18 February 2017:
The Court of Appeal yesterday upheld the constitutionaity of a law regulating tobacco and requiring warning labels and repulsive pictures.
The ruling was a setback to tobacco manufacturers who said the law was sweeping and unconstitutional.
Three judges dismissed the appeal by the British American Tobacco Ltd, saying the law is constitutional and the limits imposes on rights of the manufacturers is justifiable.
They are Justices Hannah Okwengu, Festus Azangalala and Fatuma Sichale.
The regulation, among many things, prohibits smoking in walkways andstreets, requires specific labelling on cigarette packs. They must include warnings about health risks.
The are required to provide information the industry considers trade secrets.
BAT had sought to reverse a decision by High Court judge Mumbi Ngugi in March last year. Ngugi had allowed implementation of the regulation, saying it did not violate the Constitution.
Yesterday, the Court of Appeal said it is clear the purpose of the regulations in prescribing health warnings through packaging and labelling of tobacco products was to give caution and information to both consumers and non-consumers on the side effects of tobacco.
“We cannot fault the learned judge (Ngugi) for finding that the regulations were in accord with the parent legislation,” held the three judges.
They also defended Justice Ngugi, saying by directing the parties in the matter to resolve the technical issue relating to the picture and pictogram, she did not abdicate her duties as a judge. Rather she provided a channel for parties to sort the issue using expertise, the court said.
The court said the tobacco law imposes a duty on the state to protect other individuals from secondhand smoke. For this reason smoking in streets and walkways is prohibited by the regulation.
The manufacturers had objected to provisions requiring them to provide business information, saying this infringes on rights to privacy.
The court said, however, even where intellectual property rights are limited, that limitation is reasonable and justifiable because they are meant for counteractive measure to control tobacco- related problems.