Efforts to Write Tobacco Control Laws Meet Resistance in Kenya

Efforts to Write Tobacco Control Laws Meet Resistance in Kenya

By Florence Machio

 

Lucy Achieng is lucky to be alive after she quit smoking 14 years ago. Achieng, a 46-year-old mother of three and a manager at a local company in Nairobi, says there is nothing glamorous about smoking. According to her, smoking is enslaving. “I remember waking up once at midnight and shaking uncontrollably, picking all the stubs that were in the ashtray and trying to smoke them,” she says. “That’s when I realized I was a slave to tobacco. I couldn’t believe what my sixteen years of smoking had reduced me to….”

Achieng chose to buy a pack of cigarettes and torture herself until she could light a cigarette no more. She is lucky because she hasn’t smoked since that night, but most smokers are not so lucky. Although there are myriad tobacco control measures that contribute to smoking prevention, scientific evidence suggests that the most effective way of reducing the burden of disease caused by tobacco is to increase taxes on it.

Five million smokers will die this year if current smoking patterns continue, according to the World Health Organization (WHO). Tobacco-related deaths are the fastest growing cause of death in low- and middle-income countries, on par with the HIV/AIDS epidemic.

According to Prabhat Jha, one of the editors of the comprehensive public health guide, Disease Control Priorities in Developing Countries, 2nd edition (DCP2), published last year: “evidence has it that [tobacco] tax is underused in developing countries.” Speaking at the launch of DCP2 in Beijing, China, in April 2006, Jha added that tobacco control could prevent three million deaths annually by 2030 if taxes were increased by 70 percent worldwide.

Tobacco Control Policies

Although price increases are the most cost-effective approach to controlling tobacco consumption, this public health measure is grossly underutilized according to DCP2. However, in many cases, the reasons for underutilization are complex and multifaceted, as demonstrated by Kenya’s many efforts to establish tobacco control laws, efforts that have not yet borne fruit.

To reduce the millions of tobacco-related deaths around the world, the WHO long ago initiated efforts to support developing countries with tobacco-control measures. The Framework Convention on Tobacco Control (FCTC) entered into force in February 2005, and 148 countries have become party to it, including Kenya. This framework encourages member states to implement tobacco control policies and laws that address smuggling, advertising, and treatment of tobacco addiction.

Evidence from tobacco industry documents, however, reveals that tobacco companies have operated for many years to deliberately subvert the efforts of the WHO to control tobacco use. The attempted subversion has been elaborate, well-financed, sophisticated, and usually invisible.¹

Because of this significant opposition, the WHO subsequently constituted the Tobacco Free Initiative (TFI) to provide structured assistance to countries in adhering to the FCTC. A key component of the initiative is to monitor the tobacco industry and inform member countries of industry practices.

DCP2 findings support the need for assistance like that of the TFI in establishing tobacco control measures: “Funding is needed not so much to implement programs as to fight off tobacco industry tactics and to build popular support for control… the most obvious constraint to tobacco control is political opposition, which is difficult to quantify. Opposition from the tobacco industry is well organized and well funded.”

Advocates for tobacco control in countries like Kenya have yet to fully understand the tobacco industry’s practices and therefore have not been able to put crucial tobacco control policies in place.

The Bumpy Road to Implementation

Kenya first published a legislative bill to be tabled in Parliament in July of 2004, but then withdrew it. “We realized that it was not in conformity with the FCTC which we had ratified in the same year… the bill was not comprehensive enough,” says Dr. Ahmed Ogwell, head of International Health Relations at the Ministry of Health. In 2006, a second bill was proposed that failed to go through Parliament. According to Ogwell, who is in charge of all the health treaties that Kenya signs, “The 2006 [bill] sought to regulate the tobacco industry, including taxation and advertising bans on tobacco products.”

According to Gor Sunguh, a member of Parliament who has been a firm advocate for tobacco control in Kenya, the tobacco industry players employed tactics to delay the legislative process in the 2006 August house. Interviewed days before the bill was to be read in Parliament Sunguh had this to say, “The industry has tried to compromise members of Parliament, it has donated money to government, and this, I believe, is their way of ensuring that the pending tobacco control bill will not survive before close of Parliament in 2006.” The bill did not survive.

In fact, British American Tobacco Kenya Ltd. (BATK)—the largest cigarette manufacturer in East and Central Africa—and Mastermind Tobacco (Kenya) Ltd. funded a retreat in 2006 for over 40 members of Parliament at an exclusive resort in Kenya’s coastal city of Mombasa when the Health Ministry first introduced the tobacco control bill in Parliament. BATK also gave the government Ksh250,000 (US$3,676) towards a presidential award scheme. This, according to Sunguh, was one way the tobacco companies are influencing government.

According to recent research carried out and published in Tobacco Control, a publication of the British Medical Journal, the Kenyan government has had a longstanding stake in (BATK) as its second largest shareholder with a 20 percent of the shares.²

As early as 1984, an article in Social Science and Medicine predicted that few anti-tobacco measures would be possible in Kenya as BATK’s influence, related government support, and perceived benefits to the economy grew.³ Over the years, as the Ministry of Health has advocated for tobacco control measures, the government’s conflict of interest continues to create roadblocks and challenges to legislative options.

