Kenya's long pending Biosafety Bill needs public support to become law

by Patricia Kameri-Mbote*

Kenya's acceptance or rejection of the 2005 Biosafety Bill will affect national and regional research on genetically modified organisms (GMOs). But unless there is widespread demand and strong official backing for national biosafety regulations, we may be waiting a long time before the bill becomes law.

Kenya is the most advanced country in East Africa in terms of GMO research, with crops engineered to be insect or virus-resistant already in the pipeline. Any biosafety law eventually adopted in Kenya should also help neighbouring countries optimise their own biotechnological practices. Indeed, many are taking a 'wait and see' approach to biosafety regulation, looking to Kenya to take the first steps.

But the question is whether the bill will ever become law. Kenya's parliament has a poor legislative record : attempts made to legislate GMOs in Kenya as long ago as 1999 have been to no avail.

It has long been argued that Kenya's investment in genetic modification (GM) technology should be accompanied by a national policy to outline key directions for research and to monitor biosafety. As host to the meeting at which the Cartagena Protocol on Biosafety was opened for signature in 2000, Kenya was the first country to sign up. Ratification followed in 2003, and the Biosafety Bill was drafted in 2005 to bring Kenya's law and practice in line with the protocol.

Even though the bill has yet to be discussed in parliament, GMO research and development has been ongoing in Kenya since 1998. Work on transgenic maize, sweet potato, cassava, cotton and rinderpest vaccine continues. Opening discussion of the 2005 Biosafety Bill in parliament could pose a threat to any projects that fell short of legal requirements.

In August 2005, the Kenyan agriculture secretary ordered the destruction of all Bt maize crops undergoing field trials because their environmental impact had not been fully assessed. He highlighted a key concern in declaring that "there is an emerging tendency by our scientists of yielding to pressure from international collaborators pushing to secure approvals for their research projects faster, side-stepping procedures."

From the GM-research community's perspective then, working under a draft bill may actually be preferable to working with one that has arrived in parliament, when discussion could raise issues that might halt their work. But unless a law is put in place, suspicion of GM work will continue, despite the need to increase productivity and deal with crop pests. Commercialising GMOs in the absence of a legal framework will also affect trade with key partners such as the European Union.

The draft bill's content is fairly uncontroversial, dealing only with applications for contained use, field trials, import and export, and placement of GMOs on the market. But it fails to address some key issues. For instance, it does not deal with labelling — maybe because GMOs are not yet commercialised. But Kenya's main market for agricultural exports is Europe, where labelling requirements are strict and consumers are generally more sceptical of GMOs. Disregarding the need for a labelling regime will jeopardise this valuable trade and influence parliamentary debate.

Significantly, the bill does not cover food aid, a grave omission given that Kenya receives it from countries producing GM crops.

The provision in the bill on liability for any damage arising from GMOs is vague, at best, and out of line with Kenya's position in the Africa group in the Biosafety Protocol negotiations. Whereas previous drafts proposed that an entity producing GMOs would be liable in cases where damage was established, irrespective of whether the entity was at fault, the Biosafety Bill of 2005 avoids this issue by stating that "liability and redress for any damage that occurs as a result of activities subject to this Act shall be addressed by applicable laws."

One area the bill does try to address is the need for public support. It establishes a National Biosafety Authority to administer the law and promote public awareness and education regarding GM activities. But it does not recognise public participation as a basic right, which is likely to rankle with civil society groups concerned about the introduction of GMOs into the country without adequate consultation and legislation.

Public support is essential for GM crops to be successfully adopted in Kenya. But it is by no means guaranteed — in 2004, as an earlier version of the bill was awaiting debate in parliament, a private member's bill seeking to ban the introduction of GMOs in Kenya was brought before the same parliament.

For the draft bill to proceed, the debate needs to move beyond scientists and policymakers to encompass open public discussions with all stakeholders, including farmer groups. Unbiased information must be provided on the benefits as well as risks of GMOs. This way, the demand for the regulations will be based on knowledge, rather than on speculation or vested interests.

*Patricia Kameri-Mbote is a professor of law at the International Environmental Law Research Centre in Nairobi, Kenya.

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