Kenya, as a Party to the World Health Organization’s Framework Convention on Tobacco Control (WHO-FCTC) has obligations to implement the strategies and recommendations provided in the Framework in order to protect the public from the devastating health, environmental and social-economic effects of tobacco production and consumption. As such, Kenya domesticated the FCTC through enactment of the Tobacco Control Act (TCA), 2007 which set forth a legislative framework covering various key issues in tobacco control and prescribing measures to protect Kenyans from the harms of tobacco. More than a decade later after enactment of the tobacco control law, Kenya as a country still lags behind on a few issues that are critical for effective tobacco control as a public health agenda that if not addressed quickly could impede realization of the Universal Health Coverage (UHC) goals.
The first pending issue is the ratification of the Protocol to Eliminate Illicit Trade in Tobacco Products (also known as Illicit Trade Protocol- ITP). This is a Protocol to the FCTC that was adopted by the Conference of the Parties to the FCTC at its fifth session (COP 5) in Seoul, Korea in 2012. The Protocol seeks to eliminate all forms of illicit trade in tobacco products in line with Article 15 of the FCTC by establishing a range of measures to prevent illicit trade, promote law enforcement and provide the legal basis for international cooperation to strengthen tobacco control interventions in countries. Kenya signed the Protocol in May 2013 but is yet to ratify. In December 2018, the National Assembly unanimously adopted the proposal for Kenya to ratify the Protocol thereby setting stage for the Ministry of Foreign Affairs to complete the process of depositing signed instruments to the relevant United Nations agency. This came after more than five years of advocacy by tobacco control actors in the country for Kenya to complete the process by ratifying the Protocol.
The delay in ratification of the Protocol is a setback to the country to effectively address illicit tobacco trading which subsequently affects tobacco control measures towards protection of public health. Globally, Kenya is considered a leader in control of illicit trade in tobacco products through the Excisable Goods Management System (EGMS). Ratification of the Protocol therefore, will form a basis for stronger policy and legislative framework for the control of illicit trade in tobacco products in Kenya; and complement current efforts of the government in controlling illicit trade in tobacco products through the EGMS. Further, it will give Kenya a voice in the global discussions as the world sets the foundation for implementation of the Protocol.
The second issue that is critical to effective tobacco control is the pending court judgement on a petition against the Tobacco Control Regulations (2014). These Regulations were challenged in court by the industry in 2015 and have since gone through a long battle through the various ranks of courts and is now awaiting judgement at the Supreme Court. We are deeply concerned that five years down the line the case is yet to be concluded.
The Regulations are critical in facilitating effective implementation of tobacco control in the country as they give guidance on key areas such as operationalization of the Tobacco Control Fund, application of Graphic Health Warnings (GHWs) on tobacco products, public-tobacco industry interactions, protection against exposure to second hand tobacco smoke among others. The delayed judgement on the Regulations therefore is an obstacle as it holds back effective implementation of tobacco control and protection of public health as envisioned in the Constitution of Kenya (2010) and UHC goals.
In the recently launched National Tobacco Control Strategic Plan 2019-2023 by the Ministry of Health, both the ITP and Tobacco Control Regulations have been recognized as critical to achievement of the Strategic Plan’s goals as well as protection of public health in the country.
We therefore call on government to act on its obligations to the FCTC to protect public health by fast-tracking ratification of the ITP and delivering judgement on the Tobacco Control Regulations.
By Celine Awuor