By LESLIE OLONYI BOSIRE
January 19, 2024
The Trade in Pesticides: A Toxic Double Standard African countries have long been victims of the double standard that allows agrochemical giants to dump in their territories pesticides that are banned or restricted in Europe. It is high time they put effective pesticide regulations in place. Leslie Olonyi Bosire January 17, 2024 Leslie Olonyi Bosire is an Environment and Natural resources Lawyer from Nairobi, Kenya. More by Leslie Olonyi Bosire Share Tweet Facebook Print LinkedIn WhatsApp Telegram Read other stories tagged with: AgricultureClimate ChangePesticides Log into your member account to listen to this article. Not a member? Join the herd.
The European Union has declared certain pesticides to be hazardous to human health and to the environment, and outlawed or severely limited their use within Europe. However, the very same outlawed or restricted compounds are finding their way into the global south, exported by EU agrochemical giants, and slowly but surely seeping into the farmlands of regions like Africa where safety regulations are lagging behind, or are not rigorously applied. These EU actions amount to environmental dumping, the practice of exporting products/substances to another country or territory that cannot be legally be sold in the country of export due to failure to meet domestic environmental/safety standards; that contain hazardous substances; whose environmental performance is below the best interests of consumers or is contrary to the interests of the local/global commons; or that undermine the ability of the importing country to fulfil environmental treaty obligations. The EU prides itself in being a leader in the transition to agroecology despite being a major exporter of pesticides forbidden in Europe to other parts of the world. Besides being unethical, this form of environmental dumping blatantly undermines the right to a clean, healthy and sustainable environment which is now a universally recognised human right. The UN resolution on the human right to a clean, healthy and sustainable environment also expressly notes that the pollution of air, land and water, as well as the unsound management of chemicals, directly and indirectly interferes with this right. Exporting banned hazardous pesticides to Africa is an environmental injustice, and subjects the continent to generational health risks and generational environmental degradation. These banned pesticides are attractive to unsuspecting local farmers for their perceived role in reducing harvest uncertainty, pest control, disease management and as a cost-effective solution due to their low prices that are often a smokescreen to obscure the hidden hazards. Europe as the source Typically, developed nations have stricter pesticides regulations compared to their developing counterparts. In 2018 alone, more than 81,000 tonnes of pesticides containing 41 different hazardous chemicals banned for agricultural use in the EU were exported by European corporations. To address this problem, the European Commission set out several ambitious cross-sectoral objectives through the European Green Deal. To realise these objectives, the Green Deal proposed a Regulation on the Sustainable Use of Plant Protection Products, also referred to as the Sustainable Use of Pesticides Regulation (SUR). It fitfully made its way through the EU legislative process and the final version presented to the EU Parliament for its first reading supported the prohibition of exports of pesticides not approved under Regulation (EC) No 1107/2009 for public health and environmental reasons. Article 36c of the final version of the SUR expressly banned the production within the EU and export to third countries of active substances banned under that Regulation (EC) No 1107/2009. Nevertheless, the proposed SUR was defeated at the first reading at the EU parliament despite the spirited efforts of members like Green MEP Sarah Wiener who also serves as the Rapporteur of the European Parliament’s Committee on Environment, Public Health and Food Safety. Under the current Plant Protection Products (PPP) Regulation, the process of approval is initiated by a manufacturer with input from member states, the European Food Safety Authority, and the EU Commission. The PPP Regulation also governs the market distribution of active ingredients and substances, but does not extend legal oversight to their manufacturing process. As a result, while active substances not approved under the PPP Regulation cannot be marketed within the European Union, their manufacture and export to countries with weaker regulations remains permissible. Some pesticide regulations in Africa A brief examination of pesticide-related laws in three African countries highlights two primary issues. Many countries have outdated pesticide regulations and regulatory structures while pesticide regulatory bodies often have overlapping mandates that render the administration of pesticides incoherent and