EUNAH CHELANGAT A87/4320/2015
AGRICULTURAL LAW AEB 401
TERM PAPER;UNIVERSITY OF NAIROBI
QUESTION; identify the problems with regulation of agriculture and agribusiness in Kenya, evaluating the extent to which the new legislative framework is likely to offer redress and invigorate the sector.
The agricultural sector is the back bone of Kenya’s economy and a source of livelihood to many people. It contributes to Gross National Development. The agricultural sector also accounts for higher percentage of exports. It also creates market for industrial goods such as machinery and fertilizers used in the farming process.
It’s a sector that establishes industrial framework through; supplying raw materials for industries for example skin and hides for leather making industry. It promotes and creates various off-firm activities such as research programs that look for better and improved methods to be applied in farming and livestock activities, for example Kenya agricultural institute.
The agricultural sector comprises of industrial crops, food crops, horticulture, livestock, fisheries, water and land.
There has been great evolution of Kenyan agricultural policy since independence. The main goal of post independence agricultural policy were; high and growing per capita income s equitably distributed among the population and universal freedom from want,disease,and exploitation.
Agricultural policy post independence focused on three main areas; land transfer programs, smallholder development and promotion of cash crops by both small holder and large scale farmers. Other policy changes which took place included; projects to encourage livestock production in arid and semi arid areas and experimentation with integrated rural development projects. CITATION GEF95 l 1033 (GEFF GOW, 1995)The Economic Recovery Strategy for wealth and employment creation is one of the recent strategy and policy by the NARC government made to revive Kenya’s economy. It identified agriculture as the leading productive sector for economy recovery. It recognized revival of agricultural institutions and investment in agricultural research and extension which were critical and essential for economic growth.
Strategy for revitalizing agriculture SRA was develop thereafter as a response to economic recovery for strategic wealth and employment creation, as to transform Kenya’s agriculture into a profitable, commercially oriented and internationally and regionally competitive economic activity that provides high quality, gainful employment for Kenyans.
Since ERS and was a five year plan, the government developed a new strategy to take over it; which is the vision 2030 whose vision is; a globally competitive and prosperous country with a high quality of life by 2030.vision 2030 identified agriculture as one of the key sector in it.
There are various regulations of agriculture and agribusiness in our Kenyan law, which when scrutinized; they have several problems which need to be addressed for efficiency and productivity in the agricultural sector.
The agricultural subsectors-crops, livestock, fisheries, land, water and environment have their own specific laws in the Kenyan laws. We have the Crops ACT, no 16 0f 2013.
An act of the parliament to consolidate and repeal various statutes relating to crops; to provide for the growth and development of agricultural crops and for connected purposes.
Purposes of crop act
Crop regulation-crop regulation applies to all scheduled crops and to all agricultural land whether privately or communally held
circumvent unnecessary regulatory bureaucracy in the cropssubsector; reduce unnecessary levies, taxes or other barriers to free movementof crop products and provide for a rationalized taxation system; reduce unnecessary regulation or over-regulation of the cropssubsector; reduce duplication and overlap of functions among institutionsinvolved in the regulation of crop agriculture; promote competitiveness in the crops subsector and to developdiversified crop products and market outlets; andattract and promote private investment in crop agriculture. Role of national and county governments in development of crops Pursuant to the Fourth schedule of the Constitution— the Authority, on behalf of the national government, shall beresponsible for licensing and charging of levies and breeder royaltieson all scheduled crops on condition that the total sum of the leviescharged by the Authority shall not exceed ten per centum of the gatevalue of the produce; the county governments will implement the national governmentpolicies to the extent that the policies relate to the county and inparticular shall be responsible development of crops grown within the county; plant disease control; markets; cooperative societies within the county; soil and water conservation. In order to achieve the objects and purposes of this Act, it is the duty ofthe national and county governments to provide an enabling environment for thedevelopment of the crop subsector. The national and county governments shall determine and promote theimplementation of agricultural policies and measures in a manner designed topromote, support and enhance productivity in the crop subsector
Problems with crop act regulations
The crop act of Kenya, 2013, regulates crops that can be cultivated for commercial purposes and what the regulatory burdens are, for those that want to enter the commercial markets .this creates exclusive commercial markets for only the elite farmers who are able to comply with what the system demands of them.
