Horticulture Regulations 2019

THE CROPS (HORTICULTURAL CROPS REGULATIONS) 2019

The Crops Act 2013

The Cabinet Secretary for Agriculture in coming up with the Horticultural Crops Regulations 2019, exercises powers conferred to him by  Section 40 (1) of the Crops Act 2013 which states as follows, “The Cabinet Secretary may, in consultation with the Authority and County Governments, make regulations for the better carrying into effect of the provisions of this Act, or for prescribing anything that can be prescribed under this Act”. The Authority referred to here is the Agriculture and Food Authority (AFA) established under Section 3 of the Agriculture and Food Authority Act 2013. Notice therefore that the Horticultural Crops regulations 2019 and The Food Crops Regulations 2018 are meant to strengthen or actualize certain sections of the Crops Act 2013. Anybody seeking to understand the new regulations must therefore also understand the background which is the Crops Act 2013. These new regulations are meant to come into force upon gazettment. Today we look at one of the off shoots of the Crops Act 2013 – THE CROPS (HORTICULTURAL CROPS) REGULATIONS 2019. In part two of this edition/series we will look at the Food Crops Regulations 2018 which contains the highly contested section in regards to use of Raw manure (Section 31).

The Crops (Horticultural Crops Regulations) 2019

The Horticultural Crops Regulation of 2019 has five parts and ten schedules.

• Part 1 – Preliminary which is basically the introduction.
• Part 2 – Registration and licensing of players in the horticulture industry.
• Part 3 – Quality Assurance and Marketing.
• Part 4 – Financial provisions.
• Part 5 – Miscellaneous Provisions.
• Schedules 1 to 10 – The schedules predominantly show the formats , forms and contracts to be used by stakeholders for registration and other operations. Crops defined under the regulations as horticultural crops are also defined in the first schedule while rates are covered in the tenth schedule.

Horticultural Crops as described in the regulations:

• Fruit trees – Basically any kind of fruit tree one can think of is covered.
• Medicinal and Aromatic Plants – Artemesia, Aloe, Salvia and all other medicinal and aromatic plants of commercial value.
• Vegetables – Practically all vegetables are listed including kales, cabbage, tomato, onion, garlic, mushrooms, carrots, broccoli, sugar snaps, french beans etc. Even maize is listed.
• Flowers and ornamental plants – All flowers and ornamental plants.

REGISTRATION AND LICENSING

Who is affected by the Horticultural Crops Regulations 2019?

These regulations are applicable to Horticulture crops and its products and dealers in the Horticultural Industry in Kenya. The following are the stakeholders affected by the regulations:

Nursery Operators – A Nursery is defined as an area for selling horticulture seedlings. Anybody who intends to operate a nursery block to supply the domestic market must make an application for registration to the respective County government as set out in Form HCD/County/A001 of the Second Schedule. The certificate issued upon successful application is renewable annually. A person intending to operate a nursery or mother block for supply to the export market shall make an application to the Authority as set out in Form A of the sixth schedule. Of note for nursery operators is that the regulations restrict distribution of horticultural planting materials from one part of the country to another unless that person has an accompanying plant health certificate from the Kenya Plant Health Inspectorate Service and a plant movement permit issued by the county as set out in Form HCD/County/A003 in the Second Schedule. The rest are normal regulatory and operational procedures that nurseries are required to comply with and are generally good best practice recommendations. Section 11 which requires recertification of undistributed planting material if not sold within six months can however be cumbersome. Anybody intending to operate a commercial nursery is well advised to get familiar with Section 2 of these regulations.

Farmers or Grower – Defined under the regulations as any person who is cultivating horticulture crops in Kenya and includes both smallholder and plantation. EVERY Grower is required to register by the respective county government where their farm is located. Small holder farmers are required to register with a farmer group or any other legal entity of which he is a member. The regulations however do not define who a small holder farmer is though it can be assumed that any farmer doing 5 acres or less is a small holder farmer. Horticulture Crop co-operatives, Community based organization, self-help groups are also required to register with the county government where they operate. Note that there is no registration fee charged by either the county governments or the Authority.

The intention of registration though taxing on the farmers especially small scale farmers is noble as it is meant to help the county government plan for provision of extension services; plan for inputs and credit requirements; plan for regulation and quality assurance and generally to maintain data on the horticultural industry in their respective jurisdictions. In regards to the safety of consumers, this tightened regulatory environment is a win because consumers have been exposed to harmful products especially in regards to high chemical residues on vegetables. The requirement for registration of small holder farmers may seem cumbersome but this could actually galvanize farmers into associations that can potentially be very useful to them. In my view, this requirement will mostly affect trade in formal markets but will not hinder small scale trade between neighbours, a fear which farmers have expressed. The question here is whether there will be certain scales of production that will be exempted from registration especially kitchen garden producers who sometimes produce excess that can be sold.

