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Cyprian Is Nyakundi


After 12 Years Of Waiting


In late November, the
highest Court in the land, the Supreme Court of Kenya handed Tobacco
manufacturers British-American Tobacco (BAT) and Mastermind Tobacco a ‘death’
sentence by upholding the Tobacco Control Act 2014.

The case which was not
widely publicized but was only covered by a few media houses; namely Business
Daily (NMG) and a few international media i.e Associated Press. By way of
things, it appears New York Times has deleted their article on the same.

In their ruling, the
Supreme Court delivered on 26th November 2019, want the laws effected without
further delay.

What does the Tobacco
Control Act, 2007 say? 

Tobacco Control Act,
2007 is the principal law governing tobacco control in Kenya. This
comprehensive law defines keys terms and covers topics including, but not
limited to, restrictions on public smoking; tobacco advertising, promotion and
sponsorship; and packaging and labelling of tobacco products.

Other topics addressed
by the law include: public education and information campaigns; sales to
minors; and enforcement of the law. The Tobacco Control Act, 2007 grants
powers, including implementation and enforcement authority, to individuals
appointed under the Public Health Act. The Traffic Act provides a definition of
“public service vehicle,” incorporated by the Tobacco Control Act with regards
to smoke-free provisions.

The Tobacco Control
Regulations, 2014 require combined picture and text health warnings and further
regulate other provisions under the Tobacco Control Act, 2007 including public
smoking restrictions, tobacco product and tobacco industry disclosures, and an
annual fee placed on tobacco product manufacturers and importers, which will
contribute to a tobacco control fund. (via Tobacco Control Laws Organization)

In November, Mr Joel
Gitali, the Chairman, Kenya Tobacco Control Alliance released a statement
applauding the court’s decision.

“Today, the Supreme
Court has ruled to stop this senseless killing of defenceless Kenyans. Since
2007, when the Tobacco Control Act was enacted, every attempt by the government
to implement and enforce the law to protect the lives of Kenyans, has been
opposed or blocked by the tobacco industry…We congratulate the Supreme Court
for upholding the regulations, confirming they conform to the Kenyan
Constitution, whose main goal is also to protect the health and lives of
Kenyans’, Mr Gitali said.

BAT Kenya in its response
to the Supreme Court verdict stated through their Managing Director Beverley
Spencer-Obatoyinbo: “We
respect the Court’s judgment but are obviously disappointed. Our appeal raised
important issues as to the nature and extent of public participation in the
legislative process. Today’s ruling will have very serious implications for the
checks and balances on Government policy and legislative formulation that go
far beyond the tobacco industry. We remain concerned that some parts of the
Regulations are unnecessarily onerous and present a risk of arbitrary
enforcement and harassment against consumers and the tens of thousands of
retailers and distributors in our supply chain. The introduction of the
Solatium Compensatory Contribution will also place the local industry at a
significant disadvantage relative to tobacco manufacturers based in other EAC
partner states. In addition, the limitations on government-industry
interactions pose a very real threat to the industry’s ability to work with
government agencies on fundamental issues, such as the fight against illicit
trade in cigarettes. An issue which is costing the Government at least Shs 2.5
billion annually in unpaid taxes”

Moving on

Manufacturers of tobacco
products will start contributing two per cent of the value of the tobacco
products they manufacture or import in a given financial year to assist the
State in dealing with the adverse effects of tobacco consumption.

The regulations made
pursuant to Section 53 of the Tobacco Control Act, 2007 seek to regulate
various aspects of the tobacco sector in Kenya relating to the manufacture,
sale and advertising of tobacco products.

The regulations were
supposed to come into force on June 5, 2015, but one of the major players –
British American Tobacco Kenya Ltd (BAT) – contested and the court on June 4, a
day before enforcement, granted interim orders to restrain the implementation
pending hearing and determination of the petition.

The government plans to
set up a board to manage the Tobacco Control Fund, this is according to the
Director of Public Health Kepha Ombacho.

“The funds will be used
to support and improve health programmes which are addressing issues of public
health education, non-communicable diseases, as well as support publication of
communication materials,” said Dr Ombacho.

This will greatly
contribute to the Universal Health Coverage (UHC), which is a key component of
the government’s ‘Big Four agenda’, for development.

Regarding the disclosure
of information about their products and which the tobacco industry players
claimed was aimed at depriving them on their intellectual property rights, the
court said the requirements are aimed at identifying the products and
ingredients used by the manufacturers of tobacco products, ensuring that public
health authorities have full information about the ingredients and the health

“We find that the Court
of Appeal correctly applied the test of proportionality in resolving the
friction between the competing rights of BAT to its intellectual property vis-à-vis
the need to ensure a safe and clean environment, free from the hazards of
tobacco use, for the public,” ruled Supreme Court judges on November 26, 2019.

Court of Appeal judges
Hannah Okwengu, Festus Azangalala and Fatuma Sichale had on March 24, 2016,
upheld the regulations, saying their implementation does not violate the
Constitution and that the two per cent was not a tax that required to be passed
by Parliament for it to be lawful.

The courts separately
held that the Tobacco Control Act has very clear objectives of safeguarding the
public from the dangers posed by the consumption of tobacco.

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