Defending Peasants’ Rights hereby republishes the press release issued by the UN Working Group on Peasants and Other People Working in Rural Areas on 11 December 2025 (available here)

GENEVA – UN experts* today welcomed a landmark ruling of the High Court of Kenya declaring unconstitutional provisions of the Seed and Plant Varieties Act that criminalised the saving, use, exchange and sale of Indigenous and farm-saved seeds.

“This judgment rightly recognises that seed sharing is not a crime, but a fundamental element of peasants’ identity, resilience and contribution to national food systems,” said the Working Group on Peasants and other people working in rural areas.

The High Court of Kenya found that the law, which granted exclusive marketing and property rights over seeds to breeders and seed companies and exposed farmers to potential imprisonment of up to two years for seed-saving and seed-sharing, violated farmers’ rights to life, livelihood and food. The Court stressed that centuries-old practices of seed-sharing form the backbone of Kenya’s food security and cultural heritage.

“This decision is a significant affirmation that the human rights of peasants and the imperatives of food security and biodiversity must prevail over overly restrictive intellectual property regimes,” the Working Group said.

The experts noted that similar restrictive provisions, often modelled on the 1991 Act of the International Union for the Protection of New Varieties of Plants (UPOV), have been incorporated into national laws in many countries – criminalising age-old practices in Indigenous and peasant agriculture.

“The Kenyan ruling sends a clear and timely message that human rights obligations cannot be subordinated to commercial seed monopolies or narrow interpretations of plant breeders’ rights,” the Working Group said.

The decision is consistent with the United Nations Declaration on the Rights of Peasants and Other People Working in Rural Areas (UNDROP), in particular article 19, which recognises the right to seeds, including the right to save, use, exchange and sell farm-saved seed or propagating material. The experts recalled their Briefing Paper on the Right to Seeds**, which clarifies that States must ensure that seed policies, certification schemes and intellectual property frameworks, are designed and applied in a manner that respects, protects and fulfils these rights, and that peasants-managed seed systems are legally recognised and actively supported.

“Courts play a critical role in ensuring that national laws comply with international human rights standards,” the Working Group said. “Where legislative frameworks have criminalised traditional seed systems or restricted peasants’ customary practices, judicial review offers an essential safeguard to restore the primacy of human rights and the right to food.”

The experts commended the courage and perseverance of Kenyan peasants, Indigenous Peoples and civil society actors who mobilised to secure seeds rights before the Court. “Their determination offers inspiration to peasant movements worldwide and shows that when courts uphold human rights, they defend not only the livelihoods of small-scale farmers and Indigenous Peoples but also the future of diverse, resilient and sovereign food systems,” they said.

“Kenya’s ruling should inspire similar human-rights-based interpretations of seed laws and plant variety protection regimes in other jurisdictions,” the Working Group said.

*The Working Group on Peasants and other people working in rural areas is comprised of five independent experts from all regions of the world. The Chair-Rapporteur is Carlos Duarte (Colombia), other members are Geneviève Savigny (France); Shalmali Guttal (India), Uche Ewelukwa Ofodile (Nigeria) and Davit Hakobyan (Armenia).

**Briefing paper on the right to seeds, issued by the Working Group in connection with the Eleventh Session of the Governing Body of the International Treaty on Plant Genetic Resources for Food and Agriculture (ITPGRFA), held from 24 to 29 November 2025 , details how States can integrate UNDROP obligations under the right to seeds to safeguarding peasants’ and Indigenous Peoples’ traditional practices and biodiversity.

Special Rapporteurs/Independent Experts/Working Groups are independent human rights experts appointed by the United Nations Human Rights Council. Together, these experts are referred to as the Special Procedures of the Human Rights Council. Special Procedures experts work on a voluntary basis; they are not UN staff and do not receive a salary for their work. While the UN Human Rights office acts as the secretariat for Special Procedures, the experts serve in their individual capacity and are independent from any government or organization, including OHCHR and the UN. Any views or opinions presented are solely those of the author and do not necessarily represent those of the UN or OHCHR.

Country-specific observations and recommendations by the UN human rights mechanisms, including the special procedures, the treaty bodies and the Universal Periodic Review, can be found on the Universal Human Rights Index https://uhri.ohchr.org/en/.

UN Human Rights, country page – Kenya

For inquiries and media requests, please contact: Jamshid GAZIYEV, Secretary of the Working Group on peasants and rural workers (jamshid.gaziyev@un.org).

For media inquiries related to other UN independent experts, please contact Maya Derouaz (maya.derouaz@un.org) or Dharisha Indraguptha (dharisha.indraguptha@un.org)

Follow news related to the UN’s independent human rights experts on X: @UN_SPExperts.

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On November 27, 2025, the High Court of Kenya in Machakos delivered a much-awaited decision in a constitutional challenge to the Seeds and Plant Varieties Act mounted by smallholder farmers. The Court decided in favour of the petitioners on all counts, striking down various sections of the Act and Regulations.

As reported earlier on Defending Peasants’ Rights, the constitutional challenge to the Seeds and Plant VarietiesAct was filed in 2022 by a group of peasants of Seeds Savers Network against the government agency responsible for implementing the Act.

