Report For The Review of The Plant Protection

MINISTRY OF AGRICULTURE FOOD SECURITY AND COOPERATIVES
REPORT ON THE REVIEW OF THE PLANT PROTECTION LEGISLATION FOR TANZANIA
Study commissioned by National Environmental Management Council , Africa stockpile Programme (ASP) Conducted by Goodluck Peter Chuwa (National Legal Consultant)
FINAL REPORT December, 2011
Report on the review of the Plant Protection Legislation for Tanzania
REVIEW OF THE PLANT PROTECTION LEGISLATION FOR THE UNITED REPUBLIC OF TANZANIA
RFP No: NEMC-ASP/2009/C/19 Country: Tanzania Project Name: Africa Stockpile Program (ASP) Grant No: TFO56693-TA
The authors views expressed in this report do not necessarily reflect the views of the National Environmental Management Council (NEMC) or the views of the Ministry of Agriculture, Food Security and Cooperatives.
LIST OF ACRONYMS ADA ASDP ASDS ASP BCAS CBD CIDA DNA DPPO DVS EAC EMA EU GEF ILC IPPC LGAs MAFC Animal Diseases Act Agricultural Sector Development Support Agricultural Sector Development Strategy Africa Stockpile Program Biological Control Agents Sub - committee. Convention on Biological Diversity Canadian International Development Agency Cooperatives Designated National Authority for District Plant Protection Officer Director of Veterinary Services East African Community Environmental Management Act European Union Global Environment Facility International Legal Consultant International Plant Protection Convention Local Government Authorities Ministry of Agriculture, Food Security and Cooperatives
MANR
MLDF NAPC NAPTC NEMC NPPAC NPPO OPCS PARTS PHS PIC POPs PPA PQPS SA SADC SPS TFDA TPRI WTO
Ministry of Agriculture and Natural Resources

