Former Interior Cabinet Secretary Fred Matiang'i has been accused of meddling in the seizure of sugar that was condemned in 2018, but which has now been revealed to have been unfairly banned to create a market for cartels.
A court heard that sugar imported from Egypt, which was condemned after reports of mercury contamination, was safe but branded toxic for political interests.
Employees of the Kenya Revenue Authority (KRA) and the Kenya Bureau of Standards (KEBS), who were charged with releasing a consignment of sugar, claimed that the allegation of mercury in the commodity was used as a political tool to control the sugar market.
They also told a Mombasa court that this was done to allow politically connected cartels to profit from the sale of their sugar.
The court was told that political pressure at the time, coupled with the need to create market opportunities for sugar cartels to make substantial profits by obstructing sugar imports, led to the seizure of otherwise safe goods and the arrest of government officials responsible for releasing them at Mombasa port.
“Dr Matiang’i spoke of mercury , yet the results we obtained after analysing samples of 10,000 bags of brown Egyptian sugar pertained to issues of moisture content. None of us were aware of this mercury that was being discussed by the then Interior CS,” said Vivian Moraa, the KRA Customs Head Verification Officer.
Ms Moraa, who was then stationed at the Boss Container Freight Station, told Senior Resident Magistrate Rita Orora that the country was experiencing a surge in sugar imports at the time.
“I was not present during the physical verification. I released the consignment online through the Simba system. I had assigned this verification work to two officers under my supervision,” she told the court while being led by defence lawyers Jared Magolo, Gikandi Ngibuini, Onyango Wameyo, among others.
Kebs Inspection Manager Samuel Onjolo supported Moraa’s statements, asserting that the mercury claims and subsequent sugar seizures were influenced by political pressure aimed at securing the sugar market.
“There was political pressure and a need to create a market for certain individuals,” Mr Onjolo said when cross-examined by the state's lawyer, Mr Nyamache.
Mr Onjolo argued that if the issue was really about the safety and quality of the sugar, then the responsibility would have rested solely with Kebs and the port health officers, not the KRA.
The court also heard that the sugar in question arrived in the country with a Certificate of Conformity (COC) from the port of origin, indicating that it met the country's safety and quality standards.
“The fact that KRA employees were charged with quality issues demonstrates that something was terribly wrong. Normally, such matters are outside KRA’s jurisdiction,” he added.
Mr Onjolo also told the court that the Office of the Director of Public Prosecutions (ODPP) had been reluctant to press charges, but due to considerable political pressure, the ODPP eventually proceeded with the charges.
He went on to say that at the time, the issue of importing goods such as cooking oil, fertiliser and rice had caused considerable political tension and interest in the country.
“All we needed to ensure was fair play and standards for the imports. But it was beyond mere trade or safety concerns; it was about political pressure and the struggle for market dominance,” he said.
Daniel Samuel Musta, another Kebs inspection officer, recounted how the political environment forced the authorities to deviate from standard procedures.
He mentioned that an internal memo was issued to them requiring that all sugar consignments, even those with valid COCs, be tested for mercury due to widespread public outcry and political pressure.
“At that time, there was an outcry that sugar entering the country was contaminated with mercury. Because of this, we were directed to halt every consignment and collect samples for analysis, even when they had a COC,” Musta explained.
Mr Onjolo echoed these sentiments, adding that the political atmosphere necessitated temporary procedural changes.
“Normally, we would not test goods with valid COCs. However, communication from headquarters mandated that all sugar imports be tested due to the mercury claims,” he said.
The three are among six people, an importer, and a clearing and forwarding agent charged with releasing suspected contraband sugar into the market in 2018.
They include KRA verification officer Monica Waceke, Port Health head Peter Nzui Chidenge, Air Menzies International director Ali Abdi Mohamed and his Flora Bakers Ltd counterparts Hassan Abdi Mohamed and Abdullahi Abdi Mohamed.
The state accused them of releasing the high moisture sugar into the country, wilful disobedience of statutory duty, abuse of office and breach of trust.
They were accused of deliberately releasing into the public 10,000 50kg bags of Egyptian brown sugar that did not meet Kenyan standards and should have been destroyed.
The state argued that the act of releasing the goods without receiving the results from the government chemist was a clear case of abuse of office by Mr Chidenge.
In their defence, the government employees said the sugar was safe for consumption and blamed their predicament on political interference.
He explained that the sugar had undergone detailed analysis, with most samples showing a moisture content of 0.25 percent, which he said was well within safe limits.
“The maximum acceptable moisture content for brown sugar is 0.2 percent; however, the detected deviation of 0.005 percent above this threshold did not compromise the sugar’s safety,” he said.
He noted that the danger arises when the moisture content exceeds 0.85 percent, a level at which microbial activity becomes a concern.
“Technical analysis indicated that the moisture content in question was merely an indicator parameter and not a safety parameter. The sugar was safe for consumption, as confirmed by compliance with microbiological standards,” he said.
Mr Onjolo added that the sugar’s intended use in solution form diminishes the relevance of minor deviations in moisture content.
He criticised the involvement of the Directorate of Criminal Investigations (DCI) and the ODPP, pointing out that their actions contradicted expert opinion.
“If the Kebs officer in charge, an expert in sugar standards, declared the sugar fit for use following standard procedures, on what basis did the DCI and DPP, who lack expertise in sugar science, overturn this decision?” Mr Onjolo questioned.
He also stressed that the quality standards for sugar are based on three pillars: safety, performance, and information parameters.
“While safety parameters are non-negotiable, minor deviations in performance parameters, such as moisture content, can be reworked or accepted without reworking, as they do not compromise safety,” he stated.
The importer clarified that the sugar was not intended for sale on the market, but for baking purposes.
Flora Bakers Ltd imported the goods in question into the country in mid-June 2018. It then engaged Air Menzes International to act as its clearing agent after the cargo arrived at the Port of Kilindini.
Samples were taken and subjected to various analyses to confirm whether the consignment met the requirements set by Kebs and East African Standards for brown sugar.
This was after a red alert had been issued for the importation of substandard sugar. However, the court heard that Mr Chidenge authorised the release of the consignment before the results of the sampling were available.
The goods were also released without a release order, as the consignments were detained after a seizure notice had been issued.
Kebs later claimed that the consignment was substandard, leading to the arrest and prosecution of several of its employees, along with others from the Kenya Revenue Authority (KRA), Port Health, the importer and the clearing company involved in the transaction.
Ms Moraa, Ms Waceke, Mr Onjolo, Mr Mutsa, Mr Chidenge, the clearing agent, and the directors of Flora Bakers have been brought back to court to explain why the sugar was released into the market.
This follows a decision by High Court judge Anne Onginjo to set aside their acquittal and order them to present their defence.
The judge ruled that as importers and agents of importers and exporters, the five people should have been aware of the requirements that they should have been issued with documents allowing them to release their goods from the port and a document showing that they were fit for consumption.
The verdict will be delivered on February 28, 2025.
