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Kenya: Tobacco Firm Fights New Smoking Ban
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The Nation (Nairobi)
11 July 2008
Posted to the web 14 July 2008
Jillo Kadida
Nairobi
A Kenyan cigarette manufacturer has moved to court to challenge a new law that bans smoking in public places.
The new law seeks to regulate the production, marketing and smoking of tobacco and took effect on Tuesday, July 8.
It prohibits smoking in public places and selling of cigarettes to those under 18 years of age.
The law also says smokers will only be allowed to buy a minimum of 10 cigarettes in a packet.
According to Mastermind Tobacco, one of the main manufacturers of tobacco and its products, the new law is unconstitutional and irrational. The firm says the prohibition of promotion of tobacco or its products negates the freedom of commercial expression.
The new law known as Tobacco Control Act 2007 outlaws the promotions through testimonials, advertisements and sponsoring of sporting programmes among others.
It also prohibits the manufacture, distribution or sale of accessories such as lighters that display a tobacco product-related brand name or the name of the manufacturer as well as display of tobacco brand elements on umbrellas, bags and clothing, among others.
Mastermind argues that some sections of the new law interferes with property rights and freedom to receive information.
It also discriminates against persons engaged in the manufacture and use of tobacco products.
The manufacturer contends that the manufacture of tobacco and its use does not per se pose danger to the public.
Through its lawyer Fred Ngatia, the firm argues that the act imposes penal consequences despite the fact that the manufacture of tobacco is not a prohibited activity.
To that extent, according to the firm, the new law criminalises an otherwise lawful activity and as a result violates the Constitution.
And offenders flouting the sweeping ban will be liable to harsh penalties, including fines ranging from Sh50,000 to Sh3 million and/or imprisonment for a term ranging from six months to three years.
Under the new law, smoking is prohibited in all public places such as offices and workplaces, court and public buildings, factories, cinema halls, theatres, video houses, disco halls, hospitals and other health institutions.
Other restricted public places are restaurants, hotels, bars, markets, children's homes, residential houses, places of worship, police stations, public transport terminals, stadiums, airports, commuter boats, trains, ferries or any other public conveyance places.
The Act also prohibits the manufacture, distribution or sale of accessories such as lighters that display a tobacco product-related brand name .
Mastermind is asking the court to make declarations that the entire act is unconstitutional.
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Also sought is a declaration that the penal sections in the Act are not a legitimate exercise of the state police powers.
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