Was Kenya ban on Uganda, Tanzania maize justified?

Early March Kenya banned maize importation from Tanzania and Uganda over concerns about the high levels of aflatoxin. Kenya claimed the levels were above EAC’s harmonised maximum limit (ML) for total aflatoxin.

Millers faulted the government over blanket ban on imports instead of intercepting only non-conforming consignment and asked that the Kenya Bureau of Standards (Kebs), the Agriculture and Food Authority (AFA) and accredited laboratories to test for aflatoxins at the border point to avoid further delays that would lead to shortage and higher consumer prices.

The control and regulation of trade in maize in EAC is critical to ensure free trade and at the same time to protect the life and health of citizen.

The EAC protocol on SPS is very broad with no control system and enforcement mechanism. The World Trade Organisation (WTO) provides very detailed procedures and guidelines on sanitary and phytosanitary measures (SPS) measures.

Sovereign right

The overall principle of the WTO SPS agreement is to achieve the delicate balance of promoting international trade, market access for food and agricultural products on one hand and recognition of the sovereign right of governments to take measures to protect human, animal and plant life or health in their territories on the other.

WTO SPS agreement Art 2.1 expressively recognises the right of members to take SPS measures necessary for the protection of human, animal or plant life or health, provided that they conform to the disciplines of the SPS Agreement.

Regulators from different countries take different factors into account when enacting SPS measures resulting in a diversity of SPS measures and creating a negative impact on trade as exporters must meet a plethora of standards to gain entry to these markets.

Regulators are encouraged, but not obliged to harmonise their SPS measures around international standards as it is less costly and does not require resources and technical capacity.

The main international standard-setting organisations are the FAO/WHO Codex Alimentarius Commission for food safety, the World Organisation for Animal Health (formerly the International Office of Epizootics), the International Plant Protection Convention (IPPC) for plants and other relevant international organisations open for membership to all WTO members, as identified by the SPS committee.

Codex has not been able to formulate an internationally acceptable ML for aflatoxin in maize and rice since there is a huge difference in perceived risks, food consumption patterns and the levels of aflatoxin contamination in food produced from different agro-ecological regions.

Countries or regions have been left to formulate their own national or regional MLs. The United States has a 20 microgram/kg and EU a more stringent ML of 4 microgram/kg for total aflatoxins in food. In developing countries, MLs for total aflatoxins range from 10 to 20 microgram/kg, with 10 microgram/kg being the most frequent. EAC partner states use an ML of 10 microgram/kg for total aflatoxins in selected foods, cereals, and pulses.

Risk assessment

The Kenyan measure at issue — ML of 10 microgram/kg for total aflatoxins — is an EAC-adopted standard as no risk assessment has been done to ascertain the safe level of aflatoxin. Furthermore, the EAC has not developed a food control system and enforcement mechanism.

WTO SPS agreement provides a benchmark to be followed with regard to operation, control, inspection and approval procedures. It recommends that the operation, control, inspection and approval procedures are simple, short, affordable and do not restrict market access.

The information required for conformity assessment is limited to what is necessary. The process is taken and completed without undue delay and in no less favourable manner for a domestic product.

Lack of transparency is a significant barrier to market access and it increases the cost and difficulty for exporters or traders in determining what requirements their product must comply with in the export market.

For enforcement purpose, transparency and notification of SPS measures require that 1) there is a publication of adopted measures and that there is a reasonable time between publication and entry into force of the measures, 2) there is establishment or existence of National Notification Authority or equivalent where exporters/traders can get answers to reasonable questions and be provided with relevant documents upon request and 3) there is a prior notification of proposed SPS measures that are likely to affect market access.

The jury is out whether Kenya flaunted laws or procedures as per WTO SPS agreement or whether the ban was contrary to EAC SPS protocol that among others states that ‘The Partner States undertake to facilitate the smooth movement of food and agricultural commodities by conducting joint inspection and clearance of food and agricultural commodities’.

In conclusion, the control of MLs for aflatoxins in foods cannot be effective in the absence of compliance by the private sector, coupled with enforcement by governments.

Maize is the most traded grain in East Africa and aflatoxins are cancerous.

The EAC must develop a detailed SPS measure for trade in maize grain and address the enforcement challenges that are exacerbated by high on-farm household consumption of food products, informal trading systems, and the threat of significant economic losses throughout the value chain which could result from enforcement of standards as witnessed by the recent ban of maize from Uganda and Tanzania.

Mr Oduor is director, regional and global trade at Beyond Borders Limited.