Court Declares Govt's Shisha Ban Unconstitutional
The courts ruled on the ban while setting free 48 persons who had been arrested and charged for selling and smoking shisha in January 2024.
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The Shanzu Law Courts in Mombasa has declared the ban on the importation, sale and use of shisha as unconstitutional, setting an unprecedented turn of events following the numerous crackdowns on the drug across the country.
The courts ruled on the ban while setting free 48 persons who had been arrested and charged for selling and smoking shisha in January 2024.
Senior Principal Magistrate Joe Mkutu ruled on Thursday, March 28 that there is "no valid or lawful ban" on the use, manufacture, sale or offer for sale of shisha in the country.
Some of the shisha pots that were recovered in Mirema on March 19, 2024. /HANDOUT
The judge had accused the Cabinet Secretary for Health of failing to comply with a 2018 High Court ruling that directed the CS for Health to regularize the Public Health (Control of Shisha) smoking rules of 2017 by forwarding them to Parliament for approval.
In the 2018 ruling, Justice Roselyn Aburili found that the shisha ban imposed by then Health CS Cleopa Mailu through a gazette notice dated December 28, 2018, was irregular but allowed it to remain in force.
This allowed the Health minister nine months to regularise the ban by following the procedural requirements that included consideration of the ban by Parliament.
Since the requirement was never met, Magistrate Mkutu ruled that the ban ceased to be operational following the lapse of the nine months issued by Justice Aburili.
"In the result, guided by the decision of the High Court and pursuant to the stare decisis, I reach the finding that there is no valid and or lawful ban for the use, manufacture, sale, offer for sale of shisha under the Public Health (Control of Shisha Smoking) Rules, 2027 for the reason that the said rules were not regularised by the Cabinet Secretary within nine months as ordered and directed by the High Court and therefore ceased to have effect upon the expiry of nine months from the date of the decision of the High Court," the Magistrate directed.
The 48 accused persons in the consolidated matters who were arrested for selling and smoking shisha were charged with offences under the Public Health (Control of Shisha Smoking) Rules, 2017 purportedly committed on January 14, 2024.
"There was no valid shisha ban under the said rules at the time and as per the dictates of the Constitution in the Article I have cited above, the respective offences that they were charged with did not exist and no conviction can arise therefrom," Magistrate Nkutu found.
Following the ruling, Magistrate Mkutu directed that the 48 accused persons in the four consolidated files be set free unless otherwise unlawfully detained.
The ruling came amidst a crackdown mounted jointly by NACADA and the police on clubs advertising, promoting and distributing shisha.
NACADA has yet to publicly comment on the ruling by the time of publishing this story.
Earlier this month, Interior Cabinet Secretary Kithure Kindiki declared the advertisement, promotion, or distribution of shisha as illegal with immediate effect.
"The importation, manufacture, sale, use, advertisement, promotion or distribution of shisha is outlawed in the country, any establishment found in breach of this provision will be shut down with immediate effect," Kindiki said.
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