Eastern Africa Margherita Paola Poto
Introduction
1.1 Eastern Africa: Defining its Jurisdiction
A preliminary observation is due, on the choice to delimit the study area and therefore the jurisdiction object of analysis, since there are at least two main definitions of the Eastern African Region.
The first, based on purely geographical parameters, is provided by the United Nations Statistic Division (UNSD)1 geo-scheme, and comprises the widest area of twenty Eastern African regions (from Egypt to Mozambique, including all the coastal states and Eastern landlocked countries, and the islands).
The second definition of Eastern Africa is based on an economic integration scheme, it comprises the Member States of East African Community (hereinafter, EAC), signatories of the East African
Community Treaty2 (Tanzania, Kenya, Uganda, Rwanda, Burundi and recently South Sudan) and has the main purpose to provide an economic integration scheme.
The present contribution will mainly focus on the East African Community as the case study jurisdiction, taking into consideration two opposite and at times contrasting needs.
On the one side, the need to get into the details of national examples, with the consequence of offering a food safety perspective that is not necessarily applicable to all the members of the EAC. On the other side, the need to identify common principles applicable to the Eastern Africa countries, also beyond the EAC members (as in the cases of the Codex Alimentarius Regional Committee (see Section 1.3), and of the Common Market for Eastern and Southern Africa, COMESA, both contributing to the principles harmonisation beyond the six EAC members).
Although the EAC’s objectives have a predominantly economic nature, a broader interpretation of the EAC Treaty provisions clarifies that they also cover social, cultural, political, technological, legal and cover also peace and security aspects. Such an extended interpretation of the EAC objectives and functions, includes food safety at its intersection between legal harmonisation, protection of fundamental rights to food, health and technological development and protection of local cultures and traditional knowledge. Following such interpretation, a Medicines and Food Safety Unit has been established, to “ensure a high level of consumer protection and restore and maintain confidence in the quality and safety of medicines, food and health products”3.
1 https://unstats.un.org/home/, visited in April 2018.
2 The Protocol for the Establishment of the EAC Common Market was signed by t five partner states on 20 November 2009 and entered into force on 1 July 2010. South Sudan was admitted into the EAC later, in March 2016. According to the Treaty, the EAC integration is to be achieved through four phases: a customs union, the protocol for which entered into force on 1 January 2005; a common market, which is still under
implementation, although the protocol establishing it came into force on 1 July 2010; a monetary union, the protocol establishing which was signed on 30 November 2013; and a political federation. See further: Caroline Nalule, Defining the Scope of Free Movement of Citizens in the East African Community: The East African Court of Justice and its Interpretive Approach, Journal of African Law, 62, 1 (2018), 1–24.
The unit’s main objective is “to develop and facilitate implementation of regional policies, regulations strategies, guidelines and standards to enhance affordability, quality, efficacy and safety of human and veterinary medicines as well as ensure food safety in the EAC Partner States”.
1.2 Harmonisation of Food Safety Principles at Regional Level
According to a study conducted by GIZ in 2012 (hereinafter, the GIZ Study), as regards food safety and quality regulations, the EAC has reached quite a satisfactory level harmonisation in principles and standards4 and can be considered as one of the leading supranational standard setting organisations (together with the African Union and COMESA).
It is worth anticipating, that each of the six countries parties to the EAC, is in principle ruled by four different standard levels in food regulation and namely: 1. private standards; 2. national standards, 3. regional standards, 4. multilateral standards. While the multilateral standards serve as a reference for developing regional and national standards; the regional (in our case, set up but the EAC) guide the development of national standards and regulations.
Though the harmonisation process has been quite successful in the EAC, this is true at a very general level, that is to say that the EAC members have agreed in principle to reach some common objectives; such declaration of intents, has not always been followed by tangible results, with the consequence that the demand for an effective implementation at national level has still margins of improvement, especially in those country members where the priority is still to achieve the full recognition of the right to food and an equal distribution of safe food to the population (as in the case of South Sudan: see Section 1.4).
