By Tindi Sitati
Uncollected solid waste is one of the most visible environmental challenges facing Kenya today. Many counties lack waste collection systems in place and the situation is worse in informal settlements. This challenge has created a multi-million-shilling industry over the years, that has seen private waste operators independently involved in various aspects of waste management.
The global cost of solid waste management, according to the World Bank is estimated at 17.6 trillion shillings annually. Despite these economic contributions, waste collectors have been left out of waste management chains and are not legally recognized as workers. Moreover, because they are mostly unorganized, they have a weak bargaining position as compared to middlemen.
The co-operative business model can be a pathway to transition informal economy workers like waste collectors to the formal economy through strengthening their collective voice and representation.
Kigro Recyclers, a youth-owned and managed waste collector’s worker co-operative based in Langata constituency in Nairobi is redefining waste collection for members through providing meaningful work. The group of 18 members – was formed in 2017 with a goal to tackle the growing problem of unemployment and garbage collection. Through training from Global Communities, USAID CLEAR Program, members transformed their waste collectors’ group to a worker co-operative, owned and managed by workers who are also members. Kigro provides garbage collection services through residential subscription programs, and they also recycle goods like plastics which they sell to generate income for their members. The service of collecting, separating and commercializing recyclable material is a means of poverty alleviation and has improved member income opportunities and livelihoods.
“When we started, we collected waste in handcarts, but later we received a loan and were able to buy a truck that we use for our garbage collection services,’” Rogers Rombe Chairperson, Kigro Recyclers.
Maintaining a decentralized business structure and ensuring democratic functioning is not easy. It requires an effective process that is supported and understood by all. To achieve this, members agreed to have specific responsibilities and authority allocated to each of them to ensure timely and effective decisions are made that will fulfill the co-operative’s goals. “The board through consultation with members makes decisions on where the co-operative shall dump waste. It must be a legal dumping site. The management on the other hand makes training and marketing decisions,” said Alex Kariuki, Treasurer.
Members who joined the Kigro Recyclers went from being self-employed to being member-owners of the co-operative and they soon realized the benefits of collective bargaining, using the co-operative as a platform to negotiate rates with clients.
“We pay our workers on a daily basis; they have families and rely on day-to-day salary to survive. We are still a young business and are not making a lot of profits and so the little we get we redirect to our savings because our goal is to buy a second truck,” said Kariuki.
Kigro Recyclers has formalized the world of work for waste collectors in the waste management chain and members appreciate regular work and earnings, which have brought a sea-change in their lives.
The Government and stakeholders can formally recognize worker co-operatives in different sectors including waste management as an occupation and provide legal identity to workers and their co-operatives. This will encourage participation of worker co-operatives in policy-making processes that would contribute to livelihoods and economic growth.
Priority areas for the new government on co-operatives
By Mary Kiema
The Co-operative business model has been identified as an appropriate vehicle for inclusion. Sessional paper 10 of 1965 on “African socialism and its application to planning in Kenya’’ a post-independence paper saw this model as a means of reducing poverty. Since then, a lot has changed but the original thought remains that of improving standards of living. Much has been done by the players in this movement in a bid to keep pace with the demands of the ever-changing environment. Co-operative enterprises have to compete with many other models leaving consumers spoilt for choice.
The players charged with the responsibility of overseeing the development of the Co-operative function have continually formulated policies designed to guide the movement. The National Co-operative policy themed ‘Promoting Co-operatives for industrialization.’ is one such policy. Through this policy, Co-operatives are expected to transform into vibrant social and commercial enterprises. Regulation of some SACCOs and review of the Co-operative Society Act are some of the other interventions. Going forward policy formulation will benefit by drawing lessons from the successful and unsuccessful Co-operative Societies. So far there is an indication that there are gaps in understanding the model. Some emerging formations are Co-operatives by name but not by deed. This can be corrected by availing of the appropriate information at the promotion and registration level.
Since Co-operatives are said to meet the government halfway in the development agenda, the government must level the playing field by providing an enabling environment for the Co-operative societies. As they venture into areas previously occupied by other players, they should be allowed to enjoy some privileges reserved for organizations that benefit the majority of the citizens, especially those that are at the bottom of the pyramid. Importantly, the vetting of associations that opt to operate this model must be exhaustive enough to identify genuine players.
