BAT intimidation and interference in Kenya
The Tobacco Control Regulations of Kenya were gazetted on 5 December 2014 and implementation was planned to start on 6 June 2015. These regulations were meant to enforce the Tobacco Control Act, 2007, and further Kenya’s compliance with its obligations under the World Health Organization’s Framework Convention on Tobacco Control (WHO FCTC). The regulations will allow the implementation of strong tobacco control measures in line with the FCTC, such as the introduction of graphic health warnings and smoke free environments and making a contribution to a fund to support tobacco control efforts. Of particular strength in the Regulations is the implementation of Article 5.3 of the FCTC which states:
“In setting and implementing their public health policies with respect to tobacco control, Parties shall act to protect these policies from commercial and other vested interests of the tobacco industry in accordance with national law.”
The government of Kenya demonstrated great leadership in the passing of these regulations, which will protect millions of Kenyans from tobacco’s highly addictive and deadly effects.
However, on 14 April 2015, BAT sued the Ministry of Health of Kenya against the proposed tobacco control regulations, claiming that the Ministry of Health violated due procedures under the Constitution by not consulting with the industry.
These claims by the tobacco industry were unfounded in the face of Kenya’s actions, which are consistent with national law. Article 10 of the Constitution of Kenya lists “participation of the people”—not corporations—as a national value and principle of governance. To further make the case for the tobacco regulations, Article 43 of the constitution grants every person “the right to the highest attainable standard of health” and Article 46 grants consumers the “right to the protection of their health.”
Kenya’s Regulations are also backed by the force of international law. The guidelines for implementation of Article 5.3, unanimously adopted in 2008 by Parties to the FCTC, including Kenya, make clear the inherent conflict between the interests of the tobacco industry and those of public health. These guidelines call on Parties to “interact with the tobacco industry only when and to the extent strictly necessary to enable them to effectively regulate the tobacco industry and tobacco products.” At this stage in the implementation of Kenya’s Tobacco Control Act, consulting with the tobacco industry is not necessary for its effective regulation. In addition, Article 5.3 of the FCTC and its guidelines explicitly recommend Parties establish measures that prohibit precisely the type of consultations BAT is demanding of Kenya.
Article 5.3 is the backbone of the treaty—the treaty cannot succeed if tobacco industry interference is not rooted out. In attempt to intimidate countries from furthering their compliance with the treaty, the industry has actively litigated against, or threatened litigation or withdrawal of investments from several African countries including Togo, Namibia, Uganda and others. The suit Kenya is currently face is another example of BAT utilizing an aggressive tobacco industry interference tactic to attempt to stall a policy that could save countless lives.
International response: The international tobacco control community expressed its support to the Government of Kenya on this issue by sending a letter to the Ministry of Health and urge to stand strong against any and all efforts to delay, weaken or sabotage their full implementation, especially BAT’s current efforts to undermine the regulations through the court system.
The High Court of Kenya rejected the challenges of the British American Tobacco and upheld the provisions of the 2014 Tobacco Control Regulations.
- Tobacco industry accused of 'intimidation and interference' in Kenya: The Guardian, 2 March 2015
- Interview of Vincent Kimutai Kimosop, Former Executive Director, International Institute for Legislative Affairs, Kenya
- Timeline of Tobacco Industry Interference Concerning Kenya's Tobacco Control Regulations 2014