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Kenyan gov’t defends itself in Male Mabirizi’s case over maize ban

City lawyer Male Mabirizi sought legal action in the East African Court of Justice over Kenya’s ban on Uganda’s poultry and maize imports. File Photo

Kampala, Uganda | THE INDEPENDENT | The government of Kenya has started defending itself in a case in which Kampala based lawyer Male Mabirizi sued it for banning Ugandan maize and poultry in their country.

In its defense filed before the East African Court of Justice in Nairobi sub registry, the Kenyan government says it banned the said commodities to protect their farmers who were recovering from the effects of Covid-19 pandemic from competition as well as to prevent the dumping of toxic chemicals, substances and hazardous wastes within the community.

On March 11, 2021, Mabirizi sued the Kenyan government challenging it’s two directives one issued of January 14, 2021, and another on March 5, 2021, banning importation of maize and chicken products from Uganda.

According to the Director General of Kenya Agriculture and Food Authority Kello Harsama, he directed the Commissioner Customs and Kenya Revenue Authority to stop with immediate effect the importation of maize from Uganda and Tanzania saying that various studies had shown that they contained mycotoxins beyond the permitted levels.

Mabirizi also challenged the January 14th 2021, internal memo where the Kenyan Director of Veterinary Services banned the importation of chicken cuts and eggs from the East African Community-EAC.

Mabirizi told court that the ban on the importation of goods from EAC partner states is unlawful and infringes the operational principles of the community which among others encourage free movement of goods, transparency, democracy and rule of law, account and equitable distribution of benefits.

As such, Mabirizi asked court to quash the directives and issue a permanent order restraining Kenya from implementing its directives on ground of being illegal.

However, in their defense which URN has seen, Kenya through her two State Attorneys from the Attorney General’s chambers Martin Munene and Mary Murungi, say Mabirizi is not entitled to the reliefs he sought and the matter should be dismissed because the case has no merit.

On the issue of banning importation of poultry, Kenya says that it is one of the subsectors that was greatly affected due to covid-19 restrictions and once they were eased, there was apparent flooding of eggs and poultry products from across borders giving Kenyan enterprises no time to recover. This, Kenya attributes it to significantly low prices of the inflows leading to restricting of inflows of poultry and its products from Uganda and other countries.

“The respondent further states that there had been complaints from the poultry industry stakeholders in regard to the negative impact of importation of table eggs and chicken meat causing local poultry farmers to suffer losses in their businesses due to unfair competition with cheap imports in form of whole chicken carcasses and table eggs specifically from Uganda”, reads the defense part.

According to Kenya, Uganda also put in place tariff measures that make their (Kenyan) poultry products uncompetitive while it enjoying unhindered access to the Kenyan market.

For instance, evidence submitted by the Kenyan government shows that Uganda was charging Kenya poultry meat Value Added Tax of 18 percent and withholding tax of 6 percent which is not applied to locally produced foods, one percent of infrastructure levy, six percent of withholding tax on processed chicken meat and another six percent tax for broilers and layer day old chicks.

As such, the Nairobi administration contends that Uganda made it very difficult for Kenyan products to access Ugandan market which led to dumping of poultry into Kenyan market.

“The respondent further state that as a result of the above, poultry meat and table eggs from Uganda were being sold at a considerably lower price in Kenya than they were in Uganda placing the Kenyan poultry farmer at a disadvantage as their products were not able to compete in their own market”, adds defense.

On the issue of banning maize, Kenya argues that test results for maize imported from Uganda and Tanzania revealed high levels of mycotoxins that were consistently beyond safety limits which lead to acute and chronic aflatoxin illnesses.

Accordingly, Kenya says that the Common Market Protocol requires partner states to take prompt measures in the event of serious injury occurring to the economy of one of them.

“The injury may be so grave such that by the time the offending Partner State is heard, extensive damage has already occurred hence the reason the respondent opted for a prompt and immediate action”, reads the defense.

The government of Kenya now denies ever breaching any laws enshrined in the East African Community Treaty and wants the case dismissed.

However, Mabirizi says that what is important is that Kenya has accepted having committed the allegations against them.



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