Kenya’s besieged tobacco industry is toying with the idea of covertly sponsoring dozens of litigants to sue city and town councils who have banned smoking in public areas for infringing on their constitutional right to smoke, even as more towns line up to impose similar bans.

Some industry players are, however, concerned that a vigorous fight-back by the sector will be counter-productive, attracting international attention to the issue.

Last week, Kenya’s capital Nairobi became the latest urban area to outlaw public smoking, following in the footsteps of the smaller municipalities of Nakuru, Kangundo and Mombasa. Nakuru, Kenya’s fourth largest city, pioneered the bans three months ago.

Other Kenyan cities expected to pass smoking curbs in the next two weeks include Eldoret and Kisumu. Uganda’s tobacco control lobby welcomed the Kenyan bans, pointing out that they were in line with those in such cities as New York, London and Dublin.

“The Environmental Action Network (TEAN) highly commends the city and municipal councils of Nairobi, Mombasa, Kangundo and Nakuru for their recent by-laws to ban smoking in public places,” said the organisation’s spokesperson Phillip Karugaba last week. “The new bans are in line with the fact that Kenya was the first country in the region to ratify the World Health Organisation’s Framework Convention on Tobacco Control (FCTC).”

Kenya ratified the FCTC in June 2004, while Tanzania and Uganda ratified this year, in April and June respectively.

According to the city of Nairobi ban, those found smoking in public areas, including the streets, will face a fine of Ksh2,000 ($30) or a six-month jail term for a first offender and Ksh3,000 ($45) or a nine-month jail term for a repeat offender. Within 24 hours of announcing the ban on Tuesday, 10 offenders were arrested and fined a total of Ksh20,000 ($300), sparking protests from the tobacco industry.

“This all-encompassing ban on smoking is unconstitutional and is without due regard to the right of smokers,” said Mastermind Tobacco Ltd spokesman John Kirimania. “By approving these by-laws, the Local Government Minister and the respective town clerks have misdirected themselves.”

Those sentiments were supported by BAT Kenya, the country’s largest tobacco company with a turnover of Ksh12.1 billion ($178 million) and a pre-tax profit of Ksh1.8 billion ($26.5 million) in the last financial year.

Between themselves, Kenya’s tobacco companies sell an estimated 7 billion cigarettes to a market that Ministry of Health officials say includes an estimated one million minors. The ministry says that it spends more than the estimated Ksh7 billion ($103 million) the tobacco industry pays in compounded taxes to “mop up” the health effects of smoking.

The bans by the Kenyan town and city councils are the second prong of a strategy devised by the country’s tobacco control activists, who have long complained that the enactment of national control legislation has been blocked by vested interests for more than six years.

As a result, Kenya’s Tobacco control Bill has been published every year since 2001, but has always lapsed and never been passed into law. Last week, however, the Bill went through its second reading and indications are that it will be passed before parliament goes on recess in August.

Source: Nation Media