Health activist loses court battle for complete tobacco ban in Kenya

2 December 2022 · Carmel Rickard

A spirited fight for tobacco to be completely banned on tobacco in Kenya has gone up in smoke: the constitutional and human rights division of the high court has refused a petition brought to overturn the existing laws controlling the production and sale of tobacco in Kenya. Instead, the unsuccessful litigant wanted tobacco to be outlawed completely to safeguard the health of that country’s people. Ibrahim Mahmoud Ibrahim, who brought the application, argued that tobacco actively contributed to lowering the standard of health of Kenyans, since it killed up to half of its users and was the world’s single biggest cause of preventable death.

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Convinced that tobacco smoking poses a far greater health hazard than the government realised, Kenyan Ibrahim Mahmoud Ibrahim brought a high court application in 2019, asking for tobacco, in all its forms, to be completely outlawed.

He wanted the court to declare that all the present laws and regulations controlling the sale, supply and production of tobacco, continued to allow it to be legal in Kenya, and that this was unconstitutional for a number of reasons.

Ibrahim also argued that the highest attainable standard of health in Kenya, as prescribed in the constitution, meant that the production, supply, management, dissemination, consumption and use of tobacco products, should all be totally banned. To enable this to happen, the court should make an order ‘compelling’ the government to eradicate tobacco from the country.

Further, he wanted the court to declare that cancer was a tobacco-related ailment and a national disaster that required special administrative action.

Intense

This week, the court gave him its answer, but he can’t have been happy with the response: tobacco management was a matter of policy, said the court. Therefore, against the background of the separation of powers, a judge was required ‘to refrain from making a determination on a question which is best suited for parliament to determine.’

Ibrahim’s petition follows a period of intense litigation some years ago, when the government introduced strict controls on tobacco, much to the displeasure of Big Tobacco in Kenya and elsewhere. Ironically, his court application resulted in a strange situation with Kenya’s ministry of health, the cabinet secretary of health and British American Tobacco (BAT), all coming out on the same side: in defence of the existing tobacco controls and against Ibrahim’s demand for a complete ban.

In his argument, Ibrahim said that tobacco was merely ‘controlled’ in Kenya, meaning it was still legal. He criticised the fact that tobacco was not completely outlawed despite the fact that it posed serious risks such as cancer to those using tobacco or exposed as second-hand smokers. He said this undermined the constitutional right of every person in Kenya to ‘the highest attainable standard of health’.

Death

He was also critical of the fact that water-based smoking, known locally as shisha, was criminalised, while other tobacco products were merely controlled. The government ought to go beyond informing the public of the cancer and other health risks posed by tobacco, and ban it outright, he said.

According to Ibrahim’s argument, the tobacco industry had actively contributed to lowering the standard of health of Kenyans, since it killed ‘up to half of its users’, causing up to eight million deaths a year globally. This made tobacco the world’s single biggest cause of preventable death.

Allowing the tobacco industry to survive prevented him and other members of the public from enjoying their right to an unpolluted environment. The tobacco industry, on the other hand, benefitted just a few – the manufacturers, sellers and consumers.

Illicit trade

Only a total ban would be enough to protect society against the health hazards posed by tobacco, and the government had an obligation to ‘protect the greater public health’.

In response, government officials described efforts to control tobacco, its advertising and sale. They said they were also ‘sensitising’ Kenya’s tobacco farmers about the impact of tobacco and its use, and had helped farmers to move away from tobacco products to farming other crops.

They also said that a total ban on tobacco products would not ‘automatically translate’ to the highest attainable standards of health. A ban would also take tobacco outside the regulator’s control and would encourage its illicit trade, affecting the government’s approach towards a tobacco-free nation.

Scientific

BAT said the court didn’t have jurisdiction to introduce new laws or to amend legislation. A ban on the sale of tobacco was the preserve of the national assembly. Further, the order that Ibrahim wanted would affect BAT’s constitutional right to property. If his petition were granted, it would contravene BAT’s legitimate expectation to be allowed to carry out its commercial activities.

Ibrahim had not put up any ‘empirical or scientific evidence’ that his proposed ban on tobacco products would achieve the goal he wanted. Like the government officials, BAT argued that banning all tobacco products would result in the sale of illicit products that hadn’t been vetted and approved by government.

The judge who heard the matter, Hedwig Ong’udi, said the burden of proof lay with Ibrahim to show that the existing law and regulations on tobacco infringed the constitution.

Dissatisfaction

It wasn’t enough for him to ‘rely on his dissatisfaction’ in the current system of tobacco control. He had to produce evidence to show how the law and regulations infringed the constitution. Without proof that the laws he challenged violated the constitution, the court was obliged to uphold the constitutionality of the existing laws.

‘Although [Ibrahim] put up a spirited fight on the use of tobacco products and its effects’ he didn’t demonstrate how the current laws breached the constitution.

The judge said she had to consider the separation of powers. Ibrahim wanted the court to make declarations on policy issues that were specifically in the realm of parliament. It would thus be against the constitution for the court to grant him the orders he wanted.

She added, however, that while she dismissed his petition, she would not award costs ‘as the petition was filed in great public interest.’

‘A matter of justice’, Legalbrief, 29 November 2022

Carmel Rickard

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