Tobacco firm challenges new smoking ban

July 11, 2008 12:00 am

, NAIROBI, July 11 – A cigarette manufacturing company has moved to court, to challenge the new tobacco control measures, barely three days after the government effected a law completely prohibiting smoking in public.

Mastermind Tobacco Kenya Limited filed a suit against the Attorney General (AG) Amos Wako on Friday, seeking to nullify the Tobacco Control Act of 2007, on grounds that it is ‘unconstitutional, irrational and not a legitimate exercise of the state police powers’.

The company claimed that the Act illegally criminalises the production, manufacture, sale, labelling, advertising, promotion and sponsorship of tobacco products.

The company also argued that the criminal sanctions contained in the Act were not severable from other provisions, which in their opinion, amounted to a breach of the constitution.

“The Act creates penal sanctions and/or imposes penal consequences despite neither the fact the manufacture and use of Tobacco products is not a prohibited activity,” the suit papers read.

“The Act consequently seeks to criminalise an otherwise lawful activity and thereby violates the constitution.”

The new law that seeks to regulate the production, marketing and smoking of tobacco was implemented on Tuesday.

A day ahead of the implementation, Public Health Minister Beth Mugo said the Act would come into force to check the perilous habit of smoking among young people in the country.

It prohibits smoking in public places and the sale of cigarettes to people below the age of 18.

The legislation further provides that smokers only be allowed to buy a minimum of 10 cigarettes, and in a packet.

The tobacco company, consequently in its petition, besieged the court to declare all penal sanctions in the Tobacco Control Act, irrational, and hence null and void.

The bone of contention centred on the penalties that would result from violations of the Act by any of the parties bound by it.

It also prohibits the manufacture, distribution or sale of accessories such as lighters that display a tobacco product-related brand name or the name of the manufacturer as well as display of tobacco brand elements on umbrellas, bags and clothing, among others.

The new law outlaws the promotions through testimonials, advertisements and sponsoring of sporting programmes among others.

It was also argued that the Act contravened ‘property rights and interfered with freedom to receive information without interference, besides discriminating against people engaged in the manufacture and use of tobacco products’.

The company claims that the Act came into force ‘as a statute controlling the production, sale, labelling, advertising, promotion and sponsorship of tobacco products, which drew their interest into the matter’.

But the purpose and object of the Act declared was, the company intimated, to provide a framework for the control of the said activities.

“The objects expressed as aforestated are far removed from any legitimate criminal law process and that the manufacture and use of Tobacco products does not, per see, pose a danger to public health,” it argued.

It also argued that the Act allows the imposition of tax and price policies that are discriminatory and the whole Act seeks to interfere with its rights of trade.


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