Ministry of Livestock Development and Fisheries National Animal Pesticides Committee National Animal Pesticides Technical Committee National Environment Management Council National Plant Protection Advisory Committee National Plant Protection Organization Outbreak Pests Control Sub- committee Pesticides Registration and Approval Sub- committee Plant Health Services Prior Informed Consent Persistent Organic Pollutants Plant Protection Act Plant Quarantine and Phytosanitary Services sub committee Seed Act Southern Africa Development Community Sanitary and Phytosanitary Standard Measures Tanzania Food and Drugs Authority Tropical Pesticides Research Institute World Trade Organization 3
Acknowledgements This assignment would have not been completed without support from various people. I would like to thank all who provided me much valuable information for this study. I wish to thank and acknowledge the cooperation of the NEMC, Ministry of Agriculture Food Security and Cooperatives (MAFC) and Ministry of Agriculture and Natural Resources of Zanzibar (MANR) that are the hosts of this study and who seconded key staff to be counterparts to the consultant in this study. The Director of NEMC, ASP Project Coordinator, heads of department of Crop Development (MAFC), Heads of Plant Protection Services of both Mainland and Zanzibar, and Legal Services Unit of MAFC who provided a lot of policy and legal guidance and practical experience in the implementation of the plant protection, pesticides and their related legislation. Mr George Mandepo and Mr Damian Gasana from MAFC and Ms. Zainab Salim Abdallah and Mr. Khamis Khamis from MANR participated from fieldwork to the analysis phase with a lot of enthusiasm and professionalism. Without them this study would not have taken the form it has. Also, I would like to sincerely acknowledge and commend their contribution in this study. I am indebted to NEMC Management and the entire team that was devoted to supporting this assignment. In particular I would like to thank Samwel Msangi (ASP Project Coordinator), Mwanaidi A. Daffa and Mr. Sadiki Sangawe (Project Procurement Specialists of PMU ) for their tireless support in providing leadership and organization of various facets of the study processes. I express gratitude and recognize cooperation from staff of various public and private sector organizations that responded to my interviews and provided valuable insights to their field activities. Last but not least, I am indebted to all participants to validation workshops held at Morogoro and Zanzibar for their vital and useful comments on the preliminary findings of this report.
EXECUTIVE SUMMARY The Plant Protection Act of Tanzania mainland and the Zanzibar Plant Protection Act, both enacted in 1997, are relatively recent pieces of legislation. However, since they came into operation about a decade ago, these pieces of legislation together with their supporting regulations have encountered a number of challenges in their implementation. One of these challenges stems from the fact that, at the time of their enactment and coming into force, the framers of these pieces of legislation did not take into account some international legal instruments which the United Republic of Tanzania later became party to. At the same time, it would appear that careful thought was not given to other pieces of legislation impacting in one way or another, on plant protection. As a result, in implementation, there appears to be lack of harmonization and syncronisation between the primary plant protection legislation and other laws. At times there have been different authorities both/all claiming jurisdiction over some aspects of plant protection On a different level, there appears to be some practical problems emanating from the nature of the Constitutional set up of the Union between Tanzania mainland (formerly Tanganyika) and Zanzibar. Whereas Tanzania has entered into various international agreements on plant protection as a United Republic, agriculture is not among the matters considered to be union ones and thus falling under the ambit of the United Republic control/regulation. As result, both Tanzania mainland and Zanzibar have their own legislation as well as implementation authorities on plant protection. It is against the above backdrop that the NEMC, on behalf of MAFSC appointed a National Legal Consultant (NLC) to undertake a review of the plant protection and pesticides related legislation in Tanzania with the view to aligning it with regional and international obligations as well as harmonizing and syncronising it with other national legislation and implementing authorities. Besides, the consultant has been charged with the task of proposing the best way that the two parts of the Union may work together in plant protection matters. This report, therefore, provides for the review of the PPA for both mainland Tanzania and Zanzibar.
1.0 Findings of the study From the review, it has been revealed that on the basis of socio-economic changes which took place between 1997 when the two Plant Protection laws were enacted and todate, there is a great need for the review of the two legislation in line with on-going changes. 1.1 Mainland legislation The noted gaps in the current PP legislation for Mainland include the following: (i) That there is a lack of compliance of the two legislation to the International and Regional Instruments, which the United Republic of Tanzania is a party to. Equally, though formerly plant quarantine and plant control products including pesticides were regarded as matters which could have been regulated within a single piece of legislation and one institution as envisaged in the mainland PPA , based on the complexity of regulation, the study recommends for separating the two so as to have an effective and efficient implementation of the law. (ii) Apart from the substantive sections, on the preliminary provision, definition of the various terminologies is missing in the current Protection Legislation. Several terms used in the Act are not defined for example, words such as occupier, Competent authority are not defined. Again there are some definitions provided in the Act which does not meet the requirement of the International conventions/Agreement the terminologies such harmful organism, infected area, integrated pest management, packaging etc are not provided in the Act. In the Act section 2 defines inspector in-charge to means an inspector appointed by the Minister and assigned as an officer-in-charge at a quarantine station or post entry quarantine station or at any other place as the Minister deems necessary. However apart from Sections 33 and 34 which give powers to the Minister to appoint inspector, there is no any provision under the Act that appoints Inspector In charge. Also there is no specific designated Office/ Institution to which the Inspector Incharge is required to position. Again, section 3 empowers the Minister to make rules for the purposes of preventing and controlling attacks by or the spread of' harmful
(iii)
(iv)
organisms or diseases in Tanzania. This Section is contingent/ subjective provision. It provides for the discretion to the Minister to make Rules depending on occurrence of specific factors or events that may need control or prevention under PPA. There is a doubt in the circumstance where no invasion or spread or harmful organisms, the Minister cannot enforce this Section until formulation of the rules. (v) Section 7 (1) empowers the Minister to make regulations for the purposes of combating outbreak pests declared under Section 6. This Section empowers the Minister to make Regulation depending on occurrence of outbreak pests. The provision implies that Regulation may come after declaration of outbreak pests in the Gazette; otherwise, it means that all powers which will be prescribed in the Regulations cannot be exercised until publication of Regulations. For the effective enforcement of the condition for regulating outbreak pests as prescribed under Section 7(1) (a) (g) this provision should be in place under the Act before declaration of outbreak pests so that to trigger the action immediately upon declaration of outbreak . Regulation 22 requires every pesticide submitted for registration and analyzed by the research Institute in laboratory and filed to determine its suitability. However the time for conducting laboratory analysis does not exceed 14 days and field tests shall not be less than three cropping seasons. There has been a complain that time consuming for field tests is too long even for the pesticides that have been in use in the neighboring countries after being tested in the same agro-ecological zones. However, there has not been a suggested time limit for the approving of pesticides despite criticisms made of the provision. Experience from other country may be useful to suggest appropriate re-wording of Regulation 22. Also, pesticides registration does not cover environmental aspects of pesticide risk assessment as well as efficacy and toxicology as required in Environmental Management Act1 and other international Convention on chemicals and pesticides such as FAO Code of Conduct on the Distribution and Use of Pesticides2.
(vi)
(vii)
Act No. 20 of 2004 The FAO International Code of Conduct on the Distribution and Use of Pesticides (of 1985 and revised 2002), is non-binding. It is fleshed out by Guidelines to assist countries in implementing the terms of the Code at national level. The most pertinent to the present report are the 1989 Guidelines for legislation on the control of pesticides; while other Guidelines are useful for fleshing out subsidiary legislation. While it does not impose legal obligations as such, in the interests of harmonization and adherence to international best practice, these guidelines have widespread acceptance as authoritative and are therefore used as benchmarks against which national legislation can be assessed and drafted.
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(viii) The Act lack provisions for ensuring Plant protection activities are of cost recovery e.g. ensuring system of generation revenue from the regulatory functions of the plant protection health services. Similarly, as opposed to IPPC requirement, there is no special fund to support for outbreak pest, this has lead to the Government to treat outbreak pest as an emergency, however, deliberate efforts to combat such situation are always of fruitless e.g where pesticides are urgently required, their procurement process cannot by-pass normal procurement procedures as stipulated under the relevant Public Procurement legislation. (ix)Furthermore the Act failed to create a Competent Authority (CA) for pesticides control. Only NPPAC is created under the Act as advisory organ to the Minister, and its role cover both plant protection and pesticides. (x) As to the regulation of alien species and GMo products, the current PP legislation lacks provisions to handle such new technology which may be associated by risks. Regulation of importation and Use of GMOs plant products is neither in the Act nor in the Regulations. Also the legislation lack of provision for regulation of export of endangers species according to CITES. (xi)Section 32(2) (k) of the PPA empowers Research Institute to charge fees or otherwise generate revenue from services rendered. The fees are collected by TPRI (appointed under section 32). There has been considerable debate about the state of pesticide registration. The complains are about higher costs of registration of pesticides, the remedial measures on this is for the reviewing of the current Regulation to establish appropriate rates of fees as agreed upon by all stakeholders. (xii) Other gaps observed in the Plant protection is lack of compliance to the international Convention on Plant Protection and its Standard Procedures (ISPMs) such non- compliance include lacks of provisions for; o Monitoring and surveillance; o Pest Risk Analysis (PRA); o Pest Free Area (PFA) and low pest prevalence; o Pests eradication; o Pest Eradication Fund; o Powers of Inspectors with regard to Phytosanitary certificate and monitoring of Biological agents.
(xiii) Conflicting provisions: there are several provisions in the law which are conflicting or overlapping to each other as follows: o Section 16 (e) and 18 give mandates to the Minster to register Plant Protection Substances. However, in the Plant Protection Regulations, 1999 such powers are mandated to the Registrar of pesticides for pesticides and Inspector In charge for biological control agents.. It is the stakeholders view and requirement of the international conventions that the registration of plant protection substances should be left to the competent institution responsible for the regulation of such pesticides. o The Act under section 32(1) empowers the Minister to appoint any competent research institute and delegate to it such powers or duties under Ss. 21, 22, 26 and 29 of the PPA. Again section 21 26 refers to powers of conducting analysis of plant protection substances and in its broader scope, Section 29 deals with marketing of plant protection equipments while section 29(4) to (5) refers to the power of Minister to appoint a competent Institute for testing plant protection equipments. However powers of delegation provided to the Minister do not cover powers for the Competent Research Institute to undertake pesticides control and post entry quarantine. The PP Regulations, 1999 appoints a Registrar of pesticides to PARTS [reg. 16(a)] and gives him powers to permit and register pesticides [reg. 1839], the title of Registrar is not established in the Act or Regulations. The definition of Registrar is conclude under Section 2 which defines Register i.e Register of Plant Protection Substances and resistance improvers maintained under Section 16(e). In construction, Section 16(e) empowers the Minster to maintain register of Plant Protection Substances and resistance improvers and not the Registrar. o Under the current Act, the Minister is given powers to maintain a register of plant substances or products (Section 16(e)) and register the plant substances or products (Section 18). The Minster is also empowered to delegate to any individual or institution his powers prescribed under the law (Sn. 30). However, as discussed earlier on in the Regulations, authority to registered plant substances or products has been entrusted directly to be exercised by the Inspector In- charge and Registrar of pesticides. On the other side, while the Regulations governing registration and control of pesticides give right of appeal against the decision of Registrar to the Minister, there is no such right for decision of Inspector In- charge. Legally, as the PPA Act implies
that the powers to the Registrar has been extended to him by way of delegation from the Minister, in exercising his power, the Registrar is said to act as a delegatee of the Minister or an extended arm of the Minister. In the circumstance, the Registrars action or omission can be implied from the permission of the Minister and therefore, in case of fault, an appeal should not lie to the Minister, instead, aggrieved persons should have a right to recourse elsewhere e.g court of law. o Furthermore, if the Registrar of Pesticides is acting as a delegatee of the Minister, his supposed to account directly to the Minister. However, under the existing structure under the Plant Protection Regulations, 1999, the Registrar whose office is not established under the Act, is referred as a Secretary to PARTS and a member to BCAS, these are sub- committees of NPPA. By the structure, it is obvious that the Registrar is accountable to NPPAC and though currently is accountable to the Inspector In charge (the head of post entry quarantine), him being given mandates to register pesticides while biological control agents are registered by the Inspector In charge, it appears as if they have concurrent authorities. o Under Section 19(3), the Minister is given powers to approve manufacturing, compounding, importation, distribution and sale of plant protection substances or products. However, under the Regulations, the Inspector In-charge whose office is not established under the PPA is also given the mandate to approve importation and use of biological control agents and other plant protection products. o On the other hands, to overlap function of the Minister and Registrar of Pesticides, section 4(2) of the TPRI Act 1979, empowers TPRI to supervise and regulate manufacturing importation, distribution, sale and use of pesticides in the country. o Section 13(2) of the Seed Act provides that the Director shall, before granting the permit or license required under subsection (1) ensure that the standards and conditions for importation, production, processing, distribution sale or advertisement for the sale of seeds, as provided for in the PPA and in this Act, have been complied with NEMC. o Section 18 of EMA provides inter alia the functions of NEMC including carrying out of surveys which will assist in the proper management and conservation of environment including plants-there
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is a need to establish an organ which resembles NEMC in its structure and functions in relation to plant protection conflicts with the powers of the Minister responsible for Agriculture under Section 32 of the PPA. (xiv) Duplication of powers: The review reveals several section in the current law providing for dublication of mandates as follows: o Regulation 46 of the PP Regulations 1999 establishes the Plant Quarantine and Phytosanitary Services subcommittee (PQPS). This subcommittee is responsible for advising the NPPAC on all issues relating to plant quarantine. The Secretary of the PQPS is the Inspector In-charge and members to the committee includes a representative of the Post entry quarantine station or quarantine station. However, reading both the Act and the Regulations, there is nowhere the legislation established Post entry quarantine station. The PPA only provides for the post entry quarantine station under Section 2 in the interpretation of the word inspector in-charge i.e. an inspector appointed by the Minister and assigned as an officer in charge at quarantine station or post entry quarantine station or at any other place as the Minister deems necessary. o On the other hand, one of the members of the PQPS is the representative of the division responsible for pant health research in the Ministry. Currently, only known division in the Ministry for Plant Health is the one under the Department of Crop Development. According to Section 32 (2) (b) the PPA1997, it seems that role of plant quarantine is vested upon TPRI. Section 4(1) of the TPRI Act 1979, which requires TPRI to establish plant quarantine station to handle all phytosanitary matters in the country, supports this fact. o By virtue of Regulation 9 of the PP Regulations, the NPPAC Secretariat is headed by the Executive Secretary who should be the head of the division responsible for PHS. The deputy secretary of NPPAC secretariat is Inspector In- charge and the Registrar of Pesticides. Currently, the head of PHS is an Inspector In- charge and according to Regulation 9, the same person is also the Executive Secretary and Deputy Secretary to NPPAC Secretariat3.
Note that the same officer functions as assistant director under the Division of Crop Development charged with plant health services.
3
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o Another area of duplication or conflict is Regulation 8(3) which provides for the two deputy secretaries of NPPAC i.e Inspector InCharge and Registrar of pesticides. Functions of these two deputies are not even provided in the Regulations, so it is not known who should do what. o Regulation 49(5) empowers the Inspector In-charge in consultation with the PQPS and after approval of the Minister, to amend the fourteenth and fifteenth Schedules from time to time and such amendments shall be reported to NPPAC and published in the Gazette. This power of amending the Schedule is in conflict of the powers of the NPPAC and the Minister. Among powers on NPPAC according to Regulation 4(1) (d), is to propose to the Minister areas in the plant protection legislation that require revision or updating as may be deemed necessary from time to time. Under that provision, it was anticipated that the role of revising any part of the plant protection legislation including PP Regulations is upon the Minister after the receiving proposals from NPPAC and not by any individual or institution responsible for implementation Plant Protection legislation. o There is also confusion regarding the responsibilities of Registrar under Regulation 44. Currently, the responsibilities assigned to the Registrar under Regulation 44 (2), (3), and (4) are performed by the Inspector In - charge who also perform the responsibilities under Regulation 42 (1) a, 42 (2), 42 (3), 43 and sign the forms prescribed in the Seventh and Eighth schedules. o Regulation 8(1) refers to the division responsible for Plant Protection Services as the Secretariat to NPPAC. However, Plant Protection Services is not established under any part of the PPA or PP Regulations.
o According to Regulations 8(1), the Executive Secretary of NPPAC, and the head of the Plant Protection Services. However, pursuant Regulation 59 (a) the same title is referred as the Secretary to the Outbreak Pests Control Committee. o At the moment, the National Environment Council, as an apex organization, sets policy on pesticides monitoring, and in the Environmental Management Act no one organisation is identified as having the sole mandate for pesticides. TFDA has a responsibility to
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ensure that food is free from contaminates, including pesticides and likewise for the Fisheries Department. o There are also some gaps on institutional representation e.g. the division responsible for research of the Ministry for agriculture is not represented in the Biological Control agent subcommittee; Inspector In charge and Registrar are not expressed to be members to TPRI Council; the Regulations does not provide specific officer to head point entry; TPRI is expressly represented in PARTS and OPCS, but not to BCAS; Inspector In-charge is not a member to PARTS; lack of private sector representations in any of the Committees for the enforcement of PPA. o There is no linkage between registration, inspection and monitoring o There is no linkage between activities of PHS and TPRI. o LGAs is not represented in any of PPA institutions, instead it is in the list of co-opted members to OPCS under Section 59(2). o Though among duties of TPRI under Section 32(2)(b) (d) and (j) are to perform plant quarantine; participant in monitoring of plant protection substances and equipments and conduct specialized training in the field of plant protection, there is no close linkage between activities of PHS and TPRI.
1.2 Zanzibar legislation The review of the plant protection and pesticides related legislation for Zanzibar has revealed the following short falls : (i) Zanzibar being part of the United Republic of Tanzania is bound to implement several international, regional and inter-regional agreement of which the United Republic of Tanzania is part. However, like mainland, the current plant protection of Zanzibar was enacted before the United Republic of Tanzania acceded or ratified to various international conventions/agreement in respect to the plant protection and pesticides. Therefore, there is lack of compliance to the existing international instruments.
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(ii) As regards to the pesticides management, while for Tanzania mainland the main problem appears to be the existence of several institutions claiming mandate over the regulation of pesticides, in Zanzibar, there is no authority with specific mandate over pesticides. Even where pesticides are mentioned or an inference to that effect can be drawn, the provisions are unclear or quite inadequate. It is therefore proposed that a completely new law on pesticides be enacted in line with the acceptable international standards for Zanzibar. (iii) It would appear that at formulation stage, careful thought was not given to other pieces of legislation impacting in one way or another, on plant protection. As a result, in implementation, there appears to be lack of harmonization and syncronisation between the primary plant protection legislation and other laws. At times there have been different authorities both/all claiming jurisdiction over some aspects of plant protection (iv) On a different level, there appears to be some practical problems emanating from the nature of the Constitutional set up of the Union between Tanzania mainland (formerly Tanganyika) and Zanzibar. Whereas Tanzania has entered into various international agreements on plant protection as a United Republic, agriculture is not among the matters considered to be union ones and thus falling under the ambit of the United Republic control/regulation. As result, both Tanzania mainland and Zanzibar have their own legislation as well as implementation authorities on plant protection which may cause difficulties if the compliance to the international trade pertaining to agricultural products. (v) Unlike its mainland equivalent law which has comprehensive provisions addressing both plant protection substances (thus including also pesticides) and plant quarantine, the Zanzibar PPA does not have provisions for plant protection substances. (vi) The Act also provides for wider discretion on the Minister responsible for Agriculture. For Instance, under section 4(6) the Minister may, from time to time by notice published in the Official Gazette exempt from the requirement of imports conditions specified in the Act any specified plant material or kind of plant material, provided that he is satisfied that its importation would not present a significant threat to the agriculture or natural environment of Zanzibar. This powers can be exercised without relying to any technical advise because the law does not establish any advisory committee to assist the implementers of the law.