Revised in 2012, Kenya’s Seeds and Plant Varieties Act is a draconian law that prohibits peasants from saving, sharing, exchanging and selling seeds under penalty of criminal sanctions. In her decision, the judge declared that various provisions of the Act were contrary to the Constitution of Kenya, the FAO Plant Treaty and the United Nations Declaration on the Rights of Peasants and Other People Working in Rural Areas (UNDROP). The judge ruled that the Constitution had to be read along with Article 9 of the Plant Treaty and article 19 of UNDROP, and that Kenya was bound by its obligations under international law in general and international human rights in particular.

More specifically, the judge struck down the section of the Act that gives inspectors who reasonably believe that a breach has been committed the power to seize and dispose of seeds. The judge ruled that this violates a peasant’s right to the privacy of their person, home and property, as enshrined in the Constitution. The Judge also noted that failure to define “reasonable belief” and to provide for an independent oversight mechanism could lead to arbitrariness and abuse.

Importantly, the judge declared that several provisions of the Act are unconstitutional because they infringe on peasants’ right to save, use, share, exchange and sell farm-saved seeds. These provisions criminalize the sale of seeds unless they are certified seeds sold by registered merchants, and limit peasants’ rights over their harvest grown from protected varieties.

The judge ruled that by restricting the right to save, share and exchange seeds, these provisions are contrary to the Constitution, which affirms that the State must recognize the role of science and Indigenous technologies, and recognize and protect the ownership of indigenous seeds and plant varieties, their diverse characteristics and their use by the communities of Kenya. Given the important contribution of smallholder farmers to food production, the Judge determined that these provisions also violate the right to food guaranteed by the Constitution, and Kenya’s obligation to take legislative, policy and other measures to achieve its progressive realization. Finally, the Judge also ruled that exorbitant registration fees, coupled with strict registration requirements, amount to indirect discrimination against smallholder farmers and peasants.

Regarding the right to participation, the Judge observed that many of the issues raised in the petition could have been avoided had the government ensured the right to adequate and meaningful participation by peasants, interested parties and the public in the process of developing the legislation. The Judge directed the government to ensure the right to participation in the process of amending the law to comply with the judgment.

It is not yet known if the Kenyan government will appeal the decision. In any case, this judgment is a game changer for millions of Kenyan peasants and sets a powerful precedent for peasants’ rights and the right to seeds globally.

***

Judgment of the High Court of Kenya, available here:
https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18166/eng@2025-11-27

Constitution of Kenya (in particular, arts. 11, 21(2) and 43(1):
https://kenyalaw.org/kl/fileadmin/pdfdownloads/TheConstitutionOfKenya.pdf

Kenya’s Seeds and Plant Varieties Act:
https://upovlex.upov.int/en/legislation/text/506145

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The Colombian Constitutional Court’s decision establishes a new legal precedent that advances the process of protecting peasants’ rights at the national level and consolidates UNDROP as a key reference instrument in this area.

The case behind this ruling concerns an elderly peasant couple from Saravena, in the department of Arauca, who lived on their farm called “El Paraíso.” After multiple floods caused by the overflowing of the Bojabá River, their home became uninhabitable. Since then, they have been living precariously with their son, without being recognized as internally displaced by the authorities or receiving any assistance from the Colombian state. The Court ruled that their right to a dignified life had been violated and that the state was obligated to provide them with appropriate protection.

In reaching its decision, the Court based its reasoning on Article 64 of the Constitution, as amended in 2023. This provision now recognizes peasants as rights-bearing subjects and requires the state to grant them special protection. It highlights the importance of peasant communities in territorial development, food sovereignty, and cultural diversity. On this basis, the Court affirmed that people displaced for environmental reasons, particularly peasants, must receive enhanced protection.

Although UNDROP is not explicitly mentioned in the ruling, its influence is evident. Indeed, the Declaration served as the reference for the reform of Article 64. UNDROP recognizes specific rights for peasants, such as the right to land, a healthy environment, and political participation. It also emphasizes the need for differentiated treatment for rural populations in vulnerable situations. Regarding forced displacement, UNDROP includes specific provisions to protect peasants from this practice:

Article 12.5 (Right to Justice): States shall provide peasants and other people working in rural areas with effective mechanisms for the prevention of and redress for any action that has the aim or effect of violating their human rights, arbitrarily dispossessing them of their land and natural resources or of depriving them of their means of subsistence and integrity, and for any form of forced sedentarization or population displacement.

Article 17.4 (Right to Land): Peasants and other people working in rural areas have the right to be protected against arbitrary and unlawful displacement from their land or place of habitual residence, or from other natural resources used in their activities and necessary for the enjoyment of adequate living conditions. States shall incorporate protections against displacement into domestic legislation that are consistent with international human rights and humanitarian law. States shall prohibit arbitrary and unlawful forced eviction, the destruction of agricultural areas and the confiscation or expropriation of land and other natural resources, including as a punitive measure or as a means or method of war.

Article 24.3 (Right to Housing): States shall not, arbitrarily or unlawfully, either temporarily or permanently, remove peasants or other people working in rural areas against their will from the homes or land that they occupy without providing or affording access to appropriate forms of legal or other protection. When eviction is unavoidable, the State must provide or ensure fair and just compensation for any material or other losses.

The Court’s decision thus demonstrates that UNDROP can produce concrete effects through domestic law. By inspiring the Colombian Constitution, it has helped establish a strong legal foundation on which the Court can now rely to protect peasants. Notably, it has expanded the concept of internal displacement beyond armed conflict to include the impacts of natural disasters.

In its ruling, the Court also calls on authorities to develop a specific public policy to address environmental displacement. It stresses the importance of considering the unique realities of rural areas and peasant populations, who often face multiple forms of vulnerability.

