlighted how the real issues were sidestepped: the actual causes of hunger and imbalanced global distribution of food.
Droughts affect the quantities of food available, but the genetic diversity of plants and animals and the diverse knowledge and practices of farming communities are the most important resources for adapting local agriculture to a changing climate.
We also delved into potential risks to small-scale farmers, include loss of biodiversity through gene flow, dependence on expensive inputs into, exposure to intellectual property rights’ claims and impacts on food security.
Biotech companies promoting genetically engineered crops are “… basically chemical companies selling more chemicals. They’ve been able to spread these herbicide-promoting plants around because it is more convenient for farmers who can just mass-spray their crops. But they’ve given absolutely nothing to the consumer while causing more chemical pollution and contamination.”
Andrew Kimbrell, executive director of the Center for Food Safety
WEMA field trials began in Kenya and Uganda
In the late 1960s, Africa was a net exporter of 1.3 million tons of food a year,
but by 2010, it imported as much as 25% of food requirements;
largely due to the imposed burden of servicing international development loans
and the pressure to maintain free markets.
2011 – Further objection to Monsanto’s extension permit
The ACB reiterated concerns regarding Monsanto’s extension permit in an objection in May.
2012 – ACB objects to application to extend DT GM trials
Field trials with MON 87460 were underway in Hopetown, Orania, Pretoria, Lutzville and Delareyville, using a combination of conventional breeding, marker-assisted breeding and transgenics. The ACB objected to Monsanto’s application for an extension of field trials in Delareyville, Lutzville and Pretoria, for which initial approval had been given in 2009.
Open Letter to AGRI SA
In response to an article published in the Business Day (2 October, 2012: ‘AgriSA backs gene-modified maize’), AGRI SA argued that stopping the cultivation of GM maize would lead to lower yields, higher maize prices, and an increase in the use of pesticides, also claiming that GM crops are less susceptible to pests and drought.
We responded that these claims were “spurious, unsubstantiated and completely detached from the day-to-day realities of our agricultural system.”
The myth that GM crops result in higher yields was debunked by the joint World Bank-UN FAO’s International Assessment of Agricultural Science and Technology for Development report from 2008, which concluded that there was no credible evidence to support this often heard claim.
Scientists in the United States in 2009 also concluded that the lion’s share of yield increases in US maize and soybean production since the introduction of GM varieties in the mid-1990s is attributable to advances in conventional plant breeding.
Kenya bans the import of GMOs
In Kenya, a Parliamentary Decree banned the import of GMOs, pending investigation into their impacts, after a task force expressed concerns to the Kenyan Parliament over lack of safety data on GMOs and related pesticides, and lack of government capacity to assess and monitor the impact.
“News that South Africa has allowed the commercial growing of Monsanto’s GM drought-tolerant maize will greatly embolden the WEMA lobby into pressuring our Parliament to relax the current ban, despite the stark warnings of the GMO task force”.
Anne Maina, Kenya Biodiversity Coalition, KBioC
ACB calls for moratorium on the use of glyphosate
Though insect resistant (Bt) crops were initially the principally adopted crops, by 2012 herbicide tolerant maize accounted for 50% of all GM maize planted, with the agri-chemical glyphosate becoming synonymous with GM crops. HT soya cultivation rose from 165,000 ha in 2008 to 472,000 ha in 2012. Over a similar period (2005 – 2012), the overall use of glyphosate had increased from 12 million litres to 20 million litres. Similarly, from 2007 to 2011 glyphosate imports increased by 177%.
While glyphosate was dramatically increasing in food production in South Africa, there was regulatory failure concerning the monitoring, inspection and testing of food for residues, with many peer-reviewed studies documenting risks to animal and human health.
Another briefing paper, Glyphosate in SA: Risky pesticide at large and unregulated in our soil and water, focused in the issue of the impact to the environment.
