Kava Act 2015 amendment … “In most cases we don’t need a new law or new powers; what we need is to enforce the ones we already have.” Image: SBS

OPINION: By Tess Newton Cain in Port Vila

There have been a couple of stories recently in Vanuatu about kava exports and one of the questions that comes up is monitoring exports to make sure that the material that is leaving the country is of the right standard. The following extract from one such story stood up and waved a big red flag in my face:

“While the existing law already provides us with legal power, we need the extra legal backing to put stricter control measures against farmers and exporters and other people for that matter, in particular owners of kava bars who sell ‘makas’ to the exporters.”

This is a quote from the Director of Biosecurity and the “extra legal backing” he is talking about is a 2015 amendment to the Kava Act that has yet to be gazetted. I have no doubt that the amendments to the Kava Act are relevant and important, especially in light of renewed interest in the product overseas.

What I am concerned about is referring to a delay in the availability of new powers as some sort of excuse for enforcing ones that already exist.

I am a lawyer by training and so people often look quite surprised when I answer the question “do you think we need a law to deal with that?” with something along the lines of “probably not”.

Don’t get me wrong, there are definitely areas of the law that need to be revised, to make them more appropriate to modern day circumstances. But in most cases we don’t need a new law or new powers; what we need is to enforce the ones we already have.

It’s quite simple: if you do not have enforcement, you will not develop a culture of compliance. Sure, some people will comply with the law because that is their nature, or it reflects how they have been brought up and educated.

Complying with laws
Some people will take care to comply with laws because if they don’t they may be deported.

But for most of us, knowing that those with power (police officers, customs officials, biosecurity staff etc.) will exercise it and if they do, it will likely result in something we won’t like, is a key driver of making sure we are doing the right thing.

Law enforcement serves several purposes, one of which is deterrence. Enforcement by those in authority deters people from breaking the law. Making enforcement visible is one of the best forms of “awareness raising” there is.

The French have a term for it “pour encourager les autres” – when people around me see the law enforced against me, they check their own behaviour to make sure the same thing doesn’t happen to them.

A particular subset of this topic is around collection of fees, taxes or fines. If a state authority, such as a ministry, is putting forward increasing a fee or a tax, we need to look beyond the headline. If enforcement is weak, an increase of this type means that those of us who comply with the law are being penalised and are in effect subsidising those who don’t pay and are not made to do so by those in authority.

Again, if you want a culture of compliance you need to develop a culture of enforcement.

In late 2015, we saw the successful prosecution of 15 MPs for bribery and they were subsequently found guilty of breaching the Leadership Code. It was a landmark for good governance in Vanuatu, and throughout the region.

Enforcement needed
It did not require the creation of any new laws. What it took was for all the relevant players (police, prosecutors, courts) to enforce laws that have been around for quite some time.

Over the last few years, we have seen the amount of VAT collected rise significantly. That is not because the law has been changed, but because the VAT Office has worked to improve its enforcement procedures. They are now looking to do something similar in relation to collection of import duties. The law hasn’t changed, the culture of the organisation has.

So, next time you hear someone such as a politician or a bureaucrat or (my particular favourite) a “technical adviser” say that what is needed is a new law or a new power or an increase in a fee or penalty, it should prompt you to ask some questions.

What laws or powers already exist to deal with this issue? Are they enforced properly? Will these new measures be any use if no one enforces them? And maybe if you start asking these questions, others will be encouraged to do so as well.

Tess Newton Cain, is the principal of TNC Pacific Consulting. This commentary was first published in the Vanuatu Daily Post.

Tainted kava threatens Vanuatu’s kava export industry. Pictured is ground Vanuatu kava sold by a US retailer. Image: Vanuatu Daily Digest

By Len Garae in Port Vila

The writing is on the wall for the fate of Peter Colmar’s kava exporting company, Sarami Plantation, now that the Minister of Agriculture, Matai Seremaiah has said: “I strongly recommend that the Vanuatu Commodities Marketing Board (VCMB) terminate his export licence forthwith”.

The minister sent the short instruction to the Acting Director-General (ADG) of Trade, George Borugu, this week.

