An Act of Parliament to provide for the development, regulation, and promotion of the sugar industry and to provide for the establishment, powers, and functions of the Kenya Sugar Board.
| PROPOSED PROVISION FOR AMENDMENT | PROPOSED AMENDMENT | OUR COMMENTS |
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| Clause 2 Interpretation | “agreements” means the agreements specifying the standard provisions governing the rights and obligations of growers, millers, and out-grower institutions in the sugar industry. | This definition provides the scope of agreements that can be entered into by growers, millers, and out-grower institutions of the sugar industry. |
“by-product” means any substance, other than sugar, produced incidentally during the process of manufacturing sugar. | A precise definition of “by-product” provides regulatory clarity for the sugar industry and the government agencies overseeing it. It helps stakeholders understand what materials or substances are considered by-products, ensuring consistent interpretation and application of the law. |
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“farmgate” means prices received by farmers for their sugarcane at the location of farm. | Transparent pricing mechanisms ensure that sugarcane farmers receive fair and equitable compensation for their efforts and investments in cultivation. This supports the financial well-being of farmers and incentivizes them to continue growing sugarcane. Secondly, stable and predictable prices at the farm level provide income stability for sugarcane farmers. This stability enables them to plan their finances, make long-term investments and manage risks associated with sugarcane farming. Thirdly, when farmers receive reasonable prices for their sugarcane, they are more likely to invest in modern agricultural practices. This investment leads to higher yields and product quality. |
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“guidelines” means the guidelines for agreements between parties in the sugar industry set out in the Third Schedule. | Guidelines for agreements provide a structured framework that outline the terms and conditions of an agreement. This clarity helps all parties involved understand their rights, responsibilities, and obligations, reducing the likelihood of misunderstandings and disputes. |
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“grower” means a person who produces sugarcane or any crop in Kenya for the manufacture of sugar. | Defining the term "grower" ensures that there is a common and legally accepted understanding of who qualifies to be a grower. This clarity helps avoid disputes and misunderstandings related to the eligibility of individuals to participate in the production of sugarcane. |
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“industry” means the sugar industry in Kenya and includes the growing of sugarcane and any other sugar producing crop, the manufacturing, refining, marketing, transportation of sugar and disposal of sugar and its by-products. | This definition provides the scope of industries that will be governed and regulated by the Bill. We propose the addition of the word “sugar” immediately before the word “industry” and a review of the use of this definition throughout the Bill. This proposal enhances uniformity as the terms “industry” and “sugar industry” have been used interchangeably throughout the Bill. |
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“mill gate” means a site where sugarcane varieties are grown under strictly controlled agronomic conditions for eventual establishment of the sugarcane. | We propose the deletion of this term as it has not been used in the Bill. |
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“miller” means a person licensed to operate a sugar mill or a jaggery mill in Kenya for the production of sugar including refined sugar and other by-products. | We propose that the term “jaggery” is defined in clause 2 of this Bill. The term has been used in the Bill without a definition being provided. |
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“outgrower” means a person who has a sugarcane farm in a catchment area and who has in force a cane supply contract in respect of the sugarcane grown on such farm and registered by the Board. | We propose the addition of the word “sugar” immediately before the word “catchment”. The rationale for this proposal is that the term “sugar catchment area” has been defined in clause 2 of the Bill. |
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“refined sugar” means sugar, which complies with the specifications set by the body for the time responsible for setting standards. | Defining this term helps protect consumers from misleading or fraudulent labelling of sugar products. It ensures that products labelled as "refined sugar" meet specific quality and purity standards. |
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“sugar” means crystalline or liquid sucrose in any of its recognized commercial forms, intended for human consumption or other uses and includes raw sugar and industrial sugar. | We propose that the term “industrial sugar” is defined in clause 2 of this Bill. The term has been used in clause 21 of the Bill without a definition being provided. |
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“sugar catchment area” means a specific geographical area where farmers are clustered within a suitable sugar catchment area for purposes of election to the Board under the First Schedule. | Sugarcane farmers electing members to the Board ensures that their interests and concerns are adequately represented in the decision-making process. |
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We propose that the inclusion of a new definition on what constitutes a “sugar catchment area”. The term “sugar catchment area” has been used to define the same term. A new definition would be necessary to enhance clarity on the definition of this term. |
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“sugarcane growers apex body” means a national sugarcane farmers and out grower organisation under a cane supply contract and in catchment areas under the First Schedule gazetted as such by the Cabinet Secretary for the time responsible for agriculture. | We propose the deletion of this term as it has not been used in the Bill. |
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“stakeholder” means a person with significant interest in the sugar industry and includes government, millers, growers, and out-grower institutions. | A definition of this term ensures that all relevant individuals and entities with a significant interest in the sugar industry are recognized and considered in regulatory and decision-making processes that involve the sugar sector. |
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PART II - ESTABLISHMENT, POWERS, AND FUNCTIONS OF THE KENYA SUGAR BOARD |
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Clause 3 Establishment and incorporation of the Board | There is established a board to be known as the Kenya Sugar Board. The Board shall be a body corporate with perpetual succession and a common seal and shall, in its corporate name, be capable of: a. suing and being sued; b. taking, purchasing or otherwise acquiring, holding, charging or disposing of movable and immovable property; c. borrowing or lending money; and d. doing or performing all such other acts necessary for the proper performance of its functions under this Act which may lawfully be done or performed by a body corporate. | The purpose of this clause is to give the Board legal capacity to act in its own name. |
