SUCAM, the cane growers lobby group, has found the Crops (Sugar) (General) Regulations, 2018, put out for public participation in August 2018 not appropriate for enactment, on the basis of multiple legal breaches. These fall in three areas:

1. The regulations breach national laws and international treaties, across:
2. The Competition Act
3. The World Trade Agreement on Agriculture
4. The COMESA treaty
5. WTO Agreement on Agriculture
6. WTO Trade Facilitation Agreement
7. Seeds and Plant Varieties Act
8. The KEPHIS Act
9. The Crops Act
10. The AFA Act
11. The Constitution

2. Due process was not followed in the preparation of the regulations:

The Regulatory Impact Statement was not prepared in compliance with the Statutory Instrument Act and the Explanatory Memorandum that was submitted in its place omitted most of the statutory requirements, including the assessment of benefits and costs that demonstrates the benefit of implementing the new regulations versus maintaining the status quo.

3. The regulations conflict with government obligations in Crops and AFA Acts:
4. In granting the Sugar Directorate and AFA powers and services beyond those provided in the Acts,
5. In postponing the enactment of measures to operationalise the parent Act, and
6. In omitting measures directed for by the Acts.

These variations render sections of the regulations without basis in law, with these extensions, postponements and omissions representing an abrogation of the decision of citizens through parliament.

1. 1. Breach of existing legislation:

The allocation of mill command zones to millers compels farmers to sell to assigned mills and is, therefore, anticompetitive.

Breaches the Competition Act No. 12 of 2010, Article 4.2 of the WTO Agreement on Agriculture and the COMESA rules (R10)

 

The mandatory registration of millers and growers to bodies goes against the right not to be compelled to join an association.

Breaches section 14 of the Crops Act and Article 36 (2) of the Constitution (R11, 12)

 

Ruling that each mill must “satisfy cultural and socio-economic needs of its local community…” is anti-competitive, as an obligation to undertake non-care activities

Breaches Competition Act section 21 (3) (g), forces millers to engage in non-core activities (R21)

 

Taking control of seeds conflicts with the role of the Kenya Plant Health Inspectorate Service (KEPHIS), which is superior to the Sugar Directorate and has institutional capacity and history.

Breaches KEPHIS Act No. 54 of 2012 and section 12 of the Seeds and Plant Varieties Act, Cap 326 (R25)

 

2. Due Process - The Regulatory Impact Assessment

Instead of submitting the regulatory impact statement, the regulations used the template for the Explanatory Memorandum, and omitted:

1. Any statement explaining the effect of the proposed legislation
2. Any statement of other practicable means of achieving the regulatory objectives
3. Any assessment of the costs and benefits of the proposed rules and of any alternatives
4. The reasons why other means are not appropriate

3. The regulations conflict with government obligations in Crops and AFA Acts:

In granting the Sugar Directorate and AFA powers and services beyond those legislated:

• “Development” of the sugar subsector; section 4 (b) of the AFA Act only provides for the power of regulation, facilitation and promotion of the subsector;
• “Implementation” of policies and plans in the sugar sub-sector; section 8 (a) the Crops Act only provides for the formulation of policy for developing the sub-sector;
• “Intermediary” between the authority and industry; no intermediary role is directed
• “Approving” outgrower institutions; section 15 of the Crops Act only provides for maintaining a register of such institutions;
• Establishing institutional “linkages” with county government; section 8 (c) of the Crops Act only provides for establishing linkages with national-level institutions;
• “Compelling” agreements between parties in the sugar industry; section 8 (o) of the Crops Act only provides for recommending such agreements.
• “Compelling” growers to be members of an outgrower apex body; section 14 of the Crops Act provides freedom and no obligation on smallholder growers to register with an out-grower institution or any other organisation representing the interests of sugar farmers.

In postponing measures to operationalise the parent Act, including:

• Standards of manufacture, packaging, transportation or storage in a warehouse of sugar;
• A format for capturing information that will be prescribed by AFA;
• How the statement on fees and charges will be captured in applying for various approvals.

In omitting measures directed by the AFA Act and the Crops Act that include:

• Facilitation of marketing and distribution of sugarcane and products, section 8 (b) Crops Act
• Conducting of farmers’ training programs, section 8 (h) Crops Act
• Establishing and enforcing standards of sugarcane and sugar to ensure health, section 8 (k) Crops Act
• Ensuring a secure domestic sugar supply for the country, section 8 (l) Crops Act
• Utilization of the Commodity Fund in the sugar subsector, section 9 of Crops Act
• Publishing of land development and preservation guidelines relevant to the sugar industry, section 21,23 of AFA Act
• Rules for the utilization of agricultural land relevant to the sugar industry, section 22 of AFA Act

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