1.3 Codex Alimentarius, Risk Analysis and Food Safety Authority under the EAC Principles The Codex Alimentarius Commission has a regional jurisdiction for the African continent, known as CCAfrica, with a Regional Coordinator (Kenya) and forty-nine Members, including all the Eastern African States. The activity of the CCAfrica appears to be still at an embryonic stage: yearly technical regional workshops on specific topics are organised by the National Codex Contact Points. For
example, in April 2018, a workshop on Risk Assessment and Management of Mycotoxins took place in Kenya; in February 2018 a Regional Technical Workshop for National Codex Contact Points was held in Nairobi, with a specific focus on online web tools, such as the online registration system (ORS) and the Online Commenting System (OCS).
So far, it does not seem that there is a political willingness to identify a Regional Committee for Eastern Africa, nor to approve a common set of principles drawn from the Codex Alimentarius guidelines. Similarly, from the institutional viewpoint, there is no sign of a willingness to establish a Regional Food Safety Authority for Eastern Africa nor for the Eastern Africa Community: some countries within the EAC have autonomously decided to establish a Food Safety Authority (e.g. Tanzania); some others are considering it as a possibility (as for example, Kenya, that in 2009 has approved the National Biosafety Act and established the Biosafety Authority and has been discussing a legislative proposal on the establishment of a Food and Drug Authority); finally, other countries have decided to assign the functions of food safety regulation to the competent Ministries (Rwanda).
1.4 Food Law: from the Regional Harmonisation of Food Safety Standards to the National Legal Acts on Food Safety
While at regional level there has been a general – though at traits superficial – attention towards the harmonisation of standards, the situation in the six study countries is quite diversified and
fragmented with respect to policy statement and regulations on food safety, especially for livestock products.
In Kenya, the right to safe food is enshrined in the Constitution and consequently assurance of safe food is explicitly stated or implied in public policy documents and these are supported by appropriate legal provisions. These include statutes such as the Food, Drugs and Chemical Substances Act which was revised in 2013, the Public Health Act (2013). A number of national policy documents such as the National Recovery Strategy 2003, Strategy to Revitalize Agriculture 2005, National Livestock Policy 2007, Strategic Plan on Creation of Animal Disease Free Zones 2007, the draft National Food Safety Policy 2010, and the National Dairy Development Policy to support the statutes contain explicit or implied statements about assurance of safe food for the citizens.
Tanzania approved the latest Food Drug and Cosmetics Act in 2011, that contains provisions on food safety, though without explicitly referring to this concept. In 2007, it established the Tanzania Food and Drug Authority, an Executive Agency under the Ministry of Health, Community Development, Gender, Elderly and Children (MOHCDGE), with the broad mandate to regulate safety, quality and effectiveness of food, medicines, cosmetics, medical devices and diagnostics.
Uganda has not enshrined the right to safe food in the Constitution, nor has approved a food safety law: so far, the actions to provide a food safety legal framework have been taken at government level, by developing and approving a five-year Uganda Nutrition Action Plan 2011–2016. The objective of the plan is to improve the nutritional status of the Ugandan population, with emphasis on women of reproductive age, children, and infants. The plan is more focused on fighting malnutrition than focusing on safe food. In parallel, the government also produced a short message targeted at district- and lower-level leaders to raise awareness of the nutrition situation in Uganda and introduce the Nutrition Action Plan (Source: FANTA and USAID, 2018).
In Rwanda, A joint action of the Ministry of Local Government, Ministry of Health Ministry of Agriculture and Animal Resources ended in the approval of the Rwanda National Food and Nutrition Policy (NFNP) in 2014. As specified in European Commission report on Rwanda, a multi-sectoral policy framework for nutrition has been established and the NFNP has been recently updated with the National Food and Nutrition Strategic Plan (NFNSP) 2013-18 by providing strategic priorities and implementation guidelines for effective nutrition guidance of multi-sector stakeholders.5
The implementation of food safety standards, as recommended by the EAC, is still at a preliminary stage in Burundi. Only in December 2017, the East African Community Secretariat has initiated the facilitation process of a four-day benchmarking visit for Burundi Parliamentarians to the Tanzania Food and Drug Authority (TFDA) and Ministries responsible for Health, Agriculture, and Trade in the United Republic of Tanzania, in order to support Burundi government in the enactment and
implementation of the Burundi National Pharmaceuticals Regulation Law (at the time of writing – Spring 2018 – still pending before the Burundi Parliament). The visit was planned also to enable the Government of Burundi to establish and fully operationalize the Autorite’ Burundaise de Regulation des Medicaments et des Aliments (ABREMA) as a public autonomous or semiautonomous agency and legally designated to oversee effective regulation of food and medicinal products in the country in compliance with international and regional food safety principles.6
5 https://ec.europa.eu/europeaid/sites/devco/files/nutrition-fiche-rwanda-2016_en.pdf.
