To a comparative constitutional lawyer, Article 140 of the Kenyan Constitution is an interesting provision: it sets out, in some detail, the legal route by which a dispute around a presidential election is to be resolved. Read with Article 163(3)(a), it clothes the Supreme Court of Kenya with the exclusive prerogative – as well as the duty – to hear and decide a challenge to a presidential election, within fourteen days. Article 140’s mandatory and time-bound language precludes the Supreme Court from taking two paths, which judiciaries often take, to avoid entanglement in politics: declining jurisdiction to hear a dispute, or simply putting off a decision until the case becomes infructuous. Rather, Article 140 envisages that the Supreme Court will be the first – and final – arbiter of the most contentious of all political disputes.

This puts the Supreme Court in something of a bind. A large part of judicial legitimacy flows from a Court’s ability to stay out of political disputes, or to carefully negotiate political terrain when such questions are thrown up before it. The histories of independent judiciaries around the world have shown us that if a Court deals politicians too many setbacks, a backlash will not be far behind.

This bind is worsened by two things. The first is that complicated electronic technology has become integral to modern-day elections, and disputes around elections will therefore require the Court to assess competing claims around technology, presented by duelling sets of experts. This is a fraught exercise at the best of times, and becomes particularly fraught when a presidential election turns on the outcome. The second – and related – point is that many of the issues that arise in a presidential dispute will necessarily involve high degrees of judicial subjectivity. It is a truism that there is no such thing as a “perfect election”. In any election held at scale, there will be machine errors and human errors – somewhere, somebody will make a mistake, a computer will break down, a rule will be misunderstood or wrongly applied. There is no bright line for determining the point at which these atomised errors coalesce into something that undermines the integrity of an election. It is a matter of judgment, and like all matters of judgment, subject to attack.

To negotiate this bind, a court that is given the kind of task that the Supreme Court of Kenya has been given under Article 140, can do the following things: (a) articulate a set of objective and neutral standards concerning questions of evidence, and the threshold required to invalidate the results of an election; (b) hew closely to the submissions and evidence provided by the parties to the dispute; and (c) set out detailed and transparent reasoning for its decision, so that the losing party has the right to feel aggrieved, but does not feel cheated.

The unanimous judgment of the seven judges of the Supreme Court of Kenya in Odinga and 16 Others vs Ruto and 10 others – the challenge to the 2022 Kenyan Presidential elections, and the certification of William Ruto as the president-elect – reveals both the bind, and the Court’s attempt to negotiate it through the principles set out above. Faced with a series of allegations about the conduct of the 2022 presidential elections – ranging from hacking to physical manipulation of forms, and from voter suppression to technological breakdown – the Court framed its response along two lines: a standard of evidence and a standard of invalidity. With respect to the first, the Court held that allegations of impropriety would have to meet an “intermediate standard” of “clear and cogent evidence” – that is, something between the civil law standard of “balance of probabilities” and the criminal law standard of “beyond reasonable doubt” (the exception to this was when allegations of a criminal nature – such as fraud – were made in the course of the election petition).

With respect to the second, the Court held that where the standard had been met, the next question was: did the improprieties reach a level where they materially impacted the outcome of the election? To an extent, this is a counterfactual question that is difficult to answer with certainty, especially in close elections; what would have happened if the improprieties had not taken place? But it is also an essential question; if an election were to be set aside on the basis of any impropriety, then we would be having election re-runs until the end of time. The standard of invalidity is, to an extent, a compromise, but a necessary one.

With this framework in mind, the Supreme Court’s analysis can be divided into two buckets. In the first bucket were allegations (such as fraud, switching of Forms 34A, and so on) that the Court found were not proven to the required standard. Importantly, in making this assessment, the Court primarily relied upon the competing affidavits of the parties (including upon internal contradictions within some of the affidavits). This is the second principle outlined above: as the Court stressed, in adjudicating the case, it could not travel beyond the quality of evidence provided to it by the respective parties. In the second bucket were allegations (such as printing errors and failure of voting kits) where the Court found that there had been lapses, but that it could not be shown that these lapses had materially altered the outcome of the election.