Ultimately, Ruling T-123/24 paves the way for broader application of peasants’ rights in Colombia. Thanks to UNDROP’s influence – which has been mobilised by the Colombian peasant movement vis-à-vis their national institutions – Colombian peasants now benefit from increased recognition of their rights, particularly in the face of climate change effects and inadequate institutional responses. This jurisprudence could set an important precedent for strengthening social and environmental justice in rural areas, serving as inspiration for judicial systems in other UN member states.

For more information on peasants’ rights in Colombia, you can read our article on the recognition of peasants in the Colombian Constitution.

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When the UNDROP was adopted at the United Nations General Assembly in December 2018, Canada abstained. Despite that, Canada is one of the first places where UNDROP has been explicitly cited by a provincial court in a case related to migrant workers’ rights. Jessie MacInnis explains for us the dynamics at play in Canada on Peasants’ Rights and the importance of case law.

First, to give us some context, could you describe us the general landscape of agriculture in Canada?

Agricultural policies have increasingly tied agriculture to a corporate system in Canada. Recent examples relate to the reduction of government oversight of seeds and gene-edited plants. The Canadian government has put its faith in agribusiness and biotech corporations instead of science and public interest. It’s very scary for farmers, especially for organic farmers, such as myself, who may suffer financial, health, and ecological implications from increasing corporate capture of seeds and the gutting of publicly-funded seed research and development.

COVID-19 has shown the cracks and deep rooted inequities that keep land inaccessible, rural communities gutted of resources, and farmers indebted and dependent on the companies selling inputs and chemicals. It also showed the dependence on a constant supply of migrant workers who suffer from human rights abuses. Yet it has been a time of enormous profit increases for corporations in the sector. On top of that we have the climate crisis and the income crisis, with income that have been stagnant for years and many farmers relying on off-farm work to make ends meet. Agriculture policies are beginning to wake up to the realities of the climate crisis, with more funding available for on-farm climate adaptation, but the income crisis is still prevalent for small-scale and family farms, which are the backbone of the food system.

Ƒinally, If we talk about agriculture in Canada, we have to acknowledge that it is built on settler colonization and stolen land. The National Farmers Union (NFU) is engaging in conversations between farmers and Indigenous Peoples, conversations about land equity, land back, and food sovereignty, but it’s just the beginning. Our agriculture is built on colonial violence that still hasn’t been reconciled. Farmers have a critical role to play in both acknowledging our relationship to the land and finding pathways forward towards living in right relations with Indigenous Peoples.

In this agricultural landscape we have a plurality of perspectives with regards to how agriculture policies should be developed, and whose goals it seeks to achieve. Some of the bigger agriculture organizations definitively may have historically had more sway with policymakers, but the NFU and other food sovereignty activists are gaining ground, especially at local and regional levels.

In 2020, Ontario Superior Court of Justice released a decision based on UNDROP in defense of a group of migrant farm workers during the COVID-19 pandemic. Can you tell us more on this decision?

This case shows the legal potential of the UNDROP, I think legal action is one pathway for countries who have not approved the Declaration at the United Nations to incorporate its articles and set legal precedents.

In 2020, at the height of the COVID-19 pandemic the Canadian Lawyers for International Human Rights used Article 23 of UNDROP in a provincial court in defense of a group of migrant workers facing dangerous, overcrowded living conditions.

To give some context, Canadian farms employ nearly half a million agricultural workers through a federal program. This program has been riddled with accusations of human rights violations over the years: poor living conditions, low wages and no pathways to permanent residency. At the same time, Canada is dependent on their labour to ensure the food supply.

In March 2020, just after the state of emergency was announced, the federal government mandated a 14-days isolation period for all temporary foreign workers entering Canada, at the same time ensuring workers subjected to isolation in groups would have at least 2 meters per person at all time and limiting the numbers of workers living together in a lodging.

When this policy was mandated, a major industrial farm in Ontario (central Canada) that employs migrant workers, submitted two inadequate self-isolation plans before requesting a hearing regarding the public health order limiting the numbers of farm workers in one lodging. At the hearing the farm argued that the requirement of three farm workers per lodging was arbitrary and failed to recognize the significance of migrant farm workers to Canada food supply. They argued they had not been able to bring in as many migrants as they would normally, and this jeopardized their food production.

The Superior Court of Justice of Ontario responded by saying that: “decreasing health inequities as required under the guidelines requires that the number of workers that are allowed to isolate together is such that the risk posed to their health is comparable to the rest of the population when they’re quarantined. Allowing larger numbers to isolate together exposes migrants farm workers to a level of risk not tolerated for others in the community, thereby increasing vulnerability of an already vulnerable group.”

In reaching this outcome, the Court cited the UNDROP for the first time in Canada. The way they cited it is important: “…furthermore the UNDROP is part of the body of HR laws and norms to which Canadian adjudicators may look in interpreting statutory or common-law obligations and in reviewing administrative decisions.”. They cited article 23.1, which states: “Peasants and other people working in rural areas have the right to the enjoyment of the highest attainable standard of physical and mental health.”.

So the context and the outcome of the case is demonstrative of the applicability of the Declaration in the Canadian context. Promoting this case is something we need to keep doing. It’s strategic to expand the network of human rights lawyers that are aware of UNDROP and to give them this as an example.

Now that you have this case law, what are the next steps?