6 https://www.eac.int/press-releases/952-eac-secretariat-facilitates-burundi-parliamentarians-benchmarking-visit-to-tanzania-food-and-drug-authority.
A fully operational food safety regime in South Sudan, is unfortunately still lacking, due to protracted conflicts and political disputes and at the time of writing the country is facing one of the most severe famines in the last decades.7 Serge Tissot, FAO representative in South Sudan declared that “The situation is extremely fragile, and we are close to seeing another famine”. The FAO, the UN Children's Fund (UNICEF) and the UN World Food Programme (WFP) warned that, due to the conflicts, progress in preventing hunger-related deaths could be undone, and more people than ever are likely to face starvation-like conditions during May-July unless assistance and access are maintained.
2. Institutional
2.1 National and Regional Food Safety Authorities: a framework still in progress
As illustrated in Sections 1.3 and 1.4, the supervision of the food safety sector in Eastern Africa, is still developing and therefore fragmented. Some countries, as Tanzania, adopted the North-American FDA model, some others look at the Tanzanian model as the reference for the development of a
competent authority but have not come to any significant food safety reform so far (Burundi); some have decided not to allocate the competence in the food sector to an independent authority (as in the case of Rwanda and Kenya, where however the establishment of a Food Safety Authority has been discussed and it is currently under exam).
As for the case of risk assessment, the FAO raised the issue to devolve the competence to a supranational authority:8 the food safety challenges related to the lack of a coherent institutional framework were raised in two workshops in Kigali in 2012 and in Addis Ababa in 2013. As an outcome of the workshops, it was planned to establish and develop: 1) the African Union (AU) Food Safety Authority and 2) AU-Rapid Alert System for Feed and Food Safety. More specifically on Eastern Africa, the regional collaboration between the African Union-Inter-African Bureau for Animal Resources (AU-IBAR) and FAO EMPRES Food Safety ended up in a Regional Workshop on Enhancing East African’s Early Warning Systems for Food Safety (Nairobi, 2014) to help East Africa develop proposals for building or improving existing food safety early warning systems. Nevertheless, such attempt has not produced any effects on the effective establishment of an independent regional food safety authority with competences on Eastern Africa.
3. Principles and concepts
3.1 Food Safety Principles Emerging in the Food Safety Standards
To identify a common set of food safety principles applicable to the East African Community, it is necessary to refer to the GIZ Study mentioned above, as the most complete collection of principles and standards applicable to the whole Eastern African Region (pp 97-100). The GIZ Study is probably the most updated document on food safety principles, concepts and standards, as it contains a complete and systematic glossary on the most used terms and principles relevant in food safety regulation, and also the common terms of reference for eventual future regulatory provisions at national or regional level.
4. Standards
4.1 The GIZ Study on the Classification of Food Safety Standards for the East African Community and the Common Market for Eastern and Southern Africa (COMESA)
As above mentioned, standards and their harmonisation play a central role both in the East African Community (EAC) and in the Common Market for Eastern and Southern Africa (COMESA). As said above, the GIZ Study on the “Harmonisation and Mutual Recognition of Regulations and Standards 7 https://news.un.org/en/story/2018/02/1003552.
for Food Safety and Quality in Regional Economic Communities” is probably the most complete and updated reference document, for any analysis on food safety in Eastern Africa. The study focuses on five strategic value chains (cassava, coffee, dairy products, horticulture and maize) and on six countries (Ethiopia, Kenya, Rwanda, South Sudan, Tanzania and Uganda). While specifically focusing on vertical standards for strategic products, it also sheds light on the need to group and classify standards, in order to provide a framework for a future common strategy of horizontal regulation in Eastern Africa, by providing basic definitions on Food Safety, Food Quality and related terms. Moreover, the GIZ Study identifies drawbacks and vulnerabilities in the system, that have
repercussions on both food security and food safety such as the malfunctioning of the regional trade, with a consequent unbalance between food surplus and food deficit areas.
