Kenya- Country Profile

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Kenya is a country of considerable strategic importance for tobacco manufacturing operations in Africa, due both to its influence in the region[1] and its strong and longstanding political links with the tobacco industry.[2][3]

Smoking in Kenya

In Kenya, an estimated 11.6% of the adult population (2.5 million adults) use tobacco products.[4][5] In 2013, the Global Youth Tobacco Survey indicated that 12.8% of boys and 6.7% girls (aged between 13 and 15) used tobacco.[6] With a growing number of young people becoming susceptible to tobacco use, there is a need for tobacco control legislation.[5]

Tobacco in Kenya

Kenya is a major producer of both raw tobacco and manufactured tobacco products. According to Euromonitor International, approximately 35,000 farmers produce tobacco leaf on an estimated 20,000 hectares of land.[7] Tobacco is grown primarily in the Nyanza and Western Provinces of the country with some farming activity in the Central and Eastern Provinces.[8] Over 13,000 tonnes of leaf was produced in Kenya in 2013.[9]

Who Dominates the Market?

In addition to being a tobacco growing country, Kenya also serves as a regional hub for the manufacturing of tobacco products.[1] British American Tobacco (BAT) Kenya began operations in Kenya in 1965 and has dominated the market since that time.[2] BAT Kenya currently holds an estimated 71.5% of the market share[10] and exports from its Kenyan hub to 17 other countries in the region.[11] Kenyan tobacco manufacturer Mastermind Tobacco Kenya (MTK), established in the late 1980’s, today controls 15.9% of the market share.[10] According to the Kenya National Bureau of Statistics 2014 report, tobacco accounts for 7% of Kenya’s GDP, contributing approximately KES 10.2 billion in tax revenues to the Government in 2013 [7] In the same year BAT’s Kenyan income received increased by 5% to KES 31.9billion.[12]

BAT and Mastermind are listed in the top 25 corporate taxpayers by the Kenya Revenue Authority[13] and both tobacco companies are also major employers in the country.[7] Consequently, there is a vested interest in ensuring that these players continue to do business within Kenya.

The tobacco industry has a history of establishing high-level political links with the government and using these links to promote its business agenda.[2] BAT has enjoyed strong political relationships and has been “supported by successive Kenyan Presidents— Kenyatta, Moi and… Kibaki—establishing links with a variety of ministers and appointing influential politicians as non-executive directors”.[2]

Roadmap to Tobacco Control

For more than 23 years tobacco control has been on the public health agenda in Kenya, where investment in initiatives to curb the country’s escalating tobacco epidemic began in 1992.[1]The World Health Organization’s Framework Convention on Tobacco Control (FCTC), a treaty that establishes evidence-based tobacco control measures which parties to the treaty are legally obliged to implement,[14]was signed and ratified by Kenya in 2004.[15] Kenyan policymakers have since been advocating for the development of legislation to decrease the prevalence of smoking and safeguard public health.

The Tobacco Control Act 2007

In 2007, following 13 years of drafting and development,[11] the Kenyan Parliament passed the Tobacco Control Act 2007 (TCA), the first step in efforts to domesticate the FCTC. During this time, according to the Ministry of Public Health and Sanitation (MoPH&S) and the Institute of Legislative Affairs (ILA), the tobacco industry had “numerously made attempts; sometimes successfully to influence tobacco control in Kenya” and the delay in the enactment of this legislation was claimed to be “due to the industry’s manipulation of the parliamentarians”.[11]

The provisions of the TCA included:

  • smoke free public places;
  • progressive graphic health warnings;
  • comprehensive bans on Tobacco Advertising Promotion and Sponsorship;
  • tax and price measures;
  • public awareness and education;
  • public education and information campaigns;
  • limiting sales to minors.[16]

However, since this Act was passed implementation has been problematic; a weak legislative framework, lack of political will and corruption are claimed to have effectively stunted its implementation.[7][2]

Obstacles to Implementation of the TCA

In the 13 years whilst the TCA was being drafted and throughout the subsequent years of its implementation, the tobacco industry persistently tried to weaken its effect and aggressively lobbied policymakers to undermine it.[2] [17] For example, after the TCA was passed, BAT Kenya and MTK challenged the new law in court, which led to the suspension of the public smoking ban.[18] Progress in implementing the TCA has been slow at best, and many of its provisions do not meet the minimum FCTC requirements for compliance.[19] The requirements for smokefree places, for example, do not meet the FCTC standards as outlined in Article 8, which call for 100% smoke free places as any other measure fails to provide universal protection against tobacco smoke exposure. Similarly, failure to incorporate graphic health warnings on packaging of tobacco products meant the TCA failed to comply with Article 11.[16]

Tobacco Control Regulations 2014

As a result of the problematic implementation of the TCA and in an attempt to strengthen the evidence-based framework and support greater adherence to the Act, the Kenya government sought to introduce the Tobacco Control Regulations (TCR) 2014.[20] The proposed Regulations aimed specifically to allow for the effective and stronger implementation of the tobacco control provisions that have already been enacted by Parliament via the 2007 TCA. The Tobacco Control Regulations called for:

  • graphic health warnings;
  • stronger smokefree legislation;
  • an Annual Solatium compensatory contribution (obligating tobacco manufacturers and importers to pay 2% of the value of the tobacco products manufactured in or imported to Kenya back to the government to help offset the costs of treating tobacco related morbidity and mortality);[21][22]
  • protecting public health policies from the commercial and other vested interests of the tobacco industry (reflective of Article 5.3 of the FCTC).