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(vii) As opposed to the mainland Act, the Zanzibar PPA does not provide for mechanisms for dealing with outbreak pests or alternative techniques for pest management and control including the use of biological control agents or integrated pest management (IPM). The Act also lacks provisions governing analysis procedures and designation of any analysts or laboratory for that purpose. (viii) Throughout in the Act, the Zanzibar PPA envisaged that enforcement would be done by the Plant Protection Division but nowhere in the Act is the Division specifically established or specifically entrusted with enforcement mandates. (ix) Also, the implementing regulations have not yet been made. For example, section 10 makes reference to the Schedules but these are nowhere to be found in the Act. Furthermore, the Act provides for the appointment, powers and duties of inspectors but it does not clearly provide for their appointing authority academic or professional qualifications. (x) The law also contains very limited powers/functions of inspectors. During the consultations, most inspectors lamented of the lack of training and lack of clear guidelines in the absence of regulations. They pointed out for example that there are no clear guidelines as to what exactly should they look at when inspecting plant products before clearing them for export or entry into the country.
In line with the findings, it is suggested that the current plant protection legislation for both mainland and Zanzibar should be repealed and replaced with new legislation which are compliant with the international requirements. Based on best international practice studied from elsewhere, such as Kenya, USA, UK, Canada and South Africa, it is recommended for separating plant protection legal regime from that of pesticides management. This recommendation is supported by the fact that even under the international agreement the two regimes are regulated by separate instruments with separate regulations requiring different technical applications. Also, in order to avoid current confusion in the management of pesticides by multiple government agencies, the proposal is to have a single law establishing a single body to deal with pesticides management regardless to which sector particular pesticides are used. Like in Kenya were all pesticides are regulated by a
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single Pesticides Control Board, the proposed institution for Tanzania will be drawn from the current office of Registrar of Pesticides with structured advisory committee from all sectors which are dealing with pesticides. This will simplify management by pulling together all resources within a single mandated entity while ensuring effectiveness and efficiency in the enforcement. This idea was highly welcomed by the stakeholders. For secure common and effective action for the prevention and introduction of pests to plants and plant products within the United Republic of Tanzania, it is advisable that Tanzania mainland and Zanzibar should adopt common legislative, technical and administrative phytosanitary measures which are compatible with the international standards. In line with the findings, the consultant in collaboration with the ILC has drafted two sets of legislation for Plant Protection and Pesticides Management to apply separately for Tanzania mainland and Zanzibar. Based on the recommendations from validation workshops, the proposed draft legislation will be re-drafted to fit the purposes for both sides of the union.
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TABLE OF CONTENTS
EXECUTIVE SUMMARY.......................................................................................................... 5 1.0 1.1 1.2 1.3 1.3.1 1.3.2 2.0 2.1 2.2 INTRODUCTION ........................................................................................................ 19 Background of the Study ............................................................................................ 19 Purposes of the Study.................................................................................................. 19 Objective of assignment .............................................................................................. 20 The Primary Objectives ........................................................................................... 20 Rationale for the Assignment ................................................................................. 21 METHODOLOGY AND APPROACH ..................................................................... 22 Approach....................................................................................................................... 22 Scope and coverage ..................................................................................................... 23
3.1 Existing Legal and Regulatory Framework for the Plant Protection in the mainland Tanzania .................................................................................................................. 24 3.2 3.2.1 3.2.2 3.2.3 3.2.4 3.2.5 3.2.6 PHYTOSANITARY REGULATION UNDER THE PPA LEGISLATION ............ 28 Regulated substances .............................................................................................. 29 Institutional framework for the enforcement ...................................................... 30 Inspector and Inspector In charge ...................................................................... 31 National Plant Protection Advisory Committee (NPPAC) ................................ 32 Pesticides Registration ............................................................................................ 33 Pesticides Research .................................................................................................. 34
Conversely, under the PPA TPRI is responsible for the following:- ................................ 35 4.0 4.1 4.2 4.3 4.4 4.5 PLANT PROTECTION AND OTHER RELATED LEGISLATION ...................... 36 The Environmental Management Act No 20 of 2004 .................................................. 37 The Occupational Health and Safety Act No. 5 of 2003 ........................................... 37 Industrial and Consumer Chemicals (Management and Control) Act, No 3, 2003 38 Tanzania Food, Drugs and Cosmetics Act No 1 of 2003 ............................................ 39 Animal Diseases Act No.17 of 2003............................................................................... 39
4.6 Local Government (District Authorities) Act Cap. 287 and Local Government (Urban Authorities) Act Cap. 288.............................................................................................. 40 4.7 Seed Act No 18 of 2003 .................................................................................................... 41
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Report on the review of the Plant Protection Legislation for Tanzania 4.8 4.8.1 4.8.2 4.8.3 5.0 6.0 Crop Laws Legislation.................................................................................................... 41 The Tea Regulations, 1999 .......................................................................................... 41 The Cotton Industry Act ............................................................................................. 41 The Coffee Regulations 2003 ...................................................................................... 41 VALIDATION WORKSHOP ....................................................................................... 42 CONCLUSION AND RECOMMENDATIONS ....................................................... 43
7.0 LEGAL AND INSTITUTIONAL FRAMEWORK ON PESTICIDES MANAGEMENT AND PLANT PROTECTION IN ZANZIBAR: SITUATIONAL ANALYSIS ................................................................................................................................... 45 7.1 7.1.1 7.1.2 INTRODUCTION, RATIONALE AND BACKROUND ............................................ 45 Introduction .................................................................................................................. 45 Rationale for Zanzibar Review ................................................................................ 45
8.0 PESTICIDES USE, STATUS OF STOCKPILES AND THE FUTURE TRENDS IN ZANZIBAR ............................................................................................................................ 47 8.1 8.1.1 8.1.2 POLICY FRAMEWORK ................................................................................................ 47 Zanzibar Food security and Nutrition Policy (ZFSNP), April 2008 ................... 48 Zanzibar Agricultural Policy 2002 ........................................................................... 48
8.1.3 Zanzibar Agricultural Transformation for Sustainable Development, 20102020 (Agricultural Transformation Initiative-ATI) .............................................................. 48 9.0 AN ANALYSIS OF THE CURRENT LEGAL AND INSTITUTIONAL FRAMEWORK ............................................................................................................................ 49 9.1 9.2 9.3 The Plant Protection Act No. 9 of 1997 ........................................................................ 49 The Environmental Management for Sustainable Development Act, 1996............. 55 The Zanzibar Food, Drugs and Cosmetics Act, 2006 .................................................. 56
10.0 SOME KEY CONCERNS WITH THE CURRENT LEGAL AND INSTITUTIONAL FRAMEWORK .......................................................................................... 58 10.1 11.0 12.0 13.0 14.0 Gaps and Inconsistencies .............................................................................................. 58 INTERNATIONAL REQUIREMENTS / INSTRUMENTS ................................... 59 UNIFORM LAW FOR MAINLAND AND ZANZIBAR? ....................................... 60 VALIDATION WORKSHOP ....................................................................................... 61 CONCLUSION AND WAY FORWARD.................................................................... 62
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1.0 INTRODUCTION 1.1 Background of the Study
The Government of the United Republic of Tanzania with support from Global Environment Facility (GEF) Trust Fund and other multilateral financing partners namely the European Union (EU), CIDA, Belgium, Finland, France, Japan and Sweden is implementing Africa Stockpile Program (ASP) through the National Environment Management Council (NEMC).The NEMC has set aside part of the funds to support the review of the Plant Protection legislation. This Firs Draft Report is part of the requirement of the Consultancy Agreement for Drawing Draft of Plant Protection Act (PPA) between the National Environment Management Council (NEMC) and Mr. Goodluck Peter Chuwa (herein after referred to as the Consultant) as signed on 17th January 2011. 1.2 Purposes of the Study
In order to protect agricultural production and trade as well as the livelihoods of farmers from harmful pests and diseases, Tanzania, like other countries introduced the plant protection and phytosanitary control legislation. The Plant Protection Act, 1997 (Cap. 133 R. E, 2002 and the Plant Protection Regulations of 19994 govern the current plant protection legislation for Tanzania mainland whereas for The Plant Protection Act, 1997, one has to appreciate the fact that at the time the Act was passed in parliament, Tanzania had yet to commit itself to various international instruments relating to plant protection. The aim of this legislation is primarily to prevent the introduction of pests and diseases from other countries to Tanzania. Due to the change of socio- economic conditions, it is necessary that the existing legislation be reviewed in order to accommodate the new developments on plant protection and pesticides management as embodied in the international agreements which Tanzania is now a member to.
(GN No.401 of 1999)
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The review of the plant protection legislation for Tanzania arises from the fact that a significant part of the Tanzania trade is basically agricultural and there is currently a growing demand for her agricultural exports world-wide. The recent agricultural export trends have been upwards, with opportunities emerging in certain new areas such as horticulture and traditional cash crops, especially those which adhere to new market demands such as sale of organic products or products with acceptable residue levels. Furthermore, regional markets for agricultural products are expected to increase, especially after the expansion of the regional trade within the SADC, EAC as well as international trade with external partners including EU etc . Moreover, with the change of policies including the adoption of the ASDS, ASDP and KILIMO KWANZA (literally, Agriculture first) resolution, there has been an increased demand for the stakeholders in the agricultural sector to receive quality agricultural service, plant protection being inclusive. Therefore, apart from external demands, there is a strong need within the national policy framework for the reforms of the legal and institutional framework that will put in place conducive environment for the effective and efficient plant protection and pesticides management.
1.3 Objective of assignment
The main objective of this assignment is to review the Plant Protection and pesticides related legislation for Tanzania Mainland and Zanzibar and provide for necessary alignment in order to accommodate new developments in the agricultural sector as well as international agreements. The proposed revision is to enable Tanzania to have a national legislation that takes into account all requirements under the international agreements in respect of the plant protection and pesticides regulations such as IPPC, SPS etc.
1.3.1 The Primary Objectives The primary objectives of this consultancy are to: (a) Review the Plant Protection legislation for Tanzania Mainland and the Plant Protection Act for Zanzibar and provide for necessary alignment in order to comply with international and regional
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agreements on plant protection and pesticides regulations of which Tanzania is a party. (b) Compile and review the completed gap analyses and proposed amendments to the relevant legislation produced by all relevant stakeholders; the Ministry of Agriculture, Food Security and Cooperatives and the Ministry of Agriculture Livestock and Environment of Zanzibar in particular; Propose an appropriate system for coordination of the plant protection matters for both Tanzania mainland and Zanzibar which will comply with the International Agreements in respect to plant protection and pesticide regulation which the United Republic of Tanzania is party, Suggest for the proper institutional linkages between the public institutions responsible for the plant protection services and private sector for both Tanzania Mainland and Zanzibar; and Propose, if necessary, a new institutional framework which could deal better with the current enforcement of the law.
(c)
(d)
(e)
1.3.2 Rationale for the Assignment With agricultural products being a main source of the Tanzanian national revenue through domestic and international trade, there is a need to ensure quality standard, safety of the products and consumer choices. Review of the Plant Protection and pesticides related legislation is important to enable it operate efficiently and effectively in response to the current international, regional and domestic standards and legal requirements. Thus, this assignment aimed at attaining the following specific objectives: (a) Review the existing Plant Protection Legislation to identify outdated provisions, gaps and inconsistent provisions; (b) Review the related legislation (TPRI Act, EMA, TFDA, ADA, SA) to identify areas of conflicts; (c) Study regional and international legal instruments relating to plant protection with the view to determining levels of compliance by the
21
PPA and identify gaps in the PPA which need to be filled to ensure compliance; (d) Study experiences of implementing plant protection legislation of other countries with the view of drawing experiences or lessons that would be used to improve the PPA; (e) Review/audit the performance of the existing institutional
institutions charged with implementing the legislation with the view of identifying areas of conflicts/duplication in roles and functions and structures and manning levels for an efficient and effective operationalization of the PPA; (f) Make proposals for the review of a legal and institutional framework of the PPA. 2.0 2.1 METHODOLOGY AND APPROACH Approach
The scope of activities of the assignment involved both deskwork and consultative approach of which the consultant was required, among others, to undertake the following: (i) (ii) Identification of relevant literature (reports, legislation and regulations) for review. Compile and review all relevant plant protection and pesticides legislation and regulatory documents in force in Tanzania. The consultant was expected to review the existing information and legislation including the Plant Protection Act of 1997 (Tanzania Mainland) and the Plant Protection Act of 1997 (Zanzibar) and compile the findings and recommendations. Compile and review the completed gap analyses and proposed amendments to the relevant legislation produced by all relevant institutions; the Ministry of Agriculture, Food Security and Cooperatives and the Ministry of Agriculture Livestock and Environment of Zanzibar; Undertake consultations with key stakeholders as agreed by the Client
(iii)
(iv)
22
(v)
Analyse the compatibility of the Plant Protection Act and other related legislation. Propose amendments to the Plant Protection Legislation that will increase harmonization of the legislation.
(vi)
(vii) Propose an appropriate system for coordination of the plant protection matters for both Tanzania mainland and Zanzibar which will comply with the International Agreements in respect of pests regulation which the United Republic of Tanzania is a party. 2.2 Scope and coverage
The review and analysis primarily covers the Plant Protection Act, Cap. 133, Plant Protection Regulations of 1999 (for Mainland), the Plant Protection Act, 1997 (for Zanzibar) as well as other related legislation. The information was also gathered through desk study and interviews and/or consultations with stakeholders from both Tanzania mainland and Zanzibar. Specific areas of visits were Dar es Salaam, Arusha and Zanzibar. The collected information have been supplemented by in depth analysis of the existing national legislation governing plant protection and pesticides regulation to assess their impact on the current legal framework for Tanzania. Together with this report which mainly discusses the national legislation, the report by the ILC provides for the detailed analysis on the international perspective regarding extent of compliance of the Tanzanian laws to the international conventions as far as plant protection and pesticides management for both mainland Tanzania and Zanzibar are concerned. The ILC report addresses the obligation of the United Republic of Tanzania under the international Conventions such as the IPPC, WTO-SPS Agreement as well as other plant protection and pesticides related legal instruments such as FAO Code of Conduct for the Distribution and Use of Pesticides:, the Rotterdam Convention on PIC and the Stockholm Convention etc.
3.0
SITUATIONAL ANALYSIS
23
3.1
Existing Legal and Regulatory Framework for the Plant Protection in the mainland Tanzania
The process of reviewing the Plant Protection for mainland Tanzania began in 2003. For the Plant Protection Act and its Regulations of 1999, the Ministry of Agriculture Food Security and Cooperatives through its Legal Unit and the Plant Health Services Section (PHS) under the Directorate of Crop Development managed to conduct about three taskforce meetings which came up with a report providing for an analysis of various policies and legislation impacting on pest control in Tanzania. The latest report for the review of PPA by the MAFC is that of March, 20085. The report covers collected and compiled comments from various stakeholders on the Plant Protection Act and its governing Regulations alongside policy and other national and international legal instruments, including SPS, IPPC, and Codex Allimentarius, etc. In line with proposed amendments to the Plant Protection legislation, MAFC has also initiated review of the Tropical Pesticides Research Institute Act of 1979 (Cap.161 of R.E 2002) providing for the regulation and control of pesticides research for the purposes of complying with the on-going institutional and legal reforms both nationally and internationally. A review of the availed documents indicates that the PPA was allowed to become operational on the understanding that after operating for about five years, a thorough review would be conducted to addressing any impediments that would have been encountered in the course of implementation of the legislation. After five years of its coming into force, a number of studies on the effectiveness and efficiency of the legislation has revealed a number of concerns from stakeholders that justify its review. These include the following:(a) Addressing pre-operation concerns raised by some implementers of the legislation: For instance, the TPRI had a number of concerns, which it thought, warranted not to allow the PPA to become operational. These include:
MAFSC, Taskforce Report for the Review of the Plant Protection Act, Morogoro, March, 2008.
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(i)
amendment of the TPRI Act by the PPA, which had the effect of removing the provisions with regard to registration and control of pesticides, was done without involvement of TPRI.
(ii)
Further that, the amendments left pesticides on animal and human health without proper legal framework for registration and control;
(iii)
The amendment was not thorough, since under section 4(2)(a) of the TPRI Act which empowers the institute to supervise and regulate the manufacture, importation, distribution, sale and use of pesticides in the United Republic is in conflict with the PPA; and
(iv)
A general concern that the enforcement of the Act would decrease the institutions income and probably the authority to utilize it.
(b) Experience gained in administrating the operations or enforcement of the Act: This emanates from dissatisfaction aired by some implementers of the Act; the main implementers have never operated as a team. At times there have been overt acts of frustrating the effective operation of the Act. For example, dissimilar documents are used in issuing permits and certifications. Further, there have been complaints that finances earmarked for operationalization of the Act are misused (that is, they are not used to finance the budgeted activities). Also proper functioning of the key enforcers of the legislation, such as the Registrar of pesticides, has been made difficult. (c) Weaknesses in the institutional framework that was set within the legislation for its proper enforcement: There has been lack of clarity in the roles and responsibilities of key implementers of the legislation and a disciplinary mechanism for taking proper disciplinary action against unscrupulous implementers. For example, although the NPPAC is, by and large, a final decision maker as far as the implementation of the PPA is
25
concerned, in a number of instances it has issued directives to some of the implementing agencies, which have been simply ignored or unnecessarily delayed and it is contended that NPPAC has no say on the employment of PPA enforcers. (d) Lack of proper office to enforce the law: there is also a concern that,
administratively, the law has been enforced almost without a Chief Executive Officer. It would seem, although the law intended to have a system whereby key implementing institutions would have a joint responsibility to ensure its proper implementation, the relevant
implementing agencies, namely TPRI and PHS remained divided. At the Local Government level, there has been a problem of mixing activities relating to plant protection with those of delivering general agricultural services, thus DPPOs have been always misused by the District authorities. As opposed to what is proposed in the international instruments such as IPPC, Tanzania has no institution which operates as the National Plant Protection Organization (NPPO). (e) Need to achieve value for money in respect of plant protection services: It is argued that the need for the review of the PPA also has been necessitated by several complaints that have been aired by the different stakeholders on a number of issues. These range from costs of complying with the legislation to being confused on the proper authority that one is subjected to. Some complaints have come by way of drawing examples from other countries which are thought to be doing better in enforcing plant protection. In short, it has been proved that the costs of complying with the Plant Protection legislation in Tanzania is too high, compared to some neighbouring countries. However, it is a concern by the stakeholders that they do not see any returns from monies paid for the plant protection services in relation to
