inform, empower, educate……June 2019 edition, Part 2
THE CROPS (FOOD CROPS REGULATIONS) 2018
The Food Crops Regulations has been drafted pursuant to Section 40 of the Crops Act 2013 which give authority to the CS Agriculture to draft and actualize laws that give life to the Crops Act 2013 which outlines broad guidelines on regulating the Agriculture Sector in Kenya. Regulations that have so far been presented to the public such as the Horticulture Regulations 2019 among others have elicited mixed reactions from farmers and other industry players. In my opinion, the intention to regulate and formalize this sector is good. The ultimate goal is to protect the final consumer from consuming potentially poisonous products and also producers from exploitation. How the Government goes about actualizing this is what will make the difference. Today we focus on the Food Crops Regulations 2018. This piece of legislation has six parts as discussed below.
PART 1. PRELIMINARY
This is basically the introduction and it defines the terms used, areas of application and the purpose of the regulations which is basically “to guide the promotion, development and regulation of food crops”. It is important to familiarize oneself with the definitions in order have an in-depth appreciation of the legislation.
PART 2. REGISTRATION
This section outlines the procedures and conditions for registration of growers, grower associations, collection centers, processors and dealers. Section 5(1) states that a small holder grower of food crops MAY register with a Growers Association. The word ‘may’ seems to suggest that registration is optional. However, the same law prohibits any food crop processor from processing a scheduled crop from a non-registered grower or dealer. In a sense this consequently makes registration even for small scale growers mandatory.
The following are required to register with the County Governments in which they are domiciled:
- Large Scale Growers (not defined but we can assume that these are growers doing more than 5 acres).
- Growers Associations.
- Marketing Agents.
The following are required to register with the Agriculture and Food Authority (AFA):
- Operators of collection centers, warehouse/store and food depot.
- Dealers of Scheduled Crops.
Note the following:
Section 10(1): A person shall not import or export produce or product of a scheduled crop in the first schedule without a registration certificate from the Authority.
Section 13(1): A registered crop dealer shall not move or cause to be moved any consignment of food produce in excess of 5 metric tons from one County to another without a valid Certificate of produce. 13(2)The certificate is issued by the County Govt, 13(3) at the point of loading 13(4) accompanies the produce at all times 13(5)shall not be altered.
Section 13 (6): A vessel used in transportation of food produce and products shall comply with the National Food Transportation requirements that shall be issued by the Authority from time to time. I think this section leaves room for arbitrary introduction of regulations and needs to be tightened to protect transporters from exploitation.
There are hefty fines imposed for contravention of regulations under part two and one could spend up to 5 years in prison or pay up to KES 10 million in penalties.
PART 3: CERTIFICATION AND LICENSING
The following must not be established and operated without approval from the authority:
Food processing plant – The Authority issues a Certificate of Approval upon inspection of the premises whereas the County Government issues the license. Similarly, the Authority issues the Approval Certificate to operate whereas the County Government issues the license to operate. Note that there are two separate issues here i.e. establishment and operation both of which require approval and licensing. The approval and license to operate remain valid for one year after which a renewal must be issued.
Warehouse, store or a food depot – 20(1) – A person shall not operate any premises as a warehouse, store or a food depot unless the premise is certified as such by the Authority. 21(1): A person shall not operate a warehouse, store or a food depot approved in accordance with regulation 20 above unless it is licensed as such by the County Government.
Importers and Exporters – Section 22(1): A person shall not import or export food crops produce or products without a valid license issued by the Authority. Section 24 deals with issuance of export permits. 24(1); A person shall not export produce and products without a valid export license issued by the Authority 24(2) Exported produce and products shall exit through a designated port. Note as outlined in Section 22(5)(a) that an import or export license is not valid for 12 calendar months from the date of issue but rather is valid from the date of issue up to the thirtieth of June of every year unless earlier cancelled. The license shall be subject to such conditions as the Authority may impose from time to time. Perhaps in a bid to protect the domestic consumer from competition from ‘unnecessary’ imports and to safeguard food security, Section 23(2) requires that the Authority determine the domestic production and consumption of all food crops to establish levels of surplus or deficit and advise the Cabinet Secretary on the exportation and importation of all food crops.
Other parts of Section 24 outline more responsibilities and duties of the importer and the Authority in regards to imports and exports of scheduled crops.
Section 25 Gives powers to the County Government to revoke, alter or suspend a license issued under this part. My worry with this is that counties are political entities and such sweeping powers can be used to frustrate investors viewed as political rivals. I wonder if this additional level of supervision will lead to better controls or simply add a layer of bureaucracy that will only serve to frustrate exporters by lengthening the process and increasing the cost.
Section 26 grants persons who may be aggrieved by the Authority or the County Government in regards to this legislation the right to appeal in respect of the grant, refusal, renewal, variation, revocation or the conditions imposed on the grant, renewal or variation of a license.
PART 4: ASSURANCE OF SAFETY AND QUALITY OF PRODUCE AND PRODUCTS
Section 27 defines prohibited production sites where no one is allowed to grow food crops as follows:
- Site for domestic animal production.
- Disposal site for garbage and industrial waste.
- Site for sanitary waste management.
