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Joint national capacity assessment on the implementation of effective tobacco control policies in Kenya

November 5, 2012 World Health Organization

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WHO Library Cataloguing-in-Publication Data Joint national capacity assessment on the implementation of effective tobacco control policies in Kenya. 1.Smoking - prevention and control. 2.Smoking - epidemiology. 3.Health policy. 4.Health promotion. 5.Tobacco - legislation. 6.Tobacco industry - legislation. 7.Kenya. I.World Health Organization. ISBN 978 92 4 150439 3 (NLM classification: WM 290)

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Joint national capacity assessment on the implementation of effective tobacco control policies in Kenya

Table of contents Abbreviations ................................................................................................................................................. Executive summary ...................................................................................................................................... Ackowledgements......................................................................................................................................... 1. Introduction................................................................................................................................................ 2. Coordination and implementation of tobacco control interventions .................................................. 2.1 Policy status and development ............................................................................................................ 2.2 Key findings ........................................................................................................................................... 2.3 Recommendations................................................................................................................................ 3. Monitoring and evaluation ....................................................................................................................... 3.1 Policy status and development ............................................................................................................ 3.2 Key findings ........................................................................................................................................... 3.3 Recommendations................................................................................................................................ 4. Smoke-free environments....................................................................................................................... 4.1 Policy status and development ............................................................................................................ 4.2 Key findings ........................................................................................................................................... 4.3 Recommendations................................................................................................................................ 5. Offer help to quit tobacco use .................................................................................................................. 5.1 Policy status and development ............................................................................................................ 5.2 Key findings ........................................................................................................................................... 5.3 Recommendations................................................................................................................................ 6. Warn people about the dangers of tobacco ........................................................................................... 6.1 Packaging and labelling ....................................................................................................................... 6.1.1 Policy status and development...................................................................................................... 6.1.2 Key findings..................................................................................................................................... 6.1.3 Recommendations ......................................................................................................................... 6.2 Public awareness and mass-media campaigns ................................................................................ 6.2.1 Policy status and development...................................................................................................... 6.2.2 Key findings..................................................................................................................................... 6.2.3 Recommendations ......................................................................................................................... 7. Enforce bans on advertising, promotion, and sponsorship ................................................................. 7.1 Policy status and development ............................................................................................................ 7.2 Key findings ........................................................................................................................................... 7.3 Recommendations................................................................................................................................ 8. Raise tobacco taxes and prices................................................................................................................ 8.1 Policy status and development ............................................................................................................ 8.2 Key findings ........................................................................................................................................... 8.3 Recommendations................................................................................................................................ 9. Elimination of illicit trade in tobacco products...................................................................................... 9.1 Policy status and development ............................................................................................................ 9.2 Key findings ........................................................................................................................................... 9.3 Recommendations................................................................................................................................ 10. Contents of tobacco products and regulation of tobacco product disclosures ............................... 10.1 Policy status and development .......................................................................................................... 10.2 Key findings ......................................................................................................................................... 10.3 Recommendations.............................................................................................................................. 11. Alternative livelihoods/alternative cropping ...................................................................................... 11.1 Policy status and development .......................................................................................................... 11.2 Key findings ......................................................................................................................................... 11.3 Recommendations.............................................................................................................................. Annex 1. List of assessment team members.............................................................................................. Annex 2. List of all recommendations, chapter by chapter........................................................................ 4 5 8 9 11 11 15 16 18 18 19 20 21 21 22 23 25 25 25 25 27 27 27 27 27 28 28 29 29 31 31 31 32 33 33 33 34 35 35 35 36 37 37 37 37 38 38 39 40 41 42 3

Joint national capacity assessment on the implementation of effective tobacco control policies in Kenya

Abbreviations COP CRDR DSR EAC GATS GHPSS GYTS HMIS IDSR IEC ILA INRS KATOGA KEBS KEMRI KETCA KFCB KHPS KRA KTSA MOA MOF MOH MOI MOLG MOMS MOPHS MOYAS MTP NACADA NCD NEMA NGOs NRT NTFIC SHS TAPS TFI VAT WHO FCTC WHS 4

