Why Mailu’s Shisha Ban is Illegal

Cabinet Secretary Cleopas Mailu has purportedly banned Shisha in the country. The legal tool he used to do so, is the same provision that empowers him to deal with outbreak of rats. The move is irrational. For Externalities are better dealt with using Pigouvian taxes than command and control tools.

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Shisha smoker. Photo:Courtesy

By gatuyu tj

Health Cabinet Secretary Cleopa Mailu, through the Legal Notice No 292 of 2017, recently banned any form of dealing and consumption of Shisha, a tobacco concoction. Granted, it is the responsibility of the government to protect and promote public health.

However, this mandate ought to be exercised within the ambit of the law and hinged on appropriate public policy. Unfortunately, the move by CS Mailu, however well intentioned, raises numerous legal issues that cast doubt on its validity and policy questions that cast aspersions on its appropriateness.

Defective Legal Notice

In effecting the ban, CS Mailu invoked the rule making powers conferred to him under section 36 of the Public Health Act (the Act). On closer look, this section empowers the CS to make rules only when a part of the country is threatened by any formidable epidemic, endemic or infectious disease.

Such rules would be, among others, serve purpose of dealing with issues such as speedy interment of dead, disinfection and guarding against spread of a disease, removal of corpses, removal of persons suffering from infectious diseases and persons who have been in contact with such persons, and destruction of rats. A clear intendment of the provision was to provide mechanisms for handling health emergencies.

Even the generic sub-section 36(m) of the Act specifically invoked by CS provides its purpose as “…for prevention, control and suppression of infectious disease.” It is surprising how CS Mailu would equate consumption of Shisha to an outbreak of infectious disease or an endemic contemplated under this section. This is a very strained interpretation of a statutory provision and the CS may have misaddressed himself on the issue.

There are statutes in the legal regime that CS Mailu may have invoked to offer his ban more validity. Perhaps, he would have implemented the ban by invoking the rule making powers conferred to him by the Narcotic Drugs and Psychotropic Substances (Control) Act, a law that deals with control of the possession of, and trafficking in, narcotic drugs and psychotropic substances.

A keen eye will notice that CS Mailu Rules may have some errors. For instance, the rules provide a general penalty for persons contravening them to be one outlined under section 163 of the Act. Section 163 only deals with powers of entry and inspection of premises. The drafters of the rules meant Section 164, which provides for a general penalty.

This may look like a small and minor error not affecting the underlying substance. True, but it reveals a lot, on the un-consultative nature of the process the rules were made, making it possible for such errors to go unnoticed. It indicates the rules may have been conceptualized, made and validated in closed boardroom doors. The opinion and input of the general public was not sought.

Public Participation

Yet, Public participation is the cornerstone of our democracy. It is a guide for legislative and policy functions of government. It is a national value and principle under Article 10 of our Constitution. It avails an equal opportunity for people to participate in decision making process, to enable them share their facts, experiences, ideas, fears, hopes and opinions.

The Kenyan courts have asserted as much. In Robert Gakuru & others v Governor Kiambu County & 3 others (2014) Eklr, it was stated any process for legislative enactment must be backed by real, not illusionary, public participation. The new constitutional order has brought to an end an era where state officers would issue policy prescription, like religious edits from pulpits. CS Mailu Rules, revealingly, did not benefit from public input and this puts them in a check mate position.

The ban was informed by an advisory from World Health Organisation. If the product has adverse health effects, with negative externalities, government is always compelled to intervene, to correct the externalities and prevent market failures. The issue is whether employing regulations was the appropriate policy tool of correcting negative externalities from Shisha usage.

History offers us precedents and lessons. In 1920, United States, moved by pietistic Protestants, banned alcoholic beverages in the eighteenth amendment to their Constitution. The ban failed, for it was hard to implement. It made trade the alcohol trades go underground, increasing enforcement costs. What can be learnt from this event is that regulations cannot always substitute personal responsibility.

Pigouvian taxes over command and control

It is why the best approach of correcting such negative externalities, as those resulting from Shisha usage, is by compelling the National Treasury to levy Pigouvian taxes, (popular in Kenya as ‘sin taxes’) on this trade. Pigouvian taxes are more appropriate tools as it deters consumption by imposing a huge cost.

Users pay for harm they cause to themselves and others by contributing towards provision of public goods such as universal healthcare, which result to a net social welfare and achieves better results. It is the approach used to deal with alcohol and other tobacco products.

Lastly, when government officials are making regulations or public pronouncements, they should be mindful of private property rights and not to discourage investment efforts through abrupt decisions.

Uncertainties in the legal environment, lowers political credibility which discourages investors. CS Mailu ban did not show reverence for property right. Otherwise, he would have set a future effective date to his Rules to offer opportunity on those who have invested in the sector to divest. This is not a good trend. Recently, bar owners in central Kenya suffered huge losses from orgy of officially sanctioned destruction on pretense of fighting illegal brew.

We need to create a predictable legal system, where the laws are stable, clear and discretionary powers of state bureaucrats limited. Policy decision should be hinged on appropriate law and sober public policy. For CS Mailu’s Shisha ban, fortunately, the country has an independent judiciary. It will make an appropriate determination.

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