I think the first consideration is to choose the right level on which to work. The way I see it, there must be critical analyses and linkages made at the local level first, and there is a lot of value in building capacities locally and then scaling out and up. Although UNDROP is a tool that we can use at any scale, sometimes it might be more applicable at local level . In Canada, manyagricultural policies are made at the provincial level (with the exception of trade and seed policy, for example). At this level, there is typically a better understanding among farmers of what their collective needs are, and also a greater capacity to advocate for tangible policy change. I think there is potential in applying very specific rights to very specific situations, rather than attempting to implement the UNDROP at a national level. We can make the connection here at home regarding how to apply to our context. The missing link here is the political education: we need engaging and relevant popular education tools to demonstrate the connectivity between this somewhat esoteric UN Declaration and the realities of farmers in rural Canada. I think the NFU is doing a good job of connecting our current agriculture policy work to the UNDROP, which is a critical first step in simply making people aware of its existence.

At the national level, this case law on migrant workers rights could hold a lot of weight in terms of precedent, but we face hurdles as at the local level in terms of scaling out the basic understanding of UNDROP beyond NFU members and human rights lawyers. In Canada, I would argue that knowledge of human rights – especially related to agriculture – is low. The more that we educate the public about the need to shift agriculture policy in a rights-based direction, the more likely we are to see the UNDROP being utilized more in legal and policy contexts alike.

What would you say could be the other rights to focus on for the implementation of UNDROP in Canada?

The land question requires serious consideration in Canada. The UNDROP offers text on the right to land that is a radical departure from the way land tenure and policy is set up here. However, we cannot overstep or contradict the work being done by advocates of the UN Declaration on the Rights of Indigenous Peoples (UNDRIP). There would need to be serious coordination to make sure both UNDRIP and UNDROP land rights are implemented complementarily.

We are hearing a lot from young people in the NFU about land. When they talk about what their needs are in terms of advocacy technical support, accessing farm land and capital are the most fundamental issues they identify as barriers in terms of getting into agriculture. Also, there is the succession crisis: we have a rapidly aging population of farmers, the average age is 55 now. A problem, among many, is that there hasn’t been any sort of pension support for farmers in the past, so upon retirement many farmers sell their farmland to the highest bidder in order to have a dignified retirement. That has put up huge roadblocks for young people who don’t have a lot of capital, especially those who are not from farm families. We also need to consider who is going to take over the grains farms and commodity farms when those farmers retire. Young, first generation farmers are starting new farms, but the majority are small-scale due to the capital requirements of larger operations. I’m afraid of the corporate consolidation that will continue to unfold if this and the next generation cannot afford to operate larger farms.

So, considering the multiple crisis, we need to be talking about tangible alternative land tenure solutions that take in consideration the needs of Indigenous communities and farmers of all ages around us. We are thinking of creative ways to access land, whether in co-op or land trust models, but we also need to advocate for government supports that reinforce our efforts. There are a lot of questions and few answers about land succession and that is something that as Youth President of the NFU I want to work on. Using the UNDROP as an aspirational framework for land rights in this country could be a unifying concept if we can scale out the understanding of its relevance to the Canadian context.

Another area that is particularly relevant to the Canadian context is seeds. The NFU has a long history of working towards seeds sovereignty. Using article 19 is very timely, as seed sovereignty is under more threat now than it has ever has been. The federal government has essentially given the biotech company free reign in the food system. This time around, they have done so by removing safety checks on corporate science and denying transparency to the public. The Agriculture Minister announced that Canada will exempt gene-edited plants from regulation and mandatory public notification unless they contain foreign DNA or if they are herbicide tolerant. For all other changes in a gene-edited plant, companies will decide whether their product should be assessed by a federal body. So, biotech companies will have final say over whether their products may cause environmental harm, and the public won’t know about the quality of the assessments they choose to do or if they do them at all. Scary stuff.

We used to have really robust public seed breeding, but it was dismantled over the last two decade. We have seen seeds increasingly come into corporate control, but we know that a good public system is possible. This is what the NFU is pushing for. The more deeply ingrained the corporate seeds agenda gets into our agricultural policies, the more challenging it’s going to be to dig ourselves out of this mess. Now we even have conglomerate for four seed corporations seeds con that changed their name to Seeds Canada, which sounds like a government body. These changes are happening quickly, it’s frightening. The public should be up in arms about the corporate consolidation of seeds and using UNDROP as a foundation is a good place to start pushing for change.

Seeds are one of the most precious and deeply cultural resources that we have. Article 19 really reinforces the Convention on Biodiversity and the Treaty on the International Treaty on Plant Genetic Resources for Food and Agriculture. Canada has signed both. It has also signed and ratified UNDRIP, which also make direct reference to indigenous right to seeds. There is a strong case to be made that what’s happening now is going against what Canada has already signed and the fact that Canada hasn’t sign UNDROP should not remove it from the list of reasons why we should question what the government is allowing corporate giants to do.

What do you think are the main challenges to implement the UNDROP?

One of the major obstacles is language used in the UNDROP. It’s challenging to get the ear of policy makers because of the understanding of the word peasant and of the peasantry as a social group, it’s not well understood in Canada and the English language more broadly, because it’s often referred to in a pejorative way. There are strong cases for the political use of the term peasant, but when it comes to actual policy making and advocacy work there are still a lot of disconnects. Here, agriculture policy is geared towards corporate industrial farming and the language of peasant might denote a political or social identity contrary to what Canadian agriculture is trying to be perceived as at home or abroad. ‘Peasant’ flies in the face of ‘entrepreneur’, and gives the impression of backwardness to those who are not familiar with it in a political sense. In the same way, I think that one of the reasons why the government abstained during the adoption of the UNDROP at the UN is that they cannot see themselves in this term or how it could be applied in this context. Ultimately, there is still a lot of work to do in order to get everyone on the same page in terms of to the applicability of that kind language in the Canadian context.