Glyphosate exerts a heavy toll on plants, the soil, wildlife and aquatic systems, yet there was neither monitoring nor testing, with risks including:
- Increased incidence of 30+ plant diseases, inhibition of nutritional uptake in plants, toxic to earthworms and significant contributor to fungal disease;
- Reduces weed diversity, with knock-on effects higher up the food chain, e.g. butterfly and birds;
- High concentrations of glyphosate and its main breakdown product, aminomethylphosphonic acid found in groundwater, with implications for drinking supplies; and
- Being soluble and mobile in aquatic systems, glyphosate can damage amphibians and numerous aquatic organisms, including phytoplankton and freshwater mussels.
Thus, the ACB advocated for a moratorium on the use of glyphosate in the country
Letter to the SA Minister of Health on toxicity of glyphosate
The ACB appealed to the Minister of Health to investigate the toxicity of glyphosate and lack of monitoring its use and impacts in SA, calling for risk assessment to include chemicals associated with GMO crops.
African civil society calls on AU to ban GM crops
A statement signed by 400 African organisations called on the African Union (AU) to ban the cultivation, import and export of GM crops in Africa, supported by a substantive document detailing the failure of GM technology to deliver any of its promised benefits since its global introduction in the mid to late 1990s.
“Corporate-owned, genetically modified seed won’t solve any of our problems. We have our own varieties, we have our own knowledge. We need to be supported so that we can flourish in the agricultural systems that are our heritage”
Elizabeth Mpofo, Chairperson of the East and Southern African Farmers Forum (ESAFF) and member of La Via Campesina
2013 – “Insect resistant” Bt Maize variety Mon 810 fails in SA
The ACB’s report, Africa bullied to grow defective Bt Maize: the failure of Monsanto’s MON 810 maize in South Africa, showed how this early Monsanto GM maize variety had completely failed in South Africa. yet was being pushed on other African countries.
“Independent biosafety scientists discovered that the inheritance of resistance in African stem borers is a dominant, not recessive, trait as erroneously assumed. Hence the insect resistance management strategies that Monsanto developed, and accepted by our regulators, based on these erroneous assumptions, were utterly ineffective.”
ACB Director Mariam Mayet
After being grown for 15 years, widespread insect resistance had developed, leading to this variety’s withdrawal from the market. Monsanto had to compensate farmers forced to spray crops with pesticides to control the pests, which called into serious question the very rationale for GM crops. Despite this failure, WEMA moved into phase two and Monsanto continued to push this defective GM maize onto the rest of the continent by offering the seed “royalty-free” through WEMA, with commercial growing set to be approved by 2015 in Mozambique, Kenya, Uganda and Tanzania. Mozambique was changing biosafety laws to allow for the cultivation of GM crops and Tanzania was pressured to change its biosafety so Monsanto could evade liability for damages.
“WEMA is a convenient vehicle for Monsanto to gain regulatory approval for its controversial technology in African countries. ‘Royalty-free’ seed simply means that resource-strapped commercial farmers will get the seed at the same price as hybrid seed, which means that these seeds will be prohibitively expensive. The patents on the gene sequences still reside with Monsanto, and farmers will have to pay premium prices for the GM seeds.”
ACB research and advocacy officer Haidee Swanby
Egyptian study shows danger of local maize variety with MON810
Monsanto’s MON 810 GM trait was genetically engineered into a local Egyptian maize variety, which was patented by Monsanto and ‘approved’ for commercial growing through circumvention of the Egyptian biosafety law. This led to the Egyptian government publishing a peer-reviewed independent and public-funded biosafety studies on MON 810, showing serious risks to human and animal health.
2015 – Approval of DT GM maize MON 87460 leads to appeal
In response to the South African government’s approval of the commercial release of MON 87460, the ACB lodged an appeal with the Ministry of Agriculture, Water Affairs and Forestry Minister, which had given the go-ahead for Monsanto to sell this GM maize seed. Being excluded from receiving field trial data, we were unable to review the efficacy, rendering the EC’s approval procedurally flawed. Thus, we called for a determination to be made on appeal, of the constitutional rights of the ACB and the public to access to information and administrative justice.
MON 87460 was offered via WEMA, whereby Monsanto would enforce its plant variety protection on the seed and farmers would have to pay royalties. Once the subsidies and credit dry up, farmers are deep in debt or are simply unable to purchase expensive seed and other inputs such as synthetic fertilisers and pesticides. In the meantime they lose their own OPVs and seed sovereignty.
