Kenyan Law:
The Kenyan population uses services and consumes goods from a broad array of providers. These providers may or may not provide consumer protection to their clients. Where it is provided, it is usually inconsistent. In the absence of market-wide consumer protection law or authority, consumers of goods and services lack protection entirely. As a result, Kenya falls short of providing comprehensive consumer protection and recourse both in policy and in practice. The Constitution of Kenya 2010 commits the nation to protecting consumers, and vision 2030 proposes policy initiatives.
Article 46 of the constitution of Kenya provides for the rights of consumers. It provides that consumers have the right; to goods and services of reasonable quality; to the information necessary for them to gain full benefit from goods and services; to the protection of their health, safety and economic interests and to compensation for loss or injury arising from defects in goods or services. It also provides that Parliament has the mandate to enact legislation that provides for consumer protection and for fair, honest and decent advertising. Article 46 is applicable to goods and services offered by both public entities and private persons.
Consumer protection in Kenya lacks a cohesive policy and regulatory framework, in the absence of a market-wide consumer protection law or authority. In Kenya, the rights of the consumer are enshrined in a number of parliamentary Acts, all of which are presently being consolidated by means of the 2007 Consumer Protection Bill. They are designed to ensure that consumers are provided with full information, including the price and quality of any product or service they may wish to purchase, and to ensure that they are safe and meet international standards. One such Act is the Sale of Goods Act, which is specifically designed to protect the consumer against unfair trading practices.
The Kenya Bureau of Standards (KEBS) is a statutory organisation of government established by Cap 496 of the laws of Kenya in 1974. It is a standards body. Part of its mandate is to ensure consumer protection through handling of consumer complaints. Its mission is to provide internationally recognised standards, measurements and conformity assessment solutions that meet consumer needs. Standardization by KEBS is to provide solutions for repetitive consumer problems in the industry by providing uniformity in products and or services. KEBS has not fully ensured that only quality goods gain entry into the country as provided for in the Standards Act (Cap 496); and the Quality Import Order (No. 78 of July 2005). Proliferation of substandard goods through illegal cross-border trade is rampant. KEBS has little presence in a few towns in Kenya with few personnel and thus consumer protection is not its primary objective.
Glimpses of consumer protection can be seen in individual sectors for example; the banking Act gives authority to the Central Bank of Kenya (CBK) to regulate banking activities but does not define the specific mandate for consumer protection beyond regulating the interest of consumers. The Banking Regulations of 2006 prescribes procedures to be followed for increasing the rate of banking and other fees. Particular rules govern unlawful, misleading and comparative advertising. Recourse mechanisms are left to individual banks.
Deposit-taking microfinance institutions (MFIs) are regulated by the CBK with the same conventions found in the banking regulations. The microfinance (deposit-taking MFI) Regulations of 2008 forbid fraudulent or reckless credit and prescribe know-your-customer requirements. Few other measures have been set in the Regulations that implement the microfinance Act of 2006.
Mobile money has taken off in Kenya in an undefined regulatory space. No specific regulations about non-bank companies offering mobile financial services exist. However, the National Payment System Department (NPSD) of the CBK has provided oversight to M-PESA and other microfinance service providers (MFSPs) focusing on the integrity of information technology and the service delivery systems protecting customers form operational failures and financial failure of the MFSPs.
Savings and credit cooperatives (SACCOs) are constituted under the Cooperative Societies Act of 1997 and registered with the Cooperatives Registrar in the Ministry of Cooperative Development and Marketing the SACCO Societies Act of 2009 established a comprehensive regulation and supervision framework specifically for SACCOs, creating the SACCO Societies Regulatory Authority (SASRA). For members of SACCOs covered by SASRA, the prudential regulation and supervision will greatly increase consumer protection. SACCO members may take complaints to the District or Provincial Cooperative Officer, which are eventually forwarded to the Cooperative Tribunal.
While Kenya does not have cross-market consumer protection legislation, the Restrictive Trade Practices, Monopolies and Price Control Act of 1989 is the most comprehensive legislation related to competition in Kenya. Although the Act does not empower consumer welfare, the Public Complaints Commission does provide third-party recourse for consumers of public sector services.
The trend therefore in Kenya in the absence of an all inclusive consumer protection legislation which will encompass all the rights of consumers and at the same time putting in place avenues for redress is that consumer protection has been left to individual sectors to implement. Therefore, there is a need to streamline consumer protection and formulate a standard policy and law that will offer guidelines and cushion all consumers regardless of what sector they are in.