Clause 4 Functions of the Board | The Board shall: a. regulate, develop and promote the sugar industry; b. co-ordinate the activities of individuals and organizations within the industry; and c. facilitate equitable access to the benefits and resources of the industry by all interested parties. Without prejudice to the generality of subsection (1), the Board shall: a. participate in the formulation and implementation of overall policies, plans and programs of work for the development of the industry; b. act as an intermediary between the industry and the Government; c. facilitate the flow of research findings to interested parties through the provision of effective extension services; d. monitor the domestic market with a view to identifying and advising the Government and interested parties on any distortions in the sugar market; e. facilitate the arbitration of disputes among interested parties; f. facilitate the export of local sugar; g. promote and encourage the use of environmentally friendly technologies in the industry; h. provide advisory services to growers, out-grower institutions and millers; i. facilitate an equitable mechanism for the pricing of sugarcane and appropriation of proceeds from the disposal of the by-products of sugar production between millers and growers as stipulated in the guidelines; j. represent the industry in such organizations as are relevant for the promotion of the industry; k. oversee the formulation of standard provisions governing the mutual rights and obligations of growers, millers and other interested parties; l. collect, collate and analyze industry statistics and maintain a data base for the industry; m. licence sugar mills; n. enforce and monitor compliance with standards along the sugar value chain; o. facilitate value addition and product diversification in the sugar sub-sector; p. formulate and implement a strategic plan for the sugar sub-sector at least once every five years; q. formulate guidelines on an efficient and economical transportation of sugar; r. conduct local and international sugar market intelligence and advise stakeholders accordingly; s. establish linkages with various government agencies and research institutions to enhance quality assurance and research; t. promote the efficiency and development of the industry through the establishment of appropriate institutional linkages; and u. perform such other functions as may, from time to time, be assigned by the interested parties. | The functions of the Board are clearly stated to ensure that it does not perform tasks that are ultra vires. |
Clause 5 Functions of the county governments | The county government shall: a. issue sugarcane nursery certificates; b. offer and coordinate extension services on sugar production and milling in the respective county; c. in collaboration with the Board and law enforcement agencies, enforce regulations within the county; d. monitor and report incidences of pests and disease outbreaks and take appropriate action in collaboration with the Board and other relevant government agencies; and e. establish an efficient road network for the movement of sugarcane, delivery of other services and general development of the sugar industry. | Defining the county government’s functions allows it to align its actions and policies with national-level strategies and objectives related to the sugar industry. This ensures coherence and coordination between both levels of government. Secondly, the functions of the county government are clearly stated to ensure that it does not perform tasks that are ultra vires. |
Clause 6 Composition of the Board | The Board shall comprise of: a. a non-executive Chairperson elected by the Board from among the representatives of growers on the Board and appointed by the Cabinet Secretary; b. five representatives elected by growers from each sugar catchment area as per the First Schedule; c. one representative elected by sugar millers who is knowledgeable in sugar technology and value addition; d. the Principal Secretary in the Ministry for the time being responsible for matters relating to agriculture or a representative nominated by the Principal Secretary in writing; e. one person nominated by the Council of County Governors who is knowledgeable in extension services and management of farmer institutions; f. the Principal Secretary for the time being responsible for National Treasury or a representative nominated by the Principal Secretary in writing; g. the chief executive of the Board appointed under section 14 who shall be an ex-officio member and the secretary to the Board. The members under subsection (1) (b), (c) and (e) shall be appointed by the Cabinet Secretary by notice in the Gazette. A person shall not be appointed as a chairperson of the Board of Directors unless the person holds at least a degree or its equivalent in any discipline from an institution recognized in Kenya and has relevant experience in the sugar sector. | For sub-clause (1) (g), we propose the addition of the word “officer” immediately after the word “executive”. This proposal enhances uniformity as the Bill has used the term “chief executive officer” throughout its provisions. |
| In addition to the requirement provided in sub-clause (3), we propose that the chairperson meets the requirements of chapter six of the Constitution. Leadership and integrity principles ensure that persons appointed to government positions possess a strong commitment to ethical conduct. |
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| The inclusion of sub-clause (3) is a good proposal. Specifying qualifications in the Bill provides clear and standardized criteria for eligibility in a particular position. This clarity helps both applicants and decision makers understand the minimum requirements for the role. |
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Clause 7 Term of appointment | A person appointed as chairperson or a member of the Board under section 6 (1) (b), (c) and (e) shall serve for a term of three years renewable for one further term. Members of the Board under section 6(1) (b), (c) and (e) shall be appointed at different times so that their respective expiry of terms of office shall fall at different times. | The inclusion of sub-clause (2) is a good proposal as it helps maintain continuity and stability in the Board. If all Board members were appointed at the same time and their terms expired simultaneously, it could lead to significant turnover and disruption in the composition of the Board. Further, this allows the Board to effectively perform its functions as it will have the required quorum. |
Clause 8 Vacation of office | A person shall cease to be a member of the Board of if the person: a. is absent from three consecutive meetings of the Board without notifying the chairperson in writing; b. becomes an officer, agent or member of staff of the Board; c. resigns in writing addressed to the Cabinet Secretary; d. is convicted of a criminal offence and sentenced to a term of imprisonment exceeding six months without the option of a fine; e. is declared bankrupt; f. is unable to perform the functions of his or her office by reason of mental or physical infirmity; or g. dies. | Stating the grounds for a vacancy holds decision-makers accountable for their actions. It ensures that decisions regarding personnel changes are made for valid and justifiable reasons rather than being arbitrary or influenced by bias. |
Clause 11 Committees of the Board | The Board may establish such committees as it may consider necessary for the efficient performance of its functions and the exercise of its powers under this Act. The Board may co-opt to sit in the committees established under subsection (1), such other persons whose knowledge and skills are necessary for the performance of the functions of the Board. | Co-opting allows the Board to bring in individuals with specialized expertise, knowledge or experience that will assist it in performing its functions. This can be valuable when the existing Board members lack the required skills or expertise. |
Clause 12 Delegation of powers of the Board | The Board may, either generally or in any particular case, delegate to any committee of the Board or to any member, officer, employee or agent of the Board, the exercise of any of the powers or the performance of any of the functions or duties of the Board under this Act. | Delegation optimizes resource allocation. It ensures that tasks are assigned to the most suitable individual, maximizing the use of available skills and expertise. |
