Kenya- Timeline: Industry Interference with the Tobacco Control Regulations 2014

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This timeline provides a chronological overview of some of the main ways tobacco companies have tried to influence the development of Kenya's Tobacco Control Regulations 2014.

  • Click here for an infographic of tobacco industry interference in Kenya.

Timeline of Tobacco Industry Interference Concerning Kenya's Tobacco Control Regulations 2014

Date Event
3 November 2011 British American Tobacco Kenya (BAT), Mastermind Tobacco Kenya (MTK), Alliance One Tobacco Kenya (AOTK) and Kenya Tobacco Farmers Association (KETOFA) wrote to the Tobacco Control Board (TCB) in the Ministry of Health enclosing a 32-page memorandum outlining their issues and concerns related to the Framework Convention on Tobacco Control (FCTC).[1] The TCB is a regulatory board set up to oversee and guide the drafting and implementation of the regulations. The Secretariat sits within the Ministry of Health and the board includes 15 members from government and civil society.[2] Among other things, the World Health Organisation’s FCTC sets guidelines for interaction between governments and the tobacco industry, to limit industry interference with tobacco control and health policies.
2 March 2012 The Ministry of Trade in "conjunction with the tobacco Industry" invited various government representatives to a luxury retreat where they hosted a Technical Barrier to Trade (TBT) workshop for policymakers and stakeholders at a resort spa meant to “build the technical competence … on the trade issues of concern”. Those invited included representatives from the Ministry of East African Community, Ministry of Trade, Kenya Investment Authority, Kenya Association of Manufacturers (KAM) and Kenya National Chamber of Commerce & Industry.[3]
14 November 2012 BAT Kenya, MTK, AOTK and KETOFA wrote to the Permanent Secretary of the Ministry of Foreign Affairs regarding “violations” of the Kenyan delegation at the 5th Conference of the Parties (COP5) of the WHO FCTC in Seoul, South Korea. The letter claimed that at an inter-ministerial committee meeting prior to the COP5 the agenda was agreed, but that the delegation had since deviated from that position and had begun to push for the adoption of a minimum limit of 70% excise on Retail Selling Price (RSP). The tobacco companies also claimed that during a farming seminar conducted alongside the COP5, members of the Kenya delegation misled other delegates to believe that the tobacco industry beat farmers who turned to alternative crops. The letter requested that the Ministry intervene in the situation and urged them to "contact the Kenyan delegation in Seoul and instruct them [to] desist and refrain from taking personal positions on matters that have clearly agreed positions and urge them to articulate the agreed country positions as expected." [4]
4 November 2013 BAT directly contacted the Attorney General's Office acknowledging the "critical role" the company plays in the law making process and requesting a meeting to discuss BAT's concerns related to the proposed regulations.[5]
25 March 2014 BAT Managing Director, Chris Burrell, wrote to the TCB in an attempt to lobby for further engagement on the tobacco control regulations. He claimed that the principle of consultation is “enshrined” in Kenya's constitution and that “meaningful” engagement with all stakeholders is fundamental for the legislation, despite the fact that this could be seen as a violation of the FCTC.[6]
27 October 2014 Once the regulations were finalised and ready to be sent to the National Assembly for approval, the TCB in the Ministry of Health wrote to the Chairperson of the Parliamentary Committee on the Delegated Legislation Hon. William Cheptumo requesting to meet with the committee to educate them on the finalised regulations. This was the third time the TCB wrote with this request. The previous two times, the Chairperson of the Committee failed to respond.[7] The months that were spent waiting for a reply caused a significant delay in getting parliamentary approval for the regulations.
1 December 2014 BAT sent a letter to the office of the Attorney General referencing unanswered letters sent on the 4th Dec 2014 and 4th June 2014 with respect to the tobacco control regulations. BAT claimed they were engaging the Ministry of Health and the TCB in the legislative process in an attempt to achieve “high quality evidence based, proportionate tobacco control measures” but claimed that the Ministry of Health have failed “to take into account [our] views”.[8]

Read about the tobacco industry's history of creating doubt around the evidence backing legislation.

