Business Daily (Nairobi)
Emmanuel Wetang'ula
15 August 2007
opinion
Recent incidents involving some Chinese products - tainted pet food, toxic toothpaste, the list is endless - on the international market have raised the issue of the effectiveness of food safety and regulations both domestic and international.
Food is a human right, hence measures ought to be taken to eliminate or minimise the potential for adverse effects on human or animal health arising from the presence of additives, contaminants, toxins, or disease causing organisms in food, beverages, or animal feed.
Food trade constitutes approximately 15 per cent of the total world merchandise trade. It is subject to not only national, but also international regulation. Even though the latter, developed to prevent the use of unnecessary measures that can impede trade, also serves to improve public health.
The Agreement on the Application of Sanitary and Phytosanitary Measures (SPS), imposes controls on the use of national laws and regulations to protect humans, animals, or plants from diseases and harmful food additives.
SPS has proven to be controversial because it puts the World Trade Organisation in a position of telling a government regulator to remove measures that the regulator claims are needed for health reasons. The idea behind SPS is that food safety and related disputes should be settled by science-based rules.
Food trade disputes have so far been between industrialised countries. Obviously when it comes to issues of trade developing nations still lag behind.
Nevertheless, dangerous food imports find their way into bellies of many people in developing countries the regulations notwithstanding. Can the government impose bans on such commodities if some of them may have been imported for not only human but also animal use?
What would be the implications of such a ban on trade relations between Kenya and China, for instance?
There exist laws regulating food quality and safety in this country. How effective are these laws?
Food safety is not just about quality of imported food, but extents to locally available food.More emphasis, however, should be put on domestic food for the reason that it is more easily available to a majority of Kenyans.
Indeed, our legislation aims at protecting local consumers since it is the government's responsibility to promote and protect the welfare of its citizens.Sadly, some deaths have arisen from the consumption of contaminated food, for example grain with a high aflatoxin.
The weakness of the legal regulatory regime is exploited, leaving Kenyans to the vagaries of poisonous substances in the name of food.
The situation is further worsened by high poverty levels among Kenyans, defeating the quest for safe food.
As a result of socio-economic conditions obtaining in the country, it is imperative that stringent measures be undertaken to enhance the quality of food.
The crisis over Chinese food and the outbreak of foot and mouth disease in Britain put on the spot agencies such as the Kenya Bureau of Standards (Kebs) to ensure that tainted commodities do not cross our borders.
However, the porous nature of the boundaries, and illegal trade, pose an even greater challenge to Kebs' roles and functions. Does the organisation have technical and manpower capability to strictly police items that enter the country, or those that are consumed on a daily basis?
Can it detect poisonous toxins that have so far been found in some traded items elsewhere? It is imperative that a precautionary approach be undertaken. The government may adopt sanitary measures based on pertinent information.
The principle is more important where there are threats of serious or irreversible damage.
Any measures taken by the government would not amount to imposing a non-tariff trade barrier for the reason that even though it has not undertaken risk assessment, it can use a risk assessment conducted by another government.
Due to the danger that tainted food items pose to public health, it is vital that the government takes measures to prevent the commodities getting into our market and establish a more viable legal framework to ensure food safety, both imported and domestic.
The biggest barrier to greater trade in food is not unjustified government regulation.
Rather, it is unsafe food. The government, as an exporting country, should take greater responsibility for assuring high quality of its national food exports, given its legal sovereignty over the process of food production.
It is necessary that a sound legal framework on food safety and regulations, modelled on standards suitable to citizens, be developed with alacrity to safeguard the public interest.
Wetang'ula is an advocate of the High Court of Kenya
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