Rachel Kitonyo works with the Institute for Legislative Affairs-Kenya in Nairobi.
Thank you Rachel for taking the time to be with us.
May I ask you to introduce yourself by telling us a little about your personal background (education, professional experience) and when, how and why you got involved in tobacco control?
Rachel Kitonyo: I am a lawyer by profession. After graduation I worked for 1 and ½
years as a court room lawyer handling civil litigation in the areas of
commercial and personal injury law before leaving practice to establish
the Institute for Legislative Affairs (ILA).
I have worked for ILA for 4 years now. I have also had some experience with political parties and processes when I volunteered at the secretariat of one of the leading political parties in Kenya for one year.
ILA offers technical assistance to policy makers and legislators
through conducting research, drafting legislation, lobbying and public
education on upcoming legislation. The Kenyan Tobacco Control Bill was
the first law we picked when we were starting in 2004.
We picked this Bill because we noticed that it was facing a lot of opposition within government and the help of lawyers was required to get it enacted.
At a personal level I also have two siblings who smoke and the desire to help them quit and prevent others taking up the habit gave me a personal interest in the Bill.
We reviewed the governments draft Bill and found it was very weak in terms of complying with the FCTC so we drafted amendments and lobbied government to incorporate them into the draft. When this proved difficult, we found a member of Parliament who was interested in moving a Private Members Bill and used him to bring a second bill to Parliament.
After one year of two competing Bills, Parliament suggested we merge the government and private bill which we did in 2006. The Tobacco Control Act 2007 was enacted in October 2007. Along the way we have helped defend tobacco control legislation from court challenges by the tobacco industry and participated in public education and awareness campaigns as well as training of enforcement officers.
Q1. Can you tell us how tobacco control advocates are organized in Kenya?
Rachel Kitonyo: In Kenya tobacco control advocates can be divided into two: government and civil society. Within government we have the Ministry of Health (Non Communicable diseases division) being the focal point for tobacco control within government.
There are several civil society organizations involved in tobacco control largely along thematic lines such as those involved in public education and awareness, lawyers like ILA, medical groups like the Kenya Medical Association and so on.
We also have a national alliance (the Kenya Tobacco Control Alliance KETCA) which was formed in 2006 to act as an umbrella body for civil society organizations involved in tobacco control in Kenya. KETCA currently has 12 paid up members and we hope to increase this number to 30 over the next two years.
We also have the National Tobacco Free Initiative Committee which consists of both government and civil society representatives.
The Kenya Tobacco Control Situational Analysis Consortium is composed of 11 persons drawn from government, civil society organizations and research institutions. Our goal is to map the current status of tobacco control in Kenya and identify short and long term interventions required to deal with the tobacco epidemic in Kenya.
The analysis involved 2 phases, being the Baseline Assessment which we carried out between April and July 2008 and the situational analysis which we will start in November 2008. Our baseline assessment identified several opportunities for tobacco control in Kenya as well as a lengthy list of required interventions.
Due to the large number of items on our list, we have narrowed the
focus of our situational analysis to the enforcement of smoke free
legislation in Kenya.
This is because as a country we are good at passing law and weak at enforcing it.
We will be seeking to understand the political and public environment affecting enforcement of smoke free legislation generally and carrying out a campaign to get Nairobi Smoke Free. We hope that the lessons we learn can be extrapolated to other cities in the country and possibly other countries in Africa who are at the same stage of development as we are.
We also hope to recruit more organizations and individuals into tobacco control as well as build capacity within civil society and engage them in the enforcement of our legislation. We shall therefore have a range of activities between collection of information, mapping and meeting with various policy makers and interest groups and a public education campaign on ‘Why Smoke Free’ centered around our schools and popular recreation spots. This is because prevalence is rising among children of school going age and the areas where smoking is still going on in public despite the legislation are entertainment spots.
ILA is hosting the Consortium since the Consortium is not a legal entity but a group of various organizations and individuals involved in tobacco control.