Clause 13 Remuneration of Board members | The Board shall pay to its members, such remuneration, fees, or allowances for expenses as determined by the Cabinet Secretary on the advice of the Salaries and Remuneration Commission. | The inclusion of the Salaries and Remuneration Commission is a good proposal. This proposal will be in line with Article 230 (4) (a) of the Constitution which gives the Salaries and Remuneration Commission power to set and review the remuneration and benefits of all public officers. |
Clause 14 Chief executive officer | There shall be a chief executive officer of the Board who shall be appointed by the Board and whose terms and conditions of service shall be determined by the Board in the instrument of appointment or otherwise in writing from time to time. A person shall be qualified for appointment under this section if the person: a. holds a relevant degree from a university recognized in Kenya; b. has at least ten years knowledge and experience from a relevant field; c. has at least five years’ experience in a position of senior management; and d. meets the provision of Chapter Six of the Constitution. The chief executive officer shall be an ex-officio member of the Board but shall have no right to vote at any meeting of the Board. The chief executive officer shall, subject to the directions of the Board, be responsible for the day-to-day management of the affairs of the Board. | For sub-clause (1), we propose that the remuneration of the chief executive officer is determined by the Board in consultation with the Salaries and Remuneration Commission. This proposal will be in line with Article 230 (4) (a) of the Constitution which gives the Salaries and Remuneration Commission power to set and review the remuneration and benefits of all public officers. |
The inclusion of sub-clause (2) is a good proposal. Specifying qualifications provides clear and standardized criteria for eligibility in a particular position. This clarity helps both applicants and decision makers understand the minimum requirements for the role. |
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Clause 15 Staff of the Board | The Board may appoint such officers and other staff as are necessary for the proper discharge of its functions under this Act, upon such terms and conditions of service as the Board may determine. | We propose that the remuneration of the staff is determined by the Board in consultation with the Salaries and Remuneration Commission. This proposal will be in line with Article 230 (4) (a) of the Constitution which gives the Salaries and Remuneration Commission power to set and review the remuneration and benefits of all public officers. |
Clause 16 Protection from personal liability | A member, officer, employee, or agent of the Board shall not be held personally liable to any action, claim or demand for a matter or thing done bonafide for the purpose of executing the functions, powers, or duties of the Board. | This means that a member, officer, employee, or agent of the Board can be held liable for acts not done in good faith. |
Clause 17 Liability of the Board for damages | Section 16 shall not relieve the Board of the liability to pay compensation to any person for any injury to him, his property or to any of his interests caused by the exercise of any power conferred by this Act or by the failure, whether wholly or partially, of any works. | This clause ensures that aggrieved persons are adequately compensated for losses or injuries caused by the Board when performing its functions. |
PART III-LICENSING AND REGISTRATION |
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Clause 18 Requirement of a licence to operate mill | A person shall not operate a sugar mill or a jaggery mill unless he or she is a holder of a current licence issued by the Board upon recommendation by the relevant County Government for that purpose. A person who contravenes the provisions of subsection (1) or acts in contravention of the conditions of a licence granted under this Act commits an offence and shall be liable on conviction, to a fine not exceeding three times the domestic value of the sugar in respect of which the offence is committed, or to a fine not exceeding ten million shillings, whichever is the higher, or to imprisonment for a term not exceeding five years, or to both. | This clause acts as a deterrence in ensuring that a person obtains a licence from the Board before operating a sugar mill or jaggery mill. |
Clause 19 Issue of licence and licence fees | A person shall apply to the Board for a licence to operate a sugar mill or a jaggery mill in the prescribed form. The Board shall not issue a licence under this Act unless: a. it is of the opinion that the applicant is a fit and proper person to hold such a licence; and b. it is satisfied that the applicant has sufficient knowledge, experience and capacity to enable him conduct business or that he has, amongst his staff, a person with such knowledge and experience. Every licence shall specify the premises upon which the milling of sugar may be carried on. Every licence shall, unless earlier revoked, expire on the 30th of June next following the date of issue. There shall be payable for the issue of a licence, such fees as the Board, after consultation with the Cabinet Secretary, may prescribe. An application for the renewal of a licence shall be made to the Board not later than the 1st of June in the year in which the current licence is due to expire. The issuance of a licence to an applicant under this section shall not be withheld without reasonable cause. A person shall not import or export sugar without a valid licence issued by the Board. | For sub-clause (1), we propose that a template of the application form is added as a Schedule to this Bill. A template provides a standard format that is easy to understand and use. Furthermore, the use of a template enhances uniformity. |
| For sub-clause (3), we propose the addition of the words “or jaggery” immediately after the word “sugar”. The licences issued in clauses 18 (1) and 19 (1) is for persons who wish to operate a sugar mill or a jaggery mill. |
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The mode of communication to the applicants has not been stated in this clause. We propose that the Board communicates its decision to the applicants through written letters and e-mails. The use of e-mail allows for near-instantaneous communication, enabling messages to be sent and received within seconds, regardless of the geographical distance. A written letter serves as a historical record as it can be stored and used in the future when needed. |
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We propose the addition of timelines in this clause to allow the Board to review the application forms within a prescribed period, preferably within a period of twenty-one days. The addition of timelines ensures that the Board reviews the application forms within a prescribed period without delays. |
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Clause 20 Sugar import | A person who imports sugar into Kenya shall, prior to importation: a. provide evidence that the sugar they intend to import is not available in the local market; b. provide a sample of the sugar to be imported and pre-import verification certificate from the country of origin; and c. obtain pre-import approval from the Board. A person who contravenes this section commits an offence and shall, on conviction, be liable to imprisonment for a term not exceeding five years or to a fine not exceeding ten million shillings or to both. This section shall apply to importation of sugar cane. | Sub-clause (1) (a) is a good proposal. One of the primary reasons for requiring evidence of sugar unavailability is to protect the domestic sugar industry. If sugar imports flood the local market when domestic producers have sufficient supply, it can lead to a drop in sugar prices, harming local sugar producers' economic viability. Secondly, local sugar production often involves a significant number of farmers and workers who depend on the industry for their livelihoods. Restricting unnecessary imports ensures that these individuals have a reliable market for their products. |
