SUCAM, the sugar campaign for change advocacy group, today laid out multiple legal breaches within Kenya’s draft sugar regulations in an alert to the Ministry of Agriculture’s Sugar Industry Task Force of the need to be vigilant in observing Kenya’s constitution, trade agreements, and existing legal framework.

In one of multiple legal breaches, SUCAM drew attention to the requirement in the existing draft agreement that all farmers and millers be members of apex bodies in order to engage in sugar production.

“This requirement flies in the face of the “freedom to be members” of associations as spelt out in section 14 of the Crops Act as well as Article 36 (2) of the Constitution, which guarantees the right that “a person shall not be compelled to join an association of any kind”,” said Hon. Saulo Busolo SUCAM Chairman.

“To be clear, it is within the boundaries of the law to recommend that farmers join an association, but it is literally beyond the authority of the Ministry of Agriculture to dictate compulsory membership of any association,” said Saulo Busolo SUCAM Chairman.

“Yet these draft regulations encompass multiple such adventures into extended authority, anti-competition, and legislative breach.”

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A tractor picking sugarcane from a farm in the past. Courtesy

Under the Statutory Instruments Act, 2013, all regulation must be accompanied by a Regulatory Impact Statement that includes an explanation of the effect of the proposed legislation. Yet the draft sugar regulations, having used an alternative template instead of the legal template for an impact statement, failed to explain the effect of the regulations.

“Considering the deleterious effect that many of the proposed regulations are set to have, it may be no coincidence that the regulations further breach the statutory process in failing to lay out the effect of the rules,” said Saulo.

“But if the legislators are unable to explain the effects of the regulations, how did they determine that these were desirable rules to have? What were the criteria? We simply have no sight of what these regulations were designed to achieve.”

The Statutory Instruments Act, 2013 was also breached through the omission of any cost benefit analysis from the regulations and in the failure to examine any alternative means for securing the same (unstated) outcomes.

“All told, the draft that is now being reviewed appears to be a journey through breached process, breached constitution, and multiple breached acts and international agreements, all in pursuit of objectives that are neither identified or explained as the effects of the regulations,” said Saulo.

“This makes it imperative for the taskforce now reviewing these proposals to be vigilant in observing Kenyan and international law and in ensuring that their own recommendations comply with the aims and outcomes of the nation’s body of preceding legislation.”