Conference of the Parties Centre for Respiratory Diseases Research designated smoking room East African Community Global Adult Tobacco Survey Global Health Professionals Student Survey Global Youth Tobacco Survey Health Management and Information System Integrated Diseases Surveillance and Response Information, education and communication Institute of Legislative Affairs Institute for Natural Resources and Technology Kenya Anti-tobacco Growing Association Kenya Bureau of Standards Kenya Medical Research Institute Kenya Tobacco Control Alliance Kenya Film Classification Board Kenya Health Professionals Society Kenya Revenue Authority Kenya Tobacco Situational Analysis Ministry of Agriculture Ministry of Finance Ministry of Health Ministry of Information Ministry of Local Government Ministry of Medical Services Ministry of Public Health and Sanitation Ministry of Youth and Sports Medium Term Plan National Agency for the Campaign Against Drug Abuse Noncommunicable disease National Environment Management Authority nongovernmental organizations nicotine replacement therapy National Tobacco Free Initiative Committee Second-hand smoke tobacco advertising, promotion and sponsorship Tobacco Free Initiative value-added tax World Health Organization Framework Convention on Tobacco Control World Health Survey

Joint national capacity assessment on the implementation of effective tobacco control policies in Kenya

Executive summary Kenya is a tobacco-growing country that has been involved in curbing the tobacco epidemic since 1992. The country is also a regional hub for manufacturing tobacco products. Noncommunicable diseases (NCDs), for which tobacco is a risk factor, currently account for more than 55% of the mortality in the country and 50% of the public-hospital admissions. In addition to the health issue, the environmental impact of tobacco-growing is also a concern, because wood from natural forests is being burned to cure tobacco leaves. Kenya has made efforts to reduce the use of tobacco and to tackle its serious consequences, particularly tobacco-related diseases. In 1992, tobacco control campaigns were initiated in the country as part of the World No Tobacco Day celebration. In 2001, the Ministry of Health (MOH) established the National Tobacco Free Initiative Committee (NTFIC) to coordinate tobacco control activities, and a tobacco control focal point was designated. Kenya actively participated in the negotiations of the World Health Organization Framework Convention on Tobacco Control (WHO FCTC), which it ratified in 2004. Despite the presence of a strong tobacco-industry lobby, a comprehensive Tobacco Control Act was enacted in 2007 to control the production, manufacture, sale, labelling, advertising, promotion and sponsorship of tobacco products, and a Tobacco Control Board was established to provide advice on tobacco control to the Minister responsible for public health. The key milestones in tobacco control in Kenya are shown in Figure 1. Figure 1: Kenya Tobacco Control Timeline: 1992 – 2010

Commemorations of WNTD initiated TC activities 1992 2001 Establishment of the National TFI Committee

Establishment of a Tobacco Control Desk 2002 2004 Ratification of the WHO FCTC

Tobacco Control Act 2007 2009 Inauguration of the TC Board

New Consitution of Kenya 2010 National Tobacco Control Plan

The tobacco epidemic is a growing concern for Kenya’s government and its population as a whole. According to the Kenya Health Demographics Survey of 2008/2009, 19% of Kenyan males between 15 and 49 years of age use tobacco products, and 18% smoke cigarettes. Less than 2% of Kenyan women of the same age use tobacco in any form, and 1% smoke cigarettes. The Global Youth Tobacco Survey (GYTS) 2007 found that 8.2% of schoolchildren 13 to 15 years of age smoke cigarettes, and 10.1% use any form of tobacco. The fact that 12.7% of boys and 6.5% of girls consume tobacco in some form is a clear indication that young girls are smoking more then their mothers, and the prevalence trend appears to be increasing: In two GYTS surveys performed in the country in 2001, 6.6% of the 13- to 15-year-olds smoked cigarettes and 8.9% used tobacco in some form. The Kenya MOH is responsible for strengthening the implementation of policies, programmes and services to arrest the epidemic. In this context, the Government of Kenya invited a team of experts led by WHO to jointly perform an assessment of the country’s national capacity to implement the WHO FCTC, with special emphasis on the following provisions of the treaty: - Monitor tobacco use and interventions, Protect people from tobacco smoke, Offer help to quit tobacco use, Warn about the dangers of tobacco,

Joint national capacity assessment on the implementation of effective tobacco control policies in Kenya

