Poison at the pump? Cofek alleges sale of toxic petroleum

Cofek claims that the Energy and Petroleum Regulatory Authority has turned a blind eye as retailers sell toxic fuel. [File, Standard] Kenyans could be exposed to cancer-causing chemicals added to petrol and diesel, the High Court has been told. Following independent tests conducted by the Consumer Federation of Kenya (Cofek), the lobby, in its new case, said the Energy and Petroleum Regulatory Authority (Epra) has turned a blind eye as retailers sell toxic fuel. The lobby also accused Swiss-based Societe Industrielle et Commerciale de Produits Alimentaires (SICPA SA) and SGS (Kenya) Ltd, alleging that they have been issuing quality marks on fuel in the Kenyan market without proper scrutiny. In its case, Cofek claimed that tests done by two laboratories on different samples showed that fuel in Kenya allegedly contains excess halogen-based elements such as chlorine (Cl), bromine (Br), fluorine (F), and iodine (I), which it argued showed that Kenyans are consuming contaminated fuel. The Stephen Mutoro-led lobby argued that this also points to a possible regulatory failure. "The issues raised herein disclose a prima facie case of violation of constitutional rights and fundamental freedoms, and raise weighty questions concerning public health, consumer protection, environmental integrity, and the lawful exercise of regulatory authority, thereby warranting the immediate attention of this court," court papers filed by Cofek's lawyers read in part. The lobby also said that despite writing to Epra, raising its concerns, the former director-general, Daniel Kiptoo, left without any answer forthcoming. Court papers read that the government hired SICPA SA to undertake marking of the petroleum products imported and sold in the country, through a Fuel Integrity Solution contractual arrangement. The role, it was claimed, is to ensure that chemicals introduced into either petrol, diesel od kerosene are within the acceptable quantities. At the same time, Cofek said this was to ensure authentication, identification and monitoring throughout the supply chain. "The said marker, typically invisible and resistant to removal, is introduced at designated control points, including import terminals and fuel depots using calibrated systems, and remains embedded in the petroleum product as it is distributed for consumption by the public. "The primary purpose of the fuel marking process is to safeguard the integrity of petroleum products by enabling regulatory authorities to detect adulteration, prevent illicit fuel substitution, ensure tax compliance, and guarantee that only fuel meeting prescribed standards reaches consumers," said Cofek. Further, it argued that through inspection and constant laboratory analysis, Epra is supposed to verify the markers and enforce petroleum compliance standards within the sector. It asserted that if the results show otherwise, then the fuel is adulterated and is harmful to both humans and the environment. The lobby also said that if and when oil marketers are allowed to continue selling such fuel, then Kenyans will suffer. "In the absence of immediate intervention by this honourable court, the impugned regulatory framework and fuel marking processes will continue to operate without adequate safeguards, thereby perpetuating the risk of exposure of millions of Kenyans to contaminated petroleum products," it claimed. In his supporting affidavit, Mutoro stated that petroleum products ought to have strict levels of control. "Excessive or improper infusion has the effect of contaminating petroleum products and rendering them unsafe for consumption," he said, adding that the forensic analysis of the fuel in the country revealed shocking levels of halogenated compounds. He said that ethylene dibromide, which is commonly added in leaded fuel, is classified as a potent carcinogenic compound, which poses health risks to the liver, stomach, kidneys and reproductive system organs. In his letter to Kiptoo, which is now part of the case, Mutoro stated that for three months, Cofek was reviewing disturbing reports, whistleblowing communications and literature on fuel contamination within the country. " High-quality refined fuels do not naturally contain halogens, and the intentional addition of halogenated compounds to fuels is prohibited or heavily restricted in over 100 countries due to their toxicity and environmental persistence," he wrote. Cofek sued the Energy Cabinet Secretary Opiyo Wandayi, Epra, SICPA SA, SGS and the Attorney General. According to Cofek, Epra and the Enegy Ministry have allegedly improperly delegated public regulatory functions, petroleum quality verification, fuel marking, testing and certification, to private entities whose focus is on commercial and contractual interests. The lobby seeks a court-supervised testing and Epra to produce before the court all contracts, laboratory test results and compliance audits for the fuel consumed in the country. "The petitioner contends that where regulatory verification systems are operationalized through contractual arrangements that are not demonstrably insulated from private interest, the integrity of public service is structurally compromised. The resulting regulatory architecture creates a reasonable perception of institutional bias and undermines public confidence in petroleum quality assurance systems, thereby violating both the substantive and perceptual dimensions of constitutional governance," claimed Mutoro. He asserted that there is no clear information on contractual arrangements between Epra, SICPA SA and SGS, adding that Kenyans do not know anything about the fuel they use in their cars and factories. According to him, the only solution is to terminate the contract and establish new quality assurance mechanisms with consistent public participation and oversight. Cofek also wants the court to bar Epra from allowing into the country fuel that has chemical components that are harmful to Kenyans and the environment. Further, the lobby is seeking a court-supervised testing and force EPRA to produce before the court all contracts, laboratory test results and the compliance audits for the fuel consumed in the country. "Article 42 guarantees every person the right to a clean and healthy environment, including the right to have the environment protected through legislative and other measures. The Environmental Management and Coordination Act (EMCA), Cap. 387 operationalises this right and imposes obligations to prevent pollution and environmental degradation. petroleum products allegedly containing elevated or uncontrolled halogenated compounds, when combusted, may emit toxic substances that contribute to air pollution, environmental degradation, and long-term ecological harm. Such harm falls squarely within the scope of Article 42 and EMCA obligations.," he argued.

Poison at the pump? Cofek alleges sale of toxic petroleum

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