So how to bridge that gap for farmers that are peasants in a global sense?

Someone who I looked up to a lot and consider a mentor, Nettie Wiebe, she is a former president of the NFU and an ICC member of LVC, she was present at the beginning of LVC. She was quoted by saying that when she thinks of the word peasant to her that means people of the land. This resonates with me: I consider myself a ‘person of the land’ because I work with land, nurture it, attempt to live in harmony with it and not extract from it. She believes that it’s really important to take that language back, to say that we are peasants because it’s our relationship to land and food that distinguishes us as a social group, that we are not part of the capitalist machine. We may function within a capitalist system, but we are not necessarily seeking capitalist ends, if that makes sense.

As you mention earlier, Canada has finally adopted the UNDRIP, after abstaining it at the General Assembly of the United Nation, how does this could influence and help the implementation of UNDROP?

What we desperately need in the food sovereignty and agroecology spaces across the country is to build coalitions and solidarity networks. We need to get out and talk to farmers who may not have the same politics or fundamental values, or speak with the same language, but at the core have the same needs and rights. We need to build bridges between farmers and towards people who have been dispossessed from their land such has indigenous people and people of colors. We need to reach out and find ways to make sure that our movement is growing. It’s only with that kind of growth and building of our network that we are ever going to have the capacity to do the sort of organizing that was accomplished in ratifying the UNDRIP in Canada.

I know that we have a strong base, but we also need to extend and expand and that has to come with a human touch. We have to go out to our communities and have open discussions with other farmers and people on the land that may not feel connected to a farming community or a more progressive community like the NFU, but maybe would welcome it giving the opportunity and someone reaching out. Speaking to peoples’ basic needs and desire to be part of community that is moving forwards together can be greater than any specific political opinion. Most farmers are part of the dominant farm organization, not the NFU, and it’s up to us to be creative and to reach where they are, not where we wish they were, politically. Through building this extended and expanded community we can use UNDROP as our building block, but at the grassroots level is where it should happen.

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On October 3^rd, 2022, the Kenyan Government lifted the ban on importation and cultivation of genetically modified organisms (GMO) that had been in place for ten years. The Kenyan Peasants League (KPL) reacted immediately and filled a lawsuit against that decision. They also asked the High Court for conservatory measures, which were granted on November 29th, the Court decided the ban will remain until the matter is judged in court. Those conservatory measures are a first victory for the peasants.

The Government appealed the decision, but the Court of appeal sided with the High Court and KPL and left the conservatory measures in place. In its decision, the Court cited the lack of public participation, which was one of the main arguments of KPL, argument based both on the Kenyan Constitution and on the UN Declaration on the Rights of Peasants and Other People Working in Rural Areas (UNDROP) article 10. UNDROP is a tool largely used by KPL in this struggle, both in and out of courts.

The struggle is far from over, since a complete trial and judgment has not happened yet, but the first decisions are good signs and KPL is determined to have the Rights of Peasants recognized and protected.

Introduction

The lifting of the ban on GMOs importation and open cultivation, via a Cabinet Dispatch on 3 October 2022, was a direct attack on the peasants way of life not only in Kenya, but globally, since the struggle against forces hell-bent on dismantling the peasants managed seeds systems is been ongoing worldwide.

The ban was put in place in after a series of actions by social movements calling for a ban on GMOs due to a better scientific knowledge of the harmful impacts of GMO on both health and the environment and for the protection of the agroecological practices of the small-scale farmers¹. A specific study linking GMO to cancer was detrimental to the adoption of the ban.

To the Kenyan Peasants League (KPL), the lifting of the ban instituted 10 years prior, did not come as a surprise since the current President of Kenya William Ruto has in the past been advocating for biotechnology as a solution to the food crisis we have in Kenya. For instance, in 2008 during the All Africa Congress on Biotechnology, when he was Kenya’s Minister for Agriculture, he indicated his wishes to “see all African countries adopt an enabling policy and regulatory framework for the development and application of biotechnology²”. In 2014, this time as a Deputy President, he made the case for Africa to use biotechnology in food production to deal with hunger and poverty³ and in 2015, he announced that plans were underway to lift the ban on GMOs⁴.

So, to KPL, it was just a matter of “when” but not “if” the 2012 ban was going to be lifted. So, prior to the lifting of the ban on GMOs in Kenya, KPL had already established a Working Group on GMOs that included advocates.

In the Cabinet Dispatch that lifted the ban, the Cabinet stated that it had considered various expert and technical reports on adoption of biotechnology, including reports from the Kenya National Biosafety Authority (NBA), World Health Organization (WHO), the Food and Agriculture Organization (FAO), United States of America’s Food and Drug Administration (FDA), and the European Food Safety Authority (EFSA). Upon the lifting of the ban, KPL quickly called for an emergency meeting and organized a media briefing, where it announced its intention to challenge the lifting of the ban in court.

Petition to the National Biodiversity Agency

In parallel, KPL also decided to present a petition to the NBA. A peaceful procession was organized on 12 October 2023 to present the petition to the NBA offices in Nairobi.

