The Issue

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 violated due procedures under the Constitution by not consulting with the industry.
When the High Court ruled against BAT, the tobacco company took the case to appeal in 2016, and then to the Supreme Court in 2017.
Civil society response
Civil society mobilized heavily to support efforts to prevent BAT from eradicating the regulations. Several advocacy activities were undertaken. Press conferences were held, and stakeholders were mobilized to speak in favour of the regulations being maintained.

Outcome
On 26 November 2019, the Kenyan Supreme Court, the highest legal authority, ruled to uphold the regulations. The Supreme court delivered judgement on the case ruling against the industry with finding that the process of developing the regulations was lawful and conducted with sufficient participation by the tobacco industry. The court specifically noted that the Tobacco Control Act and Regulations are intended to comply with the Framework Convention on Tobacco Control.
Additionally, the court acknowledged the harm caused by tobacco products and stated it would make its decision within the context of a public health system balanced against the commercial rights of the tobacco company. The ruling was seen as a major win for the Ministry of Health, which spearheaded the development of the regulations.

The Issue

The Nairobi City County Tobacco Control Bill tabled in December 2018, aimed to introduce greater regulation of tobacco in Nairobi by creating a new county department responsible for issuing licenses to all manufacturers, distributors, suppliers and retailers of tobacco products, with fines for non-compliance. Retail Trade Association of Kenya (RETRAK) and the BAT argued that the bill if signed, would push many small enterprises out of business and negatively disrupt the country’s tobacco sector. They claimed the bill was an overregulation as it was asking for things “above the national Tobacco Control Act 2007. According to BAT, the “extreme restrictions” presented at the point of sale, could have resulted in unintended consequences like harassment and arrests. The Tobacco Industry lobbied the County Assembly Health Committee to pass the bill with amendments that grossly diluted the bill. The whole component on restrictions on Tobacco Advertisements, Promotions and Sponsorships (TAPS) and licensing was scrapped off. The Nairobi City County – Tobacco Control Unit (TCU) had an urgent meeting with the then County Secretary and made a memorandum explaining why this would be detrimental to Tobacco Control citing violation of the Kenyan constitution, WHO-FCTC, TCA 2007 and the TC regulations 2014. The Nairobi City County Governor was advised not to assent to the Bill and it was returned to the county assembly for amendments.

Outcome
Similar arguments were presented by the industry to undermine the Baringo County TC Bill also under discussion around the same time. For Baringo County however, the County Assembly Health Committee, health department and CSOs remained vigilant and well-organised and managed to pass the Bill into law in 2019, thus making Baringo County the first county in Kenya to have a sub-national TC legislation. Tobacco control CSOs provided technical support during the entire process, including capacity strengthening and sensitisation of the county stakeholders on countering industry interference.

The Issue

In April 2015, BATK filed a lawsuit claiming that Kenya’s Tobacco Control Regulations were unconstitutional. This legal challenge was against the proposed tobacco control regulations on the basis that they were “oppressive, irrational and unreasonable”. This was a tactic to delay the enactment of the Tobacco Control Regulations, which were gazetted on December 2014 and were set for commencement in June 2015.

The Regulations went through a long battle through the various ranks of Kenyan courts; starting from the High Court all the way to the Supreme Court as the industry continued to appeal the judgements up along the court system. And throughout the court process and appeals, the top courts upheld the lower court’s decisions to throw away concerns from BATK . Finally, in November 2019, the Supreme court delivered judgement on the case ruling against the industry with finding that the process of developing the regulations was lawful and conducted with sufficient participation by the tobacco industry. The court specifically noted that the Tobacco Control Act and Regulations are intended to comply with the Framework Convention on Tobacco Control.

Outcome
Additionally, the court acknowledged the harm caused by tobacco products and stated it would make its decision within the context of a public health system balanced against the commercial rights of the tobacco company. The ruling was seen as a major win for the Ministry of Health, which spearheaded the development of the regulations.