Q2. The high court in Nairobi has suspended the new law after an application by 2 firms Mastermind Tobacco and multinational British American Tobacco (BAT) Kenya Limited until the matter is heard. Can you tell us about the law, this lawsuit and what is happening now?
Rachel Kitonyo: I would like to make a small correction. The suit you are referring to was filed against enforcement of regulations banning smoking in public places. These regulations which were enacted in 2006 have since been overtaken by events with the enactment of the Tobacco Control Act 2007.
As tobacco control advocates we are very excited that Kenya is one of the few countries to enact comprehensive legislation. Our Act covers most areas of the FCTC ranging from creating smoke free public places, banning advertising, promotion and sponsorship, warning labels, taxation, providing for viable alternative economic activities, preventing sales to minors, providing for disclosure and regulation of contents and research and public education.
However, the Tobacco Control Act 2007 has then been challenged in court by the tobacco industry seeking to have it declared unconstitutional. There are 2 suits currently in court, one filed by Mastermind Tobacco Kenya Ltd and the other by Bridgeways Logistics Ltd (a fresh entrant into the Kenyan market). Both suits essentially attack the comprehensive ban on advertising, promotion and sponsorship alleging that it infringes the right to commercial expression. BAT is not part of the latest cases.
Institute for legislative Affairs has been enjoined as an interested party and is also assisting the Attorney general with the defense of the two cases. We have received a lot of support from the Tobacco Free Kids International Legal Consortium and we wish to thank them for their assistance. Currently, we have filed Replying Affidavits and are in the process of filing written arguments. The suits come up for mention in mid October to enable the taking of hearing dates. The industry attempted to seek a stay of the Act pending determination of the suits but were unsuccessful.
Our law does not allow Acts of Parliament to be stayed pending determination of constitutional cases filed challenging them. Until a ruling is delivered which we expect not earlier than February next year, we are free to continue implementing and enforcing the Act and public education campaigns have started.
Together with the government and the members of KETCA, we are developing regulations under the Act and preparing to train enforcement officers. We are also rolling out a media campaign to generate positive press and support for implementation of the Act.
Q3. We read about recent raises in cigarettes prices and taxes in Kenya, along with similar moves in Uganda and Tanzania. How do you assess present the level of prices and taxes for cigarettes? Is smuggling a substantial problem?
Rachel Kitonyo: Though there have been regular tax increases of 10% each year for the last three years, they have not been large enough to cause a substantial change in the cost of cigarettes. This is because of two reasons, one is that we have not yet conducted a study to establish the price elasticity of demand and determine the optimal amount by which we should raise the tax in a manner that will affect the real price of the cigarette. Secondly, the tobacco industry has been absorbing some of the increased cost of the cigarette due to the raise in tax.
Primarily, the Ministry of Finance has been raising the tax purely from a revenue perspective and not necessarily from a tobacco control perspective. We need to lobby for a raise that is steep enough to cause a large change in cigarette prices. Cigarettes are still cheap with a packet of the cheaper brands (20 sticks) costing slightly less than a dollar.
Due to price differentials across Kenya, Uganda and Tanzania, there is smuggling especially of Mastermind’s Supermatch brand between Kenya and Uganda and some smuggling between Kenya and Tanzania and Uganda and Tanzania.
The worst affected is Uganda with Kenyan cigarettes ending up in Uganda. Unfortunately, the extent of the smuggling is not well documented on the Kenyan side, though the Kenya Revenue Authority has conceded that it is a problem.
The Ugandan Revenue Authority has taken the matter more seriously and within the last year there have been several newspaper accounts of arrests of smugglers at the border between Kenya and Uganda. As a region, we need to raise taxes uniformly to eliminate the price differentials as well as implement the marking of cigarette packages to enable identification of origin and destination. Kenya is already doing this through the Tobacco Control Act.
Q4. You recently attended a meeting in Abuja where African tobacco control advocates wished for the creation of an African Tobacco Control Alliance. You are among the persons in charge of drafting the statutes of such an organization that should be launched during COP 3. Can you explain what you have in mind for such an alliance and how it could be structured?
