It is almost a year since the Tenth Parliament passed the Agriculture, Fisheries and Food Authority (AFFA) Act 2013, the Crops Act 2013 and the Kenya Agricultural and Livestock Research Act 2013.
The three pieces of legislation were crafted against the backdrop of the proposal by the Kenya Vision 2030 Medium Term Plan of “consolidating agricultural policy reform legislation” and the Agriculture Sector Development Strategy.
Since then, debate has been rife over the implications of implementing the three new laws, given that they seek to introduce radical changes in the manner in which the agricultural sector will be managed going forward.
The Council of Governors has keenly followed the public debate on these laws. The council has also studied proposals by the Agriculture Cabinet Secretary Felix Kosgey to amend the three laws contained in the Statute Law Miscellaneous Amendment Bill No. 2 of 2013 published on October 30, 2013, and tabled before Parliament on November 13 for its First Reading.
Although the amendment Bill has since lapsed, the proposed amendments never addressed the issues of immediate concern to the Council of Governors in particular and the agricultural sector in general.
We would like to re-emphasise that the AFFA Act, if implemented in its current structure, is not viable and is indeed unconstitutional.
It is instructive to note that agriculture is the function number one devolved to counties, according to the Fourth Schedule of the Constitution of Kenya.
However, the Agriculture, Fisheries and Food Authority, as currently constituted, will handle roles and functions that have already been delegated to county governments.
This will generate conflict between the National Government and the 47 counties across all crop sub-sectors. While the AFFA Act ostensibly seeks to create a leaner structure for the agricultural sector, it – in fact – does the opposite by duplicating agricultural functions across the national and county levels.
This is contravention to Article 174 of the Constitution, which clearly states the objects of devolution which include, giving powers of self-governance to the people as well recognising the rights of communities to manage their own affairs and to further their development.
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 trade regulation.
But in sharp contrast to that commitment, the national government — through the AFFA Act and the Crops Act — will be charged with the responsibility of overseeing among other things, the provision of farm inputs and agricultural extension services 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.
A reading of Section 39 of the Crops Act exposes the looming conflict even more clearly as it expressly states that the Crops Act shall supersede any law a county government may enact concerning the development, management, marketing or regulation of a scheduled crop.
The implication of such laws will, first and foremost, be the recentralisation to the national government of power and decision making in agricultural matters that affect communities which is against the letter and spirit of the Constitution.
Secondly, there will be unnecessary legislative and service-delivery conflicts between national government (represented by AFFA) and county governments which will — in turn — delay the realisation of devolution and its accruing benefits to people at the grassroots level.
It is the considered view of the Council of Governors that farmers and other agricultural value chain players will suffer the brunt of double regulation and taxation, not forgetting the confusion that will result from being served by two different providers of the same service. This scenario should not be allowed to obtain.
The council believes that the AFFA Act should serve the national interest but not at the expense of county governments.
As such, the council reiterates that the national government should solely concern itself with formulation of policy and allow the counties to implement the stated agricultural policy.
This, we maintain, is the only way counties can work towards making agriculture contribute at least seven per cent out of the targeted 10 per cent economic growth rate envisioned in the Vision 2030 development blueprint.
It cannot be gainsaid that agriculture is the mainstay of the economy, contributing more than a 25 per cent of the country’s gross domestic product, 65 per cent of its exports and 60 per cent of its employment.
While the State Department of Agriculture says the AFFA Act must be in force by January 24, the council’s position is that it is improper to rush the implementation of an extremely defective piece of legislation on the basis of a self-imposed deadline.
A commencement date is immaterial, measured against the possible loss of direct livelihoods to five million people and the imposition of an extra tax burden on an already constrained economic sector.
We should not allow Kenya’s economic backbone — agriculture — to recede on the basis of a bad law.
The Council of Governors holds the position that rushing to implement the AFFA Act goes against the grain of rational judgement and the spirit of public participation.
The council, therefore, urges the Executive — and more specifically the Agriculture Cabinet secretary — to work with the Parliament to immediately defer implementation of the AFFA Act until extensive consultations are done to carve out a well thought-out legislative reform path for Kenya’s agricultural sector.
Mr Gachagua is the Governor of Nyeri County and chairman of the Agriculture Committee of the Council of Governors.