A Matter of Justice: The judge who doused the fire of Big Tobacco

Carmel Rickard

Despite an apparently limitless litigation budget, Kenya’s tobacco giants have been convincingly trounced. A major new decision by that country’s Court of Appeal tells them straight: there’s nothing wrong with government tobacco control regulations and you must obey them.

British American Tobacco and its allies have been fighting off the new tobacco control measures initially published by the Kenyan Government in December 2014 and due to come into operation in June 2015. Initially, determined challenges by this lobby won some temporary ground when a judge ordered a delay in the start-up date so BAT could argue its many objections to the regulations in court.

Then in March 2016 Judge Grace Mumbi Ngugi, sitting in the High Court’s constitutional and human rights division, delivered a thorough-going decision rejecting most of the complaints raised by BAT and its allies. BAT was soon back before the Bench, however, with another series of cases, this time wanting to jump the court queue to appeal aspects of the decision.

In October 2016 three appeal judges heard the main challenge to the High Court judgment. They have now delivered their decision, not yet available online, upholding Mumbi Ngugi’s findings and giving the go-ahead for the regulations to begin operating.

According to reports by the activist organisation, ‘Justice Now’, the decision was read on behalf of the three appeal judges by their colleague Judge Jamila Mohammed. ‘We find that the regulations do not contravene the constitution and the process leading to their formation was inclusive of public participation,’ she read.

Among the decisions by the three appeal judges was that there was nothing objectionable about the strict control imposed by the regulations on interaction between tobacco interests and members of government or the civil service. The regulations set up a firewall between the two sides, and the pro-tobacco lobby took exception to it.

In her ruling, Mumbi Ngugi had said it was within the government’s mandate to make regulations that would limit interaction between the tobacco industry and public officers. She went on to describe these ‘public officers’ in scathing terms: they were officers who ‘unfortunately, a matter that is within the public domain, are not famous for their integrity and concern for the health of the public’. Given the nature of the tobacco industry, she said, the differential treatment in the regulations was permissible. She was not specific but her reference to public officers of questionable integrity could well allude to the bribery and other claims being investigated against Kenyan individuals allegedly favouring Big Tobacco.

She further dismissed claims by the tobacco lobby that it would be an infringement of their privacy and intellectual property rights if manufacturers had to declare all the ingredients in their products. The regulations say that manufacturers have to provide ‘all toxological data’ about the ingredients in cigarettes ‘intended to be burnt or unburnt’. The information must also state the effects on health of these ingredients and any effect produced by the combination of ingredients including ‘any addictive effects’. The judge said she did not see that these requirements violated the intellectual property or privacy rights of the manufacturers. The regulations aimed to give public health authorities the information they needed for their work, about the ingredients in tobacco products and the impact of these ingredients on health. In any case, she said, the public health benefits would outweigh any intellectual property infringements.

She quoted a Canadian decision saying it was now irrefutable that tobacco was highly addictive and that half of all smokers would die of tobacco-related diseases at enormous cost to the public health system. ‘Confronted with such a product,’ wrote Judge Mumbi Ngugi, ‘and a need to balance the public health interests and the rights of the public against the commercial interests of the … tobacco industry, the choice is fairly obvious.’

The new Kenyan regulations also require graphic pictures, showing in gruesome detail how tobacco affects health, to be printed on cigarette packaging. But even worse, perhaps, in the view of the tobacco lobby, is the requirement that manufacturers pay two percent of their annual product value to a special fund. The lobby said it amounted to a tax or a punishment for ‘engaging in the business’ (of producing and selling tobacco). The government’s reply was that the two percent was to help with the ‘health perils’ caused by tobacco and was a cost sharing strategy to pay for ‘sick and dying smokers’.

In the view of the judge the compulsory contribution ‘can properly be seen as a form of compensatory payment for the negative consequence of tobacco smoking’, and she rejected BAT’s objections.

Just days after the appeal decision, Reuters reported BAT Kenya’s year-end pre-tax profits were 5.91bn shillings (about R736m), down from 7.14bn shillings (R889m) the previous year. But while these figures seem to show a decline in tobacco use in that country, a recent report in the Kenyan publication, The Star, quotes anti-tobacco lobbyists concerned about inadequate policing of tobacco bans. One report claims that tobacco manufacturers are using devious ways to advertise cigarettes that appeal to ever-younger potential smokers, including openly displaying cigarette advertisements at eye-level of young children.

Obviously, anti-tobacco lobbyists claim the new appeal judgment is an important victory for health. But there’s something very strange about the whole business of Big Tobacco, in Kenya and elsewhere, engaging the government via the courts – almost as though their product was, morally at any rate, worthy of protection by the judiciary. Why, I sometimes wonder, are manufacturers still allowed to sell tobacco at all, given the catastrophic health impact it is claimed to have on the community?

Mumbi Ngugi also seems to find something odd about the whole business. She wrote that BAT and other players ‘are in a peculiar industry, one whose products have been scientifically implicated in debility, disease and death’.

Logically, I understand there are issues about the most effective way to deal with tobacco addicts, but someone who arrived from another planet might well wonder why purveyors of tik, crack cocaine, heroin and other drugs, likewise implicated in ‘debility, disease and death’, are tracked down, charged and imprisoned – but not purveyors of tobacco. Why is smoking tobacco still a legitimate ‘freedom’ issue around which to challenge restrictions in court, while these other drugs are not? And how it is that, to protect their investments in this social scourge, Big Tobacco manufacturers and pushers still regularly appear in court where they have the effrontery to argue that the government should not be so hard on them?