In addition, the Ministry of Health has made several separate attempts to ban smoking in public places. Minister Charity Ngilu, by use of a gazette notice (a legislative supplement), banned smoking in public places in early 2006 only to be met by resistance from the tobacco industry players by means of a lawsuit. The gazette notice, which defined public places and required tobacco companies to increase the size of the warning “tobacco kills” to half of the cigarette pack, is now in court awaiting the chief justice’s ruling.

All is Not Lost

However, taxation does not necessarily have to wait for legislation to pass. It could be integrated within the budgetary process. That’s why Sunguh still has hope. “All is not lost. I am not going to rest so long as I am in Parliament,” he says. Sunguh wants to use the finance committee which is now discussing the next budget to see whether Parliament can triple taxes on cigarettes.

Sunguh’s theory of increasing taxes is supported by DCP2. The report states that nearly all governments tax tobacco to generate revenue, and as awareness of the dangers of smoking grows, governments are increasingly using tobacco tax policy to raise the cost of the habit and discourage the use of tobacco. In some cases, countries have even earmarked tobacco taxes to finance health programs aimed at reducing exposure to tobacco.

Although Kenya has yet to complete research that shows how many people have been affected by tobacco, taxes aimed at raising the cost of smoking seem to be the most cost-effective way to reduce smoking while at the same time earning the government some much-needed revenue.

Working with the Tobacco Control Alliance, a small Kenyan nongovernmental organization, the Ministry of Health participated in a November 2006 workshop with experts from South Africa to understand the economics of taxation and tobacco control and make it a win-win situation for the government.

The workshop brought together tobacco control advocates from Kenya, Uganda, and Tanzania who have since formed the East African Community that seeks to unify the three countries economically. Since the three countries’ budgets are read at the same time each year, the advocates hope to influence their ministries of finance to increase taxes on tobacco products. “As we await the outcome of the bill, we are doing what DCP2 clarified for us in terms of taxation and tobacco control,” Ogwell explains, adding that the report “gave us a push in terms of providing evidence where the principle of taxation has worked. We just need time to gather and consolidate evidence to indicate that it can work for us as well.”

For Kenya, DCP2 could not have come at a better time. During the launch in Nairobi, in April 2006, it gave the ministry a shot in the arm as it accelerated debate on the ban on smoking and on the bill that was about to be introduced in Parliament.

It has also given the Ministry of Health in Kenya the impetus to fight the tobacco industry. This is echoed by Ogwell. “DCP2 made suggestions, and then we have gone a step further and involved South Africa because they have laws in place. We want to borrow from closer to home and see how we can influence taxation whether the bill goes through or not,” says Ogwell. He added that the ministry is now collecting information and evidence in support of taxation to provide to the Ministry of Finance for the budget process, following the approach spelled out in DCP2.

While the tobacco bill awaits reintroduction to Parliament in 2007, Achieng, Sunguh, and Ogwell all would like something to be done. Each in his own way is pushing for taxation on tobacco products as an immediate measure. But as politics prevents the comprehensive tobacco control bill from sailing through, Kenya’s hope lies in the DCP2 ‘best health buy’ of increased tobacco taxes. For anti-tobacco advocates, the battle has just begun in convincing the ministry of finance to increase taxation on tobacco come budget day in June 2007.

Even though Achieng has not smoked another cigarette since that night 14 years ago when she quit, she is still fighting tobacco. She believes that smokers want to quit, but without cessation programs, it is very difficult for many to do so. However, she is concerned about the need for an immediate way to deal with the tobacco industry. “If the [tobacco] bill doesn’t go through and if taxation will mean money for cessation programmes, I will sleep in peace,” she says. “There is nothing glamorous about smoking, yet that is the picture that the tobacco industry plays, and if taxation will give our government more money to help smokers then I support it fully.”

 

Florence Machio is a freelance journalist in Nairobi, Kenya. She is the regional coordinator for Africawoman, a regional newspaper that looks at Africa from an African woman’s perspective and makes available a platform for news that will bring change by targeting policymakers. Ms. Machio is also the chairperson of the media and advocacy committee of the Reproductive Health Rights Alliance, a network that seeks to focus policy change in Kenya on women’s health.

 

¹World Health Organization (WHO), The Tobacco Industry Documents,accessed online at http://www.who.int/tobacco/communications/TI_manual_content.pdf, on 15 May 2007.
²P. Patel, J. Collin, and A. Gilmore, “"The law was actually drafted by us but the Government is to be congratulated on its wise actions": British American Tobacco and public policy in Kenya.” Tobacco Control.16 (2007): e1
³Currie, K., and Ray, L. “Going up in smoke: the case of British American tobacco in Kenya.” Social Science and Medicine 19, no. 11 (1984)1131-9.