The Co-operatives landscape is dominated by the financial Co-operatives commonly known as SACCOs. The vigour employed in the early 70s to promote SACCO societies should now be employed to protect them and to promote Co-operatives that engage in other activities. Through innovation, Co-operatives can contribute more to the development of the nation than they are doing currently. The National Co-operative Policy prompts enterprises to venture into diverse activities. In response, Co-operatives are expected to engage in productive activities that create employment without losing their identity. These activities include Agriculture, Technology, Housing, and Transport among others. The confusion experienced by the matatu Co-operatives that are erroneously referred to as SACCOs can be avoided by forming the right type of Co-operatives. Copreneurship, as practised by worker Co-operatives, is an option worth exploring since members have diverse skills that they can contribute to the management of their enterprises. Appropriate policies, Bylaws, and procedures manuals must be formulated to guide some grey areas.
The Co-operative Societies Act proposes amendments that include those that affect the name of the Act, formation of federations, tiers of the movement, qualification of board members, and share trading, roles of the county and central governments, formation of co-operative court, restriction on the use of the name SACCO and use of virtual meetings among others. These amendments will inform the nature of policies and procedures necessary for operationalization. An enabling environment and stakeholder education are vital for this to succeed.
Previously, the Co-operatives function was in the ministry of social services as a department. In came the Ministry of Co-operative Development (MOCD) as a standalone Ministry. The effort of achieving a lean cabinet has seen the Co-operative function tossed from the Ministry of industrialization, trade, and enterprise development to that of Industry, Trade, and Co-operatives and that of Agriculture, livestock, fisheries, and Co-operatives. The thought line here indicates the challenges of understanding and identifying the nature of the co-operative model. Is it more social than commercial? Is the dominant occupation agriculture or finance? One seems to be asking? This juggling may end by understanding that, the movement is unique and subscribes to principles different from other business units. A Ministry of Co-operatives and SMEs as mentioned by the new administration is a good start if well resourced.
Since the function was devolved to the counties, National and County policies should be harmonized to avoid confusion. Standardization of operations will require a shift from what was previously the norm without disintegrating the Co-operative enterprises. Where some are formed to serve members across counties, the policies should be pre-emptive enough to support operations.
Members have become more complex in their expectations. They can be reached and seamlessly served everywhere including the diaspora by use of appropriate technology. This redefines the area of operations and calls for change in policies and procedures.
The way forward, therefore, is to realign the movement with the unfolding scenario.
The writer is a Certified Co-operative professional, a Consultant on the Co-operative business model, and the founder of the SACCOpreneurs group Facebook .
Limiting loans recovery from Guarantors
By Francis Mungai
In their pursuit to reduce non-performing loans, SACCOs have wielded almost unfettered powers in guarantors’ assets attachment. The ruling from the Cooperative Tribunal case 57 of 2021; Samuel Odhiambo Okope & 2 others (claimants) v Mwalimu National Savings & Credit Co-operative Society Limited & another (respondents), heralds a significant step on departure from this practice.
Securing a SACCO loan
SACCO Loans in Kenya are generally secured or collateralized by the borrower’s assets and on most occasions, a borrower is required to bring in a third party (guarantor) who can stand or use his assets (guarantor) to secure the loan facility.
The Claimants were guarantors to a loan issued to Charles Gwada Sudhe by Mwalimu National SACCO. Charles defaulted on the loan amounting to Sh1,018,916.46 and the SACCO proceeded to attach the assets of the guarantors to recover the loan. The Claimants protested this action, but the SACCO was unbowed. The dispute was then brought before the tribunal.
The SACCO defended its action at the co-operative tribunal by offering the following reasons among others:
- That in guaranteeing repayment of the loan, the claimants accepted the liability to repay the loan upon default by the borrower which forms a separate agreement between the claimant and the SACCO.
- That the attachment of the Claimant’s assets was done in strict adherence to the law where the SACCO was exercising its right of recovery of the loan advanced to the borrower whom the Claimants guaranteed.