Perhaps the most significant part of the judgment, however, is the third principle. During the course of the hearings, the Court ordered a scrutiny of the IEBC’s servers – under the supervision of the Court’s registrar – in order to cross-check the veracity of some of the allegations. The results of the scrutiny report are discussed extensively in the judgment, with a candour that is not often found in the adjudication of such disputes elsewhere in the world. Indeed, on most of the issues that it framed, the Court set out its reasoning process – including mathematical calculations in some detail and with great transparency – allowing, in turn, for the foundations of its judgment to be scrutinised by the public.

It is trite to say that one may disagree – on substance – with the Court’s analysis on each of the three steps outlined above. Indeed, this writer believes – for example – that the Court’s holding that spoilt ballots be not counted in the determination of whether the winner of the election has crossed 50 per cent is open to critique. After all, why shouldn’t an individual be entitled to spoil their ballot and have their vote counted accordingly? Such disagreements are in the nature of things; the crucial point, however, is that the Court’s overall analytical framework – that is, the standard of evidence and the standard of invalidity – and the three-step analysis outlined above, is undoubtedly sound, and one of the only routes open to a Court to adjudicate high-stakes political disputes without being dragged down into the mire of political partisanship.

The results of the scrutiny report are discussed extensively in the judgment, with a candour that is not often found in the adjudication of such disputes elsewhere in the world.

It is in this context that the statement of Azimio that the Supreme Court presents a “threat to democracy” is a matter of some concern. As mentioned in the beginning of this article, around the world, clashes between the judiciary and politicians are not uncommon, especially when it comes to high-stakes elections. However, many of those clashes have occurred in contexts of judicial overreach, or where the Court instals a politician or validates an election in highly opaque or secretive proceedings. In the opinion of this writer, two things set apart the Kenyan case: the first is that the Constitution explicitly envisages the Supreme Court as the body that will resolve this dispute, and for good historical reasons (indeed, as the 2017 elections showed, the Supreme Court is capable of – and has – set aside an election in the past). And the second – and more important – thing is that, when you consider the judgment in Odinga and 16 others vs Ruto and 10 others from the perspective of global best practices in adjudication, it stands up to searching scrutiny. The Court set out neutral and objective framework principles to guide its adjudication of the case, reasoned closely and narrowly within those principles, and set out its chain of reasoning in a judgment on record. The Court’s judgment may attract criticism (even stringent criticism), and that is in the nature of things, but – respectfully – it does not warrant an attack. It is important to remember that the dispute resolution process under Article 140 requires an independent and strong Court that can act to invalidate a flawed presidential election (as it did in 2017). If that is gone, then it is an open question how future disputes can ever be resolved without serious problems.

The war against animal agriculture, now spearheaded by fundamentalist vegans, is an attack on human diversity. Were it to succeed, it would wipe out streams of detailed knowledge and expertise about how to thrive – self-sufficiently – in almost all the landscapes and climates on earth. This knowledge has been accumulated gradually over many thousands of years and is irreplaceable. It’s where we truly connect to our non-human relatives. Eradicating it would reduce everyone to dependence on processed, factory-produced “food” and additives, and on the corporations that make them.

This is because healthy human nutrition from plants alone is only approachable in particular climates and landscapes, and even then important food supplements are needed. If everyone were to be restricted to this diet, the elites in charge of the manufacturers and supply chains would control human life.

Whether the elites would themselves live off the stuff they make is open to question. They could ensure some healthy food is still grown normally, including from animals, but it would likely be priced well beyond the reach of ordinary folk. Bill Gates, for example, now invests heavily in fake meat and dairy, promoting it vigorously whilst tucking into the real meat he loves.

Predicting the end of animal agriculture is nothing new. It was initially a fundamentalist Christian ideology preached over 100 years ago with the objective of cutting sexual desire! Were it ever realised, it’s no exaggeration to suggest it could signal the end of human life. After all, our adaptability and inherited knowledge are the only reasons our species survived and spread over the world in the first place, including into many climates still viewed by urban dwellers as hostile. Animal domestication has been central to human societies for tens of thousands of years.

