Talks to resolve the dispute on whose role it is between counties and a national government agency on agriculture to license crops, have hit a deadlock. It now looks certain that the matter could be headed to the court for constitutional interpretation.
The Council of Governors has told counties and farmers not to deal with any other authority even as the Agriculture Fisheries and Food Authority (Affa) insists the mandate to oversee licensing of crops is its.
The county heads said the talks had hit a dead end, noting that they are not ready to cede the function to Affa as it contravenes the Constitution and the Crops Act.
The governors said they were waiting for the review of the Affa Act, 2013 to align it with the Constitution as it does not fully accommodate the principle of devolved governance.
“That in the event these issues are not resolved as matter of special urgency jointly by all the parties involved, and within seven days from the date of this announcement, the Council of Governors reserves the right to seek the necessary legal redress on the matter,” the council said in a press advertisement last month.
It said after several meetings, discussions had hit a ‘deadlock’ due to unwillingness, intransigence and outright disrespect of the role of the county governments on the devolved function of agriculture as spelt out in the law.
The council also asked farmers not to honour or accept any licensing regulations and requirements by any other authority apart from the county governments as this would be in total contravention of the Constitution.
Governors have asked counties to enact legislation on agriculture quoting section 17 (2) of the Crops Act, which says regional governments may, pursuant to the fourth schedule of the Constitution, develop regulation of scheduled crops markets within the county, issuance of trade licences to any person or co-operatives trading in scheduled crops.
The Affa director-general, Mr Alfred Busolo, said the Constitution requires that in periods of transition, when new rules have not been adopted, the existing ones are used.
“The Crops Act allows the existing rules and regulations to be operational until new ones are adopted,” said Mr Busolo.
The stand-off has caused confusion in the agriculture sector, with some of the entities that have a footprint across the country being the most affected.
Kenya Planters’ Co-operative Union, which has acquired licences from the Nairobi County, has found itself at the centre of the controversy, with Affa saying it does not recognise the permits and the Nairobi Coffee Exchange adding that it can only allow the union to re-enter the auction through recognition by Affa.
“We followed the caveat emptor announcement made by the Council of Governors, and which was not countered by Affa to acquire the licences. We also sought legal advice on the matter and we do not want to be made scapegoats in the ensuing controversy. It just happens that KPCU has branches across the country. We have no dispute with anyone and want to resume operations at the auction,” said KPCU chairman William Gatei.
Nairobi Coffee Exchange’s chief executive officer, Mr Daniel Mbithi, however, said without any communication of the changes in licensing it would not allow KPCU to the auction floor.
“We can only allow it on the floor of the auction if given the nod by Affa. That is the only way we know and do not wish to be involved in the controversy,” said the exchange chief executive officer.