Sub-clause (1) (b) is a good proposal. Importing countries often have specific quality standards and regulations for food products, including sugar. Providing a sample allows the importing country to assess the quality of sugar and ensure that it meets the required safety and purity standards. |
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Clause 21 Industrial sugar | A licenced sugar miller shall be licenced by the Board to carry out the business of processing industrial sugar. The Board shall regulate the processing of industrial sugar. | We propose that a template of the application form for applying for a licence is included as a Schedule to this Bill. A template provides a standard format that is easy to understand and use. Furthermore, the use of a template enhances uniformity. |
| We propose the addition of timelines in this clause. Consequently, we propose that the Board reviews the application form within twenty-one days. The addition of timelines ensures that the Board reviews the application forms within a prescribed period without delays. |
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| The mode of communication to the applicants has not been stated in this clause. We propose that the Board communicates its decision to the applicants through written letters and e-mails. The use of e-mail allows for near-instantaneous communication, enabling messages to be sent and received within seconds or minutes, regardless of the geographical distance. A written letter serves as a historical record as it can be stored and used in the future when needed. |
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Clause 22 Registration of millers | A person shall not conduct the business of a miller unless he or she is registered by the Board and the premises in which the business is specified in the register. The Board shall issue to every miller registered under this section, a certificate of registration specifying the premises at which milling may be carried on by the miller. No fee shall be charged in respect of any registration or certification of registration made or issued under this section. In issuing certificates of registration under subsection (3), the Board shall satisfy itself that the premises upon which milling may be carried out meets the environmental standards set by the National Environmental Management Authority and the miller has been issued with a certificate of safety by the relevant county government. A miller may offer extension or other services to growers. Every miller registered under this section shall conduct business in accordance with this Act and any regulations made thereunder. A person who contravenes the provisions of this section commits an offence and shall upon conviction be liable to imprisonment for a term not exceeding five years or to a fine not exceeding ten million shillings or to both. | For sub-clause (1), we propose that the requirements and procedure for applying for registration be added as a Schedule to this Bill. |
PART IV-ESTABLISHMENT OF THE KENYA SUGAR RESEARCH INSTITUTE |
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Clause 23 Establishment of the Kenya Sugar Research Institute | There is hereby established a body to be known as the Kenya Sugar Research Institute. The Institute is a body corporate with perpetual succession and a common seal and shall, in its corporate name, be capable of: a. suing and being sued; b. taking, purchasing or otherwise acquiring, holding, charging and disposing of movable and immovable property; c. borrowing and lending money; d. entering into contracts; and e. doing or performing all other things or acts necessary for the proper performance of its functions under this Act, which may lawfully be done or performed by a body corporate. | The purpose of this clause is to give the Institute legal capacity to act in its own name. |
Clause 24 Functions of the Institute | The Institute shall: a. promote, co-ordinate and regulate research in sugar and sugar diseases; and b. expedite equitable access to research information, resources and technology and promote the application of research findings and technology in the development of sugar. For the purpose of carrying out its functions, the Institute shall: a. formulate policy and make policy recommendations to the Cabinet Secretary on sugar research; b. prioritise areas for, and co-ordinate, sugar research in Kenya in line with the national policy on sugar; c. determine and advise the Government on the resource requirements for sugar research in Kenya both at the national and county level; d. regulate, monitor and ensure that all sugar research undertaken by other institutions or persons undertaking sugar research is consistent with the national priorities specified in the relevant policy documents; e. formulate or approve medium and long term research plans, strategies and budgets of the Institute; f. provide grants to institutions or persons desirous of carrying out research and training programs which are consistent with the national research priorities and plans of the Institute; g. support and promote the training and capacity building in relation to agricultural research; h. liaise with and ensure the co-ordination of institutions, agencies and persons involved in sugar research; i. establish platforms for the purposes of sharing research information, advancing research and transfer of technology and dissemination of information relating to advancements made in sugar research; j. conduct training in industry best practice and value-addition; k. ensure continuance of performance improvement in the field of sugar research; l. breed sugarcane varieties suited for various agro-ecological areas of Kenya; m. conduct research on nutritional requirements of sugarcane in order to provide recommendations on the appropriate fertilizers; n. appraise technologies on land preparation, drainage and water management for economical cane production; o. study and monitor pests and diseases that affect sugarcane and recommend appropriate control strategies; p. develop agronomic packages for sugarcane maintenance and management; q. institute socio-economic investigations to improve human resource management and enhance development of the sugar industry as an agribusiness; r. test, design and evaluate farm machinery and factory equipment for efficient sugar production; s. promote the transfer of sugar technology based on applied research through relevant extension mechanisms; t. foster research on sustainable productivity, environmental issues, human safety at field and factory levels; u. collaborate with the Government, the industry, universities and other national and international organizations for the purpose of furthering the Institute's mission; v. analyse soil and plant samples for advisory purposes; w. offer modular courses on various aspects of cane management and practices; and x. perform such other function as may be conferred on it by thisAct or any other written law. | The functions of the Institute are clearly stated to ensure that it does not perform tasks that are ultra vires. |
Clause 25 Management of the Institute | The Management of the Institute shall vest in the Board which shall consist of: a. a chairperson appointed by the Cabinet Secretary who shall have a background in agricultural research or related field; b. five persons elected by growers from each of the sugar catchment areas under the First Schedule; c. the chief executive officer of the Board; d. the Principal Secretary for the time being responsible for the National Treasury or a representative appointed in writing; e. the chief executive officer of the Kenya Agricultural Livestock and Research Organization; and f. the Director General who shall be an ex officio member. | For paragraph (a), we propose that the chairperson is appointed through a fair, transparent, and competitive process. A fair, transparent, and competitive appointment process ensures that candidates are evaluated based on their qualifications, skills and experience. This helps to attract and select the most suitable individual, contributing to the overall effectiveness and efficiency of the organization. Secondly, this proposal ensures that appointments are done in a fair and transparent manner in accordance with the values and principles set out in the Constitution. |