Enforce bans on tobacco advertising, promotion and sponsorship [TAPS], Raise taxes on tobacco, develop sustainable alternatives to tobacco-growing, control Illicit trade and regulate tobacco products. At the request of the Kenya government, WHO, through its country office in Kenya and the WHO Africa Regional Office, worked with the MOH to organize and conduct the joint capacity assessment. From 27 June to 1 July 2011, a group of 15 national, international and WHO experts, in collaboration with a team from the MOH reviewed the status of policies, laws and activities as well as current efforts to develop tobacco control policies. The experts were divided into five teams that interviewed key informants, preselected groups, key governmental agencies, district officials and individuals who represented stakeholders in tobacco control, as well as representatives of civil society organizations, the media and academia. Interviews were conducted in Nairobi as well as in Migori, a tobacco-growing area and in Nakuru, the first smoke-free city in Kenya. A total of 149 interviews were conducted with individuals representing 38 institutions, including central and local governmental agencies with regulating roles or implementing responsibilities. The assessment team also reviewed existing tobacco epidemiologic data, as well as the status of tobacco control measures undertaken by the government in collaboration with other sectors. The group also examined, where appropriate, the underlying capacities for policy implementation, including leadership and commitment to tobacco control, programme management and coordination, intersectoral and intrasectoral partnerships and networks, and human and financial resources and infrastructure. Finally, the group made recommendations based on the key findings of its analysis to further the development of the assessed tobacco control policies, as required by the WHO FCTC. Kenyan authorities are aware that the progress achieved in tobacco control in Kenya can and must be accelerated. The most significant challenges to continued progress are the following: • There is no clear mechanism ensuring a smooth and coordinated implementation of the different aspects of tobacco control at different levels of governance. – Although various stakeholders in Kenya have taken action to implement the WHO FCTC, the mechanism for coordinating the tobacco control programme within the government is unclear. Two divisions handle tobacco control in the Ministry of Public Health and Sanitation (MOPHS): the Noncommunicable Diseases Division (for coordination and policies) and the Occupational Health Division (for enforcement, and as a secretariat for the Tobacco Control Board, created in 2007 by the Tobacco Control Act). No clear mechanism for coordination could be identified, either between the two MOPHS divisions or between the MOPHS and the Ministry of Medical Services (MOMS). – Central-government support to the subnational level is uneven, essentially because of limited capacity; however, collaboration among local authorities is common. – A formal interministerial coordinating mechanism is not yet in place to ensure definition of roles and allocation of financial and human resources for planning and spearheading coordinated tobacco control activities. – The work of the civil society in driving policies and regulations is acknowledged, but there is no mechanism to coordinate the activities of different agencies and organizations. – There is a consensus that the tobacco industry tries to influence government agencies – and often succeeds. • Enforcement of the Tobacco Control Act 2007 is not optimal. According to the Act, powers of enforcement are granted to authorized officers from the health sector, local government and police, with the participation of business owners/managers. Each of the enforcement officers has a separate reporting line, and there is no coordinated mechanism for 6 Joint national capacity assessment on the implementation of effective tobacco control policies in Kenya