Because of linguistic and regional economic differences, African civil society have not worked together much as a single unit. We have also not engaged political and economic regional organizations and our governments as a unit yet many opportunities are presented by NEPAD, the African Union and regional trading blocks.
We also struggle to get resources to fund tobacco control because our governments do not see it as a development priority and many funders do not see us as a funding priority since our prevalence levels are lower than certain regions like Asia.
As a result, the tobacco industry has relocated to Africa since very few countries have or enforce legislation/tobacco control measures. In addition, the prevalence rated as low is steadily rising especially among youth and women. As our governments deal with malaria, tuberculosis and AIDs, the monster of tobacco is silently growing.
As civil society, what we have in mind is a forum that can cut across our linguistic and regional differences to enable us focus on common issues like the linkage between tobacco and poverty/lack of development in Africa.
We want to speak in one voice to our governments and get tobacco control on the development agenda, we want to speak with one voice to the donors so that they allocate funds to African tobacco control based on our priorities. We want to build and share capacity and expertise (there has been a lot of North – South sharing and we want to do some South – South sharing).
We also want to ensure that all our countries have ratified and are implementing the FCTC. We want to collectively prevent a tobacco epidemic in Africa.
In terms of structure, we are aware that there are already subregional alliances and we want those to continue even as we encourage those regions without alliances to form them. However, we want an umbrella body that can bring all the countries and regional alliances together. We are therefore looking at structure in 3 ways:
A general assembly where representation is by country
A coordinating committee that is representative by gender, language and region
A secretariat to coordinate regional activities and provide liaison
Subregional and country alliances
Q5. There are a number of different organizations providing support to African tobacco control advocates: the Bloomberg Initiative (via TFK, FCA and WHO), ATCRI (with the support of ACS and Cancer Research UK), IDRC (with the support of the Gates Foundation), etc. How do you assess the cooperation between those groups and what do you expect from them? What is needed most? Aren't certain countries more supported than others?
Rachel Kitonyo: We are aware that the groups share information as to what each of them are doing and what they are supporting. However, our feeling is that very often they already have a predetermined agenda/set of priorities and do not consult us adequately so as to match what we really need with what they are offering. As a result, we sometimes tailor our proposals to match their priorities and some of our priorities that do not quite fit their agenda remain unattended to.
An understanding of the unique African context – by this I mean an understanding that though commitment and passion are high, capacity is low and therefore more funding and assistance to build capacity before wanting results is required. We are looking at capacity such as technology, access to information, skills in proposal writing, program development and donor accounting, skills in using media and lobbying, message development, effective advocacy etc.
An understanding that things (like political systems, cultural norms) do not operate in Africa the way they do in the west.
An understanding that language is often a barrier
Some level of consultation – by this I mean consultation on program priorities, consultation on who the real tobacco control advocates are
A mix of funding between small seed grants for organizations starting out, funding for capacity building, large grants where appropriate, core funding for sustainability of organizations and rapid response funding for emergencies (which tend to be rather common in Africa)
Less bureaucracy and paperwork – we would appreciate simpler procedures for applying and reporting
With regard to what is needed most:
Human resources – we need a certain amount of people who work on tobacco control fulltime for sustainability. As it stands, most African NGOs run multiple projects in different issues to make ends meet. One way out of this is where there is a national alliance and the coordinator is paid as a full time worker.
I agree that some countries and organizations get more funding than others. The funders are not necessarily to blame. African tobacco control advocates must take initiative to develop skill and expertise, to reach out to others and speak as one voice. However, deliberate effort must be made by ATCA, other alliances and maybe FCA to identify where both resources and personnel are low and build their capacity.
Q6. Is there anything else you would like to add?
Rachel Kitonyo: I would like to urge us all to arrest the epidemic in Africa while we still can. Let us take advantage of COP3 being in Africa to get serious commitment from our governments on tobacco control.
Thank you Rachel.