| The Institute has an odd number of members who can vote and make decisions during meetings. This is a good proposal. When there’s an even number of members who can vote, there’s a greater risk of deadlocks. This makes it difficult for the Board to make decisions, resolve conflicts or move forward with its agenda. An odd number of members ensures that there will always be a majority decision. |
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Clause 26 Application | The provisions of sections 8, 9, 10, 11 and 12 shall apply to the Board of the Institute with necessary modification. | This clause indicates the methods in which the Institute uses to raise funds for conducting its activities. This ensures that clauses 8 to 11 of the Bill apply to both the Institute and the Board. This ensures uniform application of the Bill’s provisions. |
Clause 27 Funds of the Institute | The funds of the Institute shall consist of: a. monies remitted by the Board from the sugar development levy; b. any monies received by the Institute from grants and donations; and c. monies from any other source as approved by the responsible Ministry. | This clause indicates the methods in which the Institute uses to raise funds for conducting its activities. |
Clause 28 Director General of the Institute | There shall be a Director General of the Institute who shall be appointed by the Board of the Institute whose terms and conditions of service shall be determined by the Board of the Institute in the instruments of appointment or otherwise in writing from time to time. A person shall be qualified for appointment under this section if the person: a. holds a degree from a university recognized in Kenya in agricultural research, soil and seed research, soil science or related field; b. has at least five years’ experience in managerial capacity; and c. meets the provisions of Chapter six of the Constitution. | For sub-clause (1), we propose that the remuneration of the Director General is determined by the Board of the Institute in consultation with the Salaries and Remuneration Commission. This proposal will be in line with Article 230 (4) (a) of the Constitution which gives the Salaries and Remuneration Commission power to set and review the remuneration and benefits of all public officers. |
We propose that the director general is appointed by the Board of the Institute through a fair, transparent, and competitive process. A fair, transparent, and competitive appointment process ensures that candidates are evaluated based on their qualifications, skills, and experience. This helps to attract and select the most suitable individual, contributing to the overall effectiveness and efficiency of the organization. Secondly, this proposal ensures that appointments are done in a fair and transparent manner in accordance with the values and principles set out in the Constitution. |
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The functions of the director general have not been included in this clause. As an ex-officio member, we propose that the director general is responsible for the day-to-day management and affairs of the Board. This proposal is similar to the role assigned to the chief executive officer in clause 14 (4) of the Bill. |
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PART V-APPOINTMENT OF CROP INSPECTORS |
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Clause 29 Appointment of crop inspectors | The Board may appoint qualified persons to be crop inspectors for the purposes of this Act. For purposes of subsection (1), the Board may, by regulations, prescribe the qualifications for appointment as a crop inspector. | Clearly listing the qualifications helps both the Board and potential candidates understand the minimum requirements for the job. This transparency ensures that applicants have a realistic understanding of what is expected and whether they are a suitable fit for the role. |
We propose that a definition of “crop inspectors” is included in clause 2 of the Bill. The term has been used in the Bill without a definition being provided. Further, this proposal enhances clarity. |
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Clause 30 Entry and inspection | An inspector or a person duly authorized in writing in that behalf by the Board may, at all reasonable times and upon production of such authority to any person so requesting: a. enter any land or buildings occupied by the holder of a licence issued under this Act, or a person registered under this Act; b. make such inspection and enquiries as the person may deem necessary for ascertaining whether the provisions of this Act or the terms and conditions of the respective licence are being complied with; and c. may require any person found thereon to give such information as the person may require. | Regular inspections ensure that the sugar and jaggery production process adheres to quality standards. This helps maintain product consistency, which is crucial for consumer satisfaction and market competitiveness. |
Clause 31 Powers of entry | For the purposes of this Act, an inspector who has reasonable grounds may: a. at any reasonable time, enter upon any land, premises or vehicle; b. take such persons and things as the inspector considers necessary; c. perform the functions or exercise the powers conferred by this Act or any other written law; d. make enquiries or carry out a search to ascertain if this Act is being complied with; e. demand the production by a licence holder of the licence for examination; f. seize and remove any article or thing in respect of which the inspector has reasonable grounds for believing that an offence under this Act is being has been committed; or g. do any other thing authorized under this Act. The owner or occupier of any land or a person in control of any premise or a vehicle which an inspector has entered under subsection (1) shall render such reasonable assistance as may be required by the inspector. A person who refuses, unreasonably delays or fails to comply with a requirement under subsection (2) commits an offence. | Crop inspectors play a crucial role in safeguarding food safety by inspecting sugar processing facilities. They need access to these premises to check on the proper handling, storage, and transportation of sugar to prevent contamination and ensure food safety standards are met. |
Clause 32 Obstruction of inspectors | A person shall not prevent, hinder, or obstruct an inspector in the performance of the functions, and duties or exercise of powers conferred by this Act. A person who contravenes subsection (1) commits an offence and shall be liable, on conviction, to a fine not exceeding one million shillings, or to imprisonment for a term not exceeding two years, or both. | This proposal acts as a deterrence in ensuring that a person complies with the provisions of this Bill relating to inspection by an inspector. |
PART VI - FINANCIAL PROVISIONS |
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Clause 33 Funds of the Board | The funds of the Board shall comprise of: a. such monies as may be appropriated by the National Assembly for the purposes of the Board; b. such monies as may accrue to or vest in the Board in the course of the exercise of its powers or the performance of its functions under this Act; and c. all monies from any other source provided for donated or lent to the Board. | This clause indicates the methods in which the Board will use to raise funds for conducting its activities. |
