By Luke Anami

The persistent fights among cane millers in the Western and Nyanza sugar belts have been blamed on weak legal framework. The Sugar Arbitration Tribunal (SAT), which is supposed to resolve the disputes, is toothless in implementing its decisions, thanks to a defective Sugar Act under which it operates.

It is only recently that the Kenya Sugar Board (KSB) published rules for SAT even as players in the industry want Parliament to grant SAT powers to enforce their decisions and review the Sugar Act 2001 with a view of granting the Board jurisdiction over all the players in the sector.

“We have witnessed a lot of violence in the sugar sector yet both the ministry and KSB are silent. SAT was created to resolve sugar issues but so far, it has not been very effective. This is partly because they have no powers to implement their orders,” Saulo Busolo, former KSB chairman said.“It is high time SAT was granted the powers to arbitrate between farmers, millers, transporters, and government because there are those that want to sabotage the sugar industry.”

Sugar millers have in the past engaged in costly fights over the control of farmers in Western Kenya threatening the region’s economy, with millions of shillings already lost through cane theft and damage to machinery.

The wars pit Mumias Sugar Company Ltd and West Kenya, Chemelil, Muhoroni and Kibos Sugar, while in Ndhiwa there’s Sony Sugar verses Transmara Sugar Company and the Sukari Sugar Industries.

SAT first came into existence in 2006 following its requirement with the Sugar Act 2011. The body has three members currently appointed by Agriculture minister, Dr Sally Kosgei (pictured), one of who must be an advocate of the High Court of Kenya. They include Gregory Mutai who is the chairman, George Ayugi and Oddah Nafula O’wakhwabi.

But an amendment proposal is before Parliament to allow KSB to appoint members with consultation with the minister.

Another conflicting situation is the fact that the minister for Agriculture, the KSB and the SAT are ultimately subject to the judicial review process of the High Court. “We want the Chief Justice to direct that SAT shall have jurisdiction over all sugar disputes and only matters beyond the Tribunal should be referred to the High Court.

Further, farmers find it very expensive to take their cases to normal courts. SAT should be strengthened to handle all disputes involving farmers,” said Busolo, farmer’s representative from Nzoia sugar zone and who the Government has declined to gazette as a KSB director despite the dismissal of a case filed against his re-election.

When the sugar industry decided to set up the Sugar Arbitration Tribunal it gave it the exclusive jurisdiction to deal with, among other things, all disputes related to sugar. Specifically SAT is expected to handle disputes of an election under the Act and regulations, and specifically, disputes by a person aggrieved by the decision of a returning officer to reject his candidature or deny the right to vote. 

The effect of the Act was to limit and oust the jurisdiction of the High Court in as far as the specified sugar industry disputes are concerned. But it has no jurisdiction over all the stakeholders in the industry leaving out a gap that if filled could bring sanity in the sector.

“We are proposing a SAT that can resolve disputes involving all players including the farmers, transporters, millers, sugar associations, Ministry of Agriculture and KSB,” Busolo explained.

The licensing of private sugar companies that do not have cane has been seen as the major reason why private companies are on theft spree leaving trails of blood and destruction in their wake.

Even though the tribunal has been active of late, meeting to arbitrate between warring millers and transporters in Mumias and Busia sugar belt, it is often faulted by the KSB as having no jurisdiction to rule on matters such as cane theft.

Last year, KSB directors said every farmer has the right to take his cane wherever he pleases, even if he is contracted, as long as he clears with the firm that had contracted him before.

Farmers also side with KSB sentiments that the Act does not give the sugar tribunal the power to rule on such matters. They say the Bill, which is supposed to give it such powers, is yet to be passed. This puts conflicting millers in a tough condition with no penalty for its violation.

However, the KSB chief executive officer Rosemary Mkok says so far SAT has done a good job, but she urges Parliament to grant it powers which were left out when the Sugar Act 2011 was drafted and made law.  “The good news is that the rules governing the operations of the SAT have been published. But the issue of jurisdiction is still pending.”

The Sugar Arbitration Act says each company must have its own area of 40km radius and this should be respected. It is expected that farmers who have been contracted by specific companies and the agreements should be adhered to. But this has always been ignored.

Warning to millers

“Let this be a warning that millers who do not have sugar cane of their own will have their operating licenses suspended,” Mkok said. “The availability of sugar or lack of it is usually reflected in their annual returns and those who do fail to do so will not be allowed to operate.”

Even as KSB sounds a warning to warring factions, workers have been injured in confrontations between employees of rival companies in the cane wars that have left a trail of destruction in Kakamega, Bungoma, Busia, Kisumu and Migori counties.

Machinery worth millions of shillings have also been damaged and thousands of tonnes of cane left to go to waste in the industry war pitting bigger sugar companies and the mushrooming private millers.  

Players in the industry attribute the growing rivalry to dwindling cane acreage that can no longer sustain the State-owned and private millers. They warn it could cripple the sub-sector.