The courts have enforced a law safeguarding the public from the dangers posed by consumption of tobacco. PHOTO | AFP
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.
This is after the Supreme Court allowed the Tobacco Control Regulations 2014 to be effected without further delay.
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.
Director of Public Health Kepha Ombacho says they are in the process of establishing a board to manage the Tobacco Control Fund.
“We
have embarked on enforcing the law because the court has given us the
go ahead. All those in the industry should be able to comply. The bigger
winners here are the public. This has taken long but it is finally
here,” Dr Ombacho said.
FUTILE ATTEMPT
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.
Similar stay orders were granted by the Court of Appeal and the Supreme Court.
“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.
He added that this will greatly contribute to
the Universal Health Coverage (UHC), which is a key component of the
government’s ‘Big Four agenda’, for development.
Senior
State Counsel Adow Deiss Mohamed, who defended the petition from the
high court to the Supreme Court, during the hearing urged the Supreme
Court to dismiss the BAT appeal so that the regulations can come into
force with immediate effect, so as to guard the effects of tobacco from
those who smoke and those who do not.
Supreme Court
judges comprising Chief Justice David Maraga, his deputy Philomena
Mwilu, Justices Jackton Ojwang’, Smokin Wanjala and Njoki Ndung’u said
since the Court of Appeal verdict was proper, they could not agree with
BAT’s request that the enforcement of the law be delayed by a further
six months.
CLEAN ENVIRONMENT
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 effects.
“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.
HEALTH HAZARDS
The
courts separately held that the Tobacco Control Act has very clear
objectives of safeguarding the public from the dangers posed by
consumption of tobacco.
According to the act, consumption of tobacco has been implicated in causing debilitation, disease, and death.
“The
regulations which are contested in this petition are intended to
safeguard the public, those who smoke and those who do not, and to
provide certain information with regard to the contents of tobacco
products,” explained Judge Mumbi Ngugi, when she first allowed them to
take effect in the judgment delivered on March 24, 2016.
Equally
contested was the regulations on packaging and labelling, but the court
observed that the legislative intention behind the regulations was to
regulate advertising of tobacco products and to ensure that consumers
were fully aware of the nature and content of the tobacco products that
they consumed.
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