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KATIBA: State not committed to protecting consumer rights

Crate of Tomatoes on sale at Kangemi Market on February 28,2018.A crate of tomato cost six thousand Kenya Shillings and subject to change depending to the seasons.Photo/Enos Teche.
Crate of Tomatoes on sale at Kangemi Market on February 28,2018.A crate of tomato cost six thousand Kenya Shillings and subject to change depending to the seasons.Photo/Enos Teche.

Let’s take a break from 2022, and even referendums.

Have you ever read Article 46 about “consumers”?

They have the right to goods and services of reasonable quality; to the information necessary for them to gain full benefit from goods and services; to the protection of their health, safety, and economic interests; and

compensation for loss or injury arising from defects in goods or services.

Where do the fish and tomatoes come in? Newspapers recently told us that fish from China may be contaminated.

And tomatoes (and other vegetables) have high levels of pesticides and bacteria. We have had various other food scares – antibiotics in poultry and cattle, for example.

Is our food safe?

What law does protect Kenyan consumers? One of the oldest ways of cheating consumers is to have inaccurate (maybe deliberately so) weights and measures. Kenya has had a Weights and Measures Act since 1912, and the Weights and Measures Department carries out many inspections of weighing devices.

The Trade Descriptions Act makes it a crime to make misleading statements about prices and qualities of goods, for example. The Hire Purchase Act protects consumers who make hire purchase agreements (you use the goods in return for payments by instalments, and at the end of the time you become the owner). They must be told how much it would cost to buy the goods outright, and once they have paid at least two-thirds of the price, but then default, the owner cannot take the goods taken back without a court order.

The Sale of Goods Act says that if goods you buy are not fit for use you can get your money back (and, by the way, the machines that KRA requires for retailers that make it easier for KRA to claim VAT do not affect our right). And even if you do not buy goods, but they are defective and cause you some injury, you can claim compensation.

But the transactions of consumers for goods and services have become much more complex.

CONSUMER PROTECTION ACT

In 2012, Parliament passed this Act well within the constitutional deadline of four years, with a lot of civil society input.

A summary of all its contents would make for very boring reading, but here are a few examples.

It assumes that a consumer is at a disadvantage in dealing with a business — this may be true of some businesses, but not perhaps of some jua kali businesses. This approach shows in the rule that if a contract is unclear it must be read in a way that benefits the consumer. It allows consumers to get out of contracts that are unfair: If the price “grossly exceeds” the price at which similar goods or services are readily available to similar consumers, or

if the contract is “excessively one-sided”

— not in favour of the consumer, to take two examples.

If you get an estimate of work, and you agree to the work being done, the provider must not charge more than 10 per cent over the estimate — unless you ask for extra work to be done.

If you enter into certain types of contract, such as for “personal development”, which means things such as health and diet, photoshoots for modelling,

martial arts, sports, or dance, you should have a cooling-off period. This means that within 10 days, you could cancel the agreement. It would not apply if the services were offered by a club you are a member of. It specifically does not apply to golf clubs — an interesting sidelight on where political influence lies.

If you ask for repairs to be done you must be given an estimate of how much they are likely to cost.

NOT ENOUGH YET

There are a number of problems with the Act. Like so much recent legislation, it shows signs of having been drafted in a hurry, enacted in a hurry and without proper consideration by our highly paid MPs.

Apparently, those who drafted the Act thought they were creating criminal offences: That sellers etc who did not do what the Act required committed a crime. But they failed to do so. A court will not treat as a crime a failure to do something (or not to do it) unless the law says very clearly “[a person who does/fails to do….] commits an offence”. The Act never says that.

A second problem is that it is not limited to what we usually think of true consumer situations. Consumer protection laws often protect only individuals and only if they are not buying or using the goods or services for their business or profession. The assumption is that the business purchaser does not need the same protection; indeed may be in a stronger economic position. But think of the farmer who sells milk to Brookside – who needs protection: the farmer or Brookside. But under our law, Brookside is the consumer!

A third problem is more the fault that of the relevant Ministry. In a complicated area of the law like this it is common to put the outline only in an Act of Parliament and fill in the details in regulations, made by the Minister and approved by Parliament.

This Act constantly mentions things that will be “prescribed”. This means set out in regulations. It uses “prescribed” 86 times. And it says that the Cabinet Secretary must make those regulations.

But there are apparently no regulations made under the Act. (The Consumer Federation of Kenya, COFEK, produced a draft in 2014, but it does not seem to have been adopted.)

Among the things that are supposed to be “prescribed” is an amount charged for personal development to make the provisions mentioned earlier applicable. In other words, what I said earlier about personal development contracts is not actually operational because no-one has specified the threshold fee that make the rules applicable.

Time share agreements, where you buy the right to use or let a particular house or apartment in a resort for a few weeks each year must have certain terms, — yet to be prescribed. Yet companies have started to advertise time shares.

In other words, large chunks of this Act are actually not operational as yet – six years after it was passed.

Two particular failures are about legal procedures to enforce the Act. Consumer claims often involve quite small losses, but very many people have suffered the same loss. One useful strategy is to enable a few people to bring a claim on behalf of all the people affected — a class action. Those affected might be in the thousands. The Act envisages class actions. But there are no court rules made for such actions, and at least one judge has suggested this means no such actions can be brought. To be fair, this judge may have been rather narrow in his approach.

Another way of dealing with large number of small claims is to have special courts to deal with small cases. The Small Claims Court Act was passed in 2016, but has not yet been made effective.

And even if fully enforced the Act has weaknesses. Many countries prohibit unsolicited credit cards; the Act does not. And though banks (not under the Act) are supposed to tell borrowers the true cost of borrowing, there are many mobile apps some lending at annual percentage rates of

some hundreds of percent a year.

HOW ABOUT FISH AND TOMATOES?

Finally, the Consumer Protection Act is really for the middle classes. But the ordinary poor citizen of this country is affected by poor service, and contaminated food. They are also affected by the sort of advertisements we all receive on our phones inviting us to take out loans.

Despite Article 46 and a large number of laws, we have a long way to go before the rights of consumers are properly protected. Nor do we yet have law to provide for “fair, honest and decent advertising” as the Constitution requires.

Clearly government commitment to this area of law is limited.