Mwaura Kabata, Vice President of the Law Society of Kenya/HANDOUT
Over the past two weeks or so, I have noticed media reports detailing dissatisfaction by sections of small business owners from across the country, over concerns regarding the Tobacco Control (Amendment) Bill 2024 currently before the Senate.
The reports point to a lack of public participation as one amongst the key reasons why the small business owners are unhappy with the Bill, which they say threatens their businesses.
A quick read through the Bill’s digest on the parliamentary website points to what looks like a well-intentioned effort to further regulate tobacco and nicotine products, particularly because the Tobacco Control Act of 2007 does not recognise the new and emerging products in the sector, such as vapes and nicotine pouches.
A closer look at the Bill’s progress on the Senate’s tracker, and further review of due process actions, point to a concerning sequence of missteps that could easily lead to its downfall, should they not be addressed.
One stand-out aspect is that the Bill seems to have sailed through Second Reading without the Senate Health Committee’s report - a critical document meant to synthesise public views. Whilst Standing Order 148 technically permits a Bill to proceed if the Committee report is not presented within thirty days of its tabling, this procedural compliance fails to satisfy constitutional requirements.
The provision in the standing orders dangerously relegates public participation to a mere suggestion – seemingly indicating that a report by a Committee (which contains a record of public participation) is a mere formality.
Such a move fundamentally misinterprets our constitutional framework. The Supreme Court, in the recent Finance Bill Case, explicitly recognised that while representatives make legislative decisions, meaningful public participation remains essential for democratic legitimacy.
In 2019, the Supreme Court in the case of BAT against the Ministry of Health and Others opined – and which has since been adopted as the True North of public participation – that public participation must be real and not illusory; adding that "It is not a cosmetic or public relations act... but must be purposive and meaningful." This jurisprudence directly addresses tobacco regulation, making the Senate's procedural shortcuts particularly troubling.
Public participation transcends simply allowing people to speak. It requires genuinely listening to them. The responsibility for ensuring meaningful participation lies with the Senate itself.
As former Chief Justice Willy Mutunga noted in the National Land Commission Case, participation of the people remains a fundamental pillar of Kenya's constitutional history.
The rushed advancement of this Bill creates a worrisome precedent, suggesting that constitutional requirements are malleable in that they are to be adhered to when convenient and circumvented when not. Such an approach fundamentally undermines the rule of law and risks judicial intervention.
When the Senate ignores proper consultation, it places the public and affected stakeholders in a vulnerable position, with a host of unintended consequences. The strength of our democracy is not just in voting every five years but in the continuous back-and-forth between citizens and their representatives.
Our constitution was not created in a vacuum. The passionate debates throughout the constitutional review process saw ordinary Kenyans make it clear that they wanted to be part of the governance process, not simply spectators. This Senate’s handling feels like a step backwards to pre-2010 thinking.
The Senate still has an opportunity to correct its course. The legislators need to hit pause, go back to the people and actually engage with those directly affected by the proposed Legislation.
Sound tobacco control needs clear-headed balancing of societal realities and constitutional rights. Rushing this Bill through without proper public input sets it up for inevitable legal challenges, potentially delaying the societal benefits that the Bill seeks to advance.
Mwaura is the Vice President of Law Society of Kenya