26
the improvement of services rendered including reduction in return of the consignments from Tanzania which are exported abroad.
(f) Compliance to the regional and international standards: Following recent studies it has been revealed that the PPA does not comply with international legal documents to which Tanzania is a member6. Some studies have attributed slow development of trade in agricultural commodities with problems in the enforcement of the PPA7. All these studies recommend revision of the Plant Protection Legislation to ensure compliance with international legal instruments and efficient agricultural trade. Due to the changes that have taken place internationally and regionally, especially with regard to phytosanitary matters, the current PPA looks outdated in a number of areas, which include the following: EUREGAP issues (MRLs and accreditation and traceability), GMO plants and regional plant protection standards harmonization. Being outdated in the aspects made above is another factor that warrants the amendment of PPA. (g) Harmonisation between PPA of Tanzania Mainland and Zanzibar: When it comes to international relations and/ or obligations under international instruments, including plant protection, the United Republic of Tanzania is assumes responsibility as one country. However, under the constitutional set up of the union between Tanzania Mainland and Zanzibar, agriculture is not a union matter. This has allowed for Zanzibar to have separate legislation in regulation of matters falling in the agricultural sector including plant
6
See for example, the NRI/TPRI (2006) study on Establishment of an Institutional and Legal Framework on Hygiene and Safety of Agricultural and Natural Resources Products financed by BEST Project and Rutabanzibwa, A. P. (2006) The Tanzania agricultural trade law and institutional frameworks: an assessment of compliance to WTO agreements, financed by FAO; 7 See World Bank (2005) DITS; Mwaniki Associates et al. (2006) Tanzania Agricultural Reforms, financed by BEST Project.
27
protection and pesticides management.
This approach has significant
implications as far as compliance with the international conventions is concerned by the United Republic of Tanzania. Therefore, a review of the PPA is necessary in order to consider an appropriate system which will realign the law for both mainland and Zanzibar.
3.2
PHYTOSANITARY REGULATION UNDER THE PPA LEGISLATION
As already pointed out, the PPA was enacted in 1997 but was not put into operation until 2001. The primary objectives of the Act as stated in the long title are: (a) to make provisions for consolidation of the Plant Protection Act; (b) to prevent the introduction and spread of harmful organisms; (c) to ensure sustainable plant and environmental protection; (d) to control the importation and use of plant protection substances; (e) to regulate export and imports of plants and plant products; (f) to ensure the fulfillment of international commitments; and (g) to entrust all plant protection regulatory functions to the Government, and for related matters incidental thereto or connected therewith. To consolidate the Plant Protection Act: section 43 this Act repealed the old colonial legislation, the Plant Protection Ordinance, Cap. 133 of 1937, the Locust Ordinance, Cap. 136 , as well as section 4(c), 13 and Part V of the Tropical Pesticides Research Institute Act 1979 which contained the provisions governing pant protection and plant protection control products , mainly pesticides . To prevent the introduction and spread of harmful organisms and to ensure sustainable plant and environmental protection: in this regard, the Act empowers the Minister responsible for agriculture to make several rules, notices and Regulations8 .
8
E.g. under sections 3,6, 7, 10, 14 and 16.of the Act, the Minster is empowered to make Rules , notices or Regulation governing;(i) (ii) (iii) (iv) (v) preventing and controlling attacks by or the spread of harmful organisms or diseases in Tanzania; containment or controlling of outbreak pests importation for plant substances for research purposes official points of entry and quarantine stations in Tanzania; and regulations on plant protection substances, plant resistance improvers and register;
28
Observation: Despite the fact in its objective clause/ long title, the PPA was meant to ensure the fulfillment of international commitments by the United Republic of Tanzania, the law covers only the mainland Tanzania and was enacted before Tanzania signed or acceded to various important international agreements or conventions governing plant protection or phytosanitary matters including the IPPC. While by then Tanzania was not a member to any IPPC instrument, yet section 2 of the Act defined international phytosanitary certificate" to mean a phytosanitary certificate substantially in the form of the Model Phytosanitary Certificate annexed to the International Plant Protection Convention of 1951 as amended in 1979, and issued by or under the authority of a technically qualified and duly authorised officer and the term "certification" shall be construed accordingly; 3.2.1 Regulated substances
The plant protection legislation for Tanzania applies only for Tanzania mainland and basically was intended to regulate both plant protection and plant control products i.e. pesticides and any other products or organisms that may be used for the control of plant pests9. Section 2 of the Act defines plant protection substances" as substances which are intended to (a) protect plants against harmful organisms; (b) protect plants against non-parasitic impairments; (c) protect plants or plant products against animals, plant, or micro-organisms which are not harmful organisms; (d) influence the vital processes of plants without serving nutritive purposes; (e) inhibit the germination of plant products; (f) any substances added to the plant substances for the purposes of changing their properties or effects: and (g) any other substances which are intended to kill plants or to clear areas of plant growth or to keep such areas clear of such growth but not include water and fertilizers within the meaning of the relevant inputs legislation;. Observation: Though a reading of the definition of plant protection substances would cover also pesticides, this is not explicitly mentioned in the Act. Pesticides are only addressed in the regulations (part II of the Regulations)10 with its technical meaning and respective regulatory organs i.e. Registrar and PARTS.
9 10
Reg. 16-39
29
In addition, the definition of plant protection substances does not cover acaricides, household pesticides, public health pesticides and any other non- plant protection substances11 . As such, the scope of the law itself also does not cover any GMOs plant protection substance. 3.2.2 Institutional framework for the enforcement
Principally, as noted, the overall administration of the PPA and its Regulations is vested upon the Minister responsible for agriculture12, The Minister is responsible for agriculture and therefore, he/she is empowered among others, to appoint or designate the inspectors, analysts and pesticides testing laboratory to assist in the enforcement of the Act. The inspectors are appointed under section 33 with all authorities to enforce the Act. In enforcement of the Act, Plant Protection Inspectors are assisted by other officers including custom and postal officers. Together with the inspectors, the law provides the authority to the Minister to assign or delegate some or all of his powers under the Act to the any other officers13 . The Minister is responsible to perform the following functions, namely: to may make rules for the purposes of preventing and controlling attacks by or the spread of' harmful organisms or diseases (S. 3). to declare outbreak pests (S. 6); to make regulations for purposes of controlling outbreak pests; to permit or prohibit importation of plant protection substances (Ss. 8 & 9) ; to make regulations for the protection of human and animal health or for averting dangers (S. 16); to register the plant protection substance and maintain the register thereof (S. 18 & 16(e)); to cancel the registration of plant protection substance (S. 17(4)); to publish in the Gazette, a list of any plant protection substance registered and amend the list (S. 17(5))
11
Akhabuhaya J.L (2010) Frequently asked Questions of Pesticides Registration and Importation into Tanzania Tanzania Horticultural Association (TAHA), Arusha
12
13
Section 30.
The March 2008 Taskforce Report by MAFSC.
30
to allow the manufacturing, compounding, importation, distribution, sale, offer or exposure for sale, as the case may be, of any plant protection substance (S. 19 (3); to issue or cause to be issued a Code of Conduct for the proper use of plant protection substance, plant resistance improvers and equipment (S. 27 (2)); to keep a list of equipment types for which a declaration has been submitted and publish the same in the Gazette,(S. 29(4)); to appoint a competent research institute to test the plant protection equipment (S. 29(5)); to prescribe the composition of the NPPAC and its operation procedures. to appoint any competent research institute and delegate to it such powers or duties to appoint inspectors (S. 33), to make regulations for the better carrying out of the of the provisions the Act. to appoint Chairman and Vice Chairman of NPPAC (Reg. 5(1)) and to hear appeals from decision of Registrar (reg. 26 (4)-(5)).
Observation: By the described duties, pursuant to Sections 16(e) and 18 of the Act and regulations 26 (4)-(5))., the current Plant Protection legislation, allows the Minister to function as a Registrar of the plant protection substance as described under section 2. It is worth to point out, though there is no specific provision in the Act to show how any modalities of accounting for the delegates of the Minister under the Act including the Registrar of pesticides, the Minister being a person entrusted by the law to register pesticides can at the same times act as an appeal board against the decision of the Registrar. This raises some legal questions as to the ministers role as an appeal body. At the same time, it would appear that the Minister has been entrusted with too many responsibilities under the Act, most of which are technical. 3.2.3 Inspector and Inspector In charge
As noted above, the Minister is empowered to appoint or designate inspectors to assist in the enforcement of the Act. In performing their duties, Inspectors can be assisted by the other officers such as customs and postal officers (section 37). The Minister is also required to appoint inspector in-charge whose roles are as follows, namely: to approve destruction of plant or plant products (s. 4(2); to act as In charge of all Plant Inspectors, to authorize removal of plant or plant product from quarantine (Reg.57); to issue Phytosanitary Certificate for Plant and plant products. (Reg. 58); 31
to control outbreak pests (Reg.62); to act as a Deputy Executive Secretary to NPPAC (Reg. 8(3)); to act as a Secretary to Biological Control Agents Sub- committee. to act as a registrar on permit of importation of biological control agents; to act as a Secretary to the Plant Quarantine and Phytosanitary subcommittee; and to issue permits for importation of plant and plant products;
Observation: Though in practice, inspector in-charge has been taken to mean a title describing also the current head of section of the plant health services, thus Assistant director of plant health services, the proper definition of inspector incharge under section 2 of the Act it means an inspector appointed by the Minister and assigned as an officer-in-charge at a quarantine station or post entry quarantine station or at any other place as the Minister deems necessary. Thus, there is a confusion as to who exactly is the inspector in charge. Also, the Assistant director of plant health services being also an Inspector- In charge cannot perform effectively regulatory functions under the plant protection legislation as well as promotional functions entrusted to him/her by virtue of the title of Assistant director under the Ministry. In addition, the same assistant director while acting at the position of Inspector In charge and secretary to biological control agents is entrusted under the Regulations 43 with the mandates to permit the importation of the biological control agents, of which the Registrar of pesticides is required on the other side to register and or regulate (Regs. 44 and 45). 3.2.4 National Plant Protection Advisory Committee (NPPAC)
The NPPAC is a scientific advisory agency to the Minister or any other person appointed by him on matters concerning the registration and use of plant protection substances plant quarantine and crop pest control (Section 31 and Reg. 4(1). The NPPAC is responsible to oversee all enforcers of the PPA as established under the Act or regulations. In discharging its function, the NPPAC is assisted by four sub-committees established under the Plant Protection Regulations. These are the pesticides Registration and Approval Technical sub-committee (PARTS)14, the Biological Control Agents Sub-committee (BCAS)15 Plant Quarantine and Phytosanitary Sub-committee16, Outbreak Pests Control Sub-committee (OPCS) 17
14
Regulation 16. 15 REgulationn40 16 Regulation 46 (1) 17 Regulation 59
32
The NPPA functions through its secretariat, which is the Division responsible for plant health services under the Ministry and the head of such division is the Secretary to the Committee (reg. 8).The Registrar of pesticides and the Inspector incharge are each to be the Deputy Executive Secretary of the NPPAC and, unless specified in the Act and the Regulations, they are assigned such duties as the Executive Secretary may direct. Observation: As discussed before, the current division responsible for plant health services which is the secretary of NPPAC is headed by the Assistant Director. However, under the PPA legislation the same director appears to function as the Executive Secretary of NPPAC and so being an Inspector In-charge, he/she also functions as a deputy secretary to NPPAC. There is therefore a need to clarify the roles, leaving him/her with only one of the two. 3.2.5 Pesticides Registration
As pointed out earlier on, the authority to register pesticides under the PPA is the Minister. The Minister acts through the Registrar of pesticides. Although the appointment of the Registrar is not specifically provided in the Act, his functions are well provided in the Plant Protection Regulations, 1999. Specific functions of the Registrar under the Regulations, include: to function and the Deputy Executive Secretary of the NPPAC (reg.8(3)) to function as a Secretary to the PARTS; to issue permit for pesticides importers; to register pesticides (reg.24, 25 and 26) to licence importers and pesticides operators (reg. 31) to approve and register biological control agents (reg. 44(4))
Registration of pesticides under the regulation needs to comply with certain set out conditions. For instance, though there is no specific provision to control POPs releases, among others, Regulation 27 of the Plant Protection Regulations (1999) stipulates restrictive registration conditions of pesticides with POPs characteristics18. Observation: According to the regulations, the only specific powers of the Registrar are those related to the registration of pesticides and biological control agents.
See also URT, VPO (2005) National Implementation Plan (NIP) For The Stockholm Convention On Persistent Organic Pollutants(Pops)http://www.pops.int/documents/implementation/nips/submissions/NIP_Tanzan ia.pdf
18
33
However, the law is silent on whether or not the Registrar is responsible for the control or monitoring of the pesticides and registered biological control agents in the market to determine compliance by the registrants or users. Equally, there is no provision in the regulations governing handling or monitoring of all cycles of pesticides up to the user and its final disposal. This gap is partly responsible for the presence of unregistered, fake, substandard pesticides and tones of accumulation of obsolete pesticides in the country. Due to the lack of capacity in terms of human and financial resources within the office of Registrar, it has been difficulty to facilitate close monitoring and management of pesticides. On the other hand, there is general lack of awareness among various stake holders about risks involved with pesticides. 3.2.6 Pesticides Research
Section 32 of the PPA empowers the Minister to delegate to the competent research institute some of the activities related to the testing of the plant protection substance. Currently, the only delegated institute is the Tropical Pesticides Research Institute (TPRI). TPRI is a semi-autonomous institute established under the TPRI Act, 197919 with an objective of providing pesticides research in the country. Amongst functions of TPRI under section 4(2)(a) of the TPRI Act 197920, empowers TPRI to supervise and regulate manufacturing, importation, distribution, sale and use of all pesticides in the country including those for livestock and public health. This function is supported by the long title of the law that gives TPRI the mandate to control pesticides. As opposed to the PPA in which the word pesticide is not defined, the TPRI Act defines pesticide to mean: any matter of any description (including acaricides, arboircides, herbicides, insecticides, fungicides, molluscicides, nematicides, hormonal sprays and defoliants) used or intended to be used, either alone or together with other material or substance(a) for the control of weeds pests and diseases in plants; or (b) for the control of external vectors of veterinary or medical disease and external parasites of man or domestic animals; or (c) for the protection of any food intended for human or animal consumption;
19 20
The TPRI Act is also under the review with MAFSC. Cap.. 161 of R.E 2002
34
Conversely, under the PPA TPRI is responsible for the following:o perform plant quarantine, investigation, research and coordination; o participate in the monitoring of plant protection substances and plant o resistance improvers; o participate in the monitoring of plant protection equipment types entered in the plant protection equipment list; o test plant protection equipment; o test and develop plant protection methods; o test plants for their resistance to harmful organisms; o test plant resistance improvers; o test equipment and devices which are used in plant protection o conduct specialist training in the field of plant protection; o charge fees or otherwise generate revenue from the services rendered; and o ensure that the revenue generated from the fees or any other charge guarantee sustainable and quality services. Pursuant to Regulation 22 of the Plant protection Regulation, TPRI is responsible for carrying out pesticide analysis and testing. Though section 32 of the PPA does not provide for the appointment of the Analyst in-charge, regulation 2 of the plant protection regulations defines the Analyst in-charge to mean the chief analyst appointed under section 32 of the Act. In the view of the fact that the designated research institute under section 32 is TPRI, then the Analyst in-charge would be the head of TPRI appointed under section 32 of the Act; In the case, the Registrar of pesticides is required to submit to the research institute appointed in accordance with section 32 of the Act, every sample of the pesticides submitted to him for field tests and laboratory analysis as are necessary to determine its suitability. The regulation provides further that the days and the time for conducting field test should not be less than three cropping seasons. In process of conducting the testing, the regulations require that the Analyst incharge ensure that all necessary reagents are available before receiving the sample for laboratory analysis. This may imply that if there are no necessary reagents, then the Analysts In charge cannot receive the sample.
Observations: Under the Plant Protection Regulations, it is envisaged that the Registrar of pesticide would act independently of the division of plant health services (inspector in charge) or TPRI. However, in practice, the Registrar being an employee of TPRI as it is in the current situation, it is difficult to separate his office with that of TPRI. In addition, though the law required TPRI to exist independent of the Registrar or Inspector - In charge, the fact that TPRI can perform both testing and pesticides regulatory functions by the use of its own legislation as well as PPA, 35
it is impossible to separate the office of the Registrar of pesticides with that of Analysts In charge. Though TPRI Act was amended to leave the Institute with the role of pesticides research, it appears that there was some overlook to omit some of provisions empowering the same to interfere with roles of plant health service and pesticides registration and control, which in principle are under vested to Inspector In charge and the Registrar respectively. Through the use of provisions under PPA, the TPRI appears to act directly as implementers of PPA , this was complained by some of stakeholders as being one of the major cause for ineffective enforcement of the PPA, hence failure to achieve the intended objectives thereto. While on one hand TPRI functions as an Institute with delegated powers by the Minister to perform analytical functions on the plant pesticides, there is no specific instrument of delegation issued to define limits of power of TPRI as regard to the implementation of the PPA as envisaged under section 31 of the Act. Similar problem of lack of specific instrument of delegation to TPRI has been observed in the Ministry of Livestock Development as regards to the verification of animal pesticides. Furthermore, despite the fact that section 41 of the PPA, 1997 repealed section 4(c), 13 and Part V of the TPRI Act, the said provisions are still retained in the Revised Edition Laws, 2002 of the said Act. Section 13 of the TPRI Act established PARTS to advise the Institute on pesticides regulation. A similar committee is also in the current Plant Protection Regulations. Part V of the TPRI Act covers issues of registration and regulation of pesticides; offences for dealing with unregistered pesticides and also section 31 on collection of revenues from registration process are in the plant protection legislation. Similarly, the Pesticides Regulations, 198421 made under the TPRI Act, which ought to have been revoked by the Plant Protection Regulations, 1999 still appear in the list Revised Laws of the Tanzania. 4.0 PLANT PROTECTION AND OTHER RELATED LEGISLATION
Plant protection and pesticides management are cross-sectoral and multi-sectoral issues. As such, there are several institutions which in one way or another are responsible for phytosanitary and pesticides management in Tanzania. Apart from legislation falling within the administrative authorities of the MAFSC, the
21
(G.N. No. 193 of 1984)
36
following other legislation have an impact on plant protection and pesticides regulation: 4.1 The Environmental Management Act No 20 of 2004
The National Environmental Management Act (EMA) (2004) is the main legislation dealing with the environmental management issues in the country. The Act, among other things, provides for the management of chemicals and toxic substances. It is a framework law which sets the institutional responsibilities of various actors and directs the management of the environment. Hence various sectoral laws need review to take into account provisions of EMA22. Among others, EMA provide for the domestication of various international conventions including CBD, Rotterdam Convention, Basel Convention on control of Hazardous Wastes and their Disposals and Cartagena Protocol on LMOs23 . The Act also attempts at ensuring risk assessment for GMOs and alien species based on the national and international standards24. Unlike EMA which has facilitated for the formulation of Biosafety Regulations, 2009 for the management of GMOs and their products, the current PPA is silent on the issues of GMOs. Therefore, there is a need to harmonise the two legislation in order to avoid confusion and duplication of duties within the implementing agencies. 4.2 The Occupational Health and Safety Act No. 5 of 2003
OSHA provides for the safety, health and welfare of persons at work in factories and other places of works as well as protection of other persons against hazards to health and safety arising out of, or in connection with, activities of persons at work and other related matters thereof. Generally, OSHA requires employers to provide healthy working place in order not to expose the employees and others to risks that can cause fatal injuries or death.
22
Bakanga E. G, Status of Chemical Management In Tanzania http://www2.unitar.org/cwm/publications/cw/tw/tw10/written/gov/Tanzania_Geofrey_Bakanga.pdf