inefficient. The pesticide regulatory landscape in most African countries is uncoordinated and porous. Imagine a well-orchestrated symphony where each musician plays a unique instrument, contributing to a harmonious melody. That should be the vision behind pesticide regulatory oversight, where different aspects of the pesticide life-cycle, such as scientific analysis, export, monitoring use, and examining residues in food are handled in a coordinated manner. Like a symphony, such systems must be seamless and precise to avoid duplication. Any lack of coordination can lead to gaps that compromise both the system’s integrity and public health. In recognition of the current inadequate regulatory setting, some countries have begun – albeit lethargically – to revamp their pesticide-related regulations. Kenya Kenya is in the process of updating its pesticide regulations through the Pest Control Products Bill 2022 which is still in its preliminary lawmaking stages. According to the Kenya Pesticide Atlas published by the Heinrich-Böll-Stiftung foundation, 51 pesticides that are banned in the EU are currently permitted in Kenya while 44 per cent of the pesticides used in Kenya are banned in Europe. In July 2023, the Pest Control Products Board banned pesticides containing diuron, pymetrozine, thiacloprid and four other hazardous ingredients following pressure from civil society organisations. However, the true measure of success will be gauged by how well implementation and enforcement will be carried out. Article 42 of the Constitution of Kenya sets a solid legal foundation by providing for the right to a safe and heathy environment. Similarly, the purpose and spirit of the Pest Control Products Bill 2022 is the safeguard of human health and the environment from the risks associated with pest control. As opposed to the limited capabilities and functions of the current Pest Control Products Board, the bill vests a comprehensive mandate pertaining to pesticide-related issues in a fully-fledged and fully staffed Pest Control Products Authority. Fifty-one pesticides that are banned in the EU are currently permitted in Kenya while 44 per cent of the pesticides used in Kenya are banned in Europe. Integrated pest management strategies are recognised and recommended as a key method of pest control and the proposed law requires that measures be put in place to encourage and recognise local innovation in the development and management of pest control products. This could help in scaling indigenous, local pest control methods. The proposed Pest Control Products Authority will have the powers to register, analyse and licence pesticides. The Authority will also conduct training and monitor pesticide residues in agricultural produce and in the environment. The authority will also supervise the disposal of obsolete and expired pest control products, and appoint inspectors and analysts, and ensure the safeguarding of the environment. The proposed bill also criminalises the importation of banned or unregistered pesticides. The bill, however, does not explicitly ban the export from Kenya of pesticides that are banned in Kenya. Such a ban would serve to diminish the chances of Kenya being used as a hub or transit zone to dump pesticides onto other territories. The licence/registration duration or period within which a pesticide can be legally used or sold seems to be open-ended and determined on a case-by-case basis and at the discretion of the Pest Control Products Authority. As per the bill, the only requirement appears to be that renewal must be sought at least one month before the lapse of the registration period previously issued by the Authority. A better practice would be for all pesticides to be registered or licenced for a standardised period prescribed in law, after which renewal of the licence or registration is sought. Ghana and Nigeria have such fixed registration timelines. In Ghana all pesticides are registered for a period of three years and in Nigeria five years, after which renewal must be sought. The draft law leaves room for the enactment of regulations, which, however, must not be used to dilute the gains already proposed under the bill. Nigeria The Pesticides Atlas for Nigeria shows that 58 per cent of the pesticides registered in the country contain chemical ingredients banned in the EU. The Nigerian constitution provides for the right to a safe and healthy environment yet, in a deeply concerning incident, at least 270 people tragically lost their lives in 2020 after consuming water suspected to have been contaminated with a pesticide that is banned globally. The country has lately embarked on a review of its pesticide regulations having passed the Pesticide Registration Regulations 2021 while others, including the Nigeria Pesticide Council (Est) Bill 2021, are undergoing the legislative process. The current pesticide laws suffer from inadequate enforcement, poor coordination between the relevant agencies, and the absence of a comprehensive