To overcome the deficiency in relationship and in general the low level of governance of the food sector in Eastern African, the Guidelines’ authors foresee the need for the Member States to effectively comply with regulations and standards for food safety in the common attempt to
harmonise the national legal provisions for an improved regional cooperation. As a virtuous example of the work conducted so far, the GIZ Study commends the harmonising activity undertaken both by EAC and COMESA , as well as their advancement in setting up an institutional framework for a regional quality infrastructure.
As said above (Section 1.2), more specifically, the GIZ Study recognises that the system of standards is complex and multi-layered and it includes: 1. private standards; 2. national standards, 3. regional standards, 4. multilateral standards. While the multilateral standards serve as a reference for developing regional and national standards; the regional guide the development of national standards and regulations.
Such a variety, on the one hand shows the great interest and commitment towards the regulation of the food sector, on the other hand, mirrors the vulnerability of a system that remains still extremely fragmented, diversified and poorly implemented at national level.
4.2 The Role of the Standards
According to the GIZ Study, there is no unanimity on the binding effects of standards: it is discussed whether they comprise both regulations, also referred to as mandatory standards, and public-private voluntary standards. The GIZ Study does not take a position in this regard, and it rather classifies the standards applicable to Eastern African food safety into two main categories: public regulations and private voluntary standards.
4.2.1 Public regulations and standards:
• Sanitary and Phytosanitary (SPS) regulations: mandatory measures on food safety aspects with the primary objective of protecting human, animal and plant life and health.
• For members of the World Trade Organization (WTO), the development of SPS measures is guided by the so called “three sisters”: – Codex Alimentarius Commission (CAC) of the Food and Agricultural Organization (FAO) and the World Health Organization (WHO); – International Plant Protection Convention (IPPC); – World Organisation for Animal Health (OIE).
• Technical regulations and standards: Technical regulations and standards refer to mandatory or voluntary food quality aspects and conformity assessment requirements (e.g. standards developed by the International Organization for Standardization (ISO) and/or National Standardisation
requirements such as size, colour, weight, nutritional requirements, label content and formats, etc.), partly voluntary (e.g. East African Organic Standard and Mark). – Regulations for conformity
assessment (Quality Infrastructure): obligations and guidelines for inspection, methods of sampling, measuring and testing, analysis, accreditation and certification.
4.2.2. Private voluntary standards:
• Commercial trade and industry standards: Private trade and industry standards are either corporate (when developed by individual firms) or collective standards (when developed by business networks and associations) with the purpose of products harmonisation and market transactions’ coordination (as in the cases of GlobalGAP/KenyaGAP, Tesco Nature’s Choice, Ethiopian Horticulture Producers and Exporters Association (EHPEA) Code of Practice for Sustainable Flower Production)
• Third party standard schemes used by trade and industry: usually developed by non-governmental organisations, their scope is to tackle sustainability issues or address specific social and ecological issues (as in the cases of Fair Trade, Rainforest Alliance, Utz Certified, organic).
5 Authorization requirements
5.1 Is there any?The Eastern African jurisdictions reveal their vulnerability also with regard to authorization
requirements. There is a lack of requirements for both import and export of GMOs and novel food. The criticality is particularly acute in the GMOs sector, where there is still uncertainty and divergence in opinions in the scientific community, on their impact on human health, animal welfare and
biodiversity. What is certain, is that the six EAC countries do not seem to have any kind of binding provisions on authorization requirements regarding GMOs foods9.
Kenya has raised the issue by approving a contested National Biosafety Act in 2009 (see Section 1.3) and initiating a process that will hopefully lead to the harmonisation of biosafety regulation, in order to create a one-stop GMO approval system at the sub-regional level.10 The idea is to establish fast-track GM approval systems that can regulate the introduction of GMOs into Africa. The harmonisation approach is supported by the World Bank, USAID and national and regional affiliates of the
Consultative Group on International Agricultural Research (CGIAR) and various African academic and research institutions.