23
Section 77(5) (o) of the Act empowers the Minister responsible for environment to make regulations on persistent chemicals, etc. Section 78(1) empowers the Minister is empowered is empowered to designate an institution conduct tests, analysis and control PIC (which include pesticides).
24
Section 67 of the Environmental Management Act (EMA) provides powers to regulate for conservation and protection of biodiversity. Paragraphs (g) and (h) cover the risks of genetically modified organisms (GMOs) and alien species respectively.
37
Among others, OSHA imposes obligations to every person who employs persons in agricultural activities to ensure that no such employee is exposed to infectious agents, allergens, hazardous chemicals or hazardous environments while doing work as agricultural worker25. In this case, OSHA is relevant to the management of pesticides as part of chemicals. 4.3 Industrial and Consumer Chemicals (Management and Control) Act, No 3, 2003
The Industrial and Consumer Chemicals (Management and Control) Act provides for the management and control of the production, import, transport, export, storage, dealing and disposal of industrial and consumer chemicals in Tanzania. The law provides for the registration, restrictions, prohibition and inspection of chemicals. Additionally, it has provisions for safe handling, chemical wastes, accidents; management of spills and contaminated sites and decommissioning of plants. The administration of this Act is under the CGC, which is advised by the Chemicals Management and Control Board, which is responsible for the management, and control of all industrial and consumer chemicals in Tanzania. The CGC is the registrar of chemicals under the Act. Section 2 of the Act defines "chemical" to mean industrial or consumer chemical or chemical product which is a substance in any form whether by itself or in a mixture or preparation, whether manufactured or obtained naturally but excludes medicines, pesticides, radioactives, food additives and any other substance that has therapeutic effects. With that exclusion of pesticides from the application of the law, this legislation presupposes the existence of other laws and institutions for the management of pesticides. Through section 4 and the First Schedule, the law establishes the Industrial and Consumer Chemicals Management and Control Technical Committee, and the registrar of pesticides is a member to the said committee. Despite the fact that the Act does not have specific provisions on management and elimination of PCBs and equipment containing PCBs, in the third schedule, which govern chemicals requiring registration pursuant to section 11 of the Act, DDT is listed as a consumer chemical and there is no specific restriction of the use of DDT for public health in accordance with the requirement of the Stockholm Convention. If there is no close coordination in the enforcement of this law and the PPA, then DDT which is not
25
Section 65(c) (e).
38
listed amongst permitted plant control products for agriculture, this loophole may be used to enable farmers use DDT for agricultural purposes. 4.4 Tanzania Food, Drugs and Cosmetics Act No 1 of 2003
The TFDA legislation governs, among others, food safety, whether the produce is intended for the domestic market or for export. The authority also is involved in the monitoring of the residue of pesticides or chemicals in the food chain to ensure its safety. However, through the current legislation, TFDAs is not effectively capable of ensuring food safety at the point of primary production (farm gate) nor can it monitor or enforce MRLs for post-authorization controls. There is a very weak linkage between the activities of the PHS and TFDA. Due to the structure and its manning level PHS cannot monitor the use of the approved chemical to the market. This is to say that there is not Competent Authority for pesticides monitoring or control26. 4.5 Animal Diseases Act No.17 of 2003
This Act, together with Animal Disease (Animal Pesticides Control) Regulations, 200727 deal with regulation of animal pesticides. This legislation empowers the Director for Veterinary services under the Ministry of Livestock Development and Fisheries to appoint the Registrar of animal pesticides (reg. 5). The law allows the Director of Veterinary Services under section 50(1), to give a permit for testing, registering or use of animal pesticides or chemicals for disease control in the country. Section 50(2) requires anyone dealing with pesticides to ensure that they are maintained according to required standards. However, registered pesticides or chemicals are not defined. Animal pesticide is defined under section 2 as any substance intended for killing, preventing and controlling animal pests. In one way or another, the law recognizes existence of Chief Government Chemist and TPRI as National Designated Authorities. Observations: The CGC and TPRI and a pesticides specialist from MAFSC are members of the National Animal Pesticides Technical Committee (NAPTC)28. However, the law does not directly mention if the Inspector In charge of the MAFSC is represented in the committee. The effectiveness of this NAPTC in discharging its roles under the Regulations may be watered down because the
26 27
MAFSC s report of Taskforce Meeting , 2008 GN 28 This committee is responsible to advise the National Animal Pesticides (NAP)
39
chairman of the Committee is the registrar of animal pesticides who, in one way or another, may have an interest in the decisions of the committee.
Apart from NAPTC, Animal Diseases Regulations also establish the National Animal Pesticides Committee (NAPC) whose chairman is the Director of Veterinary services. However, this Committee as well may appear to have less functions of technical advice because it sits to advise its chairman who is also the principal regulator of the animal pesticides. The National Animal Pesticides Committee does not have any representation from TPRI or the MAFSC. Though the Regulations for animal pesticides came into operation since 2007, it was noted during physical consultations at the MLDF that the Ministry has not yet appointed the Registrar of animal pesticides. The MLDF depends upon services of TPRI for testing and analysis of the pesticides submitted to the DVS for the registration, despite the fact that there is no formal instrument of delegation29 4.6 Local Government (District Authorities) Act Cap. 287 and Local Government (Urban Authorities) Act Cap. 288.
Among the functions of the local government authorities under clauses 39- 42 of the first schedule to the Local Government (Districts Authorities) Act and Schedule to the Local Government (Urban Authorities) Act respectively, include: to secure the destruction of locusts in any stage of development; exterminate and prevent the spread of tsetse fly, mosquitoes, bugs and other insects; establish, erect, maintain and control centers for the inspection and storage of produce; regulate or control the inspection, movement and storage of produce; and safeguard and promote public health including the prevention of and the dealing with any outbreak or the prevalence of any disease; Through subsidiary legislation (bye-laws), local government can put into effect the implementation of the above mandates which may conflict with those entrusted to the PPA regulatory authorities. This is because the process of by-laws making on plant protection is not guided by the main Act (principal legislation
Mr. H. Lyimo, Head of Legal Unit, Ministry of Livestock Development and Fisheries, personal comments.
29
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4.7
Seed Act No 18 of 2003
The Seed Act is one of inputs legislation under the administration of the MAFSC. Its main objective is to ensure quality standard of all agricultural seeds produced, imported, exported, sold or distributed to the farmers. The Seeds Act among other things requires under Section 13(1) and (2) the Director responsible for crop development in the Ministry of Agriculture, before granting the permit or license for dealing in seeds business, to ensure that the standards and conditions for importation, production, processing, distribution sale or advertisement for the sale of seeds, as provided for in the PPA. 4.8 Crop Laws Legislation
Most of the crop industry legislation contain some provisions which require the growers of specific crops to comply with the provisions of the PPA as follows:
4.8.1
The Tea Regulations, 1999
Regulation 11 of the Tea Regulations, 1999 empowers the Board or authorized officer to approve the use of pesticides (Herbicides, Fungicides, Nemocides, Suckercides). This provision conflicts with Section 16 of the PPA, which vests the approval of the plant protection substances to the Minister. 4.8.2 The Cotton Industry Act
Section 14 of the Cotton Industry Act empowers the Director to issue orders in relation to prevention of diseases. The word Director is defined in the Act to mean the Director responsible for Agriculture. Since, the Director for Agriculture is not responsible institution under the PPA, s. 14 is giving him mandate to issue orders under separate legislation thus potentially making the laws conflicting. 4.8.3 The Coffee Regulations 2003
Regulation 13(1) of the Coffee Regulations 2003 provides that any persons intending to import coffee seeds into the country shall first obtain a permit in writing from the Director. The Regulations defines the Director to mean Director responsible for Crop Development. Generally, this provision is in line 41
with Section 15 of the Seed Act 2003 empowering the Director for crop development to issue permit for dealing with seed business. 5.0 VALIDATION WORKSHOP
The stakeholders workshop was organized as part of obtaining comments for the review of the PPA following consultations made by the consultants. This workshop was held on 18th 20th April, 2011 at Morogoro. The stakeholders were of the views that the highlighted gaps and inconsistencies in the current PPA legislation suggest for an immediate action on the review process. It was proposed that based on the requirement of the international instruments relating to plant protection, there is a need to ensure thoroughly review of the existing implementation structure of the Plant Protection in Tanzania including TPRI which is responsible for the enforcement of the PPA. Based on the observations from the consultants reports, participants in the workshop recommends among others the following: o That the current PPA should be repealed and re-enacted in order to take into account the on-going legal and institutional reforms including Tanzanian obligations in the International Conventions.
o The Government should consider the idea of having two piece of legislation one dealing with the plant protection and the other with pesticides because, at the international level, the two are regulated by separate instruments and organization. o Experience on the implementation of PPA and Animal Disease Act reveal several shortcomings as far as pesticides management are concerned. These include lack of enforcement mechanism to tract efficacy, use and disposal of pesticides as well as empty containers and contaminated equipments. This suggest for having a strong autonomous institution which will be responsible with all pesticides regardless of which sector they are ij use. o With a single body to regulate pesticides, its is expected that there will be less costs to the Government as all Institutions now responsible for pesticides will be represented through appointed technical personnel. o The Government should consider how best to implement IPPC by establishing the NPPO which will be acceptable on both mainland and Zanzibar. The NPPO should have it own budget to enable the organization
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to perform effectively its mandates under the International and regional arrangements. o The PPA review process should be expedited because due to the current setups of the enforcement organization, the country is losing several opportunities and revenues the Tanzanian agricultural commodities to be traded internationally. 6.0 CONCLUSION AND RECOMMENDATIONS
In view of the above analysis and comments obtained from stakeholders in validation workshop, there is no doubt that there are several gaps, overlaps and inconstancies in the current Plant Protection Legislation for Tanzania which make the review of the law inevitable. The study by the ILC will probably assist the Government to establish further gaps pertaining to the extent of compliance of the law to the international agreements. However, the great challenge is to determine the effective legal and institutional framework for the better prevention, control and protection of the harmful organisms or pests which may be dangerous to agriculture and environment in Tanzania. This review has revealed that, because of the current administrative problems in the enforcement of the PPA between entrusted organs i.e., PHS, TPRI and the Registrar of pesticides, there is a need to consider having two separate laws, one dealing with plant protection (quarantine and phytosanitary issues) and the other for pesticides management with two separate organs to administer each of the proposed laws. The major reasons of suggesting this approach are as follows: (a) Though pesticide is one of plant protection product, technical requirements and dossiers required in handling pesticides is different from other quarantine service. (b) At the level of enforcement, knowledge and techniques between Phytosanitary or quarantine Inspectors may be different from that of pesticides inspector.
(c) There are several interested sectors dealing with pesticides hence putting their management within a ministerial organ which is not autonomous it may continue to create misunderstandings among stakeholders in the management of pesticides.
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(d) Some pesticides like DDT can be applicable in one sector while discouraged in another sector but if there is a single body, technical justification can be obtained from competent committee before taking any decision against the use or otherwise. (e) Some pesticides can be applied on different sectors (e.g. animal pesticides which if once discouraged for use in one sector can still be use in another sector if at all the relevant authority find it not to be harmful). (f) Experience from other countries show that plant quarantine services are administered separately from that of plant control products like pesticides. Examples of such countries include Kenya, UK, USA, Canada etc. (g) Management of pesticides at the Regional and International level are governed by different instruments eg under EAC, matters of Plant health or phytosanitary are proposed to be regulated through SPS Protocol while those of pesticides are regarded as issues falling under Farm Inputs with separate instrument of regulation which are under negotiation process. (h) Having all pesticides regulated by one body will enable for the effective utilization of existing resources and avoid the duplication of powers within different institutions of the government. (i) Though currently, issues of Animal Pesticides and Pesticides for public health do not fall under the Ministry of Agriculture, but due to the lack of capacities and facilities including analytical laboratories, the Ministry of health and Ministry responsible for livestock as well as Zanzibar have been dependent upon services from the Ministry of agriculture through TPRI for efficacy trials of pesticides. All these make a case for separating the regulatory regimes as well as maintaining single body responsible for pesticides management in the country.
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7.0
LEGAL AND INSTITUTIONAL FRAMEWORK ON PESTICIDES MANAGEMENT AND PLANT PROTECTION IN ZANZIBAR: SITUATIONAL ANALYSIS INTRODUCTION, RATIONALE AND BACKROUND
7.1
7.1.1
Introduction
This part analyses the existing legal and institutional framework relating to plant protection and pesticides management in Zanzibar within the context of the Africa Stockpiles Programme (ASP). The aim of the ASP is to clean up and safely dispose of all obsolete pesticide stocks and establish prevention mechanisms to avoid future accumulation. This analysis should therefore be looked at primarily within this context. However, the legal framework for plant protection addresses also a number of issues which are not directly related to pesticides. These are addressed as well in this analysis. Methodology employed was both desk work, in which various policy documents, background materials, reports, legislation and regulations were reviewed; and consultative meetings held with various stakeholders in Zanzibar. The list of the stakeholders met and the itinerary is appended to this report. 7.1.2 Rationale for Zanzibar Review
The need to review the Zanzibar legal and institutional framework on plant protection and pesticides management, as it was the case with the mainland Tanzania, was acknowledged from the day the plant protection legislation were enacted for the two parts of the union. This was primarily because of the fears raised at the time of enactment that the laws were likely to be beset with a number of implementation hurdles that will need to be assessed and reviewed from time to time. In other words, the feeling was that the laws were passed when they were still works in progress. More than a decade of implementation of the legislation has also witnessed a number of developments which were not in place at the time of enacting the legislation which should now be taken into account and incorporated in the legislation.
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In relation to pesticides, the Zanzibar Plant Protection Act does not have provisions in this regard and also, and there are no other provisions which specifically address pesticides management. 30 Therefore, there is a need to have in place a legal regime that will address all the problems that lead to accumulation of obsolete pesticides as identified by the FAO31. These are: Inadequate storage facilities or storage containers Pesticides banned while in storage Prolonged storage of products with short shelf lives Inability to forecast pest outbreaks such as locusts Poor assessment of pesticide requirements Unawareness of pesticide dangers Poor stock management and record keeping Inappropriate, out of season or unethical dumping as a pretext of donations Over purchase through government allocations Ineffective distribution or marketing systems Aggressive profit motive by vendors.
Clearly, these problems are multi-sectoral and multi dimensional and not all of them can be addressed through pesticide specific legislation. For example, proper forecast of pest outbreaks is more properly addressed by plant protection laws. These problems are addressed further in the succeeding sections and in the proposed legislation.
We were informed, for example, by the Commissioner for Agricultural Research and Extension that agro chemical dealers who want to import or produce pesticides are asked to go to TPRI . The ZFDB would require a list of registered and prohibited pesticides from the Registrar of Pesticides. But there are neither legal nor institutional arrangements that have been formalized between the Pesticides registrar and the authorities in Zanzibar.
30
FAO, Obsolete Pesticides: Problems, Prevention and Disposal. Available at http//: www.fao.org/agriculture/crops/obsolete_pesticides/en/
31
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8.0
PESTICIDES USE, STATUS OF STOCKPILES AND THE FUTURE TRENDS IN ZANZIBAR
Historically, there has been an upward trend on the use of pesticides in developing countries in agriculture and for vector control purposes. In Tanzania, for example, there was an increase of the use of pesticides by more than 9,000 tons from 1970 (2,623 tons) to 1983 (12,000 tons).32 The negative effects of pesticides use on the environment and human health are well documented.33 Although in comparison with the mainland and other developing countries, the use of pesticides in Zanzibar has been relatively low, there are reasons for concerns. For example, in 1997/98, Zanzibar was declared free of POPs. But a 2003 inventory shows a stockpile of 15o Kg of DDT, interestingly, all of which was found at the Plant protection Division34. There is also an increase in the use of pesticides notably on vegetables and posing hazards of poisoning by high residues.35 But alarmingly, a 2010 study conducted in Pemba demonstrates a serious lack of pesticides education. The study shows, for example, that although 53.2% of the population interviewed were using pesticides, of these, 46.3% did not know even the names of the pesticides they were using and 21.3% never used protective gear and 53.1% suffered pesticide acute poisoning. Worse still, the study found, 51.4% of the pesticides were disposed of by simply throwing away the pesticide containers. In all, although 74.4% of the population thought that pesticides were necessary, only 16.9% had received some form of pesticides education36 . Similar anecdotes of improper use and disposal of pesticides and lack of awareness in Unguja Island were frequently pointed out during our consultations. 8.1 POLICY FRAMEWORK
With the adoption of new agricultural policies and programmes that envisage commercialization of agriculture, the use of pesticides is bound to increase and so are the dangers associated with it. Some of these are summarized below:
Holopainen, M., Environmental Management in Emergencies Holopainen, M., and also Shorret, and Crask, LPesticides Use and Awareness on Pemba Island (2010). ISP Collection. Paper 891. (http://digitalcollections.sit.edu/isp_collection/891) 34 IPEN, The International POPs Elimination Project (IPEP): Tanzania POPs Situation Report, 35 Rajab, K. and Fundi, H., Banana and Plantain in IPM Zanzibar, Workshop on Banana IPM, Nelspruit (ZAF), 1998/11/23-28 36 Shorret, B. and Crask, L., Pesticides Use and Awareness on Pemba Island (2010). ISP Collection. Paper 891. (http://digitalcollections.sit.edu/isp_collection/891)
32 33
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8.1.1
Zanzibar Food security and Nutrition Policy (ZFSNP), April 2008
In line with Development Vision 2020 and the Zanzibar Strategy for Growth and Reduction of Poverty (MKUZA), the general objective of ZFSNP aims at, among others, creating a conducive environment that enables all Zanzibaris to have equitable access at all times to safe, nutrititious and culturally acceptable food. 8.1.2 Zanzibar Agricultural Policy 2002
The overall goal of the policy is to promote sustainable development of the agricultural sector for economic, social and environmental benefits of its people. Specific objectives of the Policy include: To modernize and commercialize the agricultural sector so as to increase productivity and rural incomes while ensuring an ecologically sustainable environment To increase agricultural exports in order to increase foreign exchange earnings To improve the quantity and quality of agricultural products 8.1.3 Zanzibar Agricultural Transformation for Sustainable Development, 2010-2020 (Agricultural Transformation Initiative-ATI)
The ATI aims at, among others, to promote the production and export of cash crops; including spices and fruits like mango and papaya. Clearly, the above policies and initiatives are partly geared towards commercialization of agriculture and making Zanzibar an important player in the global agricultural trade. Producing for export increasingly require adherence to international standards and, if Zanzibar is to meet its various policy objectives, the laws and institutions have to be realigned so as to conform to these international standards. For example, in the EU, as from 01 September 2008, a new legislative framework (Regulation (EC) No 396/2005 of the European Parliament and of the Council) on pesticide residues became operational. The regulations impose maximum residue limits (MRLs) on imported produce and all countries intending to export agricultural produce to the EU must comply with these regulations. Also the produce should be free from residues of deregistered pesticides. Therefore, if Zanzibar were to export to the EU, it must have in place a legal framework on plant protection and pesticides management that meet these EU standards.
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9.0
AN ANALYSIS OF THE CURRENT LEGAL AND INSTITUTIONAL FRAMEWORK
A relatively comprehensive piece of legislation exists with regard to plant protection (the Plant Protection Act, 1997). But even this has some gaps and it also needs to be realigned with post-1997 policy, institutional and legislative developments. With regard to pesticides specific legislation, as already noted, the legal and institutional regime is extremely wanting. Some pieces of legislation that have been resorted to the basis for regulation of pesticides are the Environmental Management for Sustainable Development Act, 1996; and the Zanzibar Food, Drugs and Cosmetics Act, 2006 and the TPRI Act. 9.1 The Plant Protection Act No. 9 of 1997
This law was enacted in line with the then new government policy of liberalization of the economy so as to give way to more private sector participation in agriculture and to prevent the introduction and spread of plant pests. The Act repealed and replaced the Plant Protection Decree (Cap. 118, of 1937). The main object of the 1997 Act is to make provisions for preventing the introduction and spread of the plant pests and other matters connected therewith. One of the shortcomings of this Act is that, unlike its mainland equivalent which has comprehensive provisions addressing both plant protection substances (thus including also pesticides) and plant quarantine, the Zanzibar Act does not have provisions for plant protection substances. Like the mainland one, the Act was passed before Tanzania became a party to the International Plant Protection Convention (IPPC) on 21 February 2005. It therefore does not meet the IPPC requirements, most notably, a proper National Plant Protection Organisation (NPPO). The Act also does not have provisions for monitoring and surveillance, pest risk analysis, pest free areas and areas of low pest prevalence and provisions for the powers of inspectors with regard to Phytosanitary certification as required by the IPPC37. The IPPC provides a framework to develop and apply harmonized phytosanitary measures through the elaboration of international standards, the creation or management of national plant protection organizations to deal with national phytosanitary matters within the contracting member state. IPPC provides a framework to develop and apply harmonized phytosanitary measures through the elaboration of international standards, the creation or management of national
37
See the Zanzibar Report by MAFSC and MALE, 2008.
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plant protection organizations. The IPPC provides for various international standards on phytosanitary measures (ISPMs). ISPMs are the standards, guidelines and recommendations recognized as the basis for phytosanitary measures applied by Members of the World Trade Organization under the Agreement on the Application of Sanitary and Phytosanitary Measures. Currently the ISPMs developed under the IPPC are as detailed in the table below: ISPM 1 - Phytosanitary Principles for the Protection of Plants and the Application of Phytosanitary Measures in International Trade (2006): intends to reduce or eliminate the use of unjustifiable phytosanitary measures as barriers to trade. ISPM 2 - Guidelines for Pest Risk Analysis (1996): describes the process of pest risk analysis to assist National Plant Protection Organizations in the preparation of phytosanitary regulations. ISPM 3 - Guidelines for the Export, Shipment, Import and Release of Biological Control Agents and Other Beneficial Organisms (2005): lists the responsibilities of government authorities and of exporters and importers of biological control agents. ISPM 4 - Requirements for the Establishment of Pest Free Areas (1996): outlines the requirements for the establishment and use of pest free areas in connection with phytosanitary certification of plants and plant products for export. ISPM 5 - Glossary of Phytosanitary Terms (2006): lists terms and definitions relevant to phytosanitary systems worldwide and provides a harmonized internationally agreed vocabulary. ISPM 6 - Guidelines for Surveillance (1997): describes the components of surveillance and monitoring systems for pest detection or for the provision of information for use in pest risk analysis, the establishment of pest free areas or the preparation of pest lists. ISPM 7 - Export Certification System (1997): describes the components of a national system for the issuance of phytosanitary certificates for export. ISPM 8 - Determination of Pest Status in an Area (1998): describes the content of a pest record, and outlines the use of pest records and other information in the determination of pest status in an area. ISPM 9 - Guidelines for Pest Eradication Programmes (1998): describes the components of a pest eradication programme which can lead to the establishment or reestablishment of pest absence in an area. ISPM 10 - Requirements for the Establishment of Pest Free Places of Production and Pest Free Production Sites (1999): describes these requirements, similar to pest free areas. ISPM 11 - Pest Risk Analysis for Quarantine Pests Including Analysis of Environmental Risks and Living Modified Organisms (2004): provides details for the conduct of pest risk analysis to determine whether pests are quarantine pests. ISPM 12 - Guidelines for Phytosanitary Certificates (2001): describes principles and guidelines for the preparation and issue of phytosanitary certificates. 50
ISPM 13 - Guidelines for the Notification of Non-compliance and Emergency Action (2001): describes the actions to be taken by countries regarding the notification of instances of failure of an imported consignment to comply with specified requirements. ISPM 14 - The Use of Integrated Measures in a Systems Approach for Pest Risk Management (2002): provides for the development and evaluation of integrated measures in a systems approach as an option for pest risk management for import. ISPM 15 - Guidelines for Regulating Wood Packaging in International Trade (2002) with Modifications to Annex I (2006): describes phytosanitary measures to reduce the risk of introduction and/or spread of quarantine pests associated with wood packaging material. ISPM 15 - Certification Mark (2002): sets out the IPPC certification mark. ISPM 16 - Regulated Non-quarantine Pests: Concept and Application (2002): describes the concept of regulated non-quarantine pests and identifies their characteristics. ISPM 17 - Pest Reporting (2002): describes the responsibilities of and requirements for contracting parties in reporting the occurrence, outbreak and spread of pests in areas for which they are responsible. ISPM 18 - Guidelines for the Use of Irradiation as a Phytosanitary Measure (2003): provides technical guidance on the application of ionizing radiation as a phytosanitary treatment. ISPM 19 - Guidelines on Lists of Regulated Pests (2003): describes the procedures for the preparation, maintenance and dissemination of national lists of regulated pests. ISPM 20 - Guidelines for a Phytosanitary Import Regulatory System (2004): outlines the structure and operation of a phytosanitary import regulatory system. ISPM 21 - Pest Risk Analysis for Regulated Non quarantine Pests (2004): provides guidance for the conduct of pest risk analysis for regulated non-quarantine pests. ISPM 22 - Requirements for the Establishment of Areas of Low Pest Prevalence (2005): outlines the procedures and requirements for the establishment of areas of low pest prevalence at national level. ISPM 23 - Guidelines for Inspection (2005): describes the procedures for the inspection of consignments of plants and plant products and other regulated articles at import and export. ISPM 24 - Guidelines for the Determination and Recognition of Equivalence of Phytosanitary Measures (2005): discusses the applicable principles and requirements for the determination of equivalence of phytosanitary measures. ISPM 25 Consignments in Transit (2006): describes procedures to manage phytosanitary risks for consignments of regulated articles which pass through a country without being imported. ISPM 26 Establishment of Pest Free Areas for Fruit Flies (Tephritidae) (2006): provides guidance for the establishment and maintenance of pest-free areas for fruit flies of economic importance.
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ISPM 27 Diagnostic Protocols for Regulated Pests (2006): provides standards for the content and structure of diagnostic protocols. ISPM 28 Phytosanitary treatments for regulated pests (2009): treatments provide the minimum requirements necessary to control a regulated pest at a stated efficacy. It does not cover pesticides. ISPM 29 Recognition of pest free areas and areas of low pest prevalence (2007): provides guidance and describes a procedure for the bilateral recognition of pest free areas and areas of low pest prevalence. ISPM 30 Establishment of areas of low pest prevalence for fruit flies (2008): provides guidelines for the establishment and maintenance of areas of low pest prevalence for fruit flies (FF-ALPPs) and applies to fruit flies (Tephritidae) of economic importance ISPM 31 Methodologies for sampling of consignments (2008): provides guidance to National Plant Protection Organizations (NPPOs) in selecting appropriate sampling methodologies for inspection or testing of consignments to verify compliance with phytosanitary requirements but not field sampling. ISPM 32 Categorization of commodities according to their pest risk (2009): provides criteria for National Plant Protection Organizations (NPPOs) of importing countries on how to categorize commodities according to their pest risk when considering import requirements. ISPM 33 Pest free potato (Solanum spp.) micropropagative material and minitubers for international trade (2010): provides guidance on the production, maintenance and phytosanitary certification of pest free potato (Solanum tuberosum and related tuberforming species) micropropagative material and minitubers intended for international trade. ISPM 34 Design and operation of post-entry quarantine stations for plants (2010): describes general guidelines for the design and operation of post-entry quarantine (PEQ) stations for holding imported consignments of plants, mainly plants for planting, in confinement in order to verify whether or not they are infested with quarantine pests. (See the report by the ILC)
Zanzibar being a state within the United Republic of Tanzania is directly responsible by itself or through the Union government to apply the adopted phytosanitary standard measures that are compatible or equivalent to its trading partners as issued by the international standard setting body like IPPC Commission. At the implementation level, throughout the Zanzibar Act it is envisaged that enforcement would be done by the Plant Protection Division but nowhere in the 52
Act is the Division specifically established or specifically entrusted with enforcement mandates38. Also, the implementing regulations have not yet been made. For example, section 10 makes reference to the Schedules but these are nowhere to be found in the Act.39 Furthermore, the Act provides for the appointment, powers and duties of inspectors but it does not clearly provide for their appointing authority40, academic or professional qualifications. The law also contains very limited powers/functions of inspectors. The only mentioned powers are included under section 16 (1) to (4) and 18. These are powers to: (i) detain, open, inspect, take sample, submit sample for examination, removal to a quarantine station, remove for treatment and treat any plant material, pest, beneficial organism soil, packaging or other thing to which the Act applies; (ii) direct reshipment or otherwise dispose of any plant material, agricultural commodities, pest, beneficial organism, soil packaging or other thing to which the Act applies, or with the concurrence of a more senior inspector; (iii) inspect any store, warehouse, godown or other premises used for handling or storing plant material or agricultural commodities and if, such premises are found to excessively infested by any pest, they shall be subject to such treatment as the inspector may direct; with the concurrence of a senior inspector, order the destruction of any plant material which he has reason to believe is infested by a quarantine pest. It was envisaged under section 16(5) that other powers as are necessary or convenient for the performance of their functions under the Act, may be vested in
The only mandates of the Division can be drawn from the definition section (section 2) whereby the Division is defined to mean a government institution within the Ministry of Agriculture Zanzibar, legally mandated to be responsible for the managing all pest control activities, inspections, quality control of agriculture produce and quarantine regulations.
38
39
Our visit to the Government Printer confirmed that, although the substantive provisions makes reference to some schedules, none of these were enacted with the Act and no regulations were made under the Act.
40
Section 15 provides that there shall be appointed from time to time under the public service Act such inspectors as may be necessary for the purposes of this Act. It goes not specific which authority appoints such Inspectors. 53
the Inspectors by regulations made under the Act, but such regulations are yet to be formulated. During the consultations, most inspectors lamented of the lack of training and lack of clear guidelines in the absence of regulations. They pointed out for example that there are no clear guidelines as to what exactly should they look at when inspecting plant products before clearing them for export or entry into the country. Specifically on pesticides, most of the inspectors were of the view that section 4 of the Act empowers them also to inspect pesticides that are imported into Zanzibar through the various entry points and expressed their concern that they had difficulties in undertaking this obligation because there is currently no list of approved and prohibited pesticides. But a careful look at section 4 does not indicate that inspectors have any mandate on pesticides. Throughout the Act, this lack of clarity is evident. For example, for food products that are being imported into Zanzibar, section 4 requires that an import permit be issued in advance, for some, the section simply require a permit without specifying the kind of permit yet for others it requires a certificate and that before being cleared they undergo a full quarantine check. For example, for products entering Zanzibar from mainland Tanzania, the law requires that a permit be issued to that effect but it is not specified anywhere the items to be covered in the permit. Presumably, these are details which were supposed to be addressed by the regulations which are yet to be made. It is therefore proposed that along the new Plant Protection Act, these regulations that will address these details also be promulgated. The draft regulations form part of this report. The Act also provides for wider discretion on the Minister responsible for Agriculture. For Instance, under section 4(6) the Minister may, from time to time by notice published in the Official Gazette exempt from the requirement of imports conditions specified in the Act any specified plant material or kind of plant material, provided that he is satisfied that its importation would not present a significant threat to the agriculture or natural environment of Zanzibar. However, in doing so, the Minister is not guided by any technical advice, and the Act itself does not either establish such technical advisory committee as it is for the Tanzania mainland Act. Further section 4(9) of the Zanzibar PPA, restricts any importation of fresh fruits vegetables, flowers, flowering plants into Zanzibar without prescribed (..) from the Ministry of Agriculture, Livestock and Natural Resources accompanied with phytosanitary certificate (International model) from the country or origin(except from Tanzania Mainland, where only permit is necessary). Upon the arrival at the
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entry points in Zanzibar the material has to pass through quarantine procedures. Apart from not describing as to who will be the responsible officer to prescribe for importation within the Ministry of Agriculture, Livestock and Natural Resources41 , a similar exemption for imports originating from Zanzibar is not provided for in the mainland Plant Protection Act , 1997. Conversely, the stated exemptions do not apply for the importation of viable seeds of any plant species or any kind of dry cereal grain legumes and pulses under sub-section 4(10) and (11) of the Act. In the circumstances, the operations of these provisions may be considered as different treatments for the importers within the same territory. Another unfettered discretion vested to the Minister can be found under section 5 of the Act for which the Minister may, for the purpose of essential scientific research or experiment permit the importation into Zanzibar of anything not otherwise eligible under the Act for importation. Again, the decision by the Minister under this provision can be exercised without relying to any advice from technical body. As opposed to the mainland Act, the Zanzibar PPA does not provide for mechanisms for dealing with outbreak pests or alternative techniques for pest management and control including the use of biological control agents or integrated pest management (IPM). The Act also lacks provisions governing analysis procedures and designation of any analysts or laboratory for that purpose. Observations: The Zanzibar PPA need to be revised in order to accommodate for the requirements of the International conventions IPPC inclusive. The law has to redefine properly roles and functions of the responsible authorities so as not to cause confusion in its administration. Based on the on-going move to harmonise sanitary and phytosanitary regulatory procedures within SADC and EAC regions to facilitate regional and international trade, Zanzibar can take benefit of the review to harmonse its legislation with that of Tanzania mainland in order to make the United Republic of Tanzania compliant to the international and regional agreements of phytosanitary agreements. 9.2 The Environmental Management for Sustainable Development Act, 1996
Regulation of pesticides has two broad objectives: protecting human health and protecting the environment. The Environmental Management for Sustainable Development Act is a general piece of legislation which aims at protecting the environment from all kinds of threats and its provisions are broad enough to cover
