By Elsa Zawedde
The Tobacco Control ACT defines a child as a person under the age of 21 years. The significance of this definition is that any person deemed a child is prohibited from growing, selling, harvesting and manufacturing or being involved in the chain of growth and the consumption of tobacco related products. This difference from the standard set by the Constitution and other laws is the basis of the article.
Standard definition of a child in the law
The standard in Uganda’s legislation seems to be uniform as the majority of the laws ascribe to a child being one below the age of 18. The standard is set by Article 257(c) of the 1995 Constitution Uganda that defines a child as a person below the age of 18 years. The Children’s Act Cap 59, The Contracts Act 2010 and the Employment Act under their Sections 2 respectively take the position that a child is one below the age of 18 years. Considering the established standard in the Constitution, as the Supreme Law of Uganda all other laws should be brought in conformity with the Constitution as stated in Article 2 of the Constitution. This means that the Tobacco control Act would ordinarily ascribe to the definition of a child as one below the age of 18 years. Therefore, as far as the Ugandan legislations are concerned they seem to saliently recognize a child as one below the age of 18 years not withstanding minor adjustments made when it comes to child being employed under Article 34(3) of the Constitution provides for Children being one below the age of 16.
It would be inept to look at the child and tobacco without having the benefit of the International standard of the definition of a child. The Convention on the Rights of the Child (here in after referred to as CRC) was adopted by the United Nations General Assembly in 1990 and it defines a child under Article 1 as person who is below the age of 18 years.
Protection accorded to children in other laws
As practice has been in Uganda’s previous legislation “children” have been prohibited from engaging in the consumption of particularly harmful products to health. Pursuant to Sections 19(1) and Section 9 of The Liquor Act Cap 93, they restrict the participation of a person below the age of 18 years in engaging himself in distribution, supervision, selling and buying of intoxicating liquor, beer and Enguuli as stated there in.
The standard Parliament and the Legislators follow when deciding matters that have a bearing on children is the best interests of the Child. At the national level Article 34(1) of the Constitution and Section 3 of the Children’s Act Cap 59 articulates this clearly by stating that the guiding principles for decisions concerning the welfare of children are that the best interests of the child shall be considered in matters of policy.
Like the principles stated in the Constitution and Children’s Act, Article 3 of the CRC, makes providence of the best interests of the child as the basis for which institutions, authorities and legislative authorities will premise as they handle matters concerning the child. Article 4 of the CRC provides that states shall apply administrative and legislative measures to protect the child’s interests. It is under this premise that the Tobacco control Act is subject to the standard of the best interests of the child.
Justification for the Protection in the Tobacco Control Act
Before scrutinizing whether the minimum age of 21 is justifiable for consumption of Tobacco related products. It is important to note that because of the enormous potential harm of tobacco to children from its use and mere exposure, states have to undertake, a duty to take all necessary legislative and regulatory measures to protect the interests of the child. In a report published by the World Health Organization (WHO) in 2001 by Safir Syed ;
Around 4 million people die prematurely from tobacco related illnesses each year, with the death toll expected to rise each year to 10 million people by 2030. Many of tobacco’s future victims are today’s children because it begins during adolescence and continues through adulthood… If current trends continue, 250 million children alive today will be killed by tobacco… Estimates are made that 700 million, or almost a half of the world children, breathe air polluted by tobacco smoke.
If the statistics by WHO are anything to go by Tobacco is a uniquely dangerous drug that should not be treated as a normal consumer good. This justifies the stringent measures on age than the other existing law.
Considering the fact that Tobacco is a uniquely dangerous drug that should not be treated as a normal consumer good, the requirements under the Constitution, Children’s Act and the Convention on The Right of the Child the premise that the best interests of the child should be the corner stone of any decision is upheld in the Tobacco Control Act.
Michael Bloomberg the Mayor of New York who has led the campaign to prohibit the use of tobacco related products in New York, stated “21 is the right age limit by which one can take cigarettes because this would discourage people from being addicted In the first place since the earlier the people smoke, the more prone they are to get addicted.”(As reported by the New York Times, 30/09/2014)
A Child being described as a person below the age of 21 years for the purposes of the Tobacco Control Act is therefore reasonable and demonstrably justifiable. Unlike other commodities like Intoxicating liquor, tobacco’s addictive nature as a substance is dangerous to the young people, and the less exposure guaranteed by legislation in prohibiting the engagement in any tobacco related activities to persons below the age of 21 is a reasonable caution that will leaves our country more healthier with a more promising future.
One cannot over emphasize the need for conformity with the Constitution, however meticulous attention ought to be given to the unique nature of tobacco as a harmful substance. Therefore in acutely striking a balance between the health threat that tobacco is to our Country and the standard of who a child is in Article 257(c) of the Constitution: I appreciate the drafters of the Tobacco Control Act for the unique protection accorded to children through defining a child as a person below the age of 21 years for the purposes of Tobacco consumption and the Tobacco Control Act.
By Elsa Zawedde