The crops act does not indicate the establishment of county agricultural boards, hence its likely to operate from a central office
There are provisions on the Amendment Act that applies to the development of guidelines for GMOs and the seed bulking of Genetically Modified seeds, and it is obvious that the implications on farmers, agricultural biodiversity, and the future of farming systems are in great jeopardy.
The seeds and plant varieties Amendment Act 2012, has provisions on seed certification aspects, especially plant variety listing and some very far reaching powers for seed inspectors. It’s clear that there is pressure to put in place laws to ensure seed quality and purity and that seed production is very tightly controlled. The making of regulations with performance trials will no doubt exclude the participation of small farmers who are out of the commercial seed production system. CITATION MUM14 l 1033 (MUMBI, 2014)AGRICULTURE, FISHERIES AND FOOD AUTHORITY ACT
An Act of Parliament to provide for the consolidation of the laws on theregulation and promotion of agriculture generally, to provide for theestablishment of the Agriculture and Food Authority, to make provision forthe respective roles of the national and county governments in agricultureexcluding livestock and related matters in furtherance of the relevantprovisions of the Fourth Schedule to the Constitution and for connectedpurposesPurposes of AFFA ACT
administer the Crops Act, in accordance with the provisions of theseActs; promote best practices in, and regulate, the production,processing, marketing, grading, storage, collection, transportationand warehousing of agricultural products excluding livestock lproducts as may be provided for under the Crops Act;collect and collate data, maintain a database on agricultural productsexcluding livestock products, documents and monitor agriculturethrough registration of players as provided for in the Crops Act; be responsible for determining the research priorities in agricultureand to advise generally on research thereof; advise the national government and the county governments onagricultural levies for purposes of planning, enhancing harmony andequity in the sector; carry out such other functions as may be assigned to it by this Act,the Crops Act, and any written law while respecting the roles of thetwo levels of governments.
Respective roles of national and county governments Each county government shall within its area of jurisdiction be responsible,for agricultural matters in accordance with Part 2 of Fourth Schedule to theConstitution. The national government shall, in accordance with Part 1 of section 29 ofthe Fourth Schedule to the Constitution, be responsible for agricultural policy andfor assisting the county governments on agricultural matters. Each county government shall, for purposes of ensuring uniformityand national standards in the agricultural sector, through its legislation andadministrative action, implement and act in accordance with the national policyguidelines issued by the Cabinet Secretary on the advice of the authority underthis Act. Any action required under this Act to be done by the county governmentshall be deemed to have been done if done by an officer of the county governmentauthorized by that government in that behalf.
Problems with AFFA Act regulations
AFFA has excluded mandates of livestock subsector of agriculture and it has not stated
AFFA is set to replace government’s corporations including Coconut development authority, Kenya Sugar Board, Pyrethrum Board of Kenya, Cotton Development Authority, Sisal Board of Kenya and the Kenya Plant Health Inspectorate Service. It does not mention the fact that the functions of these corporations have been carrying should be devolved rather than absorbed by AFFA.
Since AFFA will be playing the coordinating role, its provision basis for inter-county relations and conflict resolution mechanism on matters of Agriculture is ambiguous.
AFFA shall provide direction in the inter-governmental agency relations between the national and county government involved in the sector but it does not define the shape and the nature the direction will have. CITATION CHR13 l 1033 (WEBO, 2013)Agriculture is function number one devolved to counties, according to the forth schedule of the constitution of Kenya. However, the AFFA has currently constituted will handle roles and functions that have already been delegated to the county governments. This will generate conflict between the national government and the 47 counties across all crop sub-sectors.
