Will Kenya stand up to Big Tobacco?
12 September 2017 - By Monica Gitau
The Kenya Tobacco Control Alliance called this month for a government probe into cigarette maker BAT, an investigation that is years overdue. For the better part of a decade, Kenya’s anti-smoking legislation has been delayed, diverted and influenced by BAT, with bribery claims first coming to light thanks to the whistleblowing former employee Paul Hopkins. With the UK’s own Serious Fraud Office (SFO) now opening an investigation into claims made public by the BBC’s Panorama program in 2015, Kenya finally has the opportunity to shake off BAT’s shadow over its public health policy. The question is, will Kenyan lawmakers step up to the plate?
Old Kenya hands would probably say not to count too much on Kenyan probity. Over the course of 15 years, BAT has successfully campaigned to delay and influence attempts by the Kenyan Tobacco Control Board (TCB) to restrict the promotion and sale of cigarettes, most recently evoking intellectual property concerns under the international General Agreements on Tariffs and Trade (GATT). In February this year, BAT launched a case in Kenya’s supreme court, immediately halting the imposition of tobacco controls.
Beyond legal shenanigans though, BAT’s influence goes back to the country’s implementation of so-called “track and trace” technology to clamp down on the illegal tobacco trade. Alarmed at the scale of illicit cigarette sales that, according to estimates, lead to some $40 billion lost in tax revenue worldwide, world health bodies have been calling on individual countries to implement mechanisms to better monitor the flow of cigarettes. For example, the European Commission is currently discussing such a mechanism, much to the displeasure of the tobacco industry.
Predictably, when Kenya decided to implement track and trace technology, it was met with vigorous lobbying by tobacco giants keen to avoid what they deemed to be excessive regulations. BAT sought to influence Kenya’s decision to adopt its own track and trace technology, called Codentify, a system conveniently developed in tandem with other tobacco companies and strongly criticized by the All Party Parliamentary Group on Smoking and Health as well as international NGOs such as Action on Smoking and Health (ASH). The World Health Organization (WHO) chimed in as well, expressing concern with the alternative system, citing any move to adopt it as conceding government control to a “black box” system coordinated by the tobacco industry.
The united push behind Codentify was revealing, disclosing the stark reality of the tobacco industry’s relentless pursuit of profit and the depths to which its giants will sink to in order to avoid proper monitoring. The tender process itself was a battlefield: after Swiss firm SICPA was awarded the contract to implement “track and trace” regulation, tobacco lobbyists joined forces to accuse the Lausanne-based printing technology firm of being granted a monopoly that would wreak havoc on the tobacco industry worldwide. Without a hint of irony, big tobacco argued that SICPA’s involvement would “set a very unhealthy precedent”. The reason for their outrage? The Swiss company’s technologies have been linked to significant decreases in the illicit trade as well as bigger tax receipts for the government implementing them.
Even more hypocritically for the tobacco trade, tobacco companies have time and time again been accused of fueling the illicit tobacco trade themselves. In a 2015 report published by pressure group ASH, tobacco companies were accused of dumping products in foreign markets in a bid to use tobacco smuggled back to the UK as evidence of the failings of expanding regulations. Similar suspicions have been raised by other organizations, including the UK’s Revenue and Customs (HMRC), which reported that the 2011 supply of several brands of rolling tobacco to some countries exceeded legitimate demand by as much as 240 per cent. In 2015, British American Tobacco was fined £650,000 by HMRC for over supplying cigarettes to Belgium.
But there seems to be a limit to BAT’s powers to warp Kenya’s public health agenda. Earlier this year, a three-judge bench of Kenya’s Court of Appeal dismissed an application by British American Tobacco challenging the 2014 Tobacco Control Act, ruling that tobacco manufacturers must begin contributing a percentage of their profits to the Tobacco Control Fund in order to cater for the adverse effects caused by tobacco use. The ruling also stipulated the publishing of graphic health warnings on cigarette packaging, citing the need to balance public health against intellectual property rights. Even so, the tendrils of big tobacco must be wrought from every public desk, which can only be done if its leaders are brought before a court of law and tried.
In July this year, BAT became the world’s biggest listed tobacco firm as it completedits acquisition of US tobacco giant Reynolds in a $49 billion deal, adding to fears of the extent to which the company will insist on financially outmuscling health ministries in poorer nations throughout Africa. The tobacco industry is banking on African smokers for its future profits, since its Western customers are overwhelmingly kicking the habit. If the industry’s lobbying succeeds, generations of African children and adults will face irreparable harm. Kenya has the opportunity to throw a wrench in this strategy and show the tobacco giants that Africans are not cash cows waiting to be exploited. It should take it.