- Site for mining activities, oil or gas extraction.
- Sites with a history of flooding
- Road sides.
In order to use such sites for production they must first be assessed for risk and declared safe by the Authority in consultation with the County Government. Note that one can be prohibited from production on their land if the adjacent land is being used in a manner likely to contaminate the soil, air and water rendering it unsafe for production. Areas prone to contamination through water drainage, run-off, subterranean water flow, wind erosion, animals, vehicles and equipment must also be avoided. This means that you will not just have to worry about the suitability of your land for crop production but about the surrounding environment at large. If this regulation is followed to the later, we are likely to see citizens playing a more active role in safeguarding the environment. It also presents a potential conflict area in instances where neighbouring land owners have conflicting interest e.g. where one is engaged in manufacturing and the neighbor is engaged in crop production. It is not clear how such disputes will be resolved.
Section 28 prohibits use of contaminated soil. Contamination could arise from heavy metals, toxic chemical substances and harmful pathogenic organisms.
Section 30 (2) which prohibits the use of raw animal manure for production of food crops has generated a lot of debate. The concern of drafters of the law seems to be the possibility of pathogen transmission from animals to human beings. This law has quite likely been misinterpreted by many and perhaps the Ministry of Agriculture needs to elaborate further on what ‘raw manure’ means and more importantly what kind of animal manure is fit for use. I see a genuine concern here by the drafters of the law. However, proper sensitization and farmer education must be carried out by the MOA.
Equally controversial are Sections 31(1) and 31(2). Sub section 1 states that ‘a grower shall only use chemical fertilizers which have been recommended by the respective County Governments’. Section 2 states that ‘A grower shall use chemical fertilizers in rates recommended by the County Government from time to time’. One wonders if County Governments have this capacity. In any case, all chemical fertilizers used in the country have to be approved by the Government before being made available to farmers. For this to work, County Governments have to conduct rigorous soil mapping and testing to determine average PH and nutrient composition of soils because these two parameters are the most important parameters to consider when selecting chemical fertilizers to use. The idea is noble as it will protect soils from degradation as a result of arbitrary application of fertilizers without reliance on scientific evidence of fertilizer need, quantity and type required. However, this leaves room for manipulation and exploitation of fertilizer companies by rogue County Government officials. Soil nutrient composition and PH can also be very diverse within a single region or farm and it is therefore not prudent in my view to give blanket recommendations on chemical fertilizer use. How will the County Governments even ensure compliance with such directives? The Government should instead encourage and facilitate precision farming in collaboration with the private sector and other stakeholders.
Sections 32 to 38 give general food safety best practices that are largely acceptable and welcome. Section 39 tackles traceability which is basically the reason why stakeholders are required to register.
There are penalties for contravening the provisions of the above regulations. To ensure compliance, the Authority will appoint crop inspectors who will carry out inspections, verifications, surveillance, risk analysis, assessment and communication functions. The recommended qualifications for crop inspectors are outlined in Section 41.
Top dressing at the demonstration greenhouse. County Governments will recommend fertilizers to be used in their respective counties.
PART 5: MARKETING
Marketing is covered in Sections 44 to 47. These cover contract farming guidelines and guidelines on selling and packaging of food products and produce. I am however surprised that sections 46 and 47 have not generated as much debate as section 32. Section 46 introduces a food pricing committee that will determine the formula for pricing of scheduled food crops. The main function of the committee is to review food crops produce prices and advise the cabinet secretary for the time being responsible for matters Agriculture. Factors to be taken into consideration when determining the pricing formula are outlined in Section 47. Recommendations from the food crops produce committee shall be ratified by the Authority before gazettement by the Cabinet Secretary. Whereas I agree that there is need to protect producers from exploitation, I think price setting by the Government is bound to fail and should largely be left to market forces of supply and demand.
PART 6: MISCELLANEOUS PROVISIONS
Miscellaneous provisions must be understood in tandem with the schedules since they give broad guidelines which are subsequently broken down in the schedules. The provisions cover import and export levies, filing of returns by stakeholders to the County Governments, some of which are cumbersome; it is difficult to understand the rationale behind some of these requirements. For instance Section 51 (4) states that, ‘A grower, grower association shall provide the respective County Government with monthly returns on food crops produce purchased by the 5th of every month…’
All other players are required to file various forms of returns on a monthly basis which in my view distracts them from their core mandate. Such returns if necessary should probably be made quarterly, semi-annually or annually.
Schedule 1 outlines a list of crops to be regulated. The other schedules give the formats for the forms that will be used by industry stakeholders for registration, application of permits & licenses and for making returns. It also outlines the amounts that will be charged for license fees, permits and levies and which body or office will issue such.
Overall, this is a good piece of legislation in my view. The few gray areas can be handled if there is goodwill and cooperation among stake holders.
Clifton Opala is the founder of Ace Intergrated Services, an Agricultural Services Firm offering end to end solutions to farmers. The firm specializes in Construction of Greenhouses, Shade structures & other Farm Structures; Irrigation Systems Design and Installation; Farm planning, establishment & Management; Ground water identification & Drilling and Farmer Training. The firm also has capacity to design and conduct Baseline and Impact Assessment Surveys for Agricultural Interventions.