David Murathe, the Jubilee Party vice-chairman, was summoned by the Ethics and Anti-Corruption Commission (EACC) on September 4, 2020. It is however not the corruption issue that attracted the public’s attention but the fact that he smoked cigarette in the commission’s compound, despite it being a smoke free zone.
He was to answer questions on suspected corruption at the Kenya Medical Supplies Authority (KEMSA) offices involving COVID-19 funding.
Smoking is not illegal in Kenya but there are smoking zones. These are designated areas where smokers can enjoy their puff while protecting non-smokers from the smoke.
Kenya became a party to the World Health Organisation (WHO) Framework Convention on Tobacco Control on February 27, 2005. As a result, it passed the Kenya Tobacco Act 2007. In 2014, Kenyan policymakers proposed new regulations to strengthen the evidence-based framework established by the existing Tobacco Control Act. It was called the Tobacco Control Regulations, 2014.
Spot check by RoGGKenya
Because of the stiff rules stated on the Tobacco Control Regulations 2014, it was stalled in Kenyan courts, until November 2019. British American Tobacco (BAT) challenged it repeatedly.
The Kenya Tobacco Act 2007 has very clear guidelines on how smoking zones should be. A spot check by RoGGKenya across Nairobi, however, revealed that these guidelines are not being followed.
For example, the Act states that a designated smoking area shall be a room sealed from the floor to the roof. It should be adequately ventilated so exhaust smoke is not a nuisance to the public. No other business or activity should be taking place around a smoking zone.
The law prohibits smoking in any public place including homes in which children are exposed, work places, health institutions and court buildings. Fines for smoking in restricted areas range from 50,000 to three million Kenya shillings and/or imprisonment for six months to three years.
Kenya’s Tobacco Control Act 2007
The smoking zone at the Bus Station in Nairobi, for example, paints a different picture. People are smoking at the entrance of and around the public toilet. Most smoking zones in Kenya are located in male public toilets. Other businesses are also conducted at the same spot. People are selling sweets, mobile phone credit cards and snacks. There are also other shops where people sell clothes and shoes.
Jane Njeri is one of the traders who sell cloths next to the public toilet. When asked by RoGGKenya why she still sells where people are smoking, yet she is a non-smoker, she said that she has no other place.
“I started selling here before this toilet became a smoking zone. It is very hard to find a selling spot like this with enough traffic. The government also did not give us an alternative place to put our shops,” said Njeri.
Njeri is exposing herself to what the WHO describes as second-hand or passive smoking. She stands the risk of getting diseases associated with those who smoke.
Nairobi’s Central Business District (CBD) has five smoking zones: Jevanjee Gardens near the Holy Family Basilica, the Bus Station next to Afya Centre, Uhuru Park and portions of River Road, and Latema Road.
Government offices and some private offices are smoke free zones. Civil servants who smoke have to find a smoking zone outside their office compound.
Effects of second-hand smoking
According to Better Health Channel, just 30 minutes of exposure to second-hand smoke can affect how your blood vessels regulate blood flow, similar to smokers. Better Health Channel is an online site that provides health and medical information to improve the health and wellbeing of people and the communities they live in.
It further indicates that there is increasing evidence that passive smoking can increase the risk of nasal sinus cancer, throat cancer, larynx cancer, breast cancer, long- and short-term respiratory symptoms, loss of lung function, and chronic obstructive pulmonary disease among people who do not smoke.
On April 8, 2016, the then Health Cabinet Secretary Dr. Cleopa Mailu called for the immediate enforcement of the Tobacco Control Act 2007, which prohibits smoking in public places.
He said this after a survey released a week earlier revealed that one in five adults in Kenya was exposed to second hand tobacco smoking.
The study dubbed STEPwise Survey showed that 21 percent of Kenyans were exposed to passive smoking while at work and 24 percent at home. The study also found that 13 percent of Kenyans consumed tobacco. In addition, men who smoked cigarettes every day used an average of seven sticks per day.
The STEPwise Survey was conducted between April and June, 2015 by the Ministry’s Division of Non Communicable Diseases to determine risk factors. Six thousand adults aged between 18 and 69 participated.
Smoking waterpipe banned
Nothing much seems to have changed since then. The law prohibits the sale of tobacco products through vending machines and the internet. It also prohibits the sale of single cigarettes, small packets of cigarettes, and waterpipe tobacco. All these is ignored.
RoGGKenya visited some smoking zones in Nairobi and it is evident that vendors sell single sticks to their clients. Majority of the estate shops also violate the law.
In 2017, the Health Ministry banned the sale of waterpipe and shisha tobacco in the country, making it illegal for sale by restaurants and night clubs. The ban saw Kenya become the third country in East Africa to ban shasha smoking, after Tanzania and Rwanda.
The ban, contained in a legal notice dated December 28, 2017 prohibits importing, manufacturing, advertising, as well as the sale and use of shisha in commercial establishments such as restaurants and night clubs.
A government’s Gazette notice warned that anyone found contravening the rules will be “liable to a fine not exceeding Sh50,000, or to imprisonment for a term not exceeding six months or both.”
Member of Parliament smoking shisha
Because of the new law entertainment joints can no longer offer sisha smoking. However, on January, 17, 2020, a video of Babu Owino, the Embakassi Member of Parliament, was trending on social media. In the video, the MP is seen smoking shisha while he fires a gun and shot a DJ.
He was charged with attempted murder and misconduct while holding a firearm. He was not charged for smoking a waterpipe.
The law also prohibits selling tobacco to persons under the age of 18. It prohibits virtually all forms of advertising and promotion of tobacco products. Tobacco sponsorship and the publicity of such sponsorship is also restricted.
Text-only health warnings must cover 30 percent of the front and 50 percent of the back of a package and must be displayed in English and Kiswahili. Misleading packaging and labeling, which include terms such as light and low tar, are prohibited.
Regulating cigarette content
The law empowers the authorities to regulate the contents of cigarettes. However, no subsequent regulations have been issued. The law requires that manufacturers and importers disclose to government authorities information on the contents of their products.
Recently there has been discussions on how e-smoking is gaining popularity among teenagers. According to Centers for Disease Control and Prevention (CDC), most e-cigarettes contain nicotine. Nicotine is highly addictive and can harm adolescent brain development, which continues into the early to mid-20s. The retail sale of e-cigarettes is allowed.
There are however no restrictions on the use, advertising, promotion and sponsorship or packaging and labeling of e-cigarettes in Kenya.
Other topics addressed by the law include: public education and information campaigns, sales to minors and enforcement of the law. The Tobacco Control Act, 2007 powers public servants appointed under the Public Health Act, to enforce the law.
British American Tobacco Kenya (BAT) has unsuccessfully challenged the regulations and its appeal is currently pending before the Kenya Supreme Court.
What journalists should do:
- Read and familiarise yourself with the contents of the Kenya Tobacco Control Act 2007 and the Tobacco Control Regulations, 2014.
- Check the smoking zones in your area to confirm if smokers follow the law. Also find out if those who break the law have been arrested.
- Check the data of the Ministry of Health to find out the number of tobacco related deaths in Kenya.
- Talk to representatives at the Ministry of Health to find out why the tobacco laws are ignored.
- Talk to county councils to find out how they plan to protect their employees, who work at public toilets assigned as smoking zones.
- Visit courts and find out, if people have been charged with tobacco related cases. Educate your audience on the state of existing cases.