Public policy has the power to be transformatory, which is why we invest in it. For the best of policies change economies, solving old and even persistent problems and creating new dawns: in frameworks constructed by some of our finest minds, political leaders, technocrats, and experts, all with the aim of changing our collective future.
This stands as an aim that is increasingly now enshrined into our law. For what we do not want for our policy-constructing tax spend are, for instance, new sugar regulations that deepen the decline of our sugar industry, increasing imports, driving away farmers, and felling sugar companies.
For which reason, in 2013, Kenya signed into law the Statutory Instruments (SI) Act, which obliged our law makers to carry out an analysis of the impact of any new statute.
Moving to regulatory impact assessments (RIAs) has required new skills, but it is now law, which makes it obligatory. Moreover, six years forwards from the SI Act, it is reasonable to hope that each ministry has developed the posts and modelling skills to deliver impact assessments with each new round of proposed statute.
Unfortunately, for us as sugar farmers, that has not been the case with the sugar regulations that the president’s office is now reviewing. The Ministry of Agriculture has never published a regulatory impact statement for its sugar industry proposals. The president ordered a task force, and the task force has also proceeded in examining the best possible policies for the future of our sugar industry without any impact statement.
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We do not believe that either the ministry or the task force is meaning to disregard the law on the need for an impact assessment. Indeed, it is possible that the ministry of agriculture may have confused the need for a separate regulatory impact statement with the drawing up of the general explanatory memorandum, which is quite different, with different contents.
But the legal requirement of the regulatory impact statement is that it explains the effect of proposed regulation, and that has never been done for the sugar regulations.
Yet examining the effect of a regulation is extremely important, and even vital in creating a vibrant economy of the future.
That is why the Ministry is obliged by law to give an assessment of the costs and benefits of the proposed new rules, of any other means of achieving the same objectives, and of the reasons for not using those alternative means – all in the regulatory impact assessment.
However, with none of this information yet provided by the Ministry, the government’s moves to enhance public participation in legislation have also played out in allowing us to carry out our own regulatory impact assessment, which we have submitted to the Ministry.
Under the constitution, the public, communities and organisations affected by any policy decision must be involved in the decision-making process. The newly enacted Public Participation Act 2018 further enhances that public consultation.
In many ways, the need to reinvigorate our sugar industry has shown why these new laws on forming laws are so very important and where their value truly sits.
For at the heart of the currently proposed sugar regulations is a proposal that farmers be ‘zoned’. This would have meant they were obliged to sell their sugar cane to one, single designated buyer, in a policy that has proven so damaging elsewhere in the world that it has literally been abandoned and banned - in Australia, India, Pakistan, and elsewhere. It is not that these economies didn’t try zoning, they did, but found it so damaging as to subsequently outlaw it.
In our case, Kenya does not need the further setbacks caused by a damaging policy. The effect of sugar cane zoning will be more mayhem and an accelerating exit by farmers from the growing of sugar.
Thus, the proposed regulations could have actually led to increasing sugar imports, - which may have been supported by prominent importers, but may not have been supported by the National Treasury in seeking to curb our nation’s ballooning trade deficit.
Indeed, the prospect of further driving downwards domestic sugar production, affecting thousands of farmers, and even seeking special waivers from our trading bloc COMESA to have such policies, really shows the value of assessing regulatory impact.
It is a must, and thus in the president’s office we now trust in pursuing regulation designed to deliver more livelihoods from sugar growing, rather than fewer.
For where ministries do not observe the laws, it is only right and proper that our president’s office should demand compliance at this latter-day juncture, in order for everyone to be able to determine the best way forward in creating a future of better livelihoods and better economic growth.
Michael Arum is the Coordinator of the Sugar Campaign for Kenyan cane growers.
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