In the petition, KPL demanded that the NBA give access to the advisory it gave to the Cabinet and which was cited in the lifting of the ban. KPL also asked the NBA to avail the Prof Kihumbi Thairu Taskforce report⁵ commissioned right after the ban was enacted, to inform KPL whether the issues that were raised by Prof Kihumbu Thairu Taskforce had been addressed and that NBA provides evidence that there was a public consultation before lifting of the ban, as required under the article 10 of the United Nations Declaration on the Rights of Peasants and Other People Working in Rural Areas (UNDROP) and article 10 of the Constitution of Kenya.

On 15 of November 2013, the taskforce released a report, where it came to the conclusion that the safety of GM foods had not been conclusively demonstrated to allow for the lifting of the ban. The taskforce gave some recommendations, which included: a need to develop guidelines for testing of GMOs, the priority of safety with regard to human health and the need to develop capacity for the determination of the safety of GMOs on a case-by-case basis through the national regulator – the NBA. Fundamentally, the taskforce noted that there was a need to develop adequate infrastructure for carrying out and where necessary, replicating, long term trials by Kenyan scientists funded solely by the Kenyan government.

In their response to KPL’s petition, the NBA stated that they were not involved in the process of lifting of the ban on GMOs and that they did not have the Taskforce report since the Taskforce was appointed by the Minister of Health and that the report was only submitted to the appointing authority. To KPL, this was a serious breach of the National Biosafety Authority Act and National Biosafety Regulations that places the role of regulating GMOs on the NBA and not on the Cabinet.

First victories : conservatory orders maintening the ban

By the time KPL was filing the matter to the High Court, the NBA had not yet responded. Before the Hight Court, KPL argued that the NBA denied KPL the right to information, as stated under article 11 of the UNDROP; read together with article 35 of the Constitution of Kenya. On 27 November 2022, the High Court granted KPL conservatory orders, reinstating the ban on GMOs until 15 December 2022, when the matter was coming up for hearing. On 15 December 2022, the High Court further extended the ban up to February 2023, despite protests from the government and the NBA. This suspension of the lifting of the ban was a first victory for the peasants.

Before KPL filed the matter, senior counsel Paul Mwangi had filed an application over the lifting of the ban on GMOs before the same judge. The judge however declined to grant him conservatory orders. KPL studied the application by Paul Mwangi to establish why he could not get orders. It emerged that the senior counsel based his arguments more on science when there is not yet an complete scientific consensus. KPL therefore decided to challenge the lifting of the ban on the basis of process, the right to information and to public participation. KPL argued that the Cabinet usurped the role of NBA, who had indicated that they were not involved in the process. KPL also stated that NBA abused our right to information by failing to provide information we had sought from them adding that there was no adequate public participation. The High Court agreed with our arguments and granted KPL the conservatory orders. On 15 December 2022, all the cases were consolidated.

Meanwhile in December 2022, the Government of Kenya, through the office of the Attorney General, filed an application at the Court of Appeal seeking to reverse the order of the High Court that reinstated the ban on GMOs. In the application, the Attorney General argued that the ban would hamper government agencies from performing their responsibilities, KPL in response argued that the orders were prohibitory orders that are not to be executed, but to be abstained and therefore, there was no subject matter to be preserved and nothing to be rendered nugatory. On 31 March, the Court of Appeal decided to maintainthe orders until the judgment of the case before the Hight Court. This is another victory to the peasants.

As this proceeding was going on, the NBA made an application at the High Court for a three-judges bench to be empanelled to hear the case on GMOs. This application was also thrown out by the High Court. Against that claimed, KPL’s had argued that the NBA had not displayed issues that needed a three-judge bench to address and that could not be addressed by the current presiding judge, Lady Justice Mugure Thandi.

Meanwhile the Law Society of Kenya (LSK) had moved to the Environment and Land Court in Nyahururu over the same matter. The Government, through the Attorney General, has filed another application seeking that the ongoing cases by KPL and by LSK be joint and heard at the Environment and Land Court (ELC) in Nyahururu, Kenya. KPL has however opposed the application by the Attorney General on grounds that the ELC court had no power to handle a case on violation of the constitution, while the constitutional Court cannot hear a case on environmental pollution since its of the jurisdiction of the ELC.. They are totally separate and distinct courts and matters are not transferrable between them⁶. The High Court is yet to pronounce itself on the matter. However, KPL believes that the latest move by the Government is an indication that it has lost the arguments and is seeking friendly judges who can be manipulated.

Conclusion

Despite the victories in the corridors of justice, the KPL also views this case as a very good avenue for domesticating the UNDROP in local laws. KPL’s main arguments are premised on the UNDROP and also supported by the Constitution of Kenya. KPL submitted that lifting of the ban abused the rights of peasants enshrined in the UNDROP, especially articles 10 on the Right to Participation; article 11 Right to Information; article 12 Access to Justice; article 19 Right to Seeds and article 26 Cultural Rights and Traditional Knowledge. That this Declaration is at the centre of a high-profile case like this one is already making the UNDROP more popular both locally and regionally.,Groups have moved to the East African Court of Justice on the same matter and grounds.

While the ban is still in place, the war is far from over given the machinations by the government and the total capture of the State by powerful corporations. KPL is thanking international partners including the La Via Campesina, the GMWatch, GMOFreeFlorida, GMWatchIndia and GMFreeUSA groups for providing solidarity and materials that were very useful in our application. KPL also thanks the Thousand Currents for supporting the matter. KPL is still calling for more support as it is anticipated that the matter will continue to the Supreme Court.