enforcement. This results in fragmented and uneven enforcement efforts, and the harmonized monitoring and evaluation process needed for consistent planning of tobacco control policies is lacking. • Almost four years after the entry into force of the Tobacco Control Act 2007, important provisions have not yet been implemented. The law authorizes the Minister of Health to introduce graphic health warnings on tobacco packages, to prescribe further duties for ensuring enforcement of the smoking ban and to prescribe information that manufacturers shall provide to the Tobacco Control Board, including information on sales and advertising data. These actions have not been undertaken. • The government has already indicated its commitment to fulfil its obligation to implement Article 17 of the WHO FCTC by enacting Section 13 of the Tobacco Control Act 2007. Ministry of Agriculture (MOA) and other relevant ministries are responsible for developing policies that promote appropriate, economically viable alternatives to tobacco-growing. To date, however, efforts to diversify from tobacco-growing have been spearheaded by civil society. The MOA and other ministries have not developed specific policies or programmes to promote viable alternatives for tobacco growers. To ensure the sustainability of current initiatives and make further progress, the following recommendations should be implemented by the government through collaboration of the relevant stakeholders (with the exception of the tobacco industry and its front groups and allies) within the next 12 to 18 months: 1. A clear mechanism ensuring smooth and coordinated implementation of tobacco control policies at the different levels of governance (eventually through the mandate of a national tobacco control programme) should be put in place. – The MOPHS should spell out the roles of each division that currently has a role in tobacco control, as well as the relationship between the divisions and the Tobacco Control Board and the relationship between the MOPHS and MOMS. – The linkages between the implementing divisions of the MOPHS and agencies at the subnational operational level should be strengthened and streamlined. A central reporting system should be established to facilitate feedback to the MOPHS (the focal point for tobacco control in the country), follow-up, monitoring and evaluation. – An Intersectoral government-wide coordination mechanism for tobacco control (which would eventually include a multisectoral technical working group) should also be established as soon as possible. To ensure operationalization of the tobacco control programme, more human resources and training must be provided to strengthen management and technical capacity. The tobacco control fund created by the Tobacco Control Act 2007 should be operationalized, and a dedicated budget line for tobacco control activities should be established under the relevant departments in the MOPHS and the MOMS. Coordination and communication with key stakeholders, including the civil society, should be strengthened. – A policy to prevent undue influence of the tobacco industry, especially among government agencies, should be pursued. 2. The MOH should engage with the Ministry of Local Government (MOLG), local governments and other enforcement agencies to actively enforce the provisions of the Tobacco Control Act 2007. Under MOH leadership, enforcement of the Act should be included in the priorities of local governments and other enforcement agencies. Human, financial and technical capacity should be enhanced to ensure increased enforcement activities. Functional enforcement mechanisms using existing information and reporting systems should be developed. Joint national capacity assessment on the implementation of effective tobacco control policies in Kenya 7

3. The MOH should develop the pending regulations to further facilitate the implementation of the Tobacco Control Act 2007. The following regulations should be approved and implemented: – Regulations for the introduction and implementation of graphic health warnings on tobacco packages – Regulations prescribing the size, text and placement of No Smoking signs – Regulations prescribing the information that manufacturers must provide to the Tobacco Control Board – Regulations describing specifically which forms of misleading tobacco promotion should be prohibited. 4. The MOA and other relevant ministries and agencies should take necessary measures, including sensitization of stakeholders, and develop appropriate policies to meet their obligations under the WHO FCTC. Policies must be developed that highlight the health and economic risks to the tobacco farmer and their family that are associated with tobacco-growing; provide alternative livelihood options for farmers; suggest linkages and ways to incorporate these options into existing government programmes on rural poverty alleviation and agricultural and rural development; and promote public-private partnerships (PPP) with civil society groups and other entities to develop a support mechanism for alternatives to tobacco-growing. Other recommendations for each of the tobacco control policies assessed are included in this final report.

ACKNOWLEDGEMENTS We would like to thank the many individuals, WHO staff and government representatives, who have contributed to the preparation and conduct of the capacity assessment mission. Special thanks are due to the primary authors of this report who drew on their expertise in the context of the findings in the country: Richard Ayah, Vera da Costa e Silva, Jenninah Kabiswa, Jagdish Kaur, Simon Kibias, Jacob Kibwage, Dorcas Kiptui, Charles Maringo, Caxton Masudi Ngeywo, Possy Mugyenyi, Joyce Nato, Nurseline Onsongo, Ahmed E. Ogwell Ouma, Armando Peruga, Vinayak Prasad, Luminita Sanda and Emma Wanyonyi. Much appreciation and thanks go to Dorcas Kiptui and Joyce Nato under the coordination of the Ministry of Health in Kenya and the WHO Kenya Country Office for their support in preparing a successful assessment. Ahmed Ezra Ogwell Ouma, Armando Peruga, Vinayak Prasad and Luminita Sanda conceptualized this publication. Luminita Sanda under the coordination of Douglas Bettcher and Armando Peruga further realized the publication and are grateful to the many people who have contributed. The joint capacity assessment work in Kenya and its report were made possible by funding from Bill & Melinda Gates Foundation.