Obstacles to Implementation of the TCR

Despite intense pressure from the national and international public health community, passage of the TCR has been continually impeded by industry interference. In April 2015, shortly before the Regulations were due to come into force in June 2015,[23] BAT filed a legal case against the Ministry of Health in Kenya, claiming that the Regulations were “unconstitutional” and requested that they be dismissed.[24][25]

On 2 July 2015, the high court suspended the implementation of the regulations until a final ruling was reached.[26] As of November 2015, the case was on-going and still pending a final ruling.

Industry Interference in Kenya

Tobacco companies like BAT have continually employed a variety of tactics to hinder policy progress in Kenya, including: lobbying and engaging senior policymakers,[27][28] exerting influence through third parties and trade committees[29] and filing legal claims.[30][31]

To read more about the extent and frequency of tobacco industry tactics to undermine progress in Kenya, see:


TobaccoTactics Resources

Notes

  1. 1.0 1.1 1.2 World Health Organization, Joint national capacity assessment on the implementation of effective tobacco control policies in Kenya, 2012, accessed November 2015
  2. 2.0 2.1 2.2 2.3 2.4 2.5 P. Patel, J. Collin, A.B. Gilmore. "The Law Was Actually Drafted by Us but the Government Is to Be Congratulated on Its Wise Actions": British American Tobacco and Public Policy in Kenya, Tobacco Control, 16.1 (2007): 1–8, accessed November 2015
  3. D. Simpson, Kenya: Beach Party "Helps" Tobacco Bill, Tobacco Control, 14.1 (2005): 4, accessed November 2015
  4. Tobacco Control Unit, Ministry of Health Kenya, Global Adult Tobacco Survey 2014 Executive Summary, 2014, accessed April 2015
  5. 5.0 5.1 Campaign for Tobacco Free Kids, New Survey Shows Need for Kenya to Take Strong Action to Save Lives from Tobacco Use, 2 December 2014, accessed April 2015
  6. Tobacco Control Unit, Ministry of Health Kenya, Global Youth Tobacco Survey Factsheet Kenya, 2013, accessed April 2015
  7. 7.0 7.1 7.2 7.3 Euromonitor International, Tobacco in Kenya, August 2015
  8. Institute of Legislative Affairs, Shadow Report on the Status of Implementation of the Framework Convention on Tobacco Control (FCTC) in Kenya (5 YEARS LATER), 2010, accessed November 2015
  9. Food and Agriculture Organisation of the UN, FAOSTAT Tobacco Trade 2015, accessed November 2015
  10. 10.0 10.1 Euromonitor, Company Shares – Kenya, 2015
  11. 11.0 11.1 11.2 Ministry of Public Health and Sanitation, International Institute for Legislative Affairs, Centre for Tobacco Control in Africa, Tobacco industry interference in Kenya: Exposing the tactics, January 2013, accessed November 2015
  12. BAT revenues in Kenya surge 55pc despite tobacco laws, Daily Nation, 29 April 2014, accessed November 2015
  13. Kenya Revenue Authority, Top 25,October 2015, accessed November 2015
  14. WHO Framework Convention on Tobacco Control, The WHO Framework Convention on Tobacco Control: an overview, January 2015, accessed November 2015
  15. United Nations, National Treaty Convention, 4 November 2015, accessed November 2015
  16. 16.0 16.1 The Government of Kenya, The Tobacco Control Act, 2007, accessed November 2015
  17. D. Simpson, Kenya: Beach Party "Helps" Tobacco Bill, Tobacco Control 14.1 (2005): 4, accessed November 2015
  18. BBC, Kenya Suspends Smoking Ban, 31 May 2006, accessed November 2015
  19. J. Tumwine, Implementation of the Framework Convention on Tobacco Control in Africa: Current Status of Legislation, Int J Environ Res Public Health, 2011 Nov; 8(11): 4312–4331, accessed November 2015
  20. Cabinet Secretary for Health Kenya, The Tobacco Control Act 2007, The Tobacco Control Regulations, 2014
  21. S. Chao-Blasto, Health minister defends strict tobacco rules in battle with manufacturer, Business Daily Africa, 3 August 2015, accessed November 2015
  22. Tobacco Free 254, KETCA, Tobacco Control Regulations, accessed Nvoember 2015
  23. C. Rwenji, BAT fails to stop enforcement of tobacco control rules, Standard Digital, 8 May 2015, accessed November 2015
  24. British American Tobacco Kenya, Petition no. 143 in the matter of the Tobacco Control Regulations 2014 between British American Tobacco Kenya Ltd and the Cabinet Secretary for the Ministry of Health, 14 April 2015
  25. C. Maina, BAT challenges new cigarette regulations on packaging from Ministry of Health, The Star,16 April 2015, accessed April 2015
  26. British American Tobacco Kenya, Petition no. 143 in the matter of the Tobacco Control Regulations 2014 between British American Tobacco Kenya Ltd and the Cabinet Secretary for the Ministry of Health, 14 April 2015
  27. Chief of Staff and Head of Public Service, Letter to Cabinet Secretary of the Ministry of Health, New Tobacco Regulations, 3 February 2015
  28. Director of Public Health, Ministry of Health, Kenya Tobacco Control Regulations 2014 – potential impacts on East African Community (EAC) principles and obligations, 27 January 2015
  29. BL. Kaleve, Chairman, National TBT Consultative Committee, Invitation to attend TBT workshop in Naivasha on 13th -14th March 2012, 2 March 2012
  30. British American Tobacco Kenya, Petition no. 143 in the matter of the Tobacco Control Regulations 2014 between British American Tobacco Kenya Ltd and the Cabinet Secretary for the Ministry of Health, 14 April 2015
  31. C. Maina, BAT challenges new cigarette regulations on packaging from Ministry of Health, 16 April 2015, accessed April 2015