by Elizabeth Kabari
On 28th December 2017, the Public Health (Control of Shisha Smoking) Rules were gazetted and came into force. These rules effectively banned the manufacture, importation, sale, and use of shisha by criminalising these acts. Anyone found doing any of the above shall, upon conviction, be liable to pay a fine of not more than KES 50,000 or be imprisoned for a term not exceeding 6 months, or be made to pay the fine and serve the sentence. If you continue to repeat any of the above offences, you also get fined KES 1,000 for every additional day you continue to break the law.
The rules were made by the Cabinet Secretary for Health, Dr. Cleopa Mailu. The CS explained that the rules were made to protect public health – he claims that, in addition to being harmful in itself, shisha is a gateway to other drugs such as heroin. He therefore made the rules pursuant to his power under the Public Health Act, specifically Section 36(m).
These rules have caused a lot of uproar both online and offline, with former Chief Justice Willy Mutunga tweeting that the ban “smirks of hypocrisy and dictatorship” and shisha traders moving to court to get the ban lifted. However, what I find most striking about this ban is that it shows that the government still doesn’t fully understand how devolution works. Here’s why:
Eight years ago, Kenyans adopted a new constitution. It was hoped that this constitution would usher us into a new era of citizen-centred governance which focused on human rights, true democracy and equitable distribution of resources. To this end, a key element of the new constitution was devolution; that is, the separation of the government into two levels: the county level and the national level. Powers and functions were then divided between these levels so that we can improve the delivery of public services to wananchi and enable Kenyans to effectively govern themselves.
One of the functions that was devolved was health. The Fourth Schedule of the Constitution devolved health as follows: the national government was tasked with creating health policies and managing national health referral facilities (that is, Kenyatta National Hospital and Moi Teaching and Referral Hospital). The county government was tasked with managing county health services which includes all other hospitals and pharmacies, ambulances, primary healthcare etc. The counties were also tasked with controlling drugs and pornography.
The transfer of the function of health from the national government to the county governments was completed in August 2013. However, to date, many of the laws which existed before 2013, have not been amended to reflect the changes brought on by devolution.
The Public Health Act is one of these laws – it still has provisions that are not in line with the Constitution and therefore have no force in law because the Constitution supersedes all laws. Unfortunately, Section 36 of the Public Health Act is one of these sections. It empowers the CS to make rules where “any part of Kenya is threatened by a formidable epidemic, endemic or infectious disease.”
The function of preventing epidemics is a part of primary healthcare which makes it a county government function. This means that the powers given to the CS under Section 36 are, in this new constitutional dispensation, not actually his to exercise. The only power the CS has is the power to create policy (not law) to guide counties on how they should deal with such diseases.
Even if the above was not the case, and prevention of epidemics was a national function, the rules would still have been based on shaky legal ground. This is because Section 36 of the Public Health Act applies to formidable epidemic, endemic or infectious diseases. To clarify which diseases these are, the Act provides a list. They include smallpox, plague, Asiatic cholera, yellow fever and sleeping sickness or human trypanosomiasis (basically, serious diseases that are be passed by air, contact, being bitten/stung etc).
The diseases caused by shisha include cancer, heart disease and respiratory problems. None of these are diseases that the Public Health Act considers formidable epidemic, endemic or infectious diseases. Therefore, they are not covered by the powers given to the CS in Section 36.
The purpose of the rules, as their title succinctly puts it, is the “control of shisha smoking.” The rules then proceed to define shisha as “…tobacco products that may be flavoured or unflavoured…”. As we all know, tobacco is a drug. In a nutshell, the purpose of the rules is to control a drug. Control of drugs, as we’ve already seen, is a county function. The Cabinet Secretary cannot perform it. The most he can do is issue a policy to guide the counties on how the they should tackle the issue.
Despite all these legal barriers, the rules were made and gazetted into law. Consequently, we now have a law that has been passed by an organ of government that had no power to pass it, which regulates a matter that the organ has no power to regulate. This puts us, as a country, in a very confusing place: do these rules have the force of law? Are we bound by them? Assuming someone is arrested for manufacturing, selling or smoking shisha, can they be tried?
Hopefully, the courts shall answer these questions and give us a precedent for how we should proceed when such circumstances arise (because they surely will). Until then, it seems we’re confined to a life without shisha.
Elizabeth is an advocate with a passion for human rights and a love for research and reading.