Joint national capacity assessment on the implementation of effective tobacco control policies in Kenya

1. Introduction Kenya has been a Party to the World Health Organization Framework Convention on Tobacco Control (WHO FCTC) since 24 June 2004. It is a tobacco-growing country and is also a regional hub for manufacturing tobacco products, but it has been involved in curbing the tobacco epidemic since 1992. According to the Ministry of Health Statistics (MOHS) Kenya Health Situation Analysis 2010, noncommunicable diseases (NCDs), for which tobacco is a known risk factor, are responsible for more than 55% of the mortality in the country and 50% of the public-hospital admissions. The environmental impact of tobacco-growing is also a concern because wood from natural forests is being burned to cure tobacco leaves. Kenya has however made efforts to reduce the use of tobacco and tackle its serious consequences, particularly tobacco-related diseases. In 1992, tobacco control campaigns were initiated in the country as part of the World No Tobacco Day celebration. In 2001, the Ministry of Health (MOH) established the National Tobacco Free Initiative Committee (NTFIC) to coordinate tobacco control activities and designated a tobacco control focal point. Kenya participated in the negotiations of the WHO FCTC and, despite the presence of a strong tobacco-industry lobby, enacted a comprehensive Tobacco Control Act in 2007 to control the production, manufacture, sale, labelling, advertising, promotion and sponsorship of tobacco products. A Tobacco Control Board was established under the same Act to provide advice on tobacco control to the Minister responsible for public health. The tobacco epidemic is a growing concern for the Kenyan Government and its population as a whole. According to the Kenya Health Demographics Survey of 2008/2009, 19% of Kenyan males between 15 and 49 years of age use tobacco products, and 18% smoke cigarettes. Less then 2% of the women of the same age use any kind of tobacco, and 1% smoke cigarettes. The Global Youth Tobacco Survey (GYTS) 2007 found that 8.2% of schoolchildren 13 to15 years of age smoked cigarettes, and 10.1% used some form of tobacco. The fact that 12.7% of boys and 6.5% of girls consume some form of tobacco is a clear indication that young girls are smoking more then their mothers. A growing prevalence of cigarette use is shown by comparing the 2007 GYTS with the 2001 GYTS, when 6.6% of 13- to 15-year olds used cigarettes and 8.9% used some form of tobacco. The MOH is responsible for strengthening the implementation of policies, programmes and services to arrest the tobacco epidemic. In this context, the Government of Kenya invited WHO to lead a mission to perform a joint assessment of the national capacity of Kenya to implement the WHO FCTC, with special emphasis on the WHO MPOWER1 package of effective tobacco control policies in support of the implementation of the treaty: Monitor tobacco use and interventions, Protect people from tobacco smoke, Offer help to quit tobacco use, Warn about the dangers of tobacco, Enforce bans on tobacco advertising, promotion and sponsorship (TAPS), Raise taxes on tobacco, and other tobacco supply-reduction measures, including developing sustainable alternatives to tobacco-growing, controlling Illicit trade and regulating tobacco products. At the request of the Kenyan government, WHO, through its country office in Kenya and the WHO Africa Regional Office, worked together with the MOH to organize and conduct the joint capacity assessment. From 27 June to 1 July 2011, a group of 15 national, international and WHO experts collaborated with a team from the MOH in reviewing the status of tobacco control policies, laws, activities and development efforts. The experts were divided into five teams that interviewed key informants, preselected groups, government agencies, and district officials and individuals who represented stakeholders in tobacco control, as well as representatives of civil society organizations, the media, and academia. Interviews were also conducted in Nakuru (the first smoke-free city in Kenya) and Migori (a tobacco-growing area). 1 MPOWER is a WHO technical assistance package of selected demand reduction policies to help countries implement some provisions of the WHO FCTC. The package is an integral part of the WHO Action Plan for the Global Strategy for the Prevention and Control of Noncommunicable Diseases, endorsed at the 61st World Health Assembly in 2008.

Joint national capacity assessment on the implementation of effective tobacco control policies in Kenya

The team conducted 149 interviews with individuals representing 38 institutions to assess the country’s efforts in implementing the WHO FCTC. The assessment team reviewed existing tobacco epidemiologic data, as well as the status of key tobacco control measures and efforts undertaken by the government in collaboration with other sectors. The institutions interviewed included the majority of the tobacco control stakeholders in the country. For each policy, the report presents the following: • Policy status and development. A brief introduction on the present status and future development of tobacco control policy, based on a thorough review of all documents made available prior to the country visit (tobacco control country profile, the WHO Report on the Global Tobacco Epidemic 2009, legislation in force, results and conclusions of previous studies and reports etc.) and interviews with key informants. • Key findings. A summary of the most important facts learned by the assessment team in the visits and interviews, based on an analysis of key factors for success in implementing present policies and developing future ones. These include political will, programme management and coordination, partnerships and networks for implementation, provision of funds and human resources. • Recommendations. The actions required, in line with the WHO FCTC and its guidelines and considering the legally binding obligation of the country as a Party, to improve the design, implementation and enforcement of tobacco control policy. Unless otherwise noted, the suggested time for implementing the recommendations is 12 months. We are grateful to the Government of Kenya and the nongovernmental organizations (NGOs) involved in tobacco control in Kenya for supporting the joint national tobacco control capacity assessment. Many other WHO Member States will follow Kenya’s lead and will benefit from the lessons learnt in this assessment.

