Second-generation liquor: Legal lacuna impeding illicit brew war

"There are laws that deal with the sale and consumption of alcohol. I am directing the police to ensure that they are strictly observed," he said during the opening of the Agricultural Society of Kenya (ASK) show in the region.

In 2015, during the tenure of former President Uhuru Kenyatta, the Kenya Bureau of Standards (KEBS) stated that it did not recognize second-generation alcoholic drinks. The then Managing Director, Charles Ongwae, went ahead and banned 385 brands of alcoholic beverages considered to be second-generation.

In the latest directive that has informed the ongoing crackdown, Interior Cabinet Secretary Kithure Kindiki suspended the sale and production of second-generation alcohol.

"Pursuant to section 4 (2) k of the Preservation of Public Security Act, all licenses and certification permits for second-generation alcohol and alcoholic beverage distillers and manufacturers, issued by Kenya Revenue Authority and Kenya Bureau of Standards stand suspended with immediate effect," said the CS in the March 6, 2024 directive.

He added: "All existing valid licenses will be vetted afresh within twenty-one days (21) days of this directive, with premises approved to resume operations only upon receipt of fresh approval."

The suspension of these certifications and licenses, when the law is silent on second-generation alcohol, raises another question about the grounds on which these documents were issued in the first place.

Second-generation alcohol does not feature in the Alcoholic Drinks Control Act (2012), the law that dictates how alcohol is manufactured and sold.

As such, second-generation alcohol may not necessarily be illicit, owing to the fact that the Kenya Revenue Authority (KRA) and KEBS also issued certifications and licenses to the manufacturers, which necessitated the suspension by Interior CS.

This legal loophole has also been raised by the Kenya Association of Manufacturers (KAM) in their response to the elaborate directive by the Government.

"Definition of 'second generation' - these words have not been defined within the laws in Kenya, and the lack of definition creates ambiguity which will result in disruption of trade and subjectivity of enforcement actions," says KAM.

KAM states that there is a difference between first and second-generation alcohol.

"For manufacturers, first-generation ethanol is typically derived from food crops like corn or sugarcane molasses, while second-generation ethanol is produced from non-food sources such as agricultural residues, wood chips, or energy crops like switchgrass," says KAM.

KAM says the production process differs as first-generation alcohol involves the fermentation of sugars present in these food crops to produce ethanol, while second-generation utilizes advanced technologies like cellulosic bioconversion to break down cellulose and hemicellulose into sugars for fermentation into ethanol.

It says the uses for these also differ as second-generation is primarily used for fuel.

"Is this the same definition for the Government? KAM recommends that the Government clearly defines the words 'second-generation alcohol' in law. This will ensure clarity that is supportive to businesses as it will provide objectiveness in the enforcement of the directives," says the manufacturers' lobby body.

It adds: "Further, there is a need to define the process of vetting so that it is clear for manufacturers and producers in terms of requirements and steps in the vetting process."

A 2022 study titled The challenge of second-generation alcohol abuse in Kenya: examining the relevant factors among the Roman Catholic Believers in Eldoret Municipality, Uasin Gishu County, lists chang'aa and busaa as second-generation alcohol.

However, if the definition of second-generation alcohol is that it is manufactured from non-food items, then chang'aa and busaa, which come from food items such as millet and maize, could be considered first-generation alcohol.

The National Authority for the Campaign Against Alcohol and Drug Abuse (Nacada) has a blanket definition of second-generation alcohol, stating that they are recent and low-priced. In this case, chang'aa, busaa, and some of the cheap alcohol found in the market do fall into this category.

Chang'aa is legal according to the Alcoholic Drinks and Control Act (2012).

Counterfeit alcohol with fake KEBS stamps nabbed during a sting operation by a multi-agency team led by NACADA in Kayole on November 09, 2023. [Denish Ochieng, Standard]

"The alcoholic drink previously known as chang'aa or any other distilled alcoholic drink shall only be manufactured, packed, sold or distributed in glass bottles of the kind specified in paragraph (a)," reads Section 31 (2) (b).

This Act repealed the Chang'aa Prohibition Act and the Liquor Licensing Act.

According to a 2022 Nacada report titled National survey on the status of drugs and substance use in Kenya, the Western region has the highest prevalence of current use of chang'aa (11.4 per cent) followed by Nyanza (6.3 per cent) and Rift Valley (3.6 per cent).

Alcoholic Beverage Association of Kenya (Abak) chair Eric Githua told The Standard that in Kenya, they are yet to encounter second-generation alcoholic beverages.

"From a scientific point of view, we don't know of any that is made from non-food alcohol. Those ones are mainly done in America, and even then it's not that distinguishable; it is only that the source that is different," he explained.

However, one way he noted that can be used by the Government to determine illicit alcohol is to look at the prices.

He said with the current regime of taxes, if a genuine manufacturer does not add their margin, it would be difficult to sell a 250ml of spirit for sh250. However, there are some spirits which are sold betwwen Sh95 and Sh100 in the market which should raise questions.