Appeal upheld and commercial release of MON 87460 confirmed
Unfortunately the appeal was upheld and approval for commercial release of MON 87460 was confirmed.
The Tanzania Alliance for Biodiversity (TABIO), União Nacional de Camponeses (UNAC), Kenya Biodiversity Coalition (KBioC), Kenya Food Rights Alliance (KeFRA), and Eastern and Southern African Small-Scale Farmers Forum Uganda (ESAFF, Uganda) also condemned the go-ahead, due to lack of efficacy.
The WEMA project continued to strong-arm Uganda, Tanzania and Mozambique into amending or passing permissive biosafety and seed laws and in Kenya the import ban on GMOs came under increasing pressure.
“Tanzania had one of the best biosafety regimes on the continent, which has now been undemocratically amended so that this false climate solution – GM drought maize – can be introduced into the country. The real solution to prepare for climate change is to support smallholder producers to sustain and increase agricultural diversity and resilience, do away with harmful chemicals and place smallholders at the centre of control over their resources and decision-making.”
Abdallah Mkindi, TABIO
The ACB published a report interrogating the Gates Foundation and Monsanto’s WEMA project, exposing it as corporate ‘green washing’ designed to ensnare small holder farmers into adopting hybrid and GM maize to benefit seed and agro-chemical companies.
Thousands support ACB call to ban glyphosate
The WHO International Association for Research into Cancer (IARC) classified glyphosate as a class 2A carcinogen. The ACB brought out a report discussing the risks to health land the environment and put out a call for a ban on this chemical in South Africa, which was supported by around 2000 people.
2016 – Objection to trial of stacked GM with disputed MON 87460
The ACB launched an objection, supported by 25 000 concerned citizens, against an application by Monsanto for the triple stack event that included MON 87460, whose efficacy we were disputing as a single trait, combined with MON 89034 and NK 603 (older and increasingly futile herbicide tolerance and insecticidal traits). The petition also called for a ban on glyphosate, which has been sold with the DT and herbicide tolerant traits, as well as being used widely in agriculture.
2017 – ACB approaches High Court for review of MON 87460
Supported by Legal Aid South Africa, we lodged an appeal to the High Court to overturn decisions of the GMO authority, the GMO Appeal Board and the Minister of Agriculture, Forestry and Fisheries, to commercialise Monsanto/Bayer’s GM DT maize variety MON 86470.
Due to the appeal, the commercial cultivation of the trait was put on hold, in itself a huge victory for civil society, farmer networks, and consumers.
Objection to commercial release of triple stack with MON 87460
Ironically, not long after our application for review in the High Court, the ACB had to submit a further objection against an application by Monsanto for the triple stack event that included MON 87460, this time resisting its commercial release.
Analysis of Mozambique’s biosafety legislation
The ACB and Acção Academicapara o Desenvolvimento das Comunidades Rurais (ADECRU) released a report analysing the changes to Mozambique’s biosafety legislation that enabled trials of GM maize under the auspices of the WEMA project.
We also released a discussion doc trying to ascertain the status of WEMA in the designated African countries. A complex undertaking indeed, underscoring the difficulties of trying to glean information.
ACB then called on African governments to halt WEMA in open letter
2018 – Monsanto’s application for commercialisation of triple stacked GM event rejected
We welcomed the rejection of Monsanto’s application for commercial cultivation of the triple stacked variety that included MON 86470, combined with MON 89034 and NK 603, due to neither a yield nor agronomic performance advantage of the genetically engineered (GE) DT variety, as compared with other conventional varieties. In addition, the insect resistant data presented by Monsanto was deemed insufficient.
Tanzania stops GMO trials
The Tanzanian government ordered that all GE maize crops stacked with the drought tolerant trait, under field trials by the Tanzania Agriculture Research Institute (TARI), be immediately stopped and the test remnants destroyed. Similarly, Brazil’s federal public prosecutor filed a public civil action suit to suspend the commercialisation of MON 87460, citing safety concerns and lack of adequate safety studies.