6 Food Safety Limits
6.1 Food Safety Limits for export and for domestic markets: two weights and two measures The implementation of food safety management systems (FSMS) in Africa has been an ongoing process of the last few decades, since the Codex Alimentarius hygiene code has been accepted as a common term of reference worldwide. Despite the attempts to formally comply with the hygiene requirements, the implementation process in Africa has still shortcomings: 1. As mentioned above, the majority of the Eastern African countries, are not yet in line with the Codex Alimentarius Commission Requirements, and are neither adequately providing a clear mandate to responsible authorities to prevent food safety problems; 2. The most advanced food law systems, such as Kenya, Tanzania and Uganda, seem to have two food safety controls, one relatively advanced for the export and one still weak, neglected when not inexistent for the domestic food supply; 3. Last but not least, 9 Some discussion on GMO regulation has been initiated in the other Eastern African countries besides Kenya, but the debate is still at an early stage:http://www.ofabafrica.org, visited in June 2018.
10 Shenaz Moola and Victor Munnik, GMOs in Africa: food and agriculture, Status report 2007, in https://www.stopogm.net/sites/stopogm.net/files/GMOAfrica.pdf.
as observed before, also in the case of food safety limits, the fragmented and overlapping functions of different ministries in food control, the lack of coordination and the limited laboratory capacities hinder the adoption and implementation of limits and quality assurance standards.11
7 Process requirements
As in the other food-related matters, also in the regulation of food processing requirements, the framework is very fragmented and there seems to be very little harmonisation in policies among the Eastern African States.
The attempts towards harmonisation undertaken by the EAC have not come to a satisfactory scenario.
A recent study on food processing requirements in Eastern Africa highlights such a critical aspect, focusing on the dairy market and on the considerable gap between public and private sectors.12 At a policy-sector level, it is noted how national dairy sector policies and institutions differ
substantially among Eastern African countries. The study mentions the case of Kenya, where the main policy frameworks are the 2010 Kenya Dairy Master Plan and the Dairy Industry Act; Uganda, where the plans date back to the ‘90s and need to be updated in consideration of the current market dynamics; Rwanda, with its own National Dairy Strategy for the period 2013-18 to guide the development of the sector and its emphasis on the need to strengthen the public-private
partnerships, homogeneity of sectorial institutions, and milk quality assurance. A plan is still missing in Tanzania that aims to develop a National Dairy Master Plan, under the 2004 Dairy Industry Act. Unfortunately, what is common to all the mentioned countries is the lack of a proper farm policy for the dairy sector. They all still rely on the general agricultural and livestock policy frameworks. Moreover, the dairy industry is at the crossroads of other sectorial policies in the areas of land, cooperatives, industry, trade, health and environment. And certainly such a multitude of directions and policies does not contribute to the build up a systematic framework for the dairy sector regulation, so that the absence of specific and clear national dairy policies remains a crucial constraint to the comprehensive development of the industry in the Eastern African Region.
8 Labelling
A general comprehensive regulatory framework on labelling covering allergens, nutrition and health claims is still missing for the Eastern Africa region.
As in the cases of the other food safety issues, the framework appears still extremely fragmented and patchy, with some progress limited to certain aspects of labelling, such as the mandatory information. 8.1 A set of regulations on labelling for the EAC members
Despite the lack of a holistic approach in the labelling regulation, some remarkable attempts to approve general rules have been made in October 2014, when the then five members of the EAC approved a number of regulations regarding food labelling, and namely: 1. EAS 38:2014 Labelling of pre-packaged foods - General requirements; EAS 803: 2014 Nutrition labelling - Requirements; EAS
11 Jamal B Kussaga, Liesbeth Jacxsens, Bendantunguka PM Tiisekwaa and Pieternel A Luning, Food safety management systems performance in African food processing companies: a review of deficiencies and possible improvement strategies, Society of Chemical Industry, 2014, J Sci Food Agric 2014; 94: 2154–2169.
12 Susan Bingi and Fabien Tondel, Recent developments in the dairy sector in Eastern Africa Towards a regional policy framework for value chain development, Briefing Note, n. 78, September 2015, European Centre for Development Policy Management (ECDPM).
804:2014 Claims - General requirements; EAS 805:2014 Use of nutrition and health claims – Requirements.13
8.2 Mandatory information
Some general common information on mandatory labelling appears as widespread in the Region, thanks to the above mentioned regulations. In particular, there seems to be clarity on what the mandatory information shall include, and namely: 1. The name of the food; 2. The list of ingredients and allergens; 3. The net contents; 4. Name and address of manufacturer, packer, distributor, importer, exporter or vendor; 5. Country of origin; 6. Lot identification; 7. Date marking and storage instructions; 8. Instructions for use; 9. Quantitative ingredients declaration.