Clause 34 Sugar development levy | The Cabinet Secretary shall, in consultation with the Board, by order in the Gazette, impose a levy on domestic sugar and a ten per centum of CIF value on imported sugar to be known as the Sugar Development Levy. The levy shall be payable at such rate as may be specified in the order. An order under this section may contain provisions as to the time at which any amount payable by way of the levy shall become due. All moneys received in respect of the levy shall be paid to the Board and if not paid on or before the date prescribed by the order, the amount due and any sum payable under subsection (5) shall be a civil debt recoverable summarily by the Board. If a person fails to pay any amount payable by him her by way of the levy on or before the date prescribed by the order, a sum equal to five per centum of the amount shall be added to the amount due for each month or part thereof during which the amount due remains unpaid. The Board shall apply the money received under this section for the furtherance of the objects of the Board. The Sugar Development Levy collected under subsection (2) shall be apportioned as follows: a. fifteen per centum shall be applied by the Board for income or price stabilization for sugar growers; b. twenty per centum shall be applied by the Board in the furtherance or exercise of any function or power of the Board; c. twenty per centum shall be remitted directly to the Institute; and d. forty five per centum shall be applied for infrastracture development in the sugar subsector on a pro rata basis. The funds provided for under subsection (7)(a) shall be used to provide for sustainable, affordable credit and advances to farmers for all or any of the following purposes: a. farm improvement; b. farm inputs; c. farming operations; and d. price stabilization. | We propose that the sugar development levy is only imposed on imported sugar. Imposing the sugar development levy on domestic sugar will lead to an increase in the prices of sugar and its by-products, making them unaffordable to most Kenyans. Further, an increase in the price of domestic sugar will lead to an increase in the prices of other products that use sugar as one of the ingredients. |
Clause 35 Sugar Development Fund | There is established a Fund to be known as the Sugar Development Fund which shall be administered by the Board. The Fund shall consist of: a. the Sugar Development levy; b. any funds provided by bilateral or multilateral donors for the purposes of the Fund; c. any moneys provided by the National Assembly for the purposes of the Fund; d. any moneys provided by a county assembly for the purposes of the Fund; and e. moneys from any other source approved by the Board. | We propose that the purpose of the Fund is included in this clause. Clearly stating the purpose ensures there’s transparency regarding how the Fund will be used. Further, this proposal enhances clarity by removing the ambiguity present in this clause. |
Clause 37 Annual estimates | Before the commencement of each financial year, the Board shall cause to be prepared estimates of revenue and expenditure of the Board for that financial year. The annual estimates shall make provision for all the estimated expenditure of the Board for the financial year concerned and in particular, shall provide for: a. the payment of salaries, allowances and other charges in respect of the staff of the Board; b. the payment of pensions, gratuities and other charges in respect of retirement benefits which are payable out of the funds of the Board; c. the proper maintenance of the buildings and grounds of the Board; d. the acquisition, maintenance, repair and replacement of the equipment and other movable property of the Board; and e. the creation of such reserve funds to meet future or contingent liabilities in respect of retirement benefits, insurance or replacement of buildings or equipment, or in respect of such other matters as the Board may deem appropriate. The annual estimates shall be approved by the Board before the commencement of the financial year to which they relate and once approved, the sum provided in the estimates shall not be increased without the prior consent of the Board. | The annual estimates determine how much money is allocated to the Board by the National Assembly before the commencement of each financial year. |
Clause 38 Accounts and audit | The Board shall cause to be kept all proper books and records of accounts of the income, expenditure, assets, and liabilities of the Board. Within a period of three months from the end of the financial year, the Board shall submit to the Auditor General or to an auditor appointed under subsection (3), the accounts of the Board together with: a. a statement of the income and expenditure of the Board during that year; and b. a statement of the assets and liabilities of the Board on the last day of that year. The accounts of the Board shall be audited by the Auditor General or by an auditor appointed by the Board with the written approval of the Auditor General. The appointment of an auditor under subsection (3) shall not be terminated by the Board without the prior written consent of the Auditor General. The Auditor General may give general or specific directions to an auditor appointed under subsection (3) and the auditor shall comply with such directions. An auditor appointed under subsection (3) shall report directly to the Auditor General on any matter relating to the directions given under subsection (5). Within a period of six months after the end of each financial year, the Auditor General shall report on the examination and audit of the accounts of the Board to the Cabinet Secretary and where an auditor has been appointed under subsection (3), such auditor shall transmit a copy of the report to the Auditor General. The fee payable to an auditor, appointed under subsection (3) shall be determined and paid by the Board. Nothing in this Act shall be construed to prohibit the Auditor General from carrying out an inspection of the records and accounts of the Board whenever it appears to him desirable. Notwithstanding anything in this Act, the Auditor General may transmit to the Cabinet Secretary a special report on any matters incidental to his power under this Act and section 19(3) and (4) of the Exchequer and Audit Act (Cap. 412) shall, with necessary modifications, apply to any report made under this section. | For sub-clause (1), we propose that this clause stipulates a prescribed period for maintaining the records before they are disposed of. Secondly, this clause ensures that monies spent and raised by the Board can be tracked and accounted for. |
PART VII - ESTABLISHMENT OF THE SUGAR ARBITRATION TRIBUNAL |
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Clause 40 Establishment of the Sugar Arbitration Tribunal | There is hereby established a Tribunal to be known as the Sugar Arbitration Tribunal. The Tribunal shall consist of: a. a chairperson appointed by the Chief Justice who shall be a person qualified to be appointed as a judge of the High Court; and b. four other members, being persons with expert knowledge of the matters likely to come before the Tribunal and who are not persons with a direct material interest in the sugar industry, all of who shall be appointed by the Chief Justice in consultation with the Attorney-General and the Council of County Governors. The Chairperson and members of the Tribunal shall serve on a part-time basis. The members of the Tribunal appointed under subsection (2) shall hold office for such period, not exceeding three years, on such terms and conditions as shall be specified in the instrument of appointment but shall be eligible for re- appointment for one further term of a period not exceeding three years. A person shall not be qualified to be appointed a s a member of the Tribunal if that person is a public servant o r takes an active part in the activities of a political party. A person shall not qualify for appointment under this section unless the person has met the requirement of Chapter Six of the Constitution. The provisions set out in the Fourth Schedule shall have effect with respect to the meetings and procedure of the Tribunal. Except as provided in the Fourth Schedule, the Tribunal shall regulate its own procedure as to the conduct of meetings. | For sub-clause (2), we propose that members of the Tribunal are appointed through a fair, transparent and competitive process. A fair, transparent, and competitive appointment process ensures that candidates are evaluated based on their qualifications, skills, and experience. This helps to attract and select the most suitable individual, contributing to the overall effectiveness and efficiency of the organization. Secondly, this proposal will ensure that appointments are done in a fair and transparent manner in accordance with the values and principles set out in the Constitution. |
