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An Empirical Study of Regulatory Capture in Kenya’s Maize Seed Sector

  • Lodewijk Guido K. Van Dycke ORCID logo EMAIL logo , Harriet Mawia , Pieter Rutsaert and Jason Donovan
Published/Copyright: March 30, 2023
Law and Development Review
From the journal Law and Development Review Volume 17 Issue 1

Abstract

In sub-Saharan Africa, public sector breeding programs depend on local seed companies to deliver new maize varieties to farmers. Such varieties are needed to adapt cropping systems to climate change. While dozens of small and medium seed companies have emerged in the last two decades, the maize seed market in Kenya remains dominated by the parastatal seed company Kenya Seed Company, with multinational seed companies making major inroads. We assess whether parastatal and multinational seed companies have captured Kenya’s seed laws to the detriment of local small and medium seed companies (‘regulatory capture’), negatively effecting competition and the capacity of local companies to introduce new varieties in the hybrid maize seed market. We conducted in-depth interviews based on legal clauses with maize seed companies active in Kenya, as well as interviews with regulators and stakeholders. Results show that local companies do not feel disadvantaged compared to their multinational counterparts or the parastatal. However, all of them are wary of the entry of new actors. Moreover, through excessive procedures, the Kenyan government keeps a sovereign grasp over the seed sector. Despite frustrations with some of these excessive procedures, seed companies felt comfortable in the protective environment of the Kenyan seed market and were generally happy with the technical aspects of Kenya’s seed laws, which are based on international norms. We suggest some improvements to make Kenyan seed laws more conducive to varietal turnover, in line with seed companies’ suggestions and taking into account the political sensitivities of the Kenyan government.

Keywords: seed laws; seed quality control; regulatory capture; Kenya; maize
Corresponding author: Lodewijk Guido K. Van Dycke, Law and Development Research Group, University of Antwerp, Stadscampus – Gebouw V, S.V.122, Venusstraat 23, Antwerpen, 2000, Belgium, E-mail:

Funding source: OneCGIAR

Award Identifier / Grant number: SeEdQUAL initiative

Funding source: Bill and Melinda Gates Foundation

Award Identifier / Grant number: Accelerating Genetic Gains (AGG), grant number OPP

Acknowledgements

The authors thank George Magabo Kenyenji (CIMMYT) as well as seed company respondents and interviewees for their support with the data collection. The contents and opinions expressed herein are those of the authors and do not necessarily reflect the views of the associated and/or supporting institutions.

  1. Conflict of interest: The authors declared no potential conflicts of interest.

  2. Research funding: This work was funded by the Bill & Melinda Gates Foundation via Accelerating Genetic Gains (AGG) (grant number OPP1134248) and by the SeEdQUAL initiative of the OneCGIAR.

Annex 1: Structured Legal Questions for Maize Seed Companies

This structured interview consists of 25 question in an a. and b. format.

A Variety Release

a – As designed in 2016, the following legal clauses (see below) are helpful for your company in view of putting new, high-quality varieties on the market. Please explain the answers you chose.

  • Fully Agree – Agree – Disagree – Fully Disagree

b – As applied in 2022, the following legal clauses (see below) are helpful for your company in view of putting new, high-quality varieties on the market. Please explain the answers you chose.

  • Fully Agree – Agree – Neutral – Disagree – Fully Disagree

Clauses

  1. ‘If it appears to the Minister that […] there is […] sufficient reason for exempting [a] variety from [performance trials], he may direct that [the requirement of performance trials] shall cease to apply to seed of that plant variety’.[115]

  2. ‘[The] National Performance Trials Committee […] shall consist of:

    1. the Managing Director [of KEPHIS];

    2. one representative from the State Department responsible for Agriculture;

    3. the Chairperson of the Seed Trade Association of Kenya […];

    4. the Chairperson of the Plant Breeders Association of Kenya;

    5. the Secretary of the Plant Breeders Association of Kenya;

    6. not more than six crop specialists from the public and private sector co-opted into the committee as and when necessary’.[116]

  3. ‘The National Performance Trials Committee shall meet at least twice a year’.[117]

  4. ‘The varieties of all crops listed in the First Schedule shall be eligible for entry into National Performance Trials. […] The crop varieties listed in the Second Schedule [including maize] shall undergo performance trials’.[118]

  5. ‘The Service [KEPHIS] may […] authorize competent private or public persons or institutions to undertake specific National Performance Trials’.[119]