Despite such commendable attempt towards harmonisation, as said above the critical aspect is the lack of a general framework in labelling regulation and a very poorly documented, if not inexistent, documentation of its implementation and enforcement.
9 Human Right to Food/food security
9. 1. Food Safety as one of the Priority Areas for the EAC Food Security Plan
In 2011, the EAC has approved a Food Security Action Plan,14 whose objectives aim to effectively guarantee the diffusion of right to food at large scale. In the priority action areas, the need is mentioned to enhance the efficiency of food utilization, nutrition, food safety and quality (See priority area n. 3.5 of the Plan). The right to food and the right to safe food are covered under the same regulatory plan.
Nevertheless, it is noteworthy that the real emergency in the EAC is still connected to food security and effective internal policies that do not hinder the African market in this Region need to be re-thought and developed. The general remark is that such development should start from within, without any external pressure to comply with International standards, that ends up in worsening the gap between the Eastern African Region and the rest of the world.
10
Specific issues
10.1 The (interrupted) dialogue between EU and EAC
Several attempts towards a dialogue between EU and EAC have been undertaken since the beginning of the year 2000, but the outcomes were not always satisfactory, especially when looking at the Eastern African perspective. The dialogue was formalized on 16 October 2014, when the EAC finalised the negotiations for a region-to-region Economic Partnership Agreement (EPA) with the EU.15
The tangible result of such an agreement is an imbalanced protection of the exports, to the detriment of the food quality standards for the products destined to the internal market: if progresses are registered in the improvements of regulations and policies for all EAC exports, the positive trend does not seem to have led to a significant development of the EAC internal market.
Moreover, some perplexities had been raised by single States, worried about the crushing competition force of the EU products on the internal products.
13 http://resources.selerant.com/food-regulatory-news/east-african-community-labeling-reference-guide-now-available-on-scc. 14 http://kenya.countrystat.org/fileadmin/user_upload/countrystat_fenix/congo/docs/EAC_Food_Security_Action _Plan.pdf. 15 http://ec.europa.eu/trade/policy/countries-and-regions/regions/eac/.
According to Tanzania, such competition is likely to hinder the industrialisation and development in East Africa. For other reasons related to alleged human rights violations, Burundi is not part of the agreement, while Uganda has not formally signed the agreement, after having expressed its formal interest to be part of it.
11 Sources
Websites: https://unstats.un.org/home/ https://ec.europa.eu/europeaid/sites/devco/files/nutrition-fiche-rwanda-2016_en.pdf http://ec.europa.eu/trade/policy/countries-and-regions/regions/eac/ https://www.eac.int/press-releases/952-eac-secretariat-facilitates-burundi-parliamentarians-benchmarking-visit-to-tanzania-food-and-drug-authority https://news.un.org/en/story/2018/02/1003552 http://www.fao.org/3/a-i4601e.pdf http://kenya.countrystat.org/fileadmin/user_upload/countrystat_fenix/congo/docs/EAC_Food_Securi ty_Action_Plan.pdf Literature:Susan Bingi and Fabien Tondel, Recent developments in the dairy sector in Eastern Africa towards a regional policy framework for value chain development, Briefing Note, n. 78, September 2015, European Centre for Development Policy Management (ECDPM)
Jamal B Kussaga, Liesbeth Jacxsens, Bendantunguka PM Tiisekwaa and Pieternel A Luning, Food safety management systems performance in African food processing companies: a review of
deficiencies and possible improvement strategies, Society of Chemical Industry, 2014, J Sci Food Agric 2014; 94: 21
Shenaz Moola and Victor Munnik, GMOs in Africa: food and agriculture, Status report 2007, in
https://www.stopogm.net/sites/stopogm.net/files/GMOAfrica.pdf 54–2169
Caroline Nalule, Defining the Scope of Free Movement of Citizens in the East African Community: The East African Court of Justice and its Interpretive Approach, Journal of African Law, 62, 1 (2018), 1–24. http://resources.selerant.com/food-regulatory-news/east-african-community-labeling-reference-guide-now-available-on-scc