The Tribunal has an odd number of members who can vote when determining a dispute. This is a good proposal. When there’s an even number of members who can vote, there’s a greater risk of deadlocks. This makes it difficult for the Tribunal to make decisions, resolve conflicts, or move forward with its agenda. An odd number ensures that there will always be a majority decision. |
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Clause 41 Jurisdiction of the Tribunal | The Tribunal shall determine: a. disputes between sugarcane farmers; b. disputes between sugarcane farmers and the following: I. out grower institutions; II. millers; III. growers; or IV. other interested party. c. disputes relating to cane pricing; and d. disputes relating to contract farming. | The scope of the Tribunal’s jurisdiction has been clearly stated to prevent the Tribunal from making decisions that exceed its mandate. |
Paragraph (a) of this clause is ambiguous. We propose that a scope on the disputes is provided. This will enhance clarity by removing the ambiguity present in the paragraph. |
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Clause 42 Determination of disputes | The Tribunal shall determine any dispute before it expenditiously, but in any case, shall determine a dispute within a period of three months from the date the dispute is lodged. An Appeal shall lie from the decision of the Tribunal to the High Court on points of law and facts and on points of law to the Court of Appeal. A decision of the Tribunal shall be enforced in the same manner as a decision of a Magistrates Court. The Tribunal shall apply the rules of evidence and procedure under the Evidence Act (Cap. 80) and the Civil Procedure Act (Cap. 21), with the necessary modifications, while ensuring that its proceedings do not give undue regard to procedural technicalities. | For clause (2), we propose that the decision of the Court of Appeal is final and binding on the parties. This proposal ensures that there is an end to the litigation process. |
We propose that the Tribunal is given power to refer a dispute to Alternative Dispute Resolution (“ADR”). This proposal will be in line with Article 159 (2) (c) of the Constitution. ADR processes are generally faster than traditional litigation. Resolving disputes through ADR can lead to quicker outcomes, allowing parties to move on from the dispute and focus on their normal activities. Further, the use of ADR preserves the relationship of the parties. |
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Clause 44 Removal of members of the Tribunal | A member of the Tribunal may be removed if the member: a. becomes an undischarged bankrupt; b. is convicted of a criminal offence and sentenced to imprisonment for a period exceeding six months without the option of a fine; c. is incapacitated by reason of prolonged physical or mental illness from performing the duties of the office; d. violates the Constitution; or e. is otherwise unable or unfit to discharge the functions of the office. | Establishing specific reasons for removal holds members of the Tribunal accountable for their performance or conduct in the position. It helps prevent arbitrary or unjustified removals and ensures that decisions are based on objective criteria. |
Clause 45 Vacancy | Where the office of any member becomes vacant, whether by death or otherwise, the Chief Justice may appoint another person to be a member of the Tribunal and such member shall serve for his or her full term. | We propose the addition of timelines in this clause. This ensures that the vacant positions are filled within a prescribed period without delays. Further, this proposal ensures that the Tribunal has the required quorum to function effectively. |
Clause 46 Secretary of the Tribunal | The Chief Justice shall appoint a secretary and such other staff of the Tribunal necessary for the proper functioning of the Tribunal. | We propose that the secretary is appointed through a fair, transparent and competitive process. A fair, transparent, and competitive appointment process ensures that candidates are evaluated based on their qualifications, skills and experience. This helps to attract and select the most suitable individual, contributing to the overall effectiveness and efficiency of the organization. Secondly, this proposal will ensure that appointments are done in a fair and transparent manner in accordance with the values and principles set out in the Constitution. |
Clause 47 Remuneration of members and staff of the Tribunal | The remuneration of the staff of the Tribunal and the expenses of the Tribunal shall be paid out of monies allocated by the National Assembly to the Judiciary Fund. The Chairperson and members of the Tribunal shall be paid such allowances and be reimbursed such expenses as shall be determined by the Judicial Service Commission on the recommendation of the Salaries and Remuneration Commission. | Sub-clause (1) ensures compliance with article 173 of the Constitution which establishes the Judiciary Fund. |
For sub-clause (2), this proposal is in line with Article 230 (4) (a) of the Constitution which gives the Salaries and Remuneration Commission power to set and review the remuneration and benefits of all public officers. |
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PART VIII - MISCELLANEOUS PROVISIONS |
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Clause 48 Annual general meeting | The Board shall, at least once in every year, convene an annual general meeting of representatives of millers and growers for the purposes of considering the annual report and accounts of the Board and for the purposes of transacting such other business of which notice shall be given. The Board may convene special meetings in addition to the meetings mentioned in subsection (1) f or such purposes and at such times as it may deem fit. Subject to this Act and any regulations made thereunder, the Board may make rules for the regulation of the conduct of business and procedure at the general meetings convened pursuant to this section. | An annual general meeting provides a platform for transparency in the sugar industry. It allows millers and growers to openly discuss the financial performance, operations and management of sugar mills and the overall sugar industry. This transparency fosters accountability among industry stakeholders. |
Clause 49 Quality, safety, and health control measures | All sugar millers and importers shall ensure that all sugar produced locally or imported into the country meets: a. safety and quality standards as set by the body for the time being responsible for setting standards; b. safety and health standards for food handlers as set by the body for the time being responsible for public health; and c. environmental issues as set by the body for the time being responsible for environment. A person who contravenes the provisions of subsection (1) commits an offence and shall be liable, upon conviction: a. to a fine not exceeding ten million shillings, or to imprisonment for a term not exceeding seven years, or to both; and b. the court may where a person is convicted for an offence make a further order that the person’s licence be withdrawn. | Compliance with safety and quality standards is often a prerequisite for participating in international trade. Many countries have strict import requirements to protect their domestic markets and consumers. Compliance facilitates international trade and access to global markets. Secondly, the primary reason for enforcing safety and quality standards for sugar is to protect consumer health and safety. Contaminated or substandard sugar can pose health risks if consumed, leading to foodborne illnesses or other health problems. |
