COMMENT: Tobacco worse than terrorism

In Uganda some rights under the constitution are not absolute. It should be noted that, every Ugandan has a right to a clean and healthy environment. This is not only provided for in the constitution but also in the Tobacco Control Act 2015. It is also our law that, in the enjoyment of the rights and freedoms, no person shall prejudice the fundamental or other human rights and freedoms of others or the public interest.

The British American Tobacco has not denied that the tobacco products have negative effects not only to the consumers but even to the innocent persons who become passive smokers by inhaling second-hand smoke. Therefore, there are public health needs that have to be balanced against the intellectual property rights of the tobacco industry. This requires demonstration that societal need for the limitation outweighs the individual right to enjoy the rights to intellectual property.

It was also considered that BAT’s argument of being a heavy tax  payer is diluted by the fact that what it pays (in taxes)  is cancelled out by the fact that the health sector uses up to three times the amount to mop up the negative effects of tobacco use. That if government earns a dollar from the tobacco industry, it must prepare to use three dollars to treat illnesses from tobacco use and that BAT should be alive to “the polluter pays” principle. Uganda has an already ailing health system with minimal resources, facilities, goods and services. The Uganda Cancer Institute, for example, is already struggling with many patients and the treatment is inadequate. It is inconceivable, therefore, that the government can allow tobacco traders to continue to reap from the misery engulfing the health of all Ugandans.

The Kenyan appellate court discussed that BAT is in a peculiar position as its products have already been associated with a multitude of serious diseases as well as posing serious health risks to the partakers of the tobacco products and the addictive nature of the products. Due to this, the tobacco industry cannot be compared to manufacturers of other products. Players in the tobacco industry must not be given equal treatment with other industries due to harmful effect of tobacco products. The state is under obligation to protect the health of its citizens, both consumers and non-consumers of tobacco.

The Kenyan court concluded that, the ill effects of tobacco products cannot even be equated with the threat of terrorism because they are worse.

The Kenyan Court’s ruling therefore, sends a strong message that BAT’s legal claims are without merit and that tobacco industry interference in laws to improve public health should not be tolerated. The ruling also has implications for other African countries, including Uganda, where tobacco companies might interfere in efforts to pass and implement public health policies intended for tobacco control.

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David Kabanda is a lawyer practicing Health Law at the Center for Health, Human Rights and Development (CEHURD).