Kenya- Timeline: Industry Interference with the Tobacco Control Regulations 2014
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Kenya- Timeline: Industry Interference with the Tobacco Control Regulations 2014, Tobacco Tactics, updated 05 February 2020, accessed 20 April 2024.
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 up to July 2015.
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.14Recipients 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 201422 |
| 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 |
| 24 March 2016 | The High Court ruled that the regulations were constitutional and, with a few minor amendments (relating to disclosing market share information and the maximum penalty for smoking in public places), the regulations should have come into effect on 26 September that year. 36 Judge Mumbi Ngugi stated in her ruling “The Tobacco Control Act has very clear objectives of safeguarding individuals and the public from the dangers posed by consumption of tobacco, which as the Act states in its objects clause, has been implicated in causing debilitation, disease, and death. The Regulations impugned in this petition are intended to safeguard the public, those who smoke and those who do not, and to provide certain information with regard to the contents of tobacco products.”37 |
| 22 September 2016 | After BAT lodged an appeal, the Court of Appeal suspended implementation of the regulations for 30 days.37 |
| 18 October 2016 | BAT’s challenge to the High Court decision was heard in the Court of Appeal. BAT argued that, when developing the regulations, the government had failed to provide for adequate public participation, or prepare a regulatory impact statement, and that limiting interaction between the tobacco industry and public officials was discriminatory. The tobacco company claimed that a number of provisions, including those relating to the ‘solatium’ (an annual compensation contribution) and revenue disclosure, violated their constitutional rights. They specifically argued that product disclosure requirements violated their intellectual property rights, an argument that has been used unsuccessfully by the industry across the world. In addition, BAT argued that there was no basis in legislation to extend smoking bans to outdoor areas next to public places.38 A date of judgement for the appeal was given as 16 December 2016, but this was later postponed.37 |
| 17 February 2017 | The Court of Appeal judges delivered their judgement, upholding the 2016 High Court ruling.39 They stated that “the regulations are constitutional and do not contradict the Tobacco Control Act as had been argued in suit papers by BAT”. The judgement noted that BAT already had a right to participate in public consultations, but not the right to give extra weight to its views. It also stated that restricting access to public authorities was not discriminatory as the industry “cannot expect equal treatment with other industries as due to the harmful effect of tobacco products”39 and the state’s obligation to protect public health, and that the extension of smoke free areas was supported by the health aims of the Tobacco Control Act. The judges’ ruling on the solatium was that, as it was ring-fenced and not a general tax, it was therefore consistent with Kenyan law. They also concluded that any impact from the product disclosure requirements on intellectual property rights was justifiable, citing the industry’s failed challenge to plain packaging regulations in the UK on the same grounds.38 The regulations were due to come into effect immediately, to fulfil the obligation of the Ministry of Health to “safeguard the health interests of Kenya”.3739 |
| 9 March 2017 | BAT launched a further case in Kenya’s highest court, the Supreme Court, and the appeal court decision was stayed.40 |
| 25 April 2018 | BAT’s case was heard in the Kenyan Supreme Court where the tobacco company argued the same case as they had previously in the High Court, and the Court of Appeal. 41 BAT’s lawyer was quoted as saying that the company had “no difficulty of being regulated provided the regulation is in accordance with constitution, in reasonable and evidence based”.42 It was reported that Senior State Counsel said that BAT was only concerned with protecting their commercial interests, and not public safety or the health of the Kenyan people.43 The Attorney General was reported as saying that the court “should dismiss and penalize the BAT for wasting precious judicial time and clogging the rights of genuine litigants that are kept at bay”.42 |
| 26 November 2019 | The Supreme Court ruled to uphold the regulations, more than four years after BAT first challenged the 2014 bill.4445 |
TobaccoTactics Resources
For more information on the tobacco industry and Africa, see:
- See the infographic version of this timeline
- Kenya- Country Profile
- Kenya- BAT’s Tactics to Undermine the Tobacco Control Regulations
- A list of TobaccoTactics pages on Kenya
- A list of TobaccoTactics pages on Africa