Healthy human nutrition from plants alone is only approachable in particular climates and landscapes.

Whilst expertise in mechanics, science and industrial processes can be acquired from books, the flora and fauna we depend on is so subtly and delicately interrelated that it’s best seen at least as much through generations of direct experience as through classroom skills. Those who depend throughout their lifetimes on their own herding or hunting often rely on something which leans as much towards the instinctual as to the learned.

The risks in losing this vast body of expertise should be obvious. In spite of endless predictions, no one knows what the world will look like in a century or two, and wiping out knowledge of animal agriculture, as well as the myriad breeds it has produced, is bound to severely limit the options open to our descendants. There are many parts of the world where herding is the only realistic means of human survival and millions rely on it. The dependence on camels in the Sahara, reindeer in north Eurasia, horses in Central Asia, llamas and alpacas in the Andes, and goats and sheep in many environments, is well known. Areas that are unsuitable for crop growing, where agriculture is impractical or impossible – particularly in upland and arid regions – can support herding. Human life in vastly different climates can also depend on hunting, from tropical forests to the Kalahari to the Arctic, and of course more millions throughout the world rely on fish. Those who think that crops can replace these ways of life seem unaware of the reality in such places. As the climate changes, there may be many more zones in the future where humans can only survive if they live at least as much off animals as from plants.

In spite of all this, ending animal agriculture is now vigorously promoted by the mainstream media. Paradoxically, this is especially noticeable in apparently progressive forums, and where the propaganda is heavily funded by corporations and foundations, including by Bill Gates. The UN and the World Economic Forum support Gates’ dystopian dream and, as with most “good causes” nowadays, it’s inevitably presented as key in fighting climate change. Studies, and especially headlines, are routinely trotted out to support this highly dubious claim, often funded by corporate interests or their foundations, repeating one-sided or massaged data that can seem convincing at first sight.

Lots of people, particularly the young, swallow all this as an article of faith, and embrace the notion that ending all animal agriculture is about compassion for animals, as well as fighting for the climate. They rightly cite the undeniable horrors of massive industrialised agriculture but seem unaware or unconcerned that in much of the world animal agriculture is a very different thing indeed, practised on a much smaller scale and in the hands of local people who have derived sustainable livelihoods from it for millennia, and all this with little or no reliance on a polluting industry.

As the climate changes, there may be many more zones in the future where humans can only survive if they live at least as much off animals as from plants.

Those local people are, luckily for all of us, the real key to why the end of animal agriculture is unlikely ever to be realised. However much the elites seek to manipulate people and agendas, human beings remain individuals with their own beliefs and dreams just as much as they are conditioned social creatures who can, sometimes all too easily, succumb to short-term fashion and peer pressure.

Even the most vigorous and violent attempts at imposing total control over any population inevitably foster a resistance where, eventually, a plurality of belief and action is rekindled. Such human spirit, or whatever one calls it, proves time and again the overwhelming and resilient strength in human diversity.

The key lesson of history is that there is no single right way to live and be, and there is nothing in history to suggest any single way of life is ever likely to become totally dominant. That simple fact will save humankind from the dream of those who want to end all animal agriculture. It’s really a nightmare which points not towards an innocent and childish Garden of Eden of healthy plant-based diets and compassion for all creatures, but to the end of most human life. Indeed, that may well be what some campaigners seek. Fundamentalist environmentalists of the 1980s Earth First! movement believed that “Billions are living that should be dead,” and concluded,  “Fuck the human race.” Perhaps the original stimulus, a fear of and disgust with human sexual desire and reproduction, is not so alien to the campaign being waged today by fundamentalist vegans.

Kenya has lifted its 10-year ban on Genetically Modified Organisms (GMOs). The World Health Organisation (WHO) defines GMOs as organisms (plants, animals or microorganisms) whose genetic material (DNA) has been altered in a way that does not occur naturally through mating and/or natural recombination.

