A trader waits for customers at her grocery stall in Nyeri town on October 16, 2024.
Kenyans are consuming food grown using hazardous and cancer-causing pest control chemicals that have been banned in developed countries, a lawsuit filed at the High Court in Nairobi claims.
But the government and global agrochemical giants Monsanto, Bayer and Sygenta have joined hands to defeat the suit claiming that the contested 11 chemicals, such as glyphosate contained in various pesticides, are neither poisonous nor harmful to human health and environment.
The government-owned Pest Control Products Board says a court order for withdrawal of the contested pesticides from the market, as sought by the petitioners, would lead to massive crop failure and threaten the country's food security situation.
The lawsuit lodged by environmental group African Centre for Corrective and Preventive Action and a Nanyuki resident Kelvin Mugambi Kubai claims that cancer-causing chemicals are being used to control pests and weed in Kenya's agricultural sector.
It claims that scientific research on some of the contested chemicals, such as paraquat and chlorpyrifos, have negative effects on the development of brain functions especially in children and also decreases testosterone.
The said 11 chemicals include glyphosate, paraquat, imidacloprid, clothianidin, fipronil, chlorpyrifos, thiacloprid, thiamethoxam, fenitrothion, malathion and dinotefuran, "which are banned on the European markets and are widely applied by Kenyan horticultural farmers on use in horticultural products and other vegetables".
According to the petitioners, the government together with its agencies and manufacturers of the pesticides have failed to protect the health and safety of Kenyan consumers and farmers by allowing use of products that have been banned in other jurisdictions due to their health risks.
For instance, the suit claims that paraquat chemical endangers the health by injuring and killing humans and other animals by creating oxidative stress that causes degeneration and death of animal cells.
"The exposure, even to relatively low doses of paraquat during critical periods in childhood, may adversely affect the development of brain functions and has also been found to cause cancer and decreases testosterone. Chlorpyrifos is known to affect brain development especially in children, as well as the reproduction and nervous systems," says the petitioners.
"The International Agency for Research on Cancer has established evidence of glyphosate carcinogenicity in humans. Fenitrothion is toxic to reproductive systems, and alters the hormonal system in humans".
They also allege that a chemical known as Fenitrothion "is a non-selective insecticide that is known for its toxicity to reproductive systems, as well as its tendency to alter the hormonal system in humans. It is also hazardous to aquatic species and bees, which are essential in food production".
Some global manufacturers of the pesticides used by Kenyan farmers to grow food crops have in the past been sued in New York, United States of America. The petitioners have listed at least nine cases where the pesticide manufacturers in the US were taken to court for use of the alleged harmful chemicals in their products and failure to warn consumers on carcinogenic risks exposure.
"My attention has recently been drawn to an investigation conducted by the office of the Attorney General of the State of New York (New York OAG) in the United States of America regarding false and misleading claims made by Bayer Crop Science LP and Monsanto Company, the parent companies of the Monsanto Kenya Limited and Bayer East Africa regarding advertisements for Roundup pesticide products containing the active ingredient glyphosate," says Mr Kubai in affidavit.
"In particular, the aforesaid investigations by the New York OAG followed the violation of assurances made by Monsanto in 1996 that it would cease and desist from publishing or broadcasting any advertisements that represent, directly or by implication that: ‘glyphosate containing pesticides products or any component thereof are safer and less toxic than common consumer products other than herbicides’."
To buttress his point, he has attached a copy of the "Assurance of Discontinuance" dated June 14, 2023 executed by the New York Office of Attorney General, Bayer Crop Science LP and Monsanto Company on advertisements saying that Roundup weed was safe and non-toxic.
He believes that Kenyans deserve equal protection in relation to toxic agrochemicals similar to that accorded to consumers of the same products abroad.
However, the Pest Control Products Board (PCPB) together with the agrochemical manufacturers say the petition is frivolous and an abuse of the court process.
PCPB, through its chief executive officer Dr Esther Kimani, PCPB says the lawsuit carries no weight and that it is based on old scientific literature.
She argues that none of the 11 contested chemicals has been classified as highly hazardous. She says before pesticides products get registered in Kenya, PCPB subjects them to efficacy trials conducted by research institutions and universities for approval and certification.
According to the CEO, prohibiting the sale and distribution of the pest control products based on the 11 contested molecules, the country risks becoming self-insufficient in relation to food production impacting on food security and nutrition, which is one of the agenda that the government seeks to deliver. It would also affect the country's gross domestic product since agriculture is a major contributor, according to the national economic survey.
"If Kenya is going to feed over 45 million people, there is a need to have a sustainable and competitive agricultural sector with all the tools at our disposal, including the pesticides containing the subject to molecules but with adequate safety precautions," says Dr Kimani in the court papers.
In an affidavit, Dr Kimani says there are 342 products with the said chemicals as the active ingredients registered in Kenya out of 1,880 pest control products approved for various uses in crop production, public health and technical grade.
She informs the court that withdrawal of pesticides containing molecules of the contested chemicals would lead to lower agricultural productivity hence resulting in a rise in imports to meet demand.
"Further, an increase in imports would disadvantage local farmers at the benefit of foreign ones. The nation as a whole does not have enough capacity to institute safety measures at the border points to check food imports and therefore, food safety would not be guaranteed," she says.
On claims that the chemicals are poisonous, she says at the Poison Centre situated in Kenyatta National Hospital, where all poisoning cases on pesticides are reported, there have been no poisoning cases occasioned by use of the contested chemicals.
She adds that the Poison Centre is manned by Competent Doctors at the hospital and PCPB ensures that toll free numbers 0800720021 and 0800730030 (24 hours) appear on all Kenyan pesticide labels for reporting poisoning cases. The toll free number was established by the Agrochemicals Association of Kenya in collaboration with PCPB and Kenyatta National Hospital.
Dr Kimani also informs the court that PCPB together with the Agrochemicals Association of Kenya have also established pesticides empty container collection centres in pilot counties.
The association, through its CEO Eric Kimungunyi, for its part denies the petitioners allegations that the Kenyan consumers are not provided with the necessary information on adverse effects of the chemicals to human health and environment.
Court papers show that Chlorpyrifos was outlawed in Kenya in October 2014, where use on fruits and vegetables was prohibited. However, in the period of 2020-2022 the chemical was found to have exceeded levels set by European Union in a consignment of exported avocado fruits.
The manufacturers led by Monsota Kenya Ltd, Sygenta East Africa, Bayer East Africa, BASF East Africa and Twiga Chemicals Industries Ltd are also opposed to the lawsuit.
They say their products were registered and authorized for sale in Kenya after extensive assessment by PCPB and that the molecules complained of do not pose adverse effects to human beings, crops or environment.
It is their contention that the petition does not disclose any cause of action and that the issues raised by the petitioners concern policy decisions in respect to banning of agrochemicals in the country.
"Policy making and the enactment of laws in respect of the agro-chemical products is the sole prerogative of the executive and legislative arms of government. The court does not possess the mandate and jurisdiction to address any of the alleged medical issues raised in the petition," says Godwin Lemgo on behalf of Monsota and Bayer.
The lawsuit, which is seeking various orders including compensation of persons affected by the chemicals, is pending determination by court.
Also sought is a declaration that the government and the agrochemical manufacturers have violated article 42 of the Constitution of Kenya 2010 by denying Kenyans the right to a clean and healthy environment.