Joint national capacity assessment on the implementation of effective tobacco control policies in Kenya

2. Coordination and implementation of tobacco control interventions (Article 5.2(a) of WHO FCTC) 2.1. POLICY STATUS AND DEVELOPMENT 2.1.1. Tobacco control policy in Kenya Kenya’s Tobacco Control Act 2007 supports the implementation of the WHO FCTC as elaborated in Table 2.1. Table 2.1: Kenya’s Legal Framework for Tobacco Control Instrument WHO FCTC Relevant Action Kenya became a Party to the WHO FCTC on 24 June 2004, making it legally bound by the provisions of the treaty. Provides the right to the highest attainable standard of health (Article 43(a)) and remedy for violations of the right to health (Article 70); includes the provision that all international treaties ratified by Kenya become part of national law (Article 2(6). The social and economic pillar (through the Midterm Plan) of this roadmap provides an opportunity for national tobacco control planning. Protects: • The general public from the harmful effects of exposure to tobacco smoke • The right of non-smokers (who are the majority in Kenya) to live in a smoke-free environment • The population from misleading and deceptive inducements to use tobacco products, informing them of the risks they expose themselves to when they consume tobacco and tobacco products • The children, by preventing access to tobacco products • The farmers and others currently relying on tobacco for a living, by providing for alternative livelihoods • Government revenue, by reducing the health expenditure and dealing with illicit trade in tobacco products • Smokers, by providing for smoking cessation programmes. Prohibits: • Smoking in public places except for designated smoking rooms (DSRs) • Sale of tobacco products to and by children under 18 years of age • Sale of tobacco products through automatic vending machines • Sale of cigarettes in single sticks • Sale of tobacco products by self-service displays • The manufacture or sale of objects that resemble tobacco products, including sweets, snacks or toys, and that would appeal to children under 18 years of age • The manufacture, importation or distribution of any tobacco product that does not bear the statement “sales only allowed in Kenya” and an indication of the country of origin if the product is for sale in Kenya; a statement “for export only” if the product is for export outside Kenya • The importation, manufacture, sale or distribution of tobacco products that do not bear the prescribed warnings • The importation, manufacture, sale or distribution of tobacco products that do not disclose their contents, including tar, nicotine and other constituents (the disclosure does not include quantities) • Use of false, misleading or deceptive promotion

Constitution of Kenya, 2010

Vision 2030

Tobacco Control Act 2007

Joint national capacity assessment on the implementation of effective tobacco control policies in Kenya

Instrument Tobacco Control Act 2007

Relevant Action • Promotion of tobacco products through testimonials or endorsements, advertisements or sponsorship • The use of the names of tobacco-product manufacturers or tobacco-product brand names on buildings other than permanent facilities owned or leased and used by the tobacco manufacturer • The manufacture, distribution or sale of accessories such as lighters that display a tobacco-productrelated brand name or the name of the manufacturer • The display of tobacco brand elements on non-tobacco products • Sales promotions of tobacco products • Promotion of tobacco products through communication media Provides for: • Public awareness campaigns to educate the public on the dangers of tobacco use • The integration of tobacco control into the education syllabus • The integration of tobacco control into the dissemination of health care • The use of tax and price policies for tobacco control • Alternative economic activities for tobacco farmers, workers, distributors, retailers and sellers.

2.1.2. Tobacco control coordination 2.1.2.1. Coordination within the Ministry of Public Health and Sanitation (MOPHS) Even though the MOPHS, the leading agency in tobacco control, has a number of defined areas responsible for different aspects of tobacco control, it appears to have no clear mechanism of coordination. However, attempts to coordinate those activities are being made by the Division of Noncommunicable Diseases.