central law to address pesticide concerns. The proposed Nigeria Pesticide Council (Est) Bill, 2021 will be the law applicable regarding all aspects of control of pesticides in the environment, including importation, sale, distribution, use of pesticides and enforcement, and it will repeal any other legislation that is inconsistent with its provisions, to the extent of the inconsistency. The pesticide council proposed in the bill will be mandated to carry out quality control and monitor residues in agricultural produce and the environment. However, the bill allows for the production and export of pesticides banned in Nigeria to countries where they are permitted. This may promote environmental dumping, especially where the ban in Nigeria is due to the hazardous nature of the pesticide, bearing in mind that pesticide toxicity of holds regardless of country or region. In a deeply concerning incident, at least 270 people tragically lost their lives in 2020 after consuming water suspected to have been contaminated with a pesticide that is banned globally. Members of the Pesticide Council will be drawn from the leadership of several relevant federal government ministries, from civil society and, alarmingly, from CropLife Nigeria, a lobby group representing six large agrochemical multinationals, namely, Syngenta, BASF, Bayer, FMC, Sumitomo Chemical, and Corteva Agriscience. This invites unwarranted corporate-centric influence into a public body that should be the custodian of safe and healthy pesticide use. If the intention was to include the voice of agrochemical manufacturers in decision making, the best practice would be inclusion of a representative from an umbrella body or union that represents both local Nigerian and international pesticide industry players to avoid capture by a few powerful conglomerates. The bill limits the licence period of use of a pesticide to five years as opposed to three years in Ghana. The recently passed Pesticide Registration Regulations 2021 are enforced by the National Agency for Food and Drug Administration and Control (NAFDAC) and appear to focus on registration of pesticides. Through its implementing agency, the National Environmental Standards and Regulations Enforcement Agency (NESREA), the National Environmental (Hazardous Chemicals and Pesticides) Regulations 2014 also govern some aspects of pesticide use. The objectives of the regulations are the protection of human health and the environment from the harmful effects of hazardous chemicals and pesticides, and other agrochemicals, and the control of imports, exports, sales and handling of highly hazardous pesticides – in a seeming overlap with the Pesticide Registration Regulations 2021. Neither the existing pesticide laws nor the proposed ones prohibit pesticides banned in other jurisdictions from being produced in Nigeria for export. Ghana Article 36 (9) of the Constitution of Ghana requires the government to adopt suitable measures to safeguard the environment for the well-being of future generations. Ghana’s pesticide legislation is located in Part II of the Environmental Protection Agency Act, which governs the entire pesticide life-cycle. Despite these provisions, Ghana still faces hazards from pesticides like paraquat that have been banned in Europe but still find their way onto Ghanaian rubber plantations. The act designates the Ghana Environmental Protection Agency (EPA) as the body that registers, analyses, licences and monitors the sale and use of pesticides. A Pesticides Technical Committee with a diverse background of expertise and institutions to manage the sector, as well as a registrar of pesticides, have been established. Inspectors play the role of monitoring use, sale and disposal. They also investigate any complaints of excessive exposure, pollution, injury to humans or animals and damage to land and water bodies. Customs officials of the Ghana Revenue Authority are mandated to prevent any importation of a pesticide that is contrary to the provisions of the act. One concerning provision of the Ghana EPA act is that it allows for the manufacture in Ghana of pesticides that have not been registered for domestic use but are permitted in third countries. This introduces a double standard and opens a loophole for environmental dumping of banned pesticides manufactured in Ghana in countries with lower environmental standards. Ghana still faces hazards from pesticides like paraquat that have been banned in Europe but still find their way onto Ghanaian rubber plantations. Part III of the Plants and Fertilizer Act 803 (2010) establishes the Pesticide and Fertilizer Regulatory Division which functions under the Plant Protection and Regulatory Services. As outlined in the act, its mandate expressly focuses on fertiliser as opposed to pesticides, with the exception of a general mandate to perform “any other functions that are ancillary to the objects of the Pesticide and Fertilizer Regulatory Division under the Act” – which means any