Clause 50 Inspection for quality and safety | The Board shall carry out physical inspection of premises licenced under section 19 quarterly to ensure that safety and health standards are followed. Every person licenced under this Act shall: a. not discharge any affluent, dangerous materials, substances, oil or oil mixtures into land, water, air, or aquatic environment; b. not release smoke or any air pollutant to the air that pollutes the environment; c. manage any hazardous waste and materials; d. not import any hazardous waste; e. not mislabel any sugar or jaggery; and f. not aid or abet illegal trafficking of sugar or related substances. When an offence under this section, is committed by a body corporate, the body corporate and every director or officer of the body corporate who ought to have had knowledge of the commission of the offence and who did not exercise due diligence, efficiency and economy to ensure compliance with this Act, commits an offence and shall be liable upon conviction to a fine not exceeding five million shillings or to an imprisonment for a term not exceeding five years. In addition to the sentence under subsection (2), the Court may order for the revocation of a licence. | The inclusion of sub-clause (2) is a good proposal as it advocates for a clean and healthy environment as stipulated in Article 42 of the Constitution. |
For sub-clause (3), we propose that the grounds for revocation of a licence are included in this clause. This proposal enhances clarity and completeness in this sub-clause. |
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For sub-clause (3), we propose that the Tribunal is given jurisdiction to determine a dispute involving revocation of a licence issued in this Bill. This proposal ensures that the provisions of clause 42 apply to revoked licences. |
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Clause 51 Safeguard measures | The Board shall ensure, subject to such regional and international trade agreements to which Kenya is a party that all sugar imports into the country are subject to all the prevailing import duties, taxes, and other tariffs. Despite subsection (1), the Board shall ensure that: a. sugar shall be imported in the country only when there is sugar deficit on a quarterly basis and for a specific tonnage; and b. importers report to the Board on their imports, sales, and stock on daily basis. The Government shall introduce other safeguard measures as may be necessary to protect the industry from unfair trade practices. A person who contravenes the provision of this section commits an offence and shall be liable, on conviction, to a fine not exceeding three times the domestic value of the sugar in respect of which the offence is committed, or two million shillings, whichever is the higher, or to imprisonment for a term not exceeding ten years, or to both. | Safeguard measures help protect domestic sugar producers from the adverse effects of increased imports that could threaten their competitiveness. This protection is especially important in industries where domestic production is a significant contributor to the economy. Secondly, safeguard measures are designed to address situations where imports cause harm due to unfair competition, such as dumping (selling products at a lower price than the cost of production). Implementing safeguards helps level the playing field for domestic producers. |
Clause 52 Offences and penalties | The Board may direct any organization or person in the industry to produce any document or information or submit any returns which it reasonably considers necessary for the proper performance of its functions under this Act. Any person who: a. fails to comply with any direction given by the Board under this Act; or b. furnishes to the Board any information or produces any document which is false or misleading in any material particular; c. obstructs an officer of the Board in the performance of his functions under this Act; or d. diverts or abets the diversion of transit sugar into the domestic market, commits an offence. A person convicted of an offence under paragraph (d) of subsection (2) shall be liable to a fine not exceeding three times the domestic value of the sugar in respect of which the offence is committed, or two million shillings, whichever is the higher, or to imprisonment for a term not exceeding ten years, or to both. A person who contravenes any of the provisions of this Act commits an offence. A person convicted of an offence under this Act for which no other penalty is provided shall be liable t o a fine not exceeding five hundred thousand shillings, or to imprisonment for a term not exceeding one year, or to both. | This clause acts as a deterrence in ensuring that a person complies with the provisions of this Bill. |
Clause 53 Sugar industry agreements | There shall be, for the purposes of this Act, to be known as the sugar industry agreements negotiated between growers and millers, growers and out-grower institutions, and millers and out-grower institutions. The agreements referred to in subsection (1) shall conform to the guidelines set out in the Third Schedule. Without prejudice to the generality of subsection (2), the matters to be provided for in the agreements shall include: a. the designation of any agricultural crop from which it is possible to manufacture sugar which is subject to the agreement; b. a sugar-cane farming contract providing for the terms and conditions of the production of sugarcane and sugar and prescribing the rights and obligations of growers and millers; c. a formula for determining the price to be paid by millers to growers for sugarcane or any other designated agricultural produce in consultation with stakeholders, which may include any factor related to the sale or other disposal of sugar industry products; d. the functions to be executed by the Board in the execution of the agreement; e. the granting of powers to the Board to enforce penalties prescribed in the agreement for the contravention of, or failure to comply with any term of the agreement; and f. the enforcement of levies upon growers and millers for the purpose of enabling the Board to fulfill any obligation incurred by it in accordance with its constitution. | This proposal enhances uniformity as the essential contents of the agreement have been listed in sub-clause (3). |
Clause 54 Rights of growers in a privatized company | Notwithstanding any other provision in this Act or any other written law to the contrary, growers shall be entitled to at least: a. 51% shareholding of all privatized sugar factories; and b. 51% representation on the Boards of Directors of a privatized company. | Giving sugar growers a majority shareholding allows them to become significant stakeholders in the factory's financial success. This can lead to increased economic empowerment for local farming communities. |
Secondly, private companies may be more inclined to invest and adopt modern technologies and practices to improve sugar production. This can lead to higher yields, better product quality and reduced production costs. Thirdly, private ownership can often lead to increased operational efficiency in sugar factories. Private companies may have stronger incentives to maximize productivity, reduce waste and streamline operations to generate profits. |
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Clause 55 Representative of a grower in a private milling company | Notwithstanding the provisions of any other Act, each private sugar milling company shall have a representative of the growers in its board of directors. In appointing a director representing the growers under subsection (1), the milling company shall consider in the first instance, the leaders of the out-grower institutions within the sugar-cane catchment area in which the sugar mill is located. A person appointed as a director under subsection (1), shall serve for a term not exceeding two years. | Sugar growers are a key stakeholder group in the sugar milling industry. Having a representative on the board ensures that their interests, concerns and perspectives are directly represented in the company's decision-making processes. Secondly, a grower representative can help align the interests of the milling company with those of the growers. This alignment is critical for maintaining a productive and cooperative relationship between the mill and the farmers who supply sugarcane. |