Wako says it’s legal to smoke, City Hall warns: you just try

One year since the Tobacco Act banned advertising of tobacco products, the ministry of Public Health is yet to attain full compliance.

And last month, Attorney-General Amos Wako threw a spanner in the works when he lifted the ban imposed by various towns on smoking in the streets.

Lawyer Muriuki Mugambi, a smoker, was relieved that local authorities would finally revert to the law and allow Kenyans to smoke in the streets.

“All over the world, including developed nations, streets are smoking zones,” Mr Mugambi said.

He said the position adopted by local authorities had made smoking a punishable act, albeit one that is taxed.

The Attorney-General told the minister for Local Government through a letter dated September 19, 2008, that a public place did not include streets.

Mr Wako said the Act takes precedence over any by-laws that are subsidiary legislation. A “public place” means any indoor, enclosed or partially enclosed area which is open to the public or any part of the public or to which members of the public ordinarily have access and includes a workplace and a public conveyance, he said.

Public street

“This clearly excludes smoking outdoors, including in any public street, contrary to the provisions of the said by-laws,” the A-G said in his letter.

Nairobi lawyer Evans Monari told the Sunday Nation that the A-G had to interpret what a ‘‘public place’’ means because local authorities had declared streets ‘‘no- smoking zones.’’

He said that whereas the Tobacco Act was meant to protect non-smokers, local authorities, including Nairobi City Council, had embarked on a dangerous path to regulate personal conduct.

Mr Monari said “public place”, as it appears in the Act, must mean ‘‘many people’’. He said local authorities were getting their priorities wrong ‘‘as the main pollutants are the mountains of garbage and old cars spewing carbon monoxide in the streets.’’

But Nairobi Town Clerk John Gakuo told smokers to defy the city by-laws at their own peril. He said streets were public places.

As smokers battle with the interpretation of a “public place,” the government is involved in yet another battle with tobacco manufacturers over cigarette advertising.

While the ban on advertising of tobacco products seems to have been a success in Nairobi and other urban areas, Central Province has been left out.

According to the Act, advertising includes “any statement, communication, representation or reference aimed at the public and designed to promote or publicise a tobacco product or encourage its use, or draw attention to the nature, properties, advantages or uses of the product.”

But in various shopping centres in Central Province many shops still carry tobacco advertising. There are also posters advertising various tobacco products.

Two of the tobacco companies contend that they had lodged a case in court and, therefore, cannot stop advertising their products until the matter is concluded.

Josh Kirimania of Mastermind Tobacco ruled out removing posters and advertisements on shops and fliers, saying some aspects of the Tobacco Act were misunderstood.

Infringement

He said the demand to put an end to advertising was an infringement on the freedom of commercial expression. “How does the government expect us to launch new products without advertising yet they have licensed us to trade?” Mr Kirimania asked.

He was supported by the managing director of Bridgeway Logistics, Andrew Muriuki, who told the Sunday Nation that his company’s case had been consolidated with that of Mastermind Tobacco.

“How does the government expect Kenyans to buy a product they have never seen or heard of?” Mr Muriuki asked.

He said his company had invested heavily in the Sir brand of cigarettes, and they have to advertise for Kenyans to know such a brand exists.

Mr Muriuki said his company concentrated its efforts in Central Kenya through posters.

Mastermind Tobacco, whose main brand is Supermatch, also has posters for its new brands. Other than posters and paintings of various cigarette brands, the tobacco companies are also in contravention of section 25 (1) of the Act, which bars them from promoting a tobacco product through advertisement that depicts, in whole or in part, a tobacco product, its package or a brand element and section 29(1) which bars anyone from displaying a tobacco brand element on a non-tobacco product.

Entertainment spots

To beat this, some tobacco companies have chosen to advertise on posters indicating where certain bars and entertainment spots are located.

The punishment for those who contravene this section is a fine of Sh500,000, imprisonment for a maximum of three years, or both.

The head of non-communicable diseases in the ministry of Public Health, Dr William Maina, said that some aspects of the Act had not been fully enforced. “There is a bit of compliance and public health officers are out creating awareness,” he said.

BAT Kenya Ltd head of Corporate and Regulatory Affairs Julie Owino said that fully complying with the Tobacco Act will cost them more than Sh100 million by next January. She asked the various enforcement agencies to ensure that the law was followed to the letter.

In his letter the A-G said: “The purpose of this letter is, therefore, to advise you on the correct position in law and to further request you to similarly advise the various local authorities that fall under your Ministry”.