Cidi Otieno,

Ag. National Convener and Policy Chief and Advisor

Kenyan Peasants League

1 Kenya: Agricultural Lobbyists Demand a Stop to GMOs. Available from:<https://africa.peacelink.org/newsfromafrica/articles/art_12714.html> [6 June 2023]

2 ISAAA Inc. Kenya Agri Minister Calls for Clear Direction for Biotech. Available from:<https://www.isaaa.org/kc/cropbiotechupdate/article/default.asp?ID=3188>. [6 June 2023].

3 EXPOGROUP. Kenya Chooses GM and Biotech, But there are Smarter Ways to Feed Africa. Available from:<https://www.expogr.com/expokenya/detail_news.php?newsid=73&pageid=2>. [6 June 2023]

4 Citizen Digital. DP William Ruto Announces Plans to Lift Ban on GMOs. Available from:<https://www.citizen.digital/news/dp-william-ruto-announces-plans-to-lift-gmos-ban-97796>. [6 June 2023]

5 In November 2012, not long after the enactement of ban, the Public Health Minister, Beth Mugo, appointed a Taskforce led by Prof. Kihumbu Thairu to review and evaluate information on the safety of GMOs. This was after an outcry by the biotech industry following the ban.

6 The Standard. State Fight to Have GMO Freeze Cases Consolidated. Available from<https://www.standardmedia.co.ke/national/article/2001474532/state-fights-to-have-gmo-freeze-cases-consolidated>. [6 June 2023].

La entrada The legal fight of the Kenyan Peasants League against the lifting of the ban on GMO in Kenya se publicó primero en Defending Peasants' Rights.

In February 2020, the Inter-American Court of Human Rights (IACHR) handed down a ruling recognizing the rights of both indigenous peoples and peasants. It orders that indigenous peoples’ right to land be restored, and that their territory be returned to them, but at the same time, it relies on the Declaration on the Rights of Peasants to protect the rights of non-indigenous peasants who are going to be displaced. In this way, it balances the rights of these two communities, and gives us a first example of successful articulation between the two UN Declarations of Rights.

For the first time in a contentious case, the Court analysed the rights to a healthy environment, to adequate food, to water and to cultural identity autonomously on the basis of article 26 of the American Convention, ordering specific reparation measures for the restitution of these rights, including actions for access to water and food, for the recovery of forest resources and for the recovery of indigenous culture.

The case is linked to the claim for recognition of land ownership by Indigenous Communities belonging to the Wichí (Mataco), Iyjwaja (Chorote), Komlek (Toba), Iyjwaja (Chorote), Iyjwaja (Chorote), Komlek (Toba), Niwackle (Chulupí) and Tapy’y (Tapiete) peoples in Salta Province, Argentina (on the border with Paraguay and Bolivia). These lands have also been occupied by other settlers and an international bridge was built without prior consultation by the state. There has been a constant indigenous presence in the area since at least 1629.

In its ruling, the Court determined that the state violated the right to communal property by failing to provide legal certainty and allowing the presence of non-indigenous “creole” settlers to continue in the territory. This is despite the fact that the indigenous claim to ownership has been valid for more than 28 years. It also concluded that Argentina does not have adequate regulations to sufficiently guarantee community property rights.

In reference to the Declaration on the Rights of Peasants and Other People Working in Rural Areas (UNDROP), this ruling is interesting, as the conflict includes peasant families who have been settling in indigenous territories for decades, encouraged by public officials, seeking to interfere in the territory of indigenous communities using land claims.

However, peasant families (creoles, as they are called in the ruling) are also vulnerable and suffer violations of their rights. In this context, the judgment characterises these families according to the definition expressed by the UNDROP and, citing it, establishes the guidelines to build a dialogue and a policy that advances towards the relocation of these families and their crops and animals, so that the state can fulfil its obligation to recognise and make effective the communal property of indigenous families, but taking care in the process to guarantee the rights established in the UNDROP.

The Court ordered the State of Argentina, within a period of no more than six months, to title, delimit and demarcate the 400,000 hectares claimed within lots 14 and 55 in a single collective title in the name of all the indigenous communities living on these lots; and to eradicate all the wire fences and take the necessary measures to prevent the erection of new enclosures, including their construction and implementation, in consultation with the communities.

In reference to the relocation of the peasant families, this sentence states in paragraph 136:

“The State’s remarks about the Creole settlers who inhabit lots 14 and 55 are in line with the considerations that have been made about peasants in the United Nations, through the United Nations Declaration on the Rights of Peasants and Other People Working in Rural Areas (hereinafter “Declaration on Peasants”).”

In paragraph 138, it notes that “peasants generally suffer disproportionately from poverty, hunger and malnutrition”; they have or often have, due to “various factors”, “difficulties in making their voices heard and defending their human rights”, including “access to courts, police officers, prosecutors and lawyers”. In particular, the Declaration on Peasants notes that “access” to land and natural resources “is increasingly difficult” for “rural dwellers”, and that various “factors make it difficult” for them to “defend […] their tenure rights and ensure the sustainable use of the natural resources on which they depend”. The Declaration on Peasants states that “international human rights norms and standards” must be “interpreted and applied in a manner consistent” with the “need to better protect the rights of peasants”. The Court clarifies that it is not assessing state responsibility on the basis of the Declaration on Peasants, but refers to it only as a complementary reference which, in line with Argentina’s remarks on the vulnerability of the Creole population, shows the relevance of taking into account the particular situation of this population in order to safeguard their rights.

