Last week we dived into manure and saw the absurdities of the proposed Crops (Food Crops) Regulations, 2018, banning the use of animal manure to enforce the regulations under regulation 30 (2) of the Crop Act 2013, that prohibits the use of raw manure.
These regulations would create a monopoly and eventually hand over our agriculture sector to a few fertiliser cartels, thus compromising food production and security.
Perhaps, the original intention was noble. Patricia Njeru pointed out to me that these regulations were originally intended to criminalise the use of raw sewerage water to irrigate vegetable farms. This awful practice, which is prevalent in some suburbs around Nairobi, such as Ruai, is dangerous and unacceptable.
This week, we look at the last M, “Macadamia nuts”. This sector of our agriculture has been amazingly successful. Kenya’s macadamia nuts are crunchy and tasty. This sets them apart in the market.
According to Market News of the Business Daily, as of January 2018, macadamia farmers were making great losses as high as Sh680 million despite Macadamia’s high demand the world over. The loss (or apparent loss) was blamed on the sales of premature nuts to processors (read here Chinese exporters) who would in turn make great profits to the detriment of these farmers.
For some reason, we have the strange belief that law or a change of laws will resolve all our problems in life. We may have inherited this from our colonial past, but we can no longer blame the colonisers.
We have had almost sixty years to ponder, rethink and redesign; yet we seem reluctant to do so. Possibly, the powers and prerogatives the colonisers granted to themselves were too attractive to let them go, and we just changed the face of the colonisers.
Section 43 of the Agriculture, Fisheries and Food Authority Act is just a real example of this: “A person shall not export raw cashew nuts … or raw macadamia except with the written Authority of the Cabinet secretary issued with the approval of the National Assembly”.
The rationale for this draconian restriction of freedom was based on the naïve belief that having processing plants in Kenya created much needed jobs rather than sell them raw to countries like China. This may have some truth, but processing plants are not about quantity but quality. And if the process is not of prime quality, our nuts will go to waste; we will only use them as kokoto.
As it usually happens in a small economy like ours, this created a monopoly that fixed low prices to almost exploitation levels, and a monopoly that is making the nuts farmers go nuts.
CHANGING THE LAW
The usual reaction to any of our challenges is “tackle the problem, face it squarely… by changing the law; drafting a new one.” The law is our new messiah, our religion. For example, as we wanted to end corruption, we signed the anti-corruption convention (we were the first country to do so and we take pride in it), and created a commission. We then sat back and waited to see what would happen.
The convention did not help, neither did the commission; we then took refuge in the Constitution, where we included a chapter on Leadership and Integrity. This chapter did not help much, even after we passed a Leadership and Integrity Act. Our corruption scandals became mega-scandals.
We are still wondering what happened, which law must be changed for society to change. The problem is not the law, but the little respect we have for it, and our sluggishness when it comes to enforcement.
Enforcement is a political decision, and the lack of it exposes the true intentions of leaders and political actors. So, the solution is to keep an apparent respect for the rule of law by changing them as often as possible, at a speed that prevents reflection, examination, assessment… yet we are happy thinking that something is being done.
In order to stop the selling of premature nuts, the Agriculture Food Authority (AFA) barred the sale of raw macadamia nuts to foreign buyers. The rationale for this measure was that during this period, the nuts are premature and they cannot meet export standards.
What was the true motive behind the ban? Should this not be left at the discretion of the farmers? The ban may have put the farmers in the hands of new cartels or a monopoly, with the excuse of helping them. Are we nuts?
Before this ban, farmers were selling raw nuts to Chinese exporters for as much as Sh300 per kilogram. After the ban, farmers cannot sell to any exporter, yet they are being paid less than Sh180 per kilogram by the few local processing companies.
The farmers have taken this matter to court. The matter will be studied in depth, but until a fair price is found and best practices established, the farmers will keep on suffering.
As Jade Makory rightly put it to me, “Is there not a better way to go about securing the interests of the farmers than through regulation? It is time to move from regulation to education. Educating farmers would be more effective. They can make their own choices.”
Jade has a strong point; farmers are not children. If regulation is the only way out, then these regulations should protect the farmer first and foremost, who is the weakest link in the chain, not the middle man or the nuts processor.
We hope some sense comes into this dispute.
Dr Luis Franceschi is Dean – Strathmore Law School. [email protected]