functions that are supportive or in addition to the primary objectives of the Pesticide and Fertilizer Regulatory Division under the Act. This may give it the legal leeway to work on some pesticide issues like the registration and training of those who deal in or use pesticides and fertilisers. Global rules governing pesticide use The Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal outlaws illegal transboundary dumping, restricts movement, protects countries that have banned the importation of certain substances, and provides guidelines for the safe disposal of obsolete as well as banned or deteriorated pesticides. Under Article 1(1)(b) of the Basel Convention, hazardous waste is also defined as a substance that has been classified as hazardous waste by the domestic legislation of the party of export, import or transit. This means that all African countries, (with the exception of South Sudan, which as at January 2024 had not yet ratified the convention) can enact the relevant regulations prohibiting the importation of pesticides banned in the EU and notify both the EU and other Basel Convention parties that export or are a source of banned pesticides accordingly. Despite being state parties to the Basel Convention, African countries recognised that they were still vulnerable to dumping of hazardous waste or to accepting waste that would otherwise be classified as hazardous. The Bamako Convention was negotiated to stem the tide of hazardous waste from unofficial, indirect, or less regulated channels. The Convention came into force in 1998 and provides more robust safeguards and some broader definitions against hazardous waste dumping than those offered by the Basel Convention. For instance, the definition of what can be classified as hazardous waste is broader and includes radioactive waste and any substances which have been banned, cancelled or denied registration by government regulatory action, or voluntarily withdrawn from registration in the country of manufacture, for human health or environmental reasons. Pesticides manufactured in the EU but banned within the block that are exported to member countries of the Bamako Convention fit its definition of hazardous waste and are thus prohibited. The Bamako Convention was negotiated to stem the tide of hazardous waste from unofficial, indirect, or less regulated channels. Despite its regional character, the Bamako Convention has a significant global impact because of how it relates to the Basel Convention. The trade restrictions of the Bamako Convention also apply indirectly to parties to the Basel Convention. This is so because states may become parties to both conventions; an import ban established by the Bamako Convention is similarly recognised under the Basel Convention, thus imposing upon the parties to the Basel Convention the corresponding obligation to prohibit any export of hazardous waste to the contracting states of the Bamako Convention. As at February 2023, only 35 countries had signed the Bamako Convention of which only 30 have ratified it. The three countries in focus here – Ghana, Kenya and Nigeria – have all signed the convention but are yet to ratify it, a clear illustration of the overall lethargic approach many developing countries adopt towards protecting their environment and their populations from hazardous chemicals. Twenty years after Kenya signed the Bamako Convention, the Committee on Environment, Forestry and Mining has tabled a motion in the National assembly in July 2023 calling for its ratification. An additional international standard is the FAO Code of Conduct on Pesticide Management which is a voluntary standard on the life-cycle management of pesticides. It encourages the prohibition of importation, distribution, sale and purchase of highly hazardous pesticides. The Rotterdam Convention promotes transparency in the international movement of hazardous chemicals, including pesticides, by implementing a “Prior Informed Consent” (PIC) process. This procedure empowers member countries to make informed decisions regarding the importation of chemicals – including pesticides – that are listed under the agreement, and offers the option to reject shipments of such chemicals. The Stockholm Convention safeguards human health and the environment by banning listed persistent organic pollutants, including pesticides that have such properties. The Montreal Protocol bans the production and trade in pesticides that have ozone-depleting properties. Tools to regulate against pesticide dumping In the grand tapestry that is the environmental regulatory mechanisms, various tools are poised and ready to eliminate the environmental dumping of pesticides in Africa. Countries affected by environmental dumping should enact legislation to ban the import, transit, or use of pesticides on their territory, if those pesticides are prohibited for use in their country of origin or in the country where they are produced. Such import bans are crucial and should be encouraged