The minister recommended to the ADG to ask the board to take drastic steps to deal with Sarami Plantation in the face of growing concerns abroad, especially from Dr Mathias Schmidt in Germany and the Vanuatu Ambassador to the European Union, Roy Mickey Joy, in Brussels, both of whom fought tooth and nail to successfully defend the Pacific kava-producing countries’ export market in Europe.

Their tireless commitments since the kava ban in 2001, finally resulted in the ruling by the German Administrative Court to lift the kava ban in 2014.

In his urgent email to Ambassador Joy this week, Dr Schmidt wrote: “Today on Tuesday, January 10, I received a complaint from the US: they are being drowned in two-day kava, all exported from Peter Colmar in Santo. He is operating as ‘Sarami Plantation’, shipping ground, leaves and stalks as ‘kava’ to the US via New Zealand.”

Dr Schmidt listed the following export figures for 2016:

• Kumars Import: 25.82 tons

• Naturex Inc.: 24.52 tons

• Concentrated Alie Corps.: 7.02 tons and

• Starwest Botanicals: 2 tons

Dr Schmidt explained: “That’s almost 60 tons of non-noble non-root material sold as kava in 2016 by just one exporter. I thought the Vanuatu Kava Act had been changed, but if someone like Sarami Plantation can sell such quantities without any consequences, there must be more than just one person closing their eyes.

‘Next catastrophe’
“We need to stop this before the next catastrophe happens.”

In his letter to the Director of Biosecurity, Ambassador Joy wrote: “I am shocked and alarmed by the way and the manner in which Mr Peter Colmar has continued to conduct his shipment with ‘blind eyes’ from your staff and even those in the Customs and Border Controls.

“I am lost for words but can only compel the way and the easy manner by which the ‘Sarami Plantation’ has continued to effectively trade its kava shipment against all odds and without any sense of regularity control or SPS from our authorities.”

Ambassador Joy said he was disappointed that he and his exceptional team had spent six solid years and substantial resources to eventually revive the kava trade in Europe, only for one company to come in and destroy everything by exporting trash instead of noble kava.

He continued: “I am appealing to you to launch a swift investigation into the conduct of ‘Sarami Plantation’ and withdraw its export licence as soon as possible.”

The ambassador also copied his letter to the Prime Minister’s Office.

Meanwhile, the owner of the export company, Peter Colmar, lives in China and is understood to visit Vanuatu on a regular basis.

No call back
The Daily Post called Sarami Plantation in Luganville to speak to someone responsible concerning the reports leveled at the company.

In the latest development, all kava growers and exporters have from now until the end of next month to clean up their operations and cease for good, from the sale or export of two-day kava or kava mixed with ‘makas’ (adulterated kava).

The new Kava Export Standard is going to come into force on March 1 and all kava exporters are expected to comply with it.

The Biosecurity Director has already given the warning to all kava farmers and exporters from Luganville and Port Vila. He is reiterating the warning again because he has received pictures of dishes of ‘makas’ from his officers in Luganville only two days ago.

The director said: “My officers went to a particular nakamal and found kava ‘makas’ placed on the roof to dry. When they asked why, the owner confirmed a company is buying the ‘makas’ for export.”

He said Sarami Plantation is reported to be buying and mixing kava ‘makas’ with real kava for export to the United States.

The report has already reached the European Union.

Appeal to government
Asked to comment, he replied: “We at Biosecurity are appealing to the government to gazette the Kava Act Amendment of 2015 to give us extra-legal enforcement power to enforce kava export.

“While the existing law already provides us with legal power, we need the extra legal backing to put stricter control measures against farmers and exporters and other people for that matter, in particular owners of kava bars who sell ‘makas’ to the exporters”.

As of the middle of next month, all farmers are warned to stop selling two-day kava to buyers for local consumption and kava exporters.

The new law comes into effect on March 1 and if kava farmers and exporters are caught still selling and exporting two-day kava, the Director of Biosecurity reiterated that they would go one step further by blacklisting those farmers by advising exporters not to buy anymore kava from them.

“We are prepared to take such drastic measures to clean up the industry of kava export”, he confirmed.

Len Garae is a senior Vanuatu Daily Post journalist.