Unmask shadowy face(s) behind sugar woes

By Dominic Odipo

“Take notice that the National Environment Tribunal (NET) has received an appeal from Mumias Sugar Company Ltd., Musa Mahero, Columbus Shiundu and John Were against your decision to operate a weighbridge at Olepito without the benefit of an EIA licence from NEMA.”

“Take further notice that Section 129(4) of EMCA states that ‘upon any appeal to the Tribunal under this section, the status quo of any matter or activity, which is the subject of the appeal, shall be maintained until the appeal is determined.”

“The purpose of this letter, therefore, is to direct that all activities relating to the appeal in question must be stopped until the appeal is heard and determined by the Tribunal.”

This letter from the National Environment Tribunal (NET), dated October 18, 2012 was addressed to the managing director, West Kenya Sugar Company Ltd of Shamberere, South Kabras, Kakamega. Its contents are, as you can see, self-explanatory.

Yet, by yesterday morning, anyone who passed by Olepito near Tanga Kona on the Busia-Mumias road, will have noticed that the weighbridge, which is the subject of this stop order, was fully operational. None of the activities relating to the appeal in question had been stopped pending the hearing and determination of the appeal by the Tribunal.

Four inter-related questions arise here: First, how was West Kenya Sugar, a company based almost 100 kilometres from this spot, allowed to set up a weighbridge for the collection of sugar cane here?

Two, how did this company which was originally disqualified by the Kenya Sugar Board from setting up a sugar factory in Busia County, later mysteriously allowed to set up a weighbridge here, without even the mandatory licence from the National Environment Tribunal?

Three, why has this sugar company been openly and publicly defying orders duly issued by this tribunal?

And last but probably most important: If West Kenya Sugar Company can openly and publicly defy the orders of this tribunal at this stage, what guarantee can anyone have that, should the situation arise, it will obey any orders handed down by the High Court or any other court or tribunal?

Impunity in this country manifests itself in many different ways. Most of the time when we here the I-word, we quickly begin thinking of its political dimensions. Yet what is now happening in the sugar sector in western Kenya is undoubtedly unbridled economic impunity of the worst and most dangerous kind.

Unless our courts move in as quickly as possible to stamp it out, other companies within or outside the sugar sector, will take a leaf from West Kenya’s book and take off on their own rogue tangents.

Since we wrote about this matter in this column at the beginning of September, at least one person has been killed and scores seriously injured as rowdy youths pushing the West Kenya agenda battle with all and sundry to forcefully transport sugar cane, which they never developed, all the way from Busia to the West Kenya mill in Malava.

Ordinary farmer

At least 30 tractors transporting sugar cane have been destroyed or impounded in this region and millions of shillings worth of sugar cane lost as the Kenya Sugar Board, the industry regulator, either haplessly or strategically, watches from the sidelines. Only our courts, it now appears, stand any chance of bringing back any semblance of order and sanity in this sector.

To so openly defy a lawful stop order such as the one issued by the National Environment Tribunal, one needs to have some very powerful people in the background pulling and shoving for him.

Over the eight months during which the Olepito weighbridge has been operational, it has become clear that there are, indeed, a number of heavy hitters, both at the local and national levels, who are playing on West Kenya’s side of the court in its sugar warfare with both Mumias and Nzoia sugar companies.

Who are these people and why are they being allowed to directly or indirectly push West Kenya into openly defying lawful orders?

What is their real interest in this unfolding sugar sector chaos? Do they stand to make millions of shillings for themselves as the ordinary sugar cane farmer in western Kenya, especially Busia County, is crucified at the cross of a few brokers and intermediaries working in cahoots with West Kenya?

As we wrote in our last piece on this subject, COMESA protective sugar tariffs will be abolished in 2014, only slightly more a year away. Instead of streamlining and rationalising our sugar sector’s production costs so that we can compete with the likes of Zambia and Mozambique, we are letting chaos rule in the sector, thus driving up production costs and making Kenyan sugar uncompetitive in the region.

Since no one else appears to be acting, let our courts step in and sort out this mess as the Constitution mandates them to do.  

The writer is a lecturer and consultant in Nairobi.