Proponents of GMOs are lauding this as a good move towards addressing the issue of food insecurity at a time when 4.1 million Kenyans are facing hunger. While it is clear that food insecurity threatens the life of millions of Kenyans, lifting the ban on GMOs is not the solution.

Since the production of the first GMO crop in 1983, there have been significant environmental and health concerns regarding these crops. A joint statement published in a scientific journal in 2015 by over 300 independent scientists and researchers states that the scarcity and contradictory nature of the scientific evidence published to date prevents conclusive claims of safety, or of lack of safety of GMOs. These scientists further state that rigorous assessment of GMOs has been hampered by lack of funding that is independent of proprietary interests. Echoing the sentiments of these scientists is another scientific study that shows that the majority of studies concluding that GMOs are safe and nutritious are those undertaken by associates of the biotechnology companies producing GM foods and seeds.

To date there are no epidemiological studies on the  potential effects of GMO food consumption on human health despite claims from GMO proponents that GMO meals have been consumed in countries such as the United States of America with no impact on health. There is also no scientific consensus regarding the environmental risks associated with the growing of genetically modified crops.

In line with the UN’s Cartagena Protocol, the National Biosafety Authority is the state corporation in Kenya mandated with ensuring the safety of human and animal health and providing adequate protection of the environment from harmful effects that may result from GMOs. The Cartagena Protocol requires a careful case by case assessment of each GMO by the national authority to determine whether the GMO crop or food satisfies the national criteria for being “safe” and ensures that any environmental health concerns and risks are addressed before its introduction.

Based on this understanding, it is unclear whether the National Biosafety Authority carried out any independent research on the safety of these crops and foods regarding their effect on the environment and on human health before the ban was lifted in Kenya.

Safety aside, GMOs aggravate food insecurity and threaten food and seed sovereignty. They do so by holding farmers in debt cycles that reduce their ability to produce more food for consumption. More than 80 per cent of the food consumed in Kenya is produced by smallholder farmers. Lifting the ban on GMOs will expose farmers to the exorbitant prices of GM seeds and they are likely to be locked into debt cycles as they try to pay for seeds acquired through loans.

Farmers in Burkina Faso abandoned the cultivation of Bt cotton that was introduced by Monsanto, now Bayer, citing the higher prices of Bt cotton seed and its poor quality compared to their indigenous cotton seed which produced a superior quality of cotton. Their adoption of Bt cotton caused them to lose their niche in the international cotton markets. Yet the same Bt cotton (MON 15985) that failed in Burkina Faso has been introduced in Kenya following national performance trials undertaken by the Kenya Plant Health Inspectorate (KEPHIS) with the approval of the National Biosafety Authority (NBA). This begs the question whether the Kenyan government is trying to enslave its people to biotechnology companies.

In November 2021, cotton farmers in Busia were asking the Kenyan government to subsidise the price of Bt cotton seed which was retailing at KSh2,200 a kilo. In March 2022, there was an outcry from cotton farmers in Kenya because of the unavailability of Bt cotton seed, which the chief executive officer of the National Biosafety Authority attributed to the multiplication challenges experienced by the sole company given the task—companies fronting the GM crops, such as Mahyco, in which Monsanto has a 26 per cent stake, control the production and multiplication of these crops.

This begs the question whether the Kenyan government is trying to enslave its people to biotechnology companies.

Maize is Kenya’s staple crop and farmers are currently being persuaded to grow Bt maize, based on the argument that it is resistant to pests. However, since farmers will not control the supply and multiplication of the Bt Maize seed, they are likely to face the same seed scarcity that is being experienced by Bt cotton farmers when the suppliers of these seeds pull out of the market.

Companies such as Monsanto (now Bayer) are among the world’s largest seed companies and  have been known to push GM innovations on key crops such brinjals, maize and potatoes across the world, their major interest being profits. Allowing these companies to dominate the production and importation market of key crops such as maize is likely to affect the livelihoods of the farmers who, in Kenya, produce about 40-45 million bags of maize every year. These farmers will certainly be competing for market against imports of cheap GM maize from the US which has been pushing to expand its exports of genetically modified food crops into the Kenyan market.