Produce Dealers – means a person, a company or a firm engaged in  collecting, transporting, storing, buying or selling horticulture produce or products and includes a ship chandler, an exporter, an importer, processor, seedling nursery operator, marketing agent or customs clearing agent. The term dealer basically applies to everyone along the value chain. All dealers must now be registered by the Authority. The Certificate of Registration or License will be valid from first July up to thirtieth of June of the calendar year unless earlier cancelled. An applicant will be required to produce a number of documents including a Certificate of Incorporation or Business registration, Copy of valid tax compliance certificate from KRA, Farm and pack house inspection report, a business trading permit from the respective county govt among others. Note that one is required to invest in a pack house and get a trading licence before seeking authorization from the authority. One wonders here if the regulation is putting the cart before the horse, what happens to all this investment in the event that the Authority then subsequently refuses to grant the applicant a License?

QUALITY ASSURANCE AND MARKETING

This is part 3 of the regulations. The objective here is to ensure that Horticulture Crop inputs, produce and products conform to National Horticulture Standards (KS 1758). This section introduces a self regulating mechanism where a dealer handling horticultural produce is prohibited from dealing with marketing agents that are not registered by the Authority. This section proposes fairly good practices aimed at ensuring traceability and good production practices including safe use of agrochemicals. It prohibits production in areas that have previously been used as or near dump sites, garages and sewer lines. It also prohibits the use of human raw sewage and factory effluent for production of horticultural produce.

Section 26 requires that anyone intending to provide professional horticulture  services to producers or dealers shall apply to the Authority for registration; this will to an extent handle the issue of quacks and cons in the industry and has been lauded by farmers as a move that was long overdue. This section also gives guidelines on contract farming aimed at ensuring a smooth relationship between dealers and contracted farmers. It also provides guidelines on importation and exportation of horticultural crops.

Section 31 requires that the Authority shall appoint inspectors to carry out inspections on standards, guidelines and legislation of Horticulture Crops. This is good, however, it also allows County governments to appoint inspectors to monitor activities associated with production, dealing and handling of produce to ensure compliance with these regulations within the respective counties. Here, I see a duplication of roles and possible competition between inspectors from the Authority and County Governments. This in my view is a duplication that should be avoided as it can be cumbersome to the dealers.

Section 32 grants ‘Powers of Entry’ to inspectors from the Authority. At all reasonable times, the inspectors, upon availing an identification document from the Authority, shall be allowed to enter any land or building occupied by the holder of a processing licence issued under this Act, or a person registered under Crops Act. Upon access, they are allowed to carry out inspection and any other action necessary to ascertain that regulations under the Act are being complied with. They are also allowed to seize and remove anything in respect of which they have reasonable grounds to believe that an offence under this Act is being or has been committed. Many farmers I have spoken to have expressed concern in regards to this section which they feel leaves them open to exploitation by inspectors.

FINANCIAL PROVISION

Perhaps in a bid to encourage value addition, Section 35 imposes levy based on F.O.B value imposed on all horticultural crops destined for export other than those canned, bottled, preserved, dehydrated or delivered to operators for canning and processing factories at the rate of two per cent of their customs value.

MISCELLANEOUS PROVISIONS

Of note here is Section 38 which revokes Horticultural Crops Development Authority Order, 2011

SCHEDULES 1 TO 10

The schedules cover the following:

• First Schedule – List of Horticultural Crops.
• Second Schedule – FORM HCD/COUNTY A001 – Application for registration of horticulture crops nursery or mother block; FORM HCD/COUNTY/A002 – Certificate of registration of horticultural nursery/mother block; FORM HCD/COUNTY/ A003 – Permit for the movement of horticulture planting material; FORM HCD/COUNTY/A004 – Horticulture nursery operator statistical returns for
• Third Schedule – Minimum requirements for field handling and grading of horticultural produce.
• Fourth Schedule – minimum conditions applicable to pack house produce handling facility.
• Fifth Schedule – Packaging, transportation and storage minimum requirements.
• Sixth Schedule – FORM A – Application for registration as horticulture produce or products dealer; FORM B – Certificate of registration/license of produce or product dealer; FORM C – Quarterly returns on import/export of horticultural crops produce and products; FORM D – Application for registration of growers association/plantation growers; FORM E – Application for registration as a horticulture professional; PS 1 FORM – Company owned farm or source of produce; PS 2 FORM – Produce source from contracted sources.
• Seventh Schedule – Covers Horticultural Code of Conduct; Obligations of producers and dealers; obligations of the regulator; Essential elements of a contract between producers and dealers.
• Eighth Schedule – The National Horticulture Produce Logo.
• Ninth Schedule – Import Release Order; Export Certificate.
• Tenth Schedule – Horticultural crops industry levies.

HORTICULTURAL CROPS INDUSTRY LEVIES

By and large, this is a good attempt at attaining food safety standards especially within the local markets that have previously lacked proper regulation, a situation which has left consumers vulnerable to potentially poisonous products. There is no cause for alarm by farmers in my view – these regulations should not be viewed as a barrier to market access but rather as an opportunity by small holder farmers to coalesce around associations that can help solve production, financial and market access constraints.

Small holder horticultural farmer supported by Ace Intergrated Services.

The author 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 & Installation; Farm Planning, Establishment & Management; Ground Water Identification & Drilling and Farmer Training. The Firm also has capacity to design and carry out baseline and Impact Assessment Surveys for Agricultural Interventions.