Once again, the supremacy of Public health and well-being of the people over the commercial interests of the tobacco industry was affirmed and this time in an African country. The Kenya Court of Appeal reaffirmed it in a ruling on 17 February 2017 by rejecting the appeal of British American Tobacco (BAT) and thus upheld the Tobacco Control Act 2014.
Kenya signed and ratified the World Health Organization Framework Convention on Tobacco Control (WHO- FCTC) on 25th June 2004 and domesticated through the enactment of the Tobacco Control Act (TCA), which was assented into law on 27th September 2007. Efforts to draft and gazette Tobacco Control Regulations began shortly afterwards.
In 2010, Kenya passed a new constitution which amongst other things guarantees that “every person has the right to a clean and healthy environment” (Article 42) and that “Every person has the right to the highest attainable standards of health” (Article 43(1)). Further in 2013, Kenya enacted the Statutory Instruments Act (SIA) which required that any subsidiary legislation must be approved by Parliament.
In 2014, the Ministry of Health through the Tobacco Control Board gazetted the Tobacco Control Regulations that was set to come into effect in June 2014. However due to the new legislation ‘the statutory Instruments Act’, the Regulations were required to be approved by the National Assembly through the Committee on Delegated Legislation. During this period there were reports of attempts by tobacco Industry to influence this committee as well as the committee on Health. When the plans were exposed in the local media, the Industry moved to the High Court to challenge the constitutionality of the entire Regulations and specific provisions.
Among other arguments, the industry argued that:
- the process of developing the Regulations violated requirements under the Constitution of Kenya and the Statutory Instruments Act (SIA),
- some specific provisions of the TCA violate their fundamental freedoms and rights and are inconsistent with the Constitution,
- provisions on graphic health warnings violate treaties of the World Trade Organization’s specifically the Trade Related Aspects of Intellectual Property Rights (WTO- TRIPS) treaty and the Agreement on Technical Barriers to Trade (TBT)).
- the Pictorial Health Warnings were unnecessary as there was no evidence to show that Graphic Health Warnings (GHW) reduce smoking or alter beliefs or intentions about smoking and are likely to lead to illicit trade.
- the compensatory contribution for TC fund is ultra vires powers and authority in the TCA and is unconstitutional as it amounts to double taxation on tobacco products and violates the East African Community (EAC) Treaty as it would impede free movement of trade within the region
On 24th September 2016, the High court ruled the case but in its process of delaying the implementation of the TCA, BAT in September 2016 appealed. The appeal case was heard by a 3 judge bench. Judgment was delayed several times and was eventually delivered on 17th February 2017. The court found that the Regulations and the TCA are neither unconstitutional nor unlawful and do not violate the rights of BAT or the other players in the industry. Where the Regulations or Act limit the rights of the industry players, it is justified in accordance with the Constitution of Kenya. The appeal was therefore dismissed as it lacked merit.
The victory in Kenya is the result of a synergy between Government and the Civil Society
The Government through the Cabinet Secretary for Health, the Tobacco Control Board (TCB) and the Attorney General (AG) were the first, Second and third respondents to the Case and were represented by a senior State Counsel from the AG’s office. Civil Society on the other hand enjoined as interested Parties through the Kenya Tobacco Control Alliance (KETCA) and the Consumer information Network (CIN) with support from The Campaign for Tobacco Free Kids (CTFK). Through- out the process, Government and CSOs worked together to put up a strong case against the Industry arguments.
In January 2017, the International Institute for Legislative Affairs (IILA), coordinated a CSO campaign (comprising of IILA, KETCA, CIN and other CSO organizations) to build public awareness on the Regulations and build pressure for a favorable decision of the Court of Appeal. In line with this a 2- day GHW exhibition was held in the city; where members of the public signed a petition in favour of the Regulations. This was followed by a peaceful procession to the Ministry of Health where the petition was handed to the Director of Public Health (who is also the Secretary to the Tobacco Control Board. In addition, the campaign held extensive media engagement (ongoing) that included meetings with editors, appearances in TV and radio shows, newspaper articles and social media.
Lessons from this new legal battle…
It has become common for the tobacco industry to use legal claims not only to intimidate states but also to delay or prevent the implementation of tobacco control measures. Its arguments are almost the same everywhere: unconstitutionality of the tobacco control measures challenged, violations of intellectual property rights, violations of the World Trade Organization’s agreements etc. But each time, fortunately, magistrates are not fooled and make decisions for the protection of public health through the tobacco control developed by governments. This was the case for Australia, Uruguay and the United Kingdom.
Kenya is in line with this dynamic and in making this decision the Kenya’s Court of Appeal have reaffirmed one of the principles of the Guidelines of Article 5.3 of the FCTC, which stipulate that “There is a fundamental and irreconcilable conflict between the tobacco industry’s interests and public health policy interests … Therefore, Parties should protect the formulation and implementation of public health policies for tobacco control from the tobacco industry to the greatest extent possible.”
Kenya will now go forward in the implementation of the TCA and ACBF will be part of this through IILA our partner in the country.
We hope that Uganda, which is in a similar situation today, will find such a happy ending.
Our gratitude goes to Ms Emma Wanyonyi, the Executive Chief Officer of the International Institute for Legislative Affairs (IILA – Kenya) for the information sharing on this issue.