Kenyan imports of GM foods and food crops will also affect our East African neighbours such as Tanzania and Uganda who export their surplus produce to Kenya. With the loss of market comes the loss of interest in farming and the abandonment of land, which in turn could lead to rural-urban migration by populations in search of alternative livelihoods, leaving the door wide open for multinational corporations to buy abandoned land to grow commercial crops for export.

Lifting the GMO ban will also expose farmers to draconian intellectual property laws related to patents held by GMO multinationals. GM seed is patented and this could land the farmers on whose farm GM crops have grown without their knowledge into intellectual property disputes. These farmers are likely to be forced to pay royalties for GM crops that contaminate their farms through pollination or cross breeding. In the US Monsanto (now Bayer) sued hundreds of farmers to protect its GM seed patent rights. In Brazil, Monsanto won a US$7.7 billion lawsuit after a court ruled that farmers cannot save and replant Monsanto’s patented Roundup Ready soybeans. In India, PepsiCo, the manufacturer of Lays Potato Chips, had sued four farmers for an amount of about KSh15 million for illegally growing its potatoes. The case was withdrawn.

Lifting the GMO ban will also expose farmers to draconian intellectual property laws related to patents held by GMO multinationals.

Environmental concerns associated with lifting the ban on GMOs include the loss of our agricultural biodiversity and interference with our country’s ecological balance. GM crops are likely to contaminate non-GM crops through pollination. This could lead to the loss of indigenous varieties of crops such as millet, sorghum and spider plant (sagaa) that are grown in many parts of the country.

While the Biosafety Act of 2009 provides for risk assessment measures in order to protect human health and the environment from the possible adverse effects of GMOs, in the case of Bt cotton the NBA stipulated that once it was released for commercialisation, the NBA and government agencies would monitor it for 20 years “to assess whether there are post release adverse effects”. Aren’t 20 years too long a period to wait to address any possible effects on human health and the environment? Shouldn’t the risk assessment have been done before the introduction of GMOs in the country for cultivation and commercialisation? There are also no clear liability and redress mechanisms for damage resulting from transboundary movements of the genetically modified living organisms. What happens to the farmers who might be caught up in lawsuits regarding patent rights? Is there any clear legislation on their protection?

Fronting GM seeds as a solution to food insecurity equates to the Kenyan government admitting that Kenya has a seed problem, which is untrue. For all the crops cultivated in Kenya,  more than 78 per cent of the seed used comes from informal seed sources controlled by smallholder farmers. This is despite their existing a law that makes it illegal for farmers to share, exchange and sell indigenous seeds. The lifting of the ban on GMOs in Kenya is therefore ill-advised. Food sovereignty and security lies in farmers controlling and breeding their own seeds and having access to proper area-specific storage facilities and appropriate infrastructure.

Access to water is a key factor in addressing food insecurity. Kenya’s fresh water bodies are already choking with chemicals. An exposé aired by the Nation Media Group showed that Lake Victoria, Kenya’s largest freshwater lake, is contaminated by pesticides and fertilizers. Why can’t the government prioritize safeguarding such resources from contamination so that Kenyan farmers can have access to clean water for food production? Or provide water to farming communities for easier food production?

In addition, access to agricultural extension services that provide agro-ecological information is critical to providing information on sustainable farming practices such as ecological and organic farming. Having access to this information is invaluable in that it teaches the farmers to produce more safe food while conserving natural resources such as soil and water.

These practices also minimize the use of harmful agrochemicals and ensure that Kenyans have access to safe and adequate food. Ecological farming practices also minimise soil degradation, including widespread soil acidification due to overuse of chemical fertilisers. Most importantly they help farmers save and share indigenous seeds which is a key aspect of food sovereignty. Therefore, the move to lift the ban on GMOs is only going to send more farmers deeper into debt and poverty, limiting their ability to produce more food and increasing our dependency on imported processed foods that are low in nutrients. It is a move to undermine our food and seed sovereignty and delegate the control of food systems to multinational corporations whose motives are driven by profit. A seed is the lifeline of a generation, those who control seed control the entire generation.