5 December 2014 Tobacco Control Regulations 2014 are gazetted
Week beginning 8 Dec 2014 Tobacco Control Regulations tabled in Parliament by Majority Leader Aden Duale [9]
10 December 2014 EW. Murungi, Managing Director of Mastermind Tobacco Kenya (MTK), the second largest tobacco company in the country,[10] wrote to the Clerk of the National Assembly requesting a meeting with the Parliamentary Committees on Delegated Legislation, Finance and Health, to discuss their concerns with the regulations.[11] As these committees are tasked with drafting and voting through the regulations, this could be seen as a direct attempt to try to influence the policymakers who will be passing the regulations.
January 2015 The Ministry of Foreign Affairs and International Trade lobbied the Chief of Staff and Head of Public Service against the regulations, claiming that they were in violation of the General Agreements on Tariffs and Trade (GATT), Trade Related Aspects of Intellectual Property Rights (TRIPS) and Technical Barriers to Trade (TBT).[12] The GATT and TRIPS are international agreements meant to protect intellectual property rights. The tobacco industry has frequently used the intellectual property argument to try to weaken legislation in other parts of the world, including Australia and the UK.

For evidence against this argument, see Countering Industry Arguments: It Breaches Intellectual Property Rights.

6 January 2015 A final draft of the regulations was sent by email to TBT Committee members for review prior to the regulations being published for public view. The TBT Committee, which is mandated to ensure regulations are in line with the World Trade Organisation’s Technical Barriers to Trade, has been utilised by the industry as a key outlet for influencing policy in Kenya.[13] After the email was circulated, a meeting was called to discuss the draft regulations.[14]Recipients of the draft regulations included industry associates and the Kenya Association of Manufacturers (KAM), of which BAT is a member.[15]
20 January 2015 Despite the fact that their attendance could be seen as a breach of Article 5.3 of the FCTC, representatives of BAT and KAM attended a TBT Committee meeting to discuss draft regulations.[16]

KAM gave a presentation against the regulations using arguments that were the same as those proposed by BAT and MTK in their lobbying attempts against the legislation. KAM subsequently demanded that the World Trade Organization be notified of the tobacco control regulations, suggesting that they are in breach of international trade protocols.[17]

20 January 2015 BAT wrote directly to the Ministry of East African Affairs, Commerce and Tourism (MEAACT), outlining the impact the tobacco control regulations would have on Kenya's trade obligations and requested that the MEAACT consider the gravity of the implications.[18]
22 January 2015 EW. Murungi of MTK wrote to the Secretary of the Ministry of Health and requested a consultative meeting to discuss concerns with the regulations.[19] This can be viewed as another example of the direct lobbying that is deemed harmful to public health by the World Health Organisation and is meant to be restricted through the FCTC.
27 January 2015 Describing herself only as a "citizen of Kenya", a seemingly independent BAT employee demanded access to documents pertaining to the tobacco control regulations from the Ministry of Health within seven days of receiving her letter. The employee failed to disclose that she worked for BAT.[20]
27 January 2015 BAT also wrote to the Ministry of Health demanding all documents and information relevant to the tobacco control regulations be released to the company within seven days.[21]
30 January 2015 WTO notified of the Tobacco Control Regulations 2014[22]
3 February 2015 The Ministry of Health received a letter from the Executive Office of the President requesting that they set a time to meet and "come up with a common understanding" on the regulations. The letter also included a briefing forwarded from the Ministry of Foreign Affairs and International Trade with arguments against the regulations.[23] The tobacco industry has a history of influencing the policy process through senior government officials in Kenya.[24]
11 February 2015 Letters from KAM were sent to various government ministries including the National Treasury, Ministry of Health, Ministry of Industrialization and Enterprise Development and the Ministry of Foreign Affairs to lobby against the regulations.[25]
17 February 2015 BAT attempted to lobby the Cabinet Secretary of the Ministry of Health in a letter claiming their view on the proposed regulations have not been taken into account and were "unconstitutional, unprocedural and unlawful".[26]
9 March 2015 BAT Head of Legal contacted the TCB requesting their technical repositories and digital storage devices.[27]
17 March 2015 The tobacco industry was reported in local media to have invited MP’s to a "lavish retreat” at a Coast hotel where hotel expenses and "fat allowances" for participants were estimated to cost Sh100 million. The local press described the retreat as "a lobbying session by the tobacco firms to woo MPs not to pass the strict Tobacco Control Regulations".[28]
9 April 2015 MTK submitted a position paper opposing the tobacco control regulations to the TCB citing arguments that regulations will increase illicit trade, hold heavy cost implications and will be arduous to implement.[29] When plain packaging legislation was being debated in the UK and Australia, the tobacco industry also suggested it would lead to an increase in illicit trade.

