Genetically Modified crop plants continue to be offered to Africa as a solution to alleviate poverty and stave off hunger. It is a trite observation that hunger has little to do with how efficiently food is produced or how much food is available for consumption. Indeed, hunger is rooted in socio-economic realities which limit the ability of people to access food on the market or land; the means to acquire food and other resources to produce food; access to a clean and healthy environment’ health care and education and so forth.

Nevertheless, several countries in Africa, especially Kenya, are hell bent on adopting GMOs into their agricultural systems. During February 2009, Kenya’s President Mwai Kibaki signed the country’s heavily contested Biosafety Bill.[i] A year earlier, the NGO ‘Africa Nature Stream’ approached the Kenyan courts to intervene and stop the promulgation of a previous version of the Bill (Biosafety Bill 2007), on the grounds that GMOs cause unacceptable risks to human health and the environment.[ii] However, this legal intervention proved to be futile as did other forms of resistance on the part of Kenyan activists.

Indeed, no amount of opposition by activists in Kenya could have changed the course of history because the US government had the entire regulatory process all wrapped up. The United States Agency for International Development (USAID)’s Program for Biosafety Systems (PBS) has played a pivotal role in the development of the Kenyan biosafety law and ensuring its safe passage into the Kenyan statute books. In its document titled ‘PBS Helps Set the Stage for Biosafety Legislation'[iii] it is upfront about having helped prepare the Kenyan Biosafety Bill for enactment by participating in consultations to revise the bill, educating members of Parliament on the bill, countering misleading information and preparing briefing documents for policy makers and the media.

PBS is so far ahead of the game that while the Kenyan government is still in the process of putting in place the necessary biosafety administrative systems to implement the Biosafety law, PBS has already prepared the regulations to implement the Bill, on such issues as ‘contained use’ and ‘deliberate release’. [iv] The main imperatives underpinning the legislation appear to be the implementation of the Cartagena Protocol on Biosafety, to which Kenya is a Party, and the legal mechanism to allow the commercial growing of GM maize and cotton in Kenya, with the hope that this will open the doors for further expansion into the rest of the Common Market for Eastern and Southern Africa (COMESA).

Indeed, upon hearing the news that the Kenyan Biosafety Bill had been enacted, COMESA praised the move as “a major milestone because of the strategic importance of Kenya in the COMESA region.”[v] It must be noted that Kenya does not need a Biosafety law to authorize field trials involving GMOs nor to sanction the importation of GM food/ food aid. Kenya has allowed field trials involving GM sweet potato (which failed spectacularly) as long ago as 2003/4 and thereafter, GM cotton and maize. It has also accepted US maize and soyamilk food aid in 2001, during the Southern African food crisis, without restrictions, when many other Southern African countries were imposing various restrictions on food aid to prevent the ingress of GMOs in their agricultural systems by way of contamination or inadvertent planting Indeed, Kenya has continued to import several thousand tons of food aid from the US, which in all likelihood consists of GMOs.[vi]

In this paper, we provide a brief analysis of the Kenyan Biosafety Bill for the benefit of Kenyan activists in order to contribute in a small way, to their onward battle against GMOs. Summary of Biosafety Bill The Biosafety law establishes a GMO permitting system, which the regulatory Body, the National Biosafety Authority (Authority), administers. This is comprised of a mixture of government officials, experts and civil society representatives; thus farmers and consumer groups are represented on the Authority, together with an industry representative. Nevertheless, the provisions dealing with public participation and access to information do not give the Kenyan public the right to participation, but merely an opportunity to make input with regard to GM applications concerning field trials and commercial releases.

The notification procedures to inform the public of such applications appear to be inadequate and may have little impact. Too much discretion is given to both the applicant and Authority to decide on the question of confidentiality regarding the information that is available to the public. This can easily lead to the abuse of power and defeating the public’s rights to meaningfully engage with the process and making representations. Generally speaking, the law exhibits an extreme reluctance to place clear and precise biosafety obligations on the applicant. Provisions dealing with applications to introduce GMOs into the environment are meager in terms of their biosafety content and a discretion is conferred on an applicant to decide on the overall scope of the information it needs to furnish to the Authority, in order to allow the latter to make complete risk evaluation of the potential risks.

The most worrying provisions are those dealing with exemptions from risk assessments for applications for contained use, introduction into the environment and import. These mean that the Authority can do away with case-by-case assessments and exempt such applications from the permitting requirements of the law. It will be able to do so, by arguing that it has relied on information shared by the regulators from countries that have a longer history with GMOs, such as the US or South Africa, that the GMO and activity in question are safe. Unintentional and unapproved releases (such as illegal imports of GMOs, contamination incidences) are dealt with in a like restrictive manner and do not immediately attract intervention, including cessation of the activity.

Instead, the intervention contemplated is one of consultation at the government level to decide whether any action is necessary to minimize any biosafety risks. Indeed, the Biosafety law does not readily allow the Authority to over-turn an approval, once granted. Cessation orders can only be issued when there is non compliance. In the event of an imminent danger to biodiversity and human health, the Authority is only able to issue a cessation order if one or more scientific studies calls for this. If these studies take a year to produce, then despite the imminent threat of damage, the Authority will not be able to issue a cessation order.

Decision-making on the part of the Authority may only take socio-economic considerations into account when these are linked to negative environmental impacts. Arguably, negative socio-economic impacts that arise in the context of food security will not be taken into account? These provisions are also linked to consultation with the Biosafety Clearing House (BCH) and conditions imposed by the BCH. This is difficult to understand since the BCH is nothing more than an internet-based clearing house or repository of biosafety related information, and thus cannot take decisions, consult or impose conditions. The provisions dealing with decision-making do not make any explicit reference to the precautionary principle. What has thus been lost is an opportunity for the Authority to take measures to prevent harm; look for alternatives, place the burden of proof on the applicant to prove safety and the use of democratic processes to carry out and enforce the principle.

There is nothing in the Bill that places a clear and unequivocal responsibility on the applicant to take risk management measures to ensure that monitoring of the activity continues after approval has been granted. Such responsibility may or may not form part of permit conditions. The provisions dealing with liability and redress are perhaps the most interesting. The Authority is held liable to pay compensation or damages to any person for any injury suffered as a result of the exercise of any power by the Authority in terms of the Biosafety law. It also holds a whole range of people strictly liable for any harm and has good provisions on access to justice, legal standing and so forth.

These provisions seem to have been added in at the last minute, perhaps as a compromise in order to expedite the safe passage of the law through Parliament. The law does require environmental impact assessments and does not deal with labeling of GMO food. A great deal of work is still required in the drafting of regulations to fill in gaps, close some loopholes and bring about greater legal certainty. Civil society groups should ensure that they are part of this process.

Read here.

The original submission in August 2007 is available here.

[i] Henry Neondo All Africa Science News (, via AgBioView.,de/

[ii] Body goes to court over Kenya’s Biosafety Bill, 10 February, 2008.

[iii] Program for Biosafety Sytsems A partnership program for biosafety capacity development. (2007).

[iv] Program for Biosafety Sytsems A partnership program for biosafety capacity development. (2007).

[v] John Oyuke. Comesa commends Kenya for Biosafety law. The Standard Online.

[vi] Shenaz Moola and Victor Munnik. (2007). GMOs in Africa: food and agriculture: Status report 2007. African Centre for Biosafety., Biosafety, Biopiracy and Biopolitics Series: 4