June 29th 2020

Internationally, Kenya is recognized as one of the leading countries in tobacco control. Indeed, the country was instrumental in the development of the World Health Organization Framework Convention for Tobacco Control (WHO-FCTC) and was among the first countries to sign and ratify the protocol in 2004.

The protocol was then domesticated by the passage of the Tobacco Control Act in 2007. This was after serious attempts by tobacco companies to ensure that the law was not enacted. Implementation of the law became a nightmare with barriers being placed in the way by the tobacco industry through compromised government officials.

Tobacco control regulations meant to strengthen and provide a framework in which the tobacco control act could be effectively implemented were fought and blocked until 2014 when the Ministry of Health managed to gazette them. Attempts by the British American Tobacco (BAT) to fight them through court were rubbished by up to the Supreme Court. This also applied to the Shisha ban that was done in 2018 and resisted by various parties in and out of court.

We have had very responsible government officials, especially former Cabinet Secretaries for Health, including Hon. Charity Ngilu, Hon. Beth Mugo, Mr James Macharia and, Dr Cleopha Mailu. In Parliament, Hon. Dr Rachael Nyamai, Hon. Dr James Nyikal and others have contributed immensely to the success of tobacco control in Kenya.

Unfortunately, we have always had enemies of public health trying to undermine tobacco control. The trend is worrying and getting out of hand with successive Cabinet Secretaries not taking a keen interest in tobacco control. It’s now very normal for the tobacco industry to violate the law at will, usually in collaboration or with the approval of the government. The following are some of the ways in which the government has directly or indirectly, by commission or omission, given immense support to tobacco companies:

1. Refusing to implement and to enforce the Tobacco Control Act (TCA) and related policies by:
   

• Allowing the tobacco industry to participate in corporate social responsibility activities in the country contrary to Part IV of TCA. We have seen BAT organize and conduct educational contests among university students (Battle of Minds), BAT contributed towards the COVID 19 Response fund (10 million)
• Allowing point of sell advertising and vehicles bearing pictures that promote smoking. Tobacco products are displayed in an unlawful manner with no action being taken.
• Single cigarette sticks are sold all over the country and even to minors a responsible government watches.
• 13 years since the act was passed, there is no Tobacco Control Fund in place as required by Part II of the act. This is so even as the court has thrown out petitions by BAT opposing the creation of the fund to which it is supposed to contribute as per the law. Meanwhile, the Tobacco Control Board does not have funds and is not performing its duties as outlined in the act. This is a clear way of supporting the tobacco industry.
• At no time has the government made budgetary allocations toward supporting farmers to quit tobacco farming in favour of economically viable alternatives according to Part III of the Act. It has not even taken measures to protect the farmers who keep crying of exploitation by tobacco companies.

2. By outrightly, violating the law in a number of ways

• As stated earlier, accepting donations from tobacco companies, for any reason other than as stated in the law amounts to the violation of Part IV of the law. It’s wrong for the government and tobacco companies, such as BAT to take advantage of the prevailing COVID 19 situation to break the law.
• Public officers who officially or in their personal capacities take part in functions at which tobacco companies are actively involved break the law. One such example, on the 5th of June 2020, for example, BAT partnered with the National Environment Management Authority (NEMA) in a tree planting exercise. However good it appears, this is a violation of Part V of the tobacco control Regulations of 2014. NEMA is unable to address the filthy and hazardous environment created by smoking zones in Nairobi but quick to join BAT in breaking the law.
• By listing of tobacco as an essential product as we respond to the attack by COVID 19 is an act of advertising tobacco. The purpose of the Tobacco Control Act and other tobacco control policies is to reduce both demand for and supply of Tobacco Products. The Cabinet Secretary for Industrialization violated the law by promoting tobacco. This is very unfortunate as other countries, including South Africa, are taking serious measures to regulate tobacco and alcohol. What’s wrong with the Kenyan Government?

3. Not Regulating but instead licensing new tobacco products

• With full knowledge that tobacco/nicotine products are addictive, the government has gone ahead to license nicotine pouches as pharmaceutical products to be sold over the counter as an aid to quitting smoking. Smokeless tobacco and other emerging products remain unregulated in Kenya. The Tobacco Control Board that is supposed to advise the Cabinet Secretary on such products has been rendered impotent. The Ministry of Health officials are also complaining like anybody else. Since when did a tobacco Company produce pharmaceutical products? This is a big mistake. Our children are targeted.

Conclusion

The opposite is being said by BAT South Africa. Whereas the law requires the government to support farmers to quit, it’s supporting the industry to flourish. Such a conducive environment has motivated BAT to open a 2.5billion world-class oral nicotine factory in the country. Tobacco farmers are cursing as BAT is thanking the government for supporting it.

We ask the government of Kenya to fully implement the laws that we have and to enable us to guard our gains and to move forward. We should not be seen to behave contrary to the WHO-FCTC and yet we are ranked highly by the global TC community and WHO. We need to do what is right especially during this hard time. The President needs to call his troops to order and ensure that the Universal Health Coverage agenda is realized.