WEMA is rebranded as TELA
Derived from the Latin word tutela – meaning protection – WEMA now became known as TELA. Despite its dismal failures, the AATF continued its thrust to commercialise transgenic drought-tolerant and insect-protected maize varieties, ostensibly to enhance food security in sub-Saharan Africa. For a snapshot on WEMA you can refer to this fact sheet.
2019 – Rejection of triple stack GM maize upheld
The South African Minister of Agriculture, Ms. Thoko Didiza, upheld both the decision by the EC and the Appeal Board to reject Monsanto’s application for the commercial cultivation of its triple stacked ‘drought-tolerant’ GM maize seed (combining MON 87460 x MON 89034 x NK 603), based on its utter failure to increase yield under drought conditions, during repeated field trials, echoing the original rejection.
A United States Department of Agriculture report confirmed that DT maize varieties are poor in terms of both yields and adoption rates, as compared with conventionally bred DT corn. The report identifies two significant challenges for the development of GE DT corn. First, corn undergoes complex physiological responses to drought that vary according to the drought’s timing, duration and severity. These responses are not governed by a single gene, thus genetically modifying one gene or a small number of genes may not confer drought tolerance. Secondly, the report notes that the effects of drought stress on the corn plant may not necessarily be the same as heat stress.
Despite the rejection of the triple stacked trait, the ACB has had to continue the process of appealing an early government’s decision to approve the single DT trait MON 87460. In the interim, Bayer merged with Monsanto, to become the world’s largest supplier by sales of both seeds and pesticides. This required the approval of around 30 regulatory agents around the world, including the South African Competition Commission, which gave approval based on certain conditions.
The ACB warned against the approval of the merger, predicting that this further entrenchment of the hegemony of large-scale commercial farming and corporate agri-business would further erode biosafety safeguards, and deepen structural inequalities, whereby farmers and small producers become trapped in a cycle of buying patented commercial seed and industrial inputs.
Continent wide call for a ban of glyphosate
There was significant CSO action calling for a ban on toxic pesticides use in agriculture. Most notable was the fallout from studies on the cancer-causing effects of glyphosate, after the US Agency for Toxic Substances and Disease Registry confirmed the cancer risks. The resulting global outcry triggered a spate of bans around the world, including in Togo in Africa. The ACB wrote a paper to support a continental ban on glyphosate, initiated through a campaign with the Alliance for Food Sovereignty in Africa (AFSA).
2020 – Kenya and Uganda approve GM Maize trials
Unfortunately, in the same year, authorisation was given to export GM maize seeds (MON87640 X MON810 drought tolerant and Bt maize) to Kenya and Uganda for field trials – the variety that had been rejected by South African regulators for commercial growing due to non-performance.
2021 – Tanzania again bans GMO trials
In a totally unexpected move, the newly appointed Tanzania Agricultural Minister, Prof Adolf Mkenda, announced the cancellation of research trials involving GMOs in the country and put in place a decision for extra biosafety scrutiny of imported genetically modified (GM) seed.
With Tanzania cancelling GMO trials for the second time, after the South African authorities had rejected the stacked GM drought tolerant variety in 2019, another blow was landed for the misguided and dangerous WEMA/TELA project.
2023 – Review is heard in the High Court
After protracted legal proceedings over the five years since the ACB applied for a review, which included various appeals and exchanges of documents, Heads of Argument were filed in late 2021. The hearing on our opposition to the approval of commercial cultivation of the DT maize variety MON 86470 finally took place over two days in February 2023.
Attendance was restricted to the parties, attorneys and experts, which for the ACB included Dr Angelika Hilbeck of the Institute of Integrative Biology at the Swiss Federal Institute of Technology, and independent biosafety scientist Dr Eva Sirinathsinghji, who had contributed analyses in our affidavits.
Judgement has been reserved and needs to be given within three months. We hope that this judgement will lead to a reversal of the decision to approve the commercial cultivation of this trait, and cause the push of these failed GM varieties on other countries in Africa to crumble.