2.1.2.2. Coordination within the government Most government departments recognize the MOPHS as the focal point of tobacco control and from time to time seek clarification and advice from it. However, there is currently no formal or official mechanism of coordination between the two ministries in charge of the health sector (the MOMS and the MOPHS) or between the MOPHS and the different agencies and ministries responsible for the implementation of the WHO FCTC. There is also no coordination of activities at district and local authority levels. Subnational activities are organized through the District Health Offices. Because of limited awareness and non-prioritization, these activities are limited to World No Tobacco Day celebrations and some enforcement efforts. However, there are defined focal points and activities for tobacco control within some of Kenya’s local authorities, e.g. Nairobi and Nakuru. 2.1.3. Tobacco control implementtation 2.1.3.1. Government agencies implementing tobacco control The Government of Kenya coordinates and provides stewardship for implementation of the Tobacco Control Act and the WHO FCTC in collaboration with other stakeholders, mainly through the MOPHS. Tobacco control is coordinated by the Division of Noncommunicable Diseases, which is responsible for policy development, while the Division of Occupational Health implements enforcement measures. The tobacco control programme is supported by the Department of Health Promotion and Education, which handles communications and awareness raising. A national focal person for tobacco control is formally designated in the MOPHS as a desk officer. The Tobacco Control Board, established by the Tobacco Control Act, is mandated to provide policy advice to the Minister. According to the Act, the Director of Medical Services (currently with the MOMS) is the representative of the governmental health sector on the Board. The Chief Public Health Officer, who heads the Department of Environmental Health, serves as the Secretary of the Board. Prior to enactment of the Tobacco Control Act (2007), an informal technical

Joint national capacity assessment on the implementation of effective tobacco control policies in Kenya

working group was established in the Division of Noncommunicable Diseases to support tobacco control activities. The organizational structure of the programme is shown in Figure II.1. The MOMS also has the capacity to support tobacco control activities, especially cessation and training. However, not many of these activities have been implemented. Figure 2.1 Composition and Organizational Structure of the MOH Tobacco Control Programme

Office of the Minister

Permanent Secretary Director of Public Health Department of Disease Control Division of Non Communicable Diseases Tobacco Control Dek Department of Health Promotion Health Communication and Social marketing Informal Technical Working Group Department of Sanitation and Environmental Health Division of Occupational Health

Government agencies other than the MOPHS and the MOMS, such as the Ministry of Education (MOE), the Kenya Revenue Authority (KRA), the State Law Office, the National Agency for the Campaign Against Drug Abuse (NACADA), the Kenya Bureau of Standards (KEBS) and local authorities, have been involved in tobacco control. The key governmental agencies responsible for tobacco control in Kenya are listed in Table 2.2. Table 2.2: Key government Ministries and agencies and their responsibilities in tobacco control Agency Ministry of Public Health and Sanitation Ministry of Medical Services Ministry of State for Planning, National Development and Vision 2030 and the Kenya National Bureau of Statistics Ministry of Finance (Kenya Revenue Authority) Ministry of Industrialization, Kenya Bureau of Standards Ministry of Agriculture Ministries of Basic and Higher Education Ministry of Information and Communication Tobacco control responsibilities Leadership, implementation and enforcement of law Capacity-building, tobacco cessation Including tobacco control in the national development and economic planning process and data provision Economic and tax policies and illicit trade control, generation of statistics Standard development, packaging and labelling, product-testing Alternative crops School health programmes and research Regulation of tobacco advertising, promotion and sponsorship, training

Joint national capacity assessment on the implementation of effective tobacco control policies in Kenya

Agency Ministry of Internal Security (Police) Ministry of Youth and Sports Ministry Provincial administration and Internal Security – National Agency for the Campaign Against Drug Abuse Ministry of Local Government Ministry of Environment – National Environment Management Authority Kenya Medical Research Institute Ministry of Labour Ministries of Cooperatives Ministry of Gender and Children’s Affairs Attorney General

Tobacco control responsibilities Enforcement of law Youth empowerment Drug abuse policies, especially cessation, communication and information

Implementation and enforcement of tobacco control measures Environmental compliance, including emissions Health research Occupational health and safety Alternative livelihoods Women’s and children’s issues Legal advice, e.g. on interpretation of legislation and negotiation on WHO FCTC tools and protocols