so that African countries and other developing nations can protect themselves from the influx of – or unethical trade in – toxic pesticides, particularly those that have already been banned in the EU and in other countries because of their toxicity. As a complementary measure, the EU should also ban the export of pesticide ingredients or chemicals that are not approved for use in the EU. Such a ban would be allowable under world trade law through the General Agreement on Tariffs and Trade (GATT) article XX (b) which provides that imposing bans may be justified if they are deemed necessary to protect human, animal or plant life and health. The illicit trade in ivory stands out as a striking testament to the power of complementary import and export bans. Despite the countries with elephant populations clamping down on poaching and banning ivory exports, a monumental shift only came about when China – the largest destination for illegal ivory at the time – imposed a sweeping ivory import ban. As a complementary measure, the EU should also ban the export of pesticide ingredients or chemicals that are not approved for use in the EU. Other measures could include steep penalties to act as a deterrent to illegal pesticide practices; an international legally binding agreement to regulate pesticides; environmental dumping tariffs; a robust Prior Informed Consent mechanism where countries are made aware of, and must consent to, imports of any shipments that contain banned hazardous pesticides at the point of export before the shipment exits the port, and green supply chain guidelines that help to integrate environmental and sustainable practices throughout the entire life-cycle of a supply chain. Key ingredients for effective pesticide regulations The ideal legislation regarding pesticides should align with best practices such as those espoused by Good Agricultural Practices (GAP). The four GAP pillars are economic viability, environmental stability, social acceptability, and food safety and quality. GAP is intended to empower farmers to minimise environmental harm, enhance yield efficiency, and reduce production expenses. It is imperative that pesticide regulations be designed to rigorously safeguard public health and the integrity of our environment from the detrimental impacts of pesticide use. These measures are not optional safeguards but rather a fundamental responsibility to ring-fence the well-being of communities and the preservation of ecosystems for future generations. Furthermore, the framework of these regulations should pivot away from perpetuating farmer reliance on chemical pesticides, and encourage and incentivise pesticide producers to innovate safer and healthier alternatives. Regulations must also cover the ethics of the various facets of the value chain such as licencing, trade, clear labelling to enable consumers to make an informed choice and ensure that it fosters the proper and safe application of pesticides, including the use of protective gear. A consumer redress mechanism in case of any harm is vital to guard against impunity. For instance, according to US lobbying disclosure records, CropLife America is one of the pesticide industry lobby groups allegedly pushing for the passing of the controversial Agricultural Labelling Uniformity Act. Consumer protection groups and environmental groups like the Center for Biological Diversity oppose the proposed law stating that it may provide protection to pesticide companies by limiting consumers’ ability to initiate lawsuits similar to those brought against Bayer by consumers who claim to have been harmed by ingredients in Bayer’s Roundup herbicide. Pesticide regulations must also be sufficiently adaptable to respond to the latest scientific data or evidence concerning any pesticide. They must include maximum residual levels and take into account input from pesticide producers without allowing their commercial interests to dominate other aspects such as food safety and environmental protection. A consumer redress mechanism in case of any harm is vital to guard against impunity. Many African countries are either contemplating or undertaking regulatory reforms in the pesticides sector and as they amend and fine-tune their pesticide regulations, the looming pressure and lobbying from global agrochemical conglomerates presents a formidable challenge. Agrochemical giants are renowned for their strategic involvement in the agricultural sector to influence opinion and steer policies to align with their interests. They are often to be found sponsoring prominent agricultural shows and fairs, offering training sessions to farmers, and hosting sophisticated seminars and conferences that target government officials and policy-makers. Citizens and the civil society must therefore remain vigilant to ensure that the different technical committees formulating regulations, evaluating, testing, registering and regulating agricultural pesticides, are not captured by such cooperate interests.
