By WANJIKU MANYARA
At the end of every regulatory process comes the regulator, the
implementation and the...
enforcement. For without them, as we know only too well in Kenya, every law is no law at all, with the beginning, middle and end of legislation coming only on its application.
enforcement. For without them, as we know only too well in Kenya, every law is no law at all, with the beginning, middle and end of legislation coming only on its application.
A case in point is Legal Notice, LN for the initiated, 100, gazetted on the June 25, 2019, with immediate effect.
LN
100 governs the LPG industry and put an end to the mandatory
interchange of one brand of gas cylinder for another as part of a
vigorous move to end the illicit trade in LPG including the illegal
refilling, rebranding, reselling, storage, and transporting of LPG.
The
former LN 120 was made with good intentions. However, while the
interchangeability of cylinders seemed a good idea in improving
consumers’ convenience in accessing cooking gas, it got exploited by
ruthless thieves, who used other brands’ cylinders to hold their own
gas, filling them most often without licences, safety checks, or any
regulatory oversight.
The illegal cylinders would
return to market and often leak thereby exploding, since the required
rigorous safety checks had not been done. Indeed, many were filled
illegally for years on end. The licensed brands stopped investing in new
cylinders for the thieves to seize for their own businesses. As a
result, Kenyans use far less LPG than other African nations and have
more cooking smoke in the home leading to higher infant mortality and
putting respiratory diseases onto the nation’s list of top killers.
It has been a dynamic that has hurt a lot of people, which is
why the government moved, and regulated. It ended the interchanging and
made every value chain player accountable by law.
But
the regulator did not and has not demonstrated many matters of ideal
regulation because of its commissions and omissions on LN100.
The
first challenge in implementing LN100 was the absence of correct
information or guidance from the regulator. Indeed, the media even began
to report that the new regulation would not be coming into effect until
the end of 2019, whereas it was already in effect from the day of
gazettement. This resulted in major confusion – The question on
everyone’s lips became was the law in force or not?
But
it was a confusion that highlighted the vital and necessary role of all
regulators, as a first base and starting point, of clarity around what
the law is and what law is in force.
However, with the
confusion sown and supported by the regulator, a well-considered and
thought-through transition period in one aspect of the new regulation –
being the gathering of cylinders ‘out there’ - was abandoned, and
nothing at all moved or changed for the rest of 2019 in the illegal
refilling of LPG cylinders.
In that extra time of
non-implementation, just as a small mention, more than 10,000 more
Kenyans died from respiratory diseases caused primarily by using smoking
cooking fuels, like charcoal and firewood, and the LPG brands held off
investing in new cylinders as the illegality continued.
In
fact, the secondary enforcement agencies suspended the move to stop the
illegal filling of cylinders. From 25 June 2019, no retailer was
allowed to sell any brand other than the one he had an agreement with -
confirmed by a letter of appointment as a brand retailer, and the police
began enforcement on this
However, the regulator then issued an unnecessary letter appearing to instruct the police to desist from enforcement.
And
here lies a second vital lesson on the implementation of new laws. Many
new rules involve multiple authorities in enforcement. The sectoral
regulator does not have the powers to annul the law or reverse it, but
only to implement it, and they also need to communicate clearly with the
other enforcement agencies.
However, with 2019 passed
and implementation apparently fudged until 2020 without approval or
executive intent, this year the regulator announced a further
three-month extension to the implementation on the claim that only 20
percent of retailers’ licences had been processed.
Licensing
was never a precondition for the ending of illegal refilling and of
interchangeability. The LPG licensing was given a transition period;
ending interchanging and illegal refilling was not.
Thus, another lesson: the regulator needs to read the regulation and what it states on transition to ensure its application.
The
muddled implementation of LN100 has also shown that if communication is
confused and enforcement is repeatedly postponed, the majority of
retailers will not even apply for a license by the (initially
unpublicised) deadline.
In fact, a factor in all the
delays has been the deceptive rant by an association that represents
those who built their livelihoods on the old system. Yet, with any new
law there will be change and those who previously profited will resist.
LN100
has shown us the importance of a regulator who is robust in holding to
both the letter and spirit of the law. It is not appropriate to conclude
the entire legislative process with an effective and repeated deferment
or annulment, be it for one period or another period: the regulator
does not exist to change the law. The regulator exists to apply the law.
It’s
a vital distinction, for our legislators sit in parliament and
government. They do not sit in our regulating bodies, which are
appointed to apply the law that is gazetted and to do so in ways that we
can all trust in seeing the law that is created to protect Kenyans
applied as stated.
The writer is General Manager, Petroleum Institute of East Africa.
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