While AFFA act ostensibly seek to create leaner structure for agricultural sector, it in fact does the opposite by duplicating agricultural functions across the national and county levels
On matters of agriculture, the national government has the functions of formulating of agricultural and veterinary policy, foreign policy, international trade and disaster management while counties take up the day to day agricultural services relating to crop and animal husbandry, plant and animal disease control as well as trade regulation. But in sharp contrast to that commitment, the national government through AFFA Act and Crops Act, will be charged with the responsibility 0f overseeing among other things, the provision of farm inputs and agricultural extensions hand in hand with counties which are also expected to deliver the same services as stipulated by the Kenya Gazette Supplement number 116 issued on August 9, 2013. CITATION Placeholder1 l 1033 (GACHAGUA, 2014) LAND CONTROL ACT
An act of parliament to provide for controlling transactions in agricultural land
Transactions affecting agricultural land(1) Each of the following transactions that is to say—(a) the sale, transfer, lease, mortgage, exchange, partition or otherdisposal of or dealing with any agricultural land which is situated withina land control area;(b) the division of any such agricultural land into two or more parcels tobe held under separate titles, other than the division of an area ofless than twenty acres into plots in an area to which the Developmentand Use of Land (Planning) Regulations, 1961 (L.N. 516/1961) for thetime being apply;(c) the issue, sale, transfer, mortgage or any other disposal of or dealingwith any share in a private company or co-operative society which forthe time being owns agricultural land situated within a land controlarea,is void for all purposes unless the land control board for the land control areaor division in which the land is situated has given its consent in respect of thattransaction in accordance with this Act.(2) For the avoidance of doubt it is declared that the declaration of a trust ofagricultural land situated within a land control area is dealing in that land for thepurposes of subsection (1).(3) This section does not apply to—(a) the transmission of land by virtue of the will or intestacy of a deceasedperson, unless that transmission would result in the division of theland into two or more parcels to be held under separate titles; or(b) a transaction to which the Government or the Settlement FundTrustees or (in respect of Trust land) a county council is a party
Problems with land control act regulation
• Issues on land that are relevant to agricultural development include conflictsbetween different land uses due to the lack of a coordinating body that can ensureharmony between different users (Kenya 1994). Harmonization of differentdevelopment activities that can foster optimal land use and control ofenvironmental degradation is a critical issue..• The failure by the existing land conservation acts and laws and the need to have attendantlaws to generate environmentally sound land use habits for sustainabledevelopment is a relevant concern for agriculture. There has been an overemphasis on the protection of property rights and inadequate provision for theregulation of the rights in the interest of soil conservation. This is compounded bythe lack of a well coordinated land management policy with respect to variousland uses. The existence of numerous legislations and complex proceduresrelating to plan approvals, subdivisions and registration prevent the variousgovernment agencies from keeping up with the demand for their services.• The lack of accurate and up to date database information on land is also a criticalissue. Most information on land continues to originate from the districts.• The problems of pastoral land tenure relations, with its roots in the dispossessionof pastoral communities of their lands by the colonial administration, hasimplications for agricultural development especially food security andsustainability. There should also be security and equity in access to and use ofland in pastoral areas. There is therefore need to provide a legal framework thatdefines and recognizes pastoral land and related natural resource rights. There isneed to recognize pastoralism as a legitimate land use system as the basis for legalbacking. CITATION Pat06 l 1033 (Atieno, 2006)
New legislative framework that offers redress and invigorate the Agriculture and agribusiness in Kenya
1. Agricultural Sector Development Strategies
Agricultural sector development strategies is a revision of Strategy for revitalizing agriculture, which addresses Kenya’s vision 2030.this strategy outlines the characteristics,challenges,opportunities,vision,mission,strategic thrust and various interventions that the ministries will undertake to propel the agricultural sector to the future, aimed at creating a vibrant and productive agricultural sector.
ASDS is part of the operational response to set policies and initiatives designed to re-orient and re-invigorate the national economy, Agriculture being the main focus since it is the country’s back bone of economy.
This is done through the following ways;Formulating and implementing legal FrameworksThe current policy environment is not supportive of private sector-led agriculturaldevelopment. Multiple and complex laws and regulations have evolved in the agriculturalsector, which do not allow for investment in a liberalized economic environment.Appropriate policies should provide for the changed role of Government as a facilitatorand regulator of agricultural activities.The current tax structure is a disincentive to agricultural development. Agriculture facesmany taxes and levies at the farm gate and within marketing–distribution channels. Arationalized taxation system is needed in agriculture to create a favorable climate forproduction and for marketing produce.Priorities set by policy will seek to promote a competitive agricultural sector and developdiversified products and market outlets. The sector will review and harmonize existingpolicies and create a new policy framework to transform it. The ongoing review of alllaws and regulations governing its operations will be completed to create a favorableenvironment for development.It is Government policy to divest from commercial operations. Regulatory institutionswith a dual mandate will be reformed. The development mandate of these institutionswill be turned over to the private sector, including farmer apex organizations. Othercommercial public institutions will be assessed on the basis of the core functions of thesubsector. Research institutions fall under this category.