Enactment of the Consumer protection bill 2007 will go a long way in ensuring a level playing field when it comes to consumer protection. This will give effect to the consumer rights that are enshrined in Article 46 of the constitution. As an aid to this legislation and all others that provide for consumer protection, my recommendation would be to put in place a code of conduct akin to the Criminal Procedure Code which will regulate consumerism by providing rules and sanctions for service providers while at the same time providing for recourse in the event that the rights of consumers are breached.
This code should develop or provide a comprehensive system of networks for defending consumer interests that involve multiple branches and levels of government, such as municipalities to help consumers defend their rights and mediate dispute that may arise.
The ‘Consumer Protection Code’ should focus inter alia on the following; it should cater for protection of life and health. In this case all suppliers whether government or private must warn of possible risks from the products they offer for consumption; education before consumption should be emphasised. Here the suppliers have the burden of offering instructions on proper and unbiased use of their respective products and services; there should also be freedom of choice among products and services, this important requirement eliminates monopolies and cartels; there should be assurance against misleading and unfair advertising. False advertising should be made illegal and should automatically void the contract between the buyer and the seller.
Other provisions that may constitute the Code may include that; contractual protection which details a supplier’s failure to meet a contract’s requirements should be made a punishable offence. Courts should be able to amend contracts that are deemed harmful to consumers, and consumers should not be obliged to honour contracts they do not understand; on indemnity, the suppliers and not the consumers should be liable for damages caused by faulty products; a provision on access to justice which should mean that consumers whose rights are violated can take their cases to court. There should be a literal inversion of the burden of proof in that the law should provide that in cases of violations of consumer rights, the burden of proof should rest with suppliers, not customers. The law should stress on quality of public services. Here the consumer should be able to expect quality public services from government agencies and their contractors.
There should also be established a national department tasked with defence and protection of consumers. This should be a network of state, local authorities and civil society. A robust office of the ombudsman will also be handy in ensuring that the grievances of consumers are addressed. This office could be set up nationally or even individual institutions may employ ombudsmen at their own expense to look out for and defend consumer interests.
As we have seen, Kenya lacks a comprehensive consumer protection law. We also lack vibrant consumer lobby organisations and serious institutions on consumer protection issues; there is a weak enforcement role by government agencies. Kenya has approximately 30 Acts of parliament on standards of goods and services but the enforcement is poor. Cultural apathy hinders vulnerable consumers from complaining or voicing opinions when their rights are infringed. Kenyans do not speak up, thus creating room for perpetual violation of their consumer rights.
There is also limited awareness on consumer rights; there is a lack of objectivity towards consumer welfare by most of the standards legislations in Kenya. Kenya’s Anti-Counterfeit Act of 2008 is biased towards protection of intellectual property rights rather than consumer protection. The Weights and Measures Department in the Ministry of Trade has failed to enforce laws on standards. We still have retrogressive laws that need to be repealed like the cautionary notes on receipts; ‘goods once sold cannot be returned’, and there is also leniency in penalties for violators of consumer rights.
As a remedy for these shortfalls, there should be effective representation of consumer groups in key institutions which have a consumer protection mandate; this will help to increase consumer interest. There should also be enhanced enforcement of existing consumer protection legislations and an intense lobbying for a new consolidated consumer protection law in Kenya. There should be established an umbrella consumer welfare organisation in Kenya. Capacity development for consumers in terms of their rights and responsibilities should be enhanced. Stiffer penalties should be introduced for unscrupulous traders; this will serve as a deterrent for future offenders. Consumer organisations should also intensify their watchdog role over substandard commodities and weighing machines and they should work closely with KEBS’ Weights and Measures Department to complement their surveillance role in keeping at bay substandard products. We should also strive to promote awareness on the available consumer protection institutions and avenues for redress that are available in Kenya.
All the retrogressive legislation should be repealed; this will promote a level playing field for both the consumers and the traders or service providers. There should be intense awareness and consumer education especially by government agencies and civil society groups. This should lay an emphasis on the novel areas of consumerism like ICT (Internet fraud). There should also be advocacy for reforms in the criminal justice system and this should include replacement of manual filing systems with electronic tools in the judiciary, this will enhance efficiency and promote access to justice by consumers. Lastly, the strengthening of consumer organisations in Kenya could improve their involvement and general participation in consumer protection affairs.
Despite having numerous legislations on consumer protection, there is still the need for a consolidated legislation that will cut across the board, and give a general yet comprehensive protection for consumer rights as provided for in the constitution. This though will not be adequate in the absence of the support and vigilance of all stakeholders in consumerism. The consumers should be made aware of their consumer rights and the laws that govern these rights. This is the only way that consumer protection can be seen to be truly effective.
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