41
Now the Ministry of Agriculture and Natural Resources.
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pesticides. Sections 66 controls the importation, export, transportation and discharge of hazardous waste whereas section 68 deals with the handling and discharge of hazardous substances. The definition of hazardous waste or substance is broad enough to cover pesticides, provided they are hazardous to the environment and not only to human beings. Section 2 defines hazardous to mean likely to be poisonous, corrosive, irritating, noxious, explosive, inflammable, toxic or harmful to the environment by reason of characteristics, handling, use, quantity, location or climatic conditions. But it would appear that pesticides which are harmful on humans but are not harmful to the environment are not covered by these provisions. The authority mandated with the implementation of the Act is the department of Environment in the Ministry of Agriculture. Apart from the generality of the provisions of sections 66 and 68 and the fact that they do not deal specifically with pesticides, the department has not been able to discharge its mandate effectively because the implementing regulations are yet to be enacted although the Act came into force in 199642. (Check if it is still the case). For example, section 68 (3) requires regulations to be made for registration; labeling; packaging; advertising; control of imports and exports; distribution, storage and transportation; monitoring of the effects of the substances use on the environment; disposal of expired or surplus hazing substances; restricting and banning hazardous substances whose handling poses serious threats to the environment and; sampling and assessing affected areas. If these were in place, they could have been resorted to in regulating some pesticides as well in the absence of specific law on pesticides. It should be noted that environmental pollution does not recognize national boundaries, hence require for the international and regional cooperation with regard to environmental management and control including joint efforts to control and regulate toxic substances. 9.3 The Zanzibar Food, Drugs and Cosmetics Act, 2006
According to its long title, the Act was enacted to provide for the efficient and comprehensive regulation and control of food, drugs, medical devices, cosmetics, herbal drugs and poisons and to repeal the Pharmaceuticals and Dangerous drug Act, 1986 and to provide for related matters. Section 2 of the Act defines poison to include agrochemicals. In our consultative meetings with the officials of the Zanzibar Food and Drugs Board (ZFDB), which is
42
See Majamba, H.I., An assessment of the Framework Environmental Law of Zanzibar, 1/1 Law, Environment and Development Journal, (2005), p. 18. (Available at http://www.leadjournal.org/content/05018.pdf
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established under section 4 as the regulatory body for the products covered by the Act, we were informed they have been stepping in to regulate pesticides since they are agrochemicals and therefore falling within the definition of poison. Although they were all of the view that the provisions of the Act were not clear enough in providing mandate for regulating pesticides, they had to do that since, in their view, pesticides are otherwise completely unregulated in Zanzibar. Although pesticides can fall within the definition of poisons, the Act does not have adequate provisions dealing with poisons. Whereas Parts III, IV, and V deal with Food, Drugs and Cosmetics respectively, there is no specific part that deals with poisons, although there is an inclusion of poison in Part IV (d) (provisions on dealing in Drugs, Medical Devices, Herbal Drugs or Poisons)and IV (e) (on Drugs and Poisons List). Part IV (d) has four sections, 74, 75, 76 and 77. Of these, it is only section 74 (1), (which simply prohibits generally the imports and exports without licence), that includes poisons. But the rest of the provisions, such as section 74(4) which governs shelf life and section 75 which regulate sale by retail, do not include poisons. This omission of poisons is conspicuous throughout the Act. For example, section 15 provides: no person shall manufacture for sale or intended sell, import, export, distribute, sell, offer or expose food for human consumption, drugs, cosmetics, medical devices for human consumption or for animal use unless he complies with the provisions of this Act. Apart from these gaps in the law, it appears that even policy framework did not intend pesticides to be included in the matters to be regulated by the Board. The Zanzibar National Drugs Policy, 2006 provides that the Zanzibar Food and Drug Board will be responsible for evaluation, registration and control of pharmaceutical products for use in Zanzibar. The policy provides further that the ZFDB will replace the Pharmaceutical and Dangerous Drugs Act, 1986 and will include pharmaceuticals, cosmetics, food, traditional and alternative medicines. Throughout the policy, no mention is made of pesticides or agrochemicals. Even the context of the policy would not suggest that it was intended that the Board would also regulate pesticides. Despite these gaps and omissions in the law, the ZFDB has managed to register one pesticides dealer in Zanzibar. Before registering the dealer, the Board requested for a list of registered pesticides from the mainland based Registrar of Pesticides, but none was available. In the absence of the list, the Board registered the business and went on to analyses the products sold to see if they are ideal. The Board officials intimated that if there was a product that has been registered by the Registrar of Pesticides in the mainland Tanzania, that product would be cleared by the Board
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without further tests. But the Board has no legal or institutional arrangements with the Registrar of pesticides or TPRI. 10.0 10.1 SOME KEY CONCERNS WITH INSTITUTIONAL FRAMEWORK Gaps and Inconsistencies THE CURRENT LEGAL AND
From the discussion above, it appears that, although plant protection matters needs to be addressed by looking again at the Plant Protection Act with a view to updating it and addressing the identified gaps, of even greater concern is the question of pesticides management in Zanzibar. This needs an urgent intervention by putting in place a proper legal and institutional framework. Currently there is no legislation in Zanzibar that has been specifically enacted to deal with the regulation of pesticides. So whatever regulation or control that various institutions attempt to implement, has no sufficient legal backing. For example, there is no unit or authority charged with the responsibility to impart awareness to the farmers on the use of chemicals or pesticides. And in the absence of pesticides legislation, even the dealers do not have that legal obligation. It is common to see farmers spraying very strong pesticides without any protective gear and simply throwing away the empty bottles which can easily be picked up by unsuspecting children to play with.43 In the absence of a clear legal framework on pesticides management, whatever authority that deals with the regulation of pesticides does so merely as a matter of practice. As a matter of fact, the only authority that appears to be concerning itself directly with the management of pesticides is the Zanzibar Food, Drugs and Cosmetics Board. The Board has an interim arrangement to the effect that when one wants to register pesticides has to go to the Board and the board will consult the Commissioner for Agricultural Research and Extension to see if such pesticides are needed in Zanzibar. This is so apparently because, most of the pesticides are imported into Zanzibar through mainland Tanzania where they have a lot of crops and agricultural activities and so is the amount and variety of pesticides. But this is not the case with Zanzibar and therefore not all pesticides used on the mainland are needed in Zanzibar and so the need to have the Commissioners opinion before any importation is allowed into Zanzibar. However, as observed above, there is no specific legislation for regulation of pesticides in Zanzibar and therefore even the efforts that are currently being undertaken by the Board have no legal backing. Although, as pointed out above,
Interview with Dr Khalid S. Mohamed, PS, Office of the second VP-10.02.2011
43
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there are some provisions in the Environmental Management Act, they do not adequately address the problems of pesticides control in all its facets. This lack of a clear legal framework has led to unnecessary conflicts among government authorities. For example, whereas the Ministry of Health currently promotes the use of DDT for the control of mosquitoes, the Ministry of Agriculture would not allow it. In the absence of a single autonomous regulatory authority, it is difficult to determine when and under what circumstances should DDT be allowed into Zanzibar and there is always the possibility of unscrupulous dealers using the loophole and import DDT on the pretext that it was for use of malaria control whereas in fact it is intended for use as a pesticide. Again, if the Department of Environment were to invoke their mandate on pesticides, however limited it is, there is likely to be a conflict with the ZFDB as to which authority regulates what. There is therefore a need of a comprehensive legislation that will regulate the manufacture, importation, exportation, sale, use and disposal of pesticides. There should also be an exclusive regulatory authority that will have mandate over all pesticides in Zanzibar.
11.0
INTERNATIONAL REQUIREMENTS / INSTRUMENTS
As already pointed out, Zanzibar being part of the United Republic of Tanzania is bound to implement several international, regional and inter-regional agreement of which the United Republic of Tanzania is a part. Some of the agreement in relation to pesticides management include: (a) Basel Convention on the Control of Transboundary Movements Hazardous Wastes and their Disposal44; of
(b) Rotterdam Convention on the Prior Informed Consent Procedure for Certain Chemicals in International Trade45;
44
The Base Convention is an environmental set up obligations for State Parties with a view to: (a) reducing transboundary movements of wastes subject to the Basel Convention to a minimum consistent with the environmentally sound and efficient management of such wastes, (b) minimizing the amount and toxicity of hazardous wastes generated and ensuring their environmentally sound management (including disposal and recovery operations) as close as possible to the source of generation; (c)assisting developing countries in environmentally sound management of the hazardous and other wastes they generate. The United Republic of Tanzania is a member of this Convention since 1993.
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(c) FAO Code of Conduct on the Distribution and Use of Pesticides46; and (d) Stockholm Convention on Persistent Organic Pollutants47 12.0 UNIFORM LAW FOR MAINLAND AND ZANZIBAR?
According to the Constitutional set up of Tanzania, agriculture is not a union matter so, constitutionally, it is not feasible to have a single Plant Protection law that would apply in both parts of the union. But international cooperation which falls under the mandate of foreign affairs is a Union matter and in all dealings with international bodies and in all international undertakings, Zanzibar has no independent standing. This makes the matter a bit complicated since under the IPPC, member countries are obliged to establish a National Plant Protection Organization and there cannot be two NPPOs in one country. Although the dominant view in Zanzibar is that due to the different levels of agricultural development and taking into account the legal and constitutional set up, having one NPPO will bring problems of implementation and could also bring about
45
The Rotterdam Convention is an international treaty in the field of chemicals management opened for signing at Diplomatic Conference in Rotterdam, the Netherlands, in September 1998 and entered into force on 24th February 2004. The objectives of the Convention is to promote shared responsibility and cooperative efforts among Parties in the international trade of certain hazardous chemical, in order to protect human health and environment from potential harm and contribute to their environmentally sound use, by facilitating information exchange about the characteristics of such chemicals, by providing for a national decision- making process on their import, export and by disseminating these decisions to Parties. The core of the Rotterdam Convention is information exchange, which has two main components: a legally binding PIC procedure and an information exchange procedure.
46
The FAO Code of Conduct on the Distribution and Use of Pesticides was adopted in 1985 to serve as a guiding normative framework on the subject of the pesticides. The Code established voluntary standards of conduct for all public and private entities engaged in, or associated with, the distribution and use of pesticides, including governments, the pesticides industry and international organizations. Among requirements under the Code is for the Governments to develop necessary legislation to regulate pesticides and make specific provisions for effective enforcement, taking into account local condition including pesticides registration , risk evaluation, re-registration, periodic monitoring, and control.
47
Stockholm Convention on Persistent Organic Pollutants is an international treaty designed to address international efforts on preventing harms and risks of chemicals and pesticides, it sets forth obligations to reduce and/or eliminate the production and use of certain listed pesticides and industrial chemicals that are persistent organic pollutants (POPs).The Convention also contain obligations to regulated releases from the unintentional production of certain substances including through the application of measures for release reduction and source elimination, and the use of best available techniques and best environmental practices for specific sources.
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political problems, due to the international obligations, these internal problems have to be overcome in some way if Tanzania is to abide by its obligation under the IPPC. It is therefore proposed that separate legislation be enacted, one for mainland and one for Zanzibar as is the case now, but there should be only one NPPO to cater for both mainland and Zanzibar. The NPPO should have sufficient representation from both parts of the union48. Another possibility is having the NPPO on one part of the union with a sub-office or satellite office on the other part of the union. With pesticides, although it is possible that it falls under union matters, there are fears among stakeholders in Zanzibar that importers may use that loophole and bring pesticides which are allowed in the mainland but they are not needed in Zanzibar. This is so because the mainland is more advanced in agricultural production and it is surrounded by so many porous borders that it is easy for pests and to migrate into the mainland than it is for Zanzibar. As such, more varieties of pesticides are needed for the mainland than they are for Zanzibar and even the institutional framework for regulation has to take into account these differences 49. Also, law making process in the context of the Union is a politically sensitive subject and enacting a uniform law that would be implemented in both parts of the union could be very protracted and much more protracted would be its implementation process. For this reasons, it is proposed that, although legally proper, it is more appropriate to have two separate pesticides legislation. On the other hand, concerns and priorities for Zanzibar are sometimes different from those of the mainland. For example, whereas the mainland is infested with all kinds of pests, the main concern for Zanzibar is the eradication of armyworm and the control of pests from the mainland, mainly fruit flies. Therefore, it would be more appropriate for Zanzibar to have a separate law that will address its specific needs. This will also simplify the process of amendment when needed. 13.0 VALIDATION WORKSHOP
Following mainland workshop, the National Environmental Management Council (NEM) in collaboration with the Ministry of Agriculture and Natural Resources (MANR) through Africa Stockpile Programmes) organized another validation
But these could simply be an internal arrangement and not a legal requirement since, in the opinion of Permanent Secretary, office of second VP (the Minister responsible for union affairs), making representation from both sides a legal requirement would be tantamount to indirectly adding another item to the list of union matters. 49 The director for agricultural research and extension informed us that for Zanzibar, the main problem affecting plants is armyworm.
48
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workshop held at Chavda Hotel in Zanzibar from 19th 20th May 2011. The workshop intended to obtain the views of stakeholders on the Consultants reports In that workshop, stakeholders had the following general remarks of the proposed reviews: There is a need to consider some important areas covered under other legislation which ought to be within the framework of the proposed plant protection legislation for the review; Review the existing Plant Protection Legislation should identify outdated provisions, gaps and inconsistent provisions for example to Introduce in the legislation acceptable principles of PRAs and provisions leading to recognition and utilization of pest free areas, pest surveillance systems and a well managed and financed Management Information System. The Government should expedite the process of the revising the law but in all process, there is a need to maintain the national sovereignty in legislative matters. In that regard, Zanzibar through House of Representatives should enact its own two separate legislation for both Plant Protection as well as pesticides management. However, in order to comply with the requirements of international conventions such as IPPC which need for a single NPPO, the two states i.e. mainland and Zanzibar should look for an appropriate coordinating mechanism within their individual national legislation. The existing legislation such The Zanzibar Food, Drugs and Cosmetics Act, 2006 and The Environmental Management for Sustainable Development Act, 1996 can useful in determining appropriate future legal regimes for the pesticides management.
Above comments from stakeholders in relation to the consultants work have been considered positively in this report. 14.0 CONCLUSION AND WAY FORWARD
Zanzibar like any other sub-Sahara African states, imports a substantial amount of agricultural products. Such importation is associated with high risks of introduction of exotic pests that may be injurious to the agriculture and environment. The detection, control, eradication, suppression, prevention, or retardation of the spread of plant pests is necessary for the protection of the agriculture, environment, and economy of the Zanzibar. The risk of pest introduction in Zanzibar has increased dramatically with the current initiatives of trade liberalization and globalization, which has resulted into increased movement of people and goods. The smooth movement plants, plant products and other regulated articles for the protection of plants into, out of, or within Zanzibar is very important to the countrys economy, hence should well regulated based
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on sound science. This study for the review of the Plant Protection and pesticides related legislation for Zanzibar has revealed that the current plant Protection Act for Zanzibar is not effective to govern for the regulation of export, imports and movement of plant, plant products, plant pests, and other regulated articles capable of harboring plant pests or harmful organisms which could present an unacceptable risk to the agriculture and environment. In view thereof, the study recommends for the Act to be reviewed. Also, in order to secure common and effective action for the prevention and introduction of pests to plants and plant products within the United Republic of Tanzania, it is advisable that Zanzibar and Tanzania mainland should adopt common legislative, technical and administrative phytosanitary measures which are compatible with the international standards. As regard to the pesticides management, whereas for Tanzania mainland the main problem appears to be the existence of several institutions claiming mandate over the regulation of pesticides, in Zanzibar the opposite is true. There is no authority with specific mandate over pesticides. Even where pesticides are mentioned or an inference to that effect can be drawn, the provisions are unclear or quite inadequate. It is therefore proposed that a completely new law on pesticides be enacted in line with the acceptable international standards. Similarly, the Plant Protection Act be repealed and replaced by a new legislation that will, among others, meet the IPPC requirements.
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Report For The Review of The Plant Protection