Improving agribusiness and market accessMarket access is vital to agriculture.The subsector will emphasize collecting, collating and disseminating information ondomestic and international markets. The information will be disseminated to producers,exporters and service providers. Global information networks will be developed throughsubscriptions to trade information systems and close collaboration with Kenya’sdiplomatic service. To support an effective marketing strategy, the agriculture subsectorwill collaborate with other stakeholders in the public sector to facilitate private sectorinvolvement in the development of marketing infrastructure, especially rural marketfacilities. Farmer organizations will be supported and empowered to play their role inproviding market support service
Improving land use and crop productionThe subsector will ensure dynamic equilibrium of agricultural land through sustainableland-use practices and environmental conservation. In land-use development, thesubsector will conceptualize and develop irrigation schemes and soil and waterconservation programs, reclaim dry lands, and protect forests and riverbanks. Throughthis intervention, the subsector will enhance sustainable land management throughpromoting the development and adoption of soil and water conservation measures,agro forestry, riverbank protection, water-harvesting technologies, and equipping andimproving agriculture mechanization stations.Enhancing institutional efficiency and effectivenessAgriculture is the main economic sector of the country and involves many stakeholdersand institutions to deliver the range of services required by the farming community.These stakeholders should be coordinated to avoid duplication of effort and wastage ofresources. The various institutions within the sector need to be efficient and effective inservice delivery CITATION AGR14 l 1033 (AGRICULTURE SECTOR DEVELOPMENT STRATEGY 2010-2020)2. AGRICULTURE AND FOOD ACT 2016-2021 Strategic Plans
The AFA Act, 2013, provides for consolidation of the laws on the regulation and promotion of Agriculture generally to provide for the establishment of AFFA, to make provisions for the respective roles of the national and county government in agriculture and related matters in furtherance of the relevant provisions on the fourth schedule to the constitution and for connected purposes.
This eliminates the conflict of roles between the county and national government.
Based on the new constitution, the AFA Act has set out to boost agricultural growth and productivity through the following ways; enhance technical capabilities of the counties to increase agricultural productionfor food security and wealth creation.The objective of this initiative is to enhance the technical capabilities of the counties to increaseagricultural production through the use of innovative research, extension and market-orientedsolutions. The overarching idea is to boost farmers’ capacity to produce food crops in more efficient,climate-resilient and ecologically responsible ways.Building the capacity of counties will be considered as a multi-dimensional, total-systems approachand process involving the target county government, its staff and its relationships with the social andeconomic environment in which it operates. Engage with the counties on capacity development Carry out a capacity needs assessment Develop joint strategies with counties on capacity buildingProvide capacity building in the identified areasAssess the impact of capacity development initiatives Develop and launch a county awards program Improve irrigation and water use managementAgricultural production through irrigation can be increased by up to 300 per cent. Irrigated land, whichis only at 1.7% currently, contributes 3 percent of the GDP, and provides 18% of the value of allagricultural produce. The direct effect of irrigation is the immediate job creation of up to 15 personsper acre, the supply of adequate food for the population, and the guarantee of a reliable supply of rawmaterials for agro-industries, and the resultant socio economic benefits. AFA in collaboration with thecounty governments and other agencies will promote expansion of irrigation mechanization incounties. Collaborate with relevant institutions to finalize and implement the draft policies and legalframeworks such as the National Irrigation Policy 2015 and the Irrigation Act 2015Develop joint strategies with counties on irrigation mechanization Develop joint strategies with counties to improve rainwater harvesting and storage Develop joint strategies with relevant institutions to rehabilitate and protect water catchmentareasSupport the implementation of the irrigation flagship projects Work with relevant institutions to promote investments in irrigation
Rationalize land use and managementAFA in liaison with the relevant Ministries of Land, Agriculture, Environment and the countygovernments will support development and implementation of policy, legal, regulatory andinstitutional reforms. In particular, AFA will seek to play a significant role in the review andimplementation of the National Land Policy (2009) and Land use planning Bill (2015). Theseframeworks address critical issues of land administration, access, land-use planning, and restitutionof historical injustices, environmental degradation, conflicts, and proliferation of informal settlements,outdated legal framework, institutional framework and information management.Transforming land use for better and sustainable use and management shall be addressed under thefollowing interventions: Facilitate stakeholder policy dialogue on agriculture land use policy and spatial plan Together with the Ministry of Lands, create a consolidated geographic information system-based land registry Develop and implement a land-use master plan Establish institutional capacity for data collection and collation on agricultural land use CITATION AGR l 1033 (AGRICULTURE AND FOOD AUTHORITY STRATEGIC PLAN 2016-2021)References
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