Shisha smoking ban to stay despite improper processes – Kenya
27 Aug 2018
Thanks to an unusual decision by the High Court in Nairobi, a government ban on smoking shisha in Kenya is continuing in place, even though the authorities failed to follow the law when they imposed the restrictions. As Carmel Rickard explains in her A Matter of Justice column on the Legalbrief site, the country’s top health officials did not follow correct procedure when they banned the sale and use of shisha, but the court has given them nine months to comply with all the requirements, during which time the ban will stay in force. The Tanzanian and Rwandan governments have already banned shisha in their countries, but in Kenya attempts to do so have been met strong opposition from shisha bar operators.
When the government first tried to ban shisha smoking, many people wondered how they would be able to enforce the prohibition. Shisha is the popular name for water-pipe tobacco, a growing fashion in many Nairobi clubs and bars. It has become so popular that people were now also smoking in their own homes, and the question was how government would stop the practice in private spaces and in clubs where it was easily hidden.
Shisha smoking is surrounded by a mystique of danger, with smokers using apparatus similar to that found in opium dens, and in fact some reports claim that analysis of the tobacco and coal used for burning, showed traces of opium, though owners of bars where shisha is offered for patrons, deny the presence of any drugs. Perhaps this sense of possible danger has even helped shisha smoking take off.
Then, late last year, the health authorities moved to ban the practice, by outlawing the importation, manufacture, sale, advertisement and promotion of shisha smoking in Kenya. Anyone could have seen this coming: Kenya has been tightening control of all forms of tobacco and the courts issued some hard-hitting decisions in 2016/7 upholding government requirements, including a firewall between tobacco officials and public officers to reduce the risk of bribery, and compulsory, lurid pictures of damage done to the human body by tobacco.
Nor is Kenya alone in wanting to act against shisha. It has been banned in Tanzania and Rwanda and it was predictable that Kenya would not lag behind.
Just as predictably, Nairobi’s shisha bar owners fought back. They challenged the ban on two main grounds. First, they said that the health authorities got it wrong and that there was no reputable report demonstrating that shisha impacted negatively on individual or community health. Second, they argued that the authorities had not followed proper procedure in imposing the ban, and it should therefore be declared invalid.
The dispute was initially heard by Judge Roselyne Aburili, and in her judgment on the matter she began with an apology for the delay in delivering her opinion. Judging from the anti-ban comments on social media, however, she need not have apologised; among shisha smokers it was a most welcome delay.
Argument against the ban by the shisha bar owners was that there was ‘no credible evidence of any qualitative tests’ that proved it was dangerous to health. The bar owners said they took precautionary measures to prevent health problems, including providing each smoker with their own disposable mouthpiece. They also made sure that the equipment was thoroughly cleaned and ensured the required pictorial warnings against tobacco use were displayed.
But there was one argument I had not seen before: government should not interfere with a traditional African pastime. Shisha smoking was ‘an African invention’, said the objectors, and it had a ‘cultural and sociological purpose’.
In their response, the government authorities explained their concern that the second-hand smoke involved in shisha smoking as well as the charcoal burning that was part of the process, all had serious health implications.
Not only did shisha lead to ‘social disintegration’, it also affected sex performance and fertility. Unborn babies could develop problems and even spontaneously abort. Tooth decay and other diseases like cancer of the mouth and tongue were also associated with shisha and tobacco use generally. Public health decisions could not be made ‘based on cultural practices and beliefs’, but on scientific evidence, they argued.
The problem, however, was that the Health Ministry did not follow proper procedure with the ban. Two major requirements were overlooked. Within seven days of publishing regulations, the cabinet secretary responsible for health had to ensure that a copy was given to the clerk for tabling in Parliament. This was not done, and the cabinet secretary gave no indication to the court that there were any plans to do so.
The second problem was more fundamental: the law requires ‘in mandatory terms’ that ‘consultations be undertaken with those who will be affected by the regulations proposed … and their input taken into account’. This is to ‘echo the principle and spirit of public participation espoused in the constitution’.
Given these failures, said the court, the case was proved: ‘on the whole’ the government ‘did not comply with the procedural requirements’.
But that did not mean the regulations were to be thrown out of the window. The dispute raised a fundamental issue about public health on the one side and the economic and social benefits of shisha consumption on the other. The court had to consider that the constitution gave the state the duty of ensuring the health of the people of Kenya. While it was imperative to follow the right procedures and to consult with the people, the state was also required to keep people safe from harm.
The judge said the authorities needed to educate the public about the dangers of shisha. The court was also ‘aware’ that shisha addicts might not be free to make the choice of whether to stop smoking or not. ‘They are people who need help.’ In her view, ‘liberty can be restricted to protect citizens’ from the harmful effects of shisha smoking.
‘Applying the precautionary principle’, she therefore held that the state had a duty to take protective measures. ‘It is therefore out of public interest that I exercise judicial discretion and decline to issue the orders (sought by the applicants) despite the irregularity’ in the way the ban was issued.
It would cause more ‘inconvenience’ to lift the ban, ‘however irregular’ its genesis, and it would thus stay in force while the authorities followed the required steps to enforce it. She gave them nine months to complete this process and ordered each party to the case to bear their own legal costs.
I’m strongly opposed to any form of smoking, but I did wonder how the authorities could fulfil the requirements within nine months: easy enough to table the regulations, perhaps, but how will they conduct public consultations that are ‘meaningful’, in the constitutional sense of the word, when the regulations are already made and prepared for tabling? What would be the point – and how would they pass constitutional muster?
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