See Countering Industry Arguments: It Will Led to Increased Smuggling for evidence against this claim.

14 April 2015 BAT launched a legal challenge against the proposed tobacco control regulations on the basis that they were "oppressive, irrational and unreasonable".[30] Worldwide, the tobacco industry frequently uses the legal strategy to oppose tobacco control legislation.

See Australia: Challenging Legislation to read about the industry's unsuccessful attempt to undermine plain packaging legislation in Australia.

4 May 2015 The case for BAT was heard at the High Court, where Justice Mumbi Ngugi declined to issue temporary orders to prevent the implementation of the regulations on 6 June 2015. Instead Judge Mumbi Ngugi directed that the matter proceed to a full hearing in June, stating "In view of the rigid positions taken by the parties in this matter, let the application proceed to hearing".[31]
11 June 2015 Kenya TCR’s suspended by Justice Mumbi Ngugi pending a full hearing of the case brought by BAT Kenya.[32]
2 July 2015 The case for BAT was read, for a second time, at the Kenyan High Court and implementation of the new tobacco control regulations were suspended by Justice Mumbi Ngugi.

The Judge, citing violation of Article 10 of the Constitution, found that BAT was not adequately consulted in the drafting of the regulations and the State had therefore breached the constitution, stating that “A conservatory order be and is hereby issued staying the coming into force and implementation of the Tobacco Control Regulations 2014”.[33] Article 10 of the Constitution of Kenya states that national values and principles of governance must be revered in the policy process.[34] Among the principles and values listed is “participation of the people.” The international FCTC calls for participation of the tobacco industry to be limited to what is strictly necessary, as evidence from around the world has demonstrated that opportunities for participation have been exploited.[35]


TobaccoTactics Resources

For more information on the tobacco industry and Africa, see:

Notes

  1. BAT MTK, AOTK, KETOFA, Letter to the Tobacco Control Board, WTO TBT concerns the tobacco industry has with FCTC developments, 3 November 2011
  2. Campaign for Tobacco Free Kids, Kenyan Parliament passes strong anti-tobacco legislation, 10 August 2007
  3. BL. Kaleve, Chairman National TBT Consultative Committee, Invitation to attend TBT workshop in Naivasha on 13th -14th March 2012, 2 March 2012
  4. BAT Kenya, MTK, AOTK, KEOFTA, Letter to the Permanent Secretary Ministry of Foreign Affairs, Conduct of the Kenyan Delegation Attending the COP 5 - Seoul, South Korea, 14 November 2014
  5. J.Glibert, Head of Corporate and Regulatory Affairs, BAT, Letter to the Attorney General, Request for a meeting, 4 November 2013
  6. C. Burrell, Letter to the Tobacco Control Board, Submission by British American Tobacco Kenya Limited on the draft Tobacco Control Regulations 2014, 25 March 2014
  7. KM. Ombacho, Letter to the Clerk of the National Assembly, Request for a meeting with the Tobacco Control Board of Kenya, 27 October 2014
  8. S. Munjanganja, BAT, Letter to the Office of the Attorney General, Proposed Tobacco Control Regulations, 1 December 2014
  9. E. Mutai, Cigarette companies face tougher health laws, Business Daily, 16 December 2014, accessed May 2015
  10. 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 April 2015
  11. EW. Murungi, MTK, Letter to the Clerk of the National Assembly, Request for a meeting with Parliamentary Committees on Delegated Legislation, Finance and Health, 10 December 2014
  12. Chief of Staff and Head of Public Service, Letter to Cabinet Secretary of the Ministry of Health, New tobacco regulations, 3 February 2015
  13. RR. Jackson, Tobacco industry accused of ‘intimidation and interference’ in Kenya, The Guardian, 2 March 2015, accessed April 2015
  14. Manager of Trade Affairs, Email to tobacco control regulation stakeholders, tobacco regulations, 6 January 2015
  15. C. Mwaniki, Egypt crisis hits Kenya as exports fall by Sh2 billion, 17 October 2013, accessed April 2015
  16. Kenya Bureau of Standards, Meeting minutes, 20 January 2015
  17. Kenya Association of Manufacturers, Kenya Tobacco Control Regulations 2014, Presentation to the TBT Committee, 20 January 2015
  18. Ministry of East African Affairs, Commerce and Tourism, Department of Internal Trade, Letter to the Ministry of Health, Tobacco Control Regulations 2014 - potential impact on EAC principles and obligations, 20 January 2015
  19. EW. Murungi, MTK, Letter to the Cabinet Secretary of the Ministry of Health, Request for a meeting with Parliamentary Committees on Delegated Legislation, Finance and Health, 22 January 2015
  20. C. Anyika, Letter to Letter to Cabinet Secretary of the Ministry of Health, Request for information held by the state pertaining to the Tobacco Control Regulations 2014, 27 January 2015
  21. S. Munjanganja, Head of Legal BAT, Letter to the Cabinet Secretary of the Ministry of Health, Request for information with regard to the Tobacco Control Regulations 2014, 27 January 2015
  22. World Trade Organisation, Committee on Technical Barriers to Trade, Notification, 30 January 2015
  23. Chief of Staff and Head of Public Service, Executive Office of the President, Letter to the Secretary Cabinet of the Ministry of Health, New tobacco regulations, 3 February 2015
  24. P.Patel, J.Collin, AB. 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, February 2007, accessed April 2015
  25. B. Mania, Letter to the Cabinet Secretaries of the National Treasury, Ministry of Health, Ministry of Industrialization and Enterprise Development and the Ministry of Foreign Affairs and International Trade, Tobacco Control Regulations Legal Notice .169 of 2014 (Legislative Supplement No. 161), 11 February 2015
  26. G. Mania, Chairman BAT, Letter to the Cabinet Secretary for the Ministry of Health, Kenya Tobacco Control Regulations, 2014 (the "regulations"), 17 Februrary 2015
  27. S. Munjanganja, Head of Legal BAT, Letter to the Tobacco Control Board, Request for technical repository and digital storage Devices, 9 March 2015
  28. A. Mwangi, Tobacco firms woo MPs with Sh100m treat to block rules, People Daily, 11 March 2015, accessed May 2015.
  29. RM. Mutuma, Company Secretary MTK, Letter to Tobacco Control Board, MTK's position on the proposed Tobacco Control Regulations 2014, 9 April 2015
  30. BAT, Legal Petition No.143 of 2015 re: the Tobacco Control Regulations 2014, 14 April 2015
  31. C. Rwenji, BAT fails to stop enforcement of tobacco control rules, 8 May 2015, accessed June 2015
  32. P. Ogemba, Court suspends new tobacco sector laws, Daily Nation, 11 June 2015, accessed June 2015
  33. Court suspends new tobacco regulations over violation of Constitution, Business Daily, 2 July 2015, accessed July 2015
  34. Article 10 of the Constitution of Kenya, accessed July 2015
  35. A.B. Gilmore, G. Fooks, J. Drope, S.A. Bialous, R.R. Jackson Exposing and addressing tobacco industry conduct in low-income and middle-income countries, The Lancet, 14 March 2015, accessed July 2015