Matters for determination
There were two key issues for determination at the tribunal. The first issue was whether the guarantors had a duty towards the SACCO to repay the borrower’s loan on default and secondly whether the SACCO was right in attaching the guarantors’ assets upon default of the borrower’s loan. An ancillary matter also for determination was who carries the cost of the suit. We will focus our attention on the two key issues.
An important consideration in this matter is the contractual agreement between the guarantor and the SACCO and indeed the SACCO’s defence was anchored on contract law and more specifically on case law Fidelity Commercial Bank Limited – vs- Kenya Garage Vehicle Industries Limited  eKLR. Where the court observed that:
Because a contract of guarantee is essentially a contract, the following basic principles of contract law will apply. A contract of guarantee binds the person giving a guarantee to honour its terms irrespective of any dispute that may be existing between the parties to the transaction for which the guarantee was given. A guarantee is therefore an accessory contract by which the guarantor undertakes to be answerable to the provisions for the debt or default of another person whose primary liability to the promise must exist.
The issue of guarantee is then thrust into centre stage, what then is a guarantee? and are there limitations on its application? In examining this question, we must look at the guarantee from two lenses. Is the guarantee provided to the SACCO by guarantors a pure form (perfect indemnity) or a conditional form (payment subject to specific events occurring?)
Defining a guarantee
A Guarantee is defined as an undertaking to answer for the payment or performance of another person’s debt or obligation, in the event of default by the person primarily responsible for it. A guarantee is a secondary obligation because it is contingent on the obligation of the borrower to the beneficiary of the guarantee (SACCO). On the other hand, an indemnity is a contractual promise to accept liability for another’s loss. It is a primary obligation because it is independent of the obligation of a borrower to the beneficiary of the indemnity (SACCO) under which the loss arose.
This definition did come into play in deciding this case, for example, the claimants argued that the SACCO by-laws explicitly stated that in the event of a default, the SACCO would take up the matter with the borrower through a tribunal mechanism and while the SACCO averred that this was a discretionary measure available to the SACCO and did not limit its powers to attach the guarantors’ assets. The tribunal agreed with the claimants that the SACCO needed to demonstrate that they had pursued all other avenues of collecting the debt (including using a tribunal) before attaching the guarantors’ assets.
In the end, the tribunal ruled in favour of the claimants on all the prayers. The lesson to be picked here is that SACCO management boards must relook their debt enforcement measures. Guarantees can no longer be treated as blanket indemnities; there is a burden placed on SACCOs to ensure that the principal debtor is pursued at his level at length before effecting attachment measures on guarantors. Further, SACCOs will need to review their existing by-laws for any unnecessary burden that may be placed on the SACCO in pursuit of debt collection.
ASK THE LAWYER
1. How far can an apex body like KUSCCO Ltd go in assisting a SACCO member get their savings back from an adamant SACCO? Jackline Kweya, Meru
ANSWER: KUSCCO Limited is an umbrella body of member primary SACCOs. Its role is to represent these SACCOs and do advocacy on their behalf. SACCO rules/guidelines apply in the event a member wants their savings back.
2. Are SACCO members allowed by law to whistle-blow to report gross mismanagement in a SACCO? If yes, which is the right institution to whistle blow to? Onesmus Murutu, Embu
Yes. The authority responsible for oversight of Saccos is SASRA. Should the mismanagement be criminal in nature, you may also report it to the police.
3. Who is mandated by law to forward unclaimed financial assets to the UFAA and at what point are institutions supposed to forward unclaimed assets to UFAA? Name of SACCO withheld
Any person (this includes both natural and legal persons) holding assets presumed abandoned may forward the same to the custody of the Authority as unclaimed assets. Before remitting the same to the UFAA, the person must try to notify the owner before remitting/surrendering the assets.
4. Can a SACCO society be placed under receivership? If yes, on what grounds? Name of SACCO withheld
Yes a SACCO can be placed under receivership on grounds of liquidity problems caused by mismanagement of the officials.
5. In the case of SACCO capital shares held by a member, when one is withdrawing, what happens if a member fails to get someone to sell to since they are non-withdrawable? Kennedy Ouma, Ngong’
MostSACCOs, will on request, agree to transfer your shares to incoming new members. Please talk to your SACCO to reach an agreement.
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