Kenya’s Court of Appeal Rejects British American Tobacco Suit, Upholds Tobacco Control Regulations

Kenya’s Court of Appeal Rejects British American Tobacco Suit, Upholds Tobacco Control Regulations

Press Release by: Campaign For Tobacco Control Kids                                                                           February 17th, 2017

Kenya’s Court of Appeal in Nairobi today upheld the country’s 2014 Tobacco Control Regulations, affirming a lower court’s findings and rejecting legal challenges to the regulations from British American Tobacco (BAT) Kenya. The court’s decision is a resounding victory for public health and allows the government to move forward with implementing a law that will help protect Kenyans from the devastating consequences of tobacco use. As a party to the World Health Organization Framework Convention on Tobacco Control, Kenya is legally obligated to implement evidence-based measures to reduce tobacco use.

Included in Kenya’s Tobacco Control Regulations are requirements for picture-based health warnings and strengthened protections against secondhand smoke. The regulations also require tobacco companies to pay an annual fee into a designated tobacco control fund to assist the government in paying for the harmful health effects of tobacco use for Kenyans.

Today’s ruling sends a strong message that BAT’s legal claims were without merit and that tobacco industry interference in laws to improve public health will not be tolerated. The ruling also has implications for other African countries where tobacco companies are interfering in efforts to pass and implement proven tobacco control policies. In Uganda, for example, BAT has also filed a legal challenge against a tobacco control law aimed at preventing and reducing tobacco use.

Kenya’s Court of Appeal ruling is yet another blow for BAT, a company currently under investigation in Kenya for the alleged bribery of government officials. A 2015 investigative report broadcast by the BBC disclosed extensive evidence, supported by previously secret documents, that BAT paid illegal bribes to influence members of parliament, gain advantage over competitors and undermine tobacco control policies in multiple African countries.

We congratulate the Government of Kenya for its resolve in standing up to Big Tobacco. Today’s decision sends an unequivocal message that African governments can and should move ahead with efforts to reduce tobacco use even in the face of legal challenges from tobacco companies. Around the world, the largest multinational tobacco companies are increasingly losing legal battles to block and delay tobacco control measures.

Tobacco use is the world’s leading cause of preventable death. Without urgent action, tobacco use will claim one billion lives this century.

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Bribes and the Tobacco Control Act, 2015

Bribes and the Tobacco Control Act, 2015

The British Broadcasting Corporation (BBC) documentary: Panorama; The secret bribes of big tobacco broadcast on the 30thNovember 2015.  Panorama found that British American Tobacco (BAT) illegally paid politicians and civil servants in countries in East Africa. Uganda has a very strict law on control of Tobacco smoking and exposure.

The Uganda media prints: New Vision, 2nd December 2015 in an article by Chris Kiwawulo: MP denies receiving sh102M bribe; The Daily Monitor by Nelson Wesonga: MP named in Shs 67 M BAT bribery Scandal. The MP of Bugangaizi west Hon. Kasirivu Atwooki is alleged among officials who received bribes from BAT in a bid to block tough anti-Smoking laws to which he has filed a total denial. It must be recalled that Tobacco Control Act (TCA) was assented to on the 19th of September 2015 by the president and is awaiting publication in the Uganda gazette. The Uganda tobacco Control Movement welcomes such reports and calls on more to be exposed, while awaiting the alleged to show cause as to why they should not be suspect.

Let me make reference to sections of the TCA prohibiting Civil servants, policy and law makers from hobnobbing with the tobacco industry. We must be reminded that Article 79 clause (1) of the Constitution exclusively charges parliamentarians with the responsibility of making laws thence making Tobacco Industry interference a resultant force to reckon with.

Section 20 subsection (1) of the TCA stipulates ‘ a person, body or entity that contributes to or may contribute to the formulation, implementation, administration, enforcement or monitoring of the public health policies or tobacco control shall not interact with the tobacco industry except where It is strictly necessary for the effective regulation of the tobacco industry or a product.’ With subsection (2) insists that the accepted interactions must be transparent.

Section 21 and attendant paragraphs prohibit partnerships and endorsements from the Tobacco industry to civil servants, policy and law makers directly or incidental to the formulation, monitoring or enforcement of the TCA.

Sections 22 and 23 prohibit soliciting or receiving or and accepting voluntary contributions of people and persons involved in activities or those incidental to the TCA.

Penalties for contravention of sections 21, 22, 23 on conviction provided in section 24 among others include: cancellation of partnership, endorsement, MOU; forfeiture of contribution and revocation of the incentive, benefit, privilege or tax exemption. It is vital to note that section 44 on General penalty avers that “ Any person who commits an offence under this Act for which no penalty is provided shall be liable to a fine not exceeding 24 currency points  or imprisonment for 1 term not exceeding 6 months.

The allegations and more yet to surface are machinations the Tobacco Industry uses to compromise Tobacco control and regulations by targeting like officials. It was due to this that Tobacco control activists with the mover of the law vehemently argued for these punitive sections. For more I enjoin you peruse the law. The Law is alert to the resourcefulness whistle-blowers are, they too are protected in section 41 (3) in conformity with the whistle blower protection Act, 2010.

TCA is a tobacco Industry inconvenience; it is incumbent on us to evoke our civic duty espoused in Article 19 of the 1995 Constitution of Uganda as amended to make this Public health tool work. This operationalises Article 39 of the Constitution that enjoins us to the right to a clean and health Environment.  We must be steadfast in holding the Tobacco Industry accountable by leaving it no chance to abuse Tobacco Control efforts embedded in our legislation.

Let us continue to de-normalise the deceptive schemes of the Tobacco Industry disguised in gifts, dust bins looking in the shape of cigarettes, promotions only intended to reach out to new clientele especially the none suspecting under 21 year olds.

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