  6. ‘There is established a National Variety Release Committee comprising of –

    1. The Head of the Directorate in charge of crops, State Department Agriculture;

    2. The Managing Director of KEPHIS;

    3. The Head of the Division in charge of Agricultural Advisory Services, State Department Agriculture;

    4. A representative of the Governors’ Council;

    5. The chairperson of STAK;

    6. The CEO of KENAFF;

    7. The chairperson of PBAK;

    8. A representative of an academic institution’.[120]

  7. ‘The National Variety Release Committee shall […] meet at least once in every year’.[121]

  8. ‘A person aggrieved by the decision of the Service [KEPHIS] or the National Performance Trials Committee […] can appeal to the National Variety Release Committee for moderation. A person aggrieved by any decision of the National Variety Release Committee may appeal to the Seeds and Plants Tribunal’.[122]

B Seed Certification

a – As designed in 2016, the following legal clauses (see below) are helpful for your company in view of producing large quantities of high-quality seeds. Please explain the answers you chose.

  • Fully Agree – Agree – Disagree – Fully Disagree

b – As applied in 2022, the following legal clauses (see below) are helpful for your company in view of producing large quantities of high-quality seeds. Please explain the answers you chose.

  • Fully Agree – Agree – Neutral – Disagree – Fully Disagree

Clauses

  1. ‘[There is] compulsory certification for those varieties that have been tested in National Performance Trials, officially released and listed in the National Variety list’.[123]

  2. ‘There shall be a Committee to be known as the Seeds Regulation Committee, which shall consist of –

    1. the Head of the Directorate of Crops, State Department of Agriculture,

    2. the Director General, KALRO,

    3. the Managing Director, KEPHIS,

    4. the Director General, Agriculture & Food Security,

    5. a representative of the Governors’ Council,

    6. two representatives of STAK,

    7. the CEO of KENAFF,

    8. the chairperson of PBAK

The Committee may co-opt two other members for maximum two year terms’.[124]

  1. ‘The Committee shall meet at least once in a year, or as need may arise’.[125]

  2. ‘The Service [KEPHIS] shall approve the [obligatory] registration of [seed merchants] if

    1. their business involves the processing, production or marketing of seeds;

    2. they have adequately trained and competent personnel;

    3. they have an established distribution system;

    4. they have the capacity to produce and process seeds’.[126]

  3. ‘The procedures and standards applicable in these Regulations shall be in accordance with internationally recognized standards and procedures [OECD, ISTA] prescribed by the Service [KEPHIS]’.[127]

  4. ‘The Service [KEPHIS] may authorize some or all aspects of seed certification to authorized persons, provided that authorization shall not cover certification of basic seed’.[128]

  5. ‘A person shall not label or seal seed lots before the official seed tester or seed analyst in charge has released test results, save for the early movement of seed’.[129]

  6. ‘The validity of certification for cereals […] shall be 12 months from the date of testing’.[130]

  7. ‘Licences for [seed sellers] shall be valid for [only] one calendar year’.[131]

  8. ‘A person aggrieved by a decision of an inspector or analyst may appeal to the Managing Director [of the Service/KEPHIS].

    • A person aggrieved by the Service [KEPHIS] may appeal to the Seeds Regulations Committee.

    • A person aggrieved by a decision of the Seed Regulation Committee may appeal to the Seeds and Plant Tribunal’.[132]

C Enforcement

a – As designed in 2016, the following legal clauses (see below) are helpful for your company to operate in a fair, competitive maize seed sector. Please explain the answers you chose.

  • Fully Agree – Agree – Disagree – Fully Disagree

b – As applied in 2022, the following legal clauses (see below) are helpful for your company. Please explain the answers you chose.