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MINISTRY OF AGRICULTURE FOOD SECURITY AND COOPERATIVES

REPORT ON THE REVIEW OF THE PLANT PROTECTION LEGISLATION FOR TANZANIA

FINAL REPORT December, 2011

Report on the review of the Plant Protection Legislation for Tanzania

Report on the review of the Plant Protection Legislation for Tanzania

Ministry of Agriculture and Natural Resources

Report on the review of the Plant Protection Legislation for Tanzania

Report on the review of the Plant Protection Legislation for Tanzania

Report on the review of the Plant Protection Legislation for Tanzania

Report on the review of the Plant Protection Legislation for Tanzania

Report on the review of the Plant Protection Legislation for Tanzania

Report on the review of the Plant Protection Legislation for Tanzania

Report on the review of the Plant Protection Legislation for Tanzania

Report on the review of the Plant Protection Legislation for Tanzania

Report on the review of the Plant Protection Legislation for Tanzania

Report on the review of the Plant Protection Legislation for Tanzania

Report on the review of the Plant Protection Legislation for Tanzania

Report on the review of the Plant Protection Legislation for Tanzania

Report on the review of the Plant Protection Legislation for Tanzania

Report on the review of the Plant Protection Legislation for Tanzania

Report on the review of the Plant Protection Legislation for Tanzania

1.0 INTRODUCTION 1.1 Background of the Study

(GN No.401 of 1999)

Report on the review of the Plant Protection Legislation for Tanzania

1.3 Objective of assignment

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protection and pesticides management.

This approach has significant

PHYTOSANITARY REGULATION UNDER THE PPA LEGISLATION

Report on the review of the Plant Protection Legislation for Tanzania

Report on the review of the Plant Protection Legislation for Tanzania

The March 2008 Taskforce Report by MAFSC.

Report on the review of the Plant Protection Legislation for Tanzania

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Regulation 16. 15 REgulationn40 16 Regulation 46 (1) 17 Regulation 59

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(G.N. No. 193 of 1984)

Report on the review of the Plant Protection Legislation for Tanzania

Bakanga E. G, Status of Chemical Management In Tanzania http://www2.unitar.org/cwm/publications/cw/tw/tw10/written/gov/Tanzania_Geofrey_Bakanga.pdf

Report on the review of the Plant Protection Legislation for Tanzania

Section 65(c) (e).

Report on the review of the Plant Protection Legislation for Tanzania

Report on the review of the Plant Protection Legislation for Tanzania

Report on the review of the Plant Protection Legislation for Tanzania

Seed Act No 18 of 2003

The Tea Regulations, 1999

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Report on the review of the Plant Protection Legislation for Tanzania

PESTICIDES USE, STATUS OF STOCKPILES AND THE FUTURE TRENDS IN ZANZIBAR