GMO: Lawyers speak on gaps in Nigeria’s biosafety law

Some lawyers have spotted several gaps in Nigeria’s biosafety act (amended), explaining the dangers it poses to the country’s food economy.

The lawyers also advised experts and advocates against the implementation of Genetically Modified Organisms (GMOs) in the country on the various legal options available to challenge such implementations.

They spoke during a roundtable discussion on biosafety laws organized by the Health of Mother Earth Foundation (HOMEF), an anti-GMO advocacy group. The event was held in Abuja on Monday.

Nigeria officially signed the Biosafety Bill into law in 2015, making it eligible to join the league of nations already using genetic engineering (GE) to boost food production.

The National Biosafety Management Agency (NBMA) was established to regulate and approve GMOs while the National Biotechnology Development Agency (NABDA) was created to promote the technology.

There has been a protracted debate over the application of GM crops into the food system of the country. HOMEF and its affiliates have criticized the application citing health and safety concerns. They say applications and approvals are granted without proper considerations.

But GMO promoters would often wave such concerns, insisting the technology is scientific and research-based with years of rigorous safety procedures before commercialization.

Despite calls for disapproval from the anti-GMO groups, Nigeria in 2019 amended the biosafety law by expanding the scope of the NBMA Act to include evolving aspects of biotechnology such as ‘gene drives, gene editing, and synthetic biology.’

Lawyers speak

During the roundtable, the lawyers agreed any perceived threats posed by GMOs should be continuously challenged through litigations, with concerned experts in
biosafety and lawyers working side by side.

Ifeanyi Nwankwere, who (with a team of experts) is currently handling the court case against the approval for introduction of GM cotton and maize into Nigeria, attributed the challenges of biosafety in the country to certain clauses in the biosafety law.

“The Act gives room for regulatory capture, which occurs when a special interest is prioritised over public interest, leading to a net loss for society. This is demonstrated by the presence of major
promoters of biotechnology such as the NABDA on the board of the regulatory agency, NBMA, created by the Act,” he explained.

“Another deficiency in the Act is that it institutes a fault-based type of liability and redress in which a petitioner must prove that a defendant’s conduct was either negligent or intentional. This is against a Strict liability which is more consistent with the principle of precautionary measure as it allows imposition of liability on a party without a finding of fault (such as negligence),” Mr Nwankwere stated.

“The Precautionary Principle states that where there are threats of serious damage, lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation. Thus, cost-effective measures such as halting the promotion of GMOs should not be dependent on scientific proof.

“The Act is meant to implement provisions of international treaties like the Convention on Biological Diversity and the Cartagena Protocol to the Convention on Biological Diversity on matters relating to GMOs. These treaties uphold the Precautionary Principle but Nigerian courts are yet to take the Principle seriously,” Mr Nwankwere said.

Chima Williams, a lawyer and acting director of Environmental Rights Action/Friends of the Earth (ERA/FoEN), encouraged concerned advocates to question issues of fairness, equity and justice in GMO conception, development and distribution processes.

“The question that should be asked is: What fundamental rights are violated if the process is not equitable?” Mr Williams said.

Legal conundrum

HOMEF and 16 other civil society organisations had, in September 2017, filed a suit against the NBMA and NABDA over the approval it granted Monsanto Agricultural Nigeria Limited to release (GM) crops in Nigeria.

But the suit was struck out by the Federal High Court in Abuja. Though a cause of action was established, Justice Ahmed Mohammed held that the court was compelled to strike out the suit because it appeared statute-barred. This means that the suit was brought a year after the permits had been issued.

According to the judge, it is a contravention of the provisions of the Public Officers Act, which states that any action instituted against a public officer as regards his/her discharge of duties must be instituted within three months, after the said breach occurred.

HOMEF expressed displeasure over the judgement in a statement by its Director, Nnimmo Bassey after the court ruling.

“This is a fall back on efforts to preserve the nation’s food system from being overturned by the agricultural biotech industry”, Nnimmo Bassey, an environmental activist and the director of HOMEF, had said of the court’s ruling.

During the roundtable on Monday, Mr Bassey said suits against acceptance of GMOs in Nigeria should be based on infringements of fundamental human rights.

“For example, Many GM food products are not labelled for consumers to make a choice as to whether or not to buy them,” he argued.

He said there are many loopholes in the Biosafety Act and “these include matters of conflict of interest as the board of the agency is populated by promoters such as NABDA as well as very weak liability provisions.

“The Act has provisions on the labelling that would be redundant as our socio-cultural and food system simply don’t allow for labelling of foods including items like ‘akara, ‘bolo, roasted corn, ‘garri, ‘moi moi’, and the like.

“There is also a clause that permits the Biosafety Agency to accept cash, land, and material gifts on terms set by the giver. Such provisions are capable of promoting malfeasance. Regulations for the importation of genetically engineered products or items are either not implemented or are poorly implemented as importers are expected to give long notices and obtain permits before shipment of such items or products.

“GM products meant for food are expected to have prior approvals by NAFDAC but there is no evidence to show that this is the case. These and the fact that the Biosafety Act has been amended to include extreme modern biotechnology that includes extinction technologies, whose regulation is still a contentious issue globally, and which can easily be weaponized, give us reason to worry about our biosafety,” he explained.

Nigeria is among six African countries leading in GM food adoption, according to a report by the International Service for the Acquisition of Agri-biotech Applications (ISAAA).

The ISAAA’s Global Status of Commercialised Biotech crops report, launched via a webinar broadcast on Monday, said Africa doubled the number of countries planting biotech crops from three in 2018 to six in 2019, leading the progress among the regions of the world in GM crop adoption.

According to the report, Nigeria and the other five countries including Ethiopia and South Africa, grew three major biotech crops (maize, soybean and cotton) on approximately three million hectares by the end of 2019.