Furthermore, in paragraph 138 it clarifies: “Now, as it has already been said, the ownership of the indigenous communities over 400,000 hectares of lots 14 and 55 is not in doubt. The State, in order to guarantee this right, has had to demarcate the indigenous property, as well as adopt actions to ensure the transfer or relocation of the Creole population (Peasants) outside of it. Without prejudice to this, the way in which the State has to comply with its obligation cannot be ignored. In this sense, Argentina must act in accordance with the rights of the Creole population (peasant population)”, see infra, para. 329 (d), and footnote 323 of the Judgment.

Beyond the fact that this process at the IACHR is fundamentally based on the rights of indigenous peoples, it is important to highlight the fact that in developing the issues that have to do with the peasant community in the territory, the court relies on the UNDROP to safeguard rights and administer the procedures of the measures and actions that it demands from the Argentine state.

We can therefore assert that, despite the fact that the Argentinean state abstained in the vote of the United Nations General Assembly when it adopted the declaration, the UNDROP is already an international standard of new rights for the IACHR, and therefore future claims concerning violations of peasant rights in this country can be brought before this court with positive expectations for the peasants whose rights are violated.

You can access the full judgment or its summary (both in Spanish) at the following sites:

• Summary: https://www.corteidh.or.cr/docs/casos/articulos/resumen_400_esp.pdf
• Full sentence: https://www.corteidh.or.cr/docs/casos/articulos/seriec_400_esp.pdf

Diego Montón

MNCI Somos Tierra

Peasant Rights Collective of Via Campesina International

La entrada Inter-American Court of Human Rights: first case law on the links between the Declarations on the Rights of Peasants and Indigenous Peoples se publicó primero en Defending Peasants' Rights.

Known as the Monsanto Law, Decree Nº 21-2012 was passed by Congress in 2012. Modeled on the 1991 Act of the International Union for the Protection of New Varieties of Plants (UPOV), it made it illegal to save, give away or exchange seeds from plant varieties protected by plant breeders’ rights. Honduras is not a member of UPOV and is under no obligation to adhere to the 1991 Act.

In 2016, the National Association for the Promotion of Organic Farming (ANAFAE) filed a first unsuccessful legal action against the decree. Undeterred, ANAFAE filed another legal action in 2018 with peasant organizations and independent farmers that resulted in the Supreme Court striking down the law in its entirety (Action of Unconstitutionality EXP SCO-0877/2018).

The Court accepted the five arguments put forward by the plaintiffs in their petition, namely that Decree Nº 21-2012 (1) represented an attack on the country’s sovereignty and right to self-determination, by granting plant breeders’ rights over native seeds and plant varieties for commercial use, to the detriment of the free use of wealth and natural resources; (2) violated constitutional principles for life, human dignity and the right to an adequate standard of living; (3) represented an attack on the human rights to nutrition and health; (4) contradicted the obligation of the state to preserve the environment so as to protect the health of its population; and (5) contravened the constitutional and international duty of the state to protect Indigenous cultures and farmers’ rights.

The judgment recognizes that peasants’ traditional knowledge is essential for the preservation of biological diversity and for global food security, and that the Decree violated the provisions of Articles 19 and 20 of UNDROP on the right to seeds and biological diversity.

This is a momentous judgment for Honduran peasants. It also sets a precedent for other countries that have passed laws modelled on UPOV 91 in contradiction to their international commitments in the area of human rights, peasant rights and the right to food.

Link to the Official Court ruling in Spanish

Link to an English translation of the Court ruling (unofficial, by APBREBES ans HEKS/EPER)

La entrada Honduras: Supreme Court uses UNDROP article 19 on the right to seeds to declare unconstitutional the Monsanto Law se publicó primero en Defending Peasants' Rights.

Rubén Portillo Cáceres and members of his family are peasants engaged in family farming in Paraguay. They live in a community that received land under the agrarian reform programme in 1991. They sent a communication to the UN Human Rights Committee in 2016, claiming that massive use of agrochemicals (pesticides and insecticides) in nearby large plantations had poisoned several of them, led to the death of their relative Ruben Portillo Cáceres, and polluted their land and other natural resources.

In July 2019, in its decision in this case, the Human Rights Committee found violations of the rights of Cáceres family members to life, to privacy, family, and home, and to an effective remedy – all enshrined in the ICCPR – because of the failure of the state to enforce environmental regulations and to redress the resulting harms.

The Human Rights Committee explained that Mr. Portillo Cáceres and members of his family depended on their crops, fruit trees, livestock, fishing, and water resources for their livelihoods. It added that they have a special attachment to and dependency on the land, using the words of and referring to Article 1 of the UNDROP. For the Committee, these elements can therefore be considered to fall under the scope of “home”, i.e. the place where a person resides or carries out his or her usual occupation. As the pollution has had direct repercussions on the Cáceres family’s crops, fruit trees, livestock, fishing, and water resources, their right to privacy, family, and home had been violated.

This decision sets an important precedent, as many other peasant families and communities, who are victims of violations of their right to land and other natural resources, could also complain to the UN Human Rights Committee, and obtain a similar decision against their state.

Views of the UN Human Rights Committee, https://undocs.org/CCPR/C/126/D/2751/2016

La entrada UN Human Rights Committee protects the right to land in Paraguay using the UNDROP se publicó primero en Defending Peasants' Rights.