, NAIROBI, October 29 – I have seen an advertisement placed in the media on Sunday by the Permanent Secretary, Ministry of Local Government in which he purports to offer a legal opinion.
The basis and, perhaps, only argument in the notice is that the by-laws passed by various local authorities banning smoking of cigarettes in public, particularly the streets is illegal because another law that bans smoking of cigarettes in certain defined areas does not include streets within the definition.
This viewpoint is wrong and incorrect. It may as well be that the Tobacco Control Act may not contemplate to ban smoking on public streets, but that does no make the respective city or local authority by-laws baseless.
The Local Governments Act acknowledges legislative power given to authorities to pass by-laws within their jurisdiction so long as such are in public interest and do not conflict with statutory or constitutional law.
Secondly, there are other laws that indeed support the by-laws that ban public (including street) smoking. Such laws include but not limited to the following: The Constitution of Kenya which recognizes the right to life. This right demands that nothing is done unlawful to deny any person the enjoyment of this right. It further demands that the state (including local authorities) take all necessary steps to facilitate the enjoyment of this right. We all know what smoking does to the smoker. More so, we know what the passive smoker is exposed to – a violation of this fundamental right.
The Environment Management and Co-ordination Act, without equivocation declares that every person in Kenya is entitled to a clean and healthy environment.
Smoking in the streets violates the right that is declared to be for all! The EMCA alone is sufficient basis to enact the by-laws that seem to annoy the PS without much cause.
Another edict that would form a sufficient basis for the by-laws is the Public Health Act which imposes a public duty on every person, and particularly local authorities to remove any public nuisance that is prejudicial to public health.
The PS needed to be reminded that some local authorities, indeed the City Council of Nairobi passed the by-laws even before the Tobacco Control Act was enacted. Therefore, his unsolicited advice is baseless.
Kenyans will do well to remember that while the Tobacco Control Bill was pending in Parliament, tobacco manufactures lobbied parliamentarians and bribed them with fully- paid beach resort holidays with hefty allowances in a bid to persuade them against the bill. You must remember those people swimming themselves silly in the South Coast!
One is left wondering whether the war has moved to the administration! This is because, if the PS took advise of his legal officers (and they are many), he would have been told that
a) Governments don’t amend laws or by laws through public notices such as he posted
b) That it is unlawful, under the Public Officer Ethics Act, for a public officer such as he is, to give false information to the public and
c) That if the government seeks a reversal of the by laws, they need to cause a repeal of the same.
The PS should be the last person to campaign for the cigarette manufactures. If he had consulted his Public Health and Medical Services counterparts, he would have known that the government spends twice as much revenue as it gets from cigarettes on cigarette- related ailments.
Lastly, the PS and whole of government is duty bound to protect the non-smoking public from those who may want to continue enjoying their pastime of smoking. This pastime is similar to many others that we should not invest public resources to protect. By the way, the PS should explain publicly why he chose to unwisely spend public monies placing that advertisement. Under the Public Officer Ethics Act, a public officer is duty bound not to allow waste, and would be criminally liable if he does so.
The ban is perfectly legal. I wonder if the PS will come to the aid of the hapless person who may enthusiastically take this faulty advice when they will be arrested for smoking in the streets.
I have since learned that the Deputy Prime Minister and Minister for Local Authorities has supported the position expounded by his PS. This unfortunate development continues to fuel the suspicion that the Ministry is advancing a cause that against public interest and especially promoting the interest of the cigarette manufactures. While we may not have proof, one would ask the Deputy PM to tell Kenyans who those people are that complained of harassment by application of by laws that seek to provide for smokers at the same time protect non-smokers.
Their logic is upside down..
Haron M Ndubi, is an Advocate and Executive Director, Haki Focus