  • Fully Agree – Agree – Neutral – Disagree – Fully Disagree

Clauses

  1. ‘A contravention of seeds regulations shall not affect the validity of a contract for the sale of seeds or the right to enforce such a contract’.[133]

  2. ‘If information submitted by a person making an application [to register a variety] is false […], and the person giving such information knows that it is false, or gives such information recklessly, he shall be guilty of an offence’.[134]

  3. ‘In case of unanticipated seed shortages as advised by the Service [KEPHIS], the Cabinet Secretary may make an order to regulate export of seeds for a specified period not exceeding 12 months for food security reasons’.[135]

  4. ‘Where an offence […] committed by a body corporate is proved to have been committed with the consent […] of any director […], he as well as the body corporate shall be guilty of that offence’.[136]

  5. ‘A person guilty of an offence […] shall be liable to a fine not exceeding twenty thousand shillings or to imprisonment of a period not exceeding six months or to both such fine and imprisonment’.[137]

  6. ‘An inspector who reasonably believes that the provisions of the Act or these Regulations have been breached, may seize and detain any seeds and seed processing facilities in respect of which the breach has been committed’.[138]

  7. ‘There shall be a Seeds and Plants Tribunal’[139] […]

    • ‘The Minister shall draw up and from time to time revise a panel […] and the members of the Tribunal […] shall be selected from those panels’.[140]

    • ‘The Minister may pay to members of the Tribunal such remuneration and such allowances as the Minister may […] determine’.[141]

    • ‘The Minister may select a member […] to deal with a particular case’[142]

    • ‘A decision of the Tribunal shall not be questioned on the ground that a member was not validly appointed or selected’.[143]

Annex 2: Open Questions

  1. The interview questions contained three parts – variety registration, seed certification and enforcement – which of these three legal regimes is most supportive for your company? Why is that the case?

  2. Which one is most cumbersome? Why is that the case?

  3. Which clause contained in the interview is typically the most useful for your company? Why is that the case?

  4. Which one is the most annoying? Why is that the case?

  5. Did you find the legal clauses from the interview questions relevant? If yes, why?

  6. Were there parts of the interview you found generally irrelevant? Which ones?

  7. Were you aware of most legal clauses cited in the interview? Which ones?

  8. Were there clauses or themes omitted from the interview? Which ones?

  9. Would you say the legal frameworks of the seed sector in Kenya – seed certification, variety release – are supportive to your company? Why (not)?

  10. Do you think the legal frameworks of the seed sector in Kenya are helpful for most other maize seed companies? Why (not)? For which type of companies?

  11. If you could change one thing about those legal frameworks, what would it be? Why do you choose this one element?

  12. Do you think the Kenyan maize seed sector is a fair and competitive environment? Why (not)?

  13. Do you think the regulatory framework contributes to the competitive qualities of the Kenyan maize seed sector? Why (not)?

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Published Online: 2023-03-30
Published in Print: 2024-02-26

© 2023 Walter de Gruyter GmbH, Berlin/Boston

Articles in the same Issue

  1. Frontmatter
  2. Articles
  3. An Empirical Study of Regulatory Capture in Kenya’s Maize Seed Sector
  4. Leveraging the Belt and Road Initiative for Green Investments: The Case of Bangladesh
  5. Repeating the Mistakes of the Law and Development Movement in Afghanistan
  6. Differential Treatment and Inequalities under the Sustainable Development Goals: Beyond Preferential Market Access
  7. Indonesian Job Creation Law: Neoliberal Legality, Authoritarianism and Executive Aggrandizement Under Joko Widodo
  8. Oil Transnational Corporations and the Legacy of Corporate-Community Conflicts: The Case of SEEPCO in Nigeria
  9. The Constitutional Relevance of the ECHR in Domestic Law: The Kosovo Perspective
  10. Notes
  11. Double Impact: A Macroeconomic Study of the Crossed Influences Between Climate Change and Business Tourism
https://doi.org/10.1515/ldr-2022-0073
Keywords for this article
seed laws; seed quality control; regulatory capture; Kenya; maize

Articles in the same Issue

  1. Frontmatter
  2. Articles
  3. An Empirical Study of Regulatory Capture in Kenya’s Maize Seed Sector
  4. Leveraging the Belt and Road Initiative for Green Investments: The Case of Bangladesh
  5. Repeating the Mistakes of the Law and Development Movement in Afghanistan
  6. Differential Treatment and Inequalities under the Sustainable Development Goals: Beyond Preferential Market Access
  7. Indonesian Job Creation Law: Neoliberal Legality, Authoritarianism and Executive Aggrandizement Under Joko Widodo
  8. Oil Transnational Corporations and the Legacy of Corporate-Community Conflicts: The Case of SEEPCO in Nigeria
  9. The Constitutional Relevance of the ECHR in Domestic Law: The Kosovo Perspective
  10. Notes
  11. Double Impact: A Macroeconomic Study of the Crossed Influences Between Climate Change and Business Tourism
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