2.1.3.2. Other bodies implementing tobacco control: civil society Kenya has an active civil society network that plays an important role in keeping tobacco control on the government agenda. Many tobacco control nongovernmental organizations (NGOs) are organized under an umbrella body, the Kenya Tobacco Control Alliance (KETCA). These NGOs play an essential role in advocacy, lobbying, public education, capacity-building, research and resource mobilization. Membership of KETCA also includes community-based organizations, faith-based organizations, and learning and research institutions who were key in lobbying for legislation as well as implementation of the Tobacco Control Act. Other NGOs also operate in Kenya on both national and subnational levels. Because of limited funds, the staff in these NGOs often work on a volunteer basis. Health professional groups (doctors, dentists, pharmacists, nurses, clinical officers etc.) are organized under their respective umbrella bodies and have the opportunity to meet clients on a regular basis and provide health advice. They also serve as role models in tobacco control. They have branches around the country with the potential for widespread outreach. The Kenya Medical Association played a key role in lobbying for the Tobacco Control Act. The media, both print and electronic, have also played a key role in promoting public discussions on the issue of tobacco control in Kenya. Some key NGOs involved in tobacco control are given in Table 2.2 below. Table 2.2: Some Kenya Advocacy NGOS Active in Tobacco Control . Nongovernmental organization Kenyan Tobacco Control Alliance (KETCA) Social Needs Network Den of Hope Tobacco-Alcohol Free Initiative Institute of Legislative Affairs Centre for Tobacco-Free Education and Development 14

Brief description of tobacco control work Umbrella organization for civil society organizations in tobacco control Public education and research Youth empowerment on drug and substance abuse Public education and research General policy, advocacy, research, public education and legislation, tobacco industry monitoring Public education and research

Joint national capacity assessment on the implementation of effective tobacco control policies in Kenya

Nongovernmental organization Consumer Information Network Kenya Anti-Tobacco Growing Association Social Liberation Health and Promotion Club Womankind Reach Out Trust Women for Justice in Africa/Kenya

Brief description of tobacco control work Tobacco industry monitoring, public education and research Alternative crops Public education and women’s empowerment Women’s rights and public education Cessation and drug and substance abuse services offered in a rehabilitation centre Women’s rights

2.1.4. The tobacco industry The tobacco industry is dominant in Kenya, as the country is the manufacturing hub for the region. The two main tobacco companies in the country are British American Tobacco (BAT) Kenya and Mastermind Kenya Limited. Alliance One is a tobacco-leaf company that is involved in tobacco farming. Currently, there is only one policy in the country that directly addresses Article 5.3 of the WHO FCTC (protection of public health policies with respect to tobacco control from commercial and other vested interests); it is included in the Tobacco Control Act, mandating members of the Tobacco Control Board to declare no affiliations with the tobacco industry.

2.2. KEY FINDINGS 2.2.1. There is no clear mechanism ensuring a smooth and coordinated implementation of tobacco control at the different levels of governance. The assessment team identified three major coordination challenges in the implementation of tobacco control activities in Kenya: • Internal coordination within the MOPHS. Two divisions handle tobacco control in the MOPHS – the Division of Noncommunicable Diseases and the Division of Occupational Health – but there is no clear mechanism of coordination between them. Furthermore, there is no clarity on how the two divisions relate to the Tobacco Control Board. Additionally, there is no official process for nomination to the technical working group hosted by the Division of Noncommunicable Diseases. The group’s functions are not well defined, nor are the linkages between the implementing divisions and the Tobacco Control Board. • Inter-ministerial collaboration. The potential for collaboration between the MOPHS and the MOMS is seen as an opportunity to further tobacco control activities at all levels. Although some relevant ministries and sectors have focal persons for tobacco or tobacco control, no formal structure is mandated to plan for intersectoral tobacco control activities. The relevant sectors have indicated that the MOPHS should take the lead in spearheading tobacco control initiatives and that they are willing to complement those efforts. The National Tobacco Control Action Plan 2010–2015 has not yet been disseminated widely, and the roles of different tobacco control stakeholders have not been articulated. Evidence of conflicting interpretations of the Tobacco Control Act at the different ministries points to the need for a stronger inter-ministerial collaboration and finalization of the regulations for implementation of the Act. • Decentralization of tobacco control activities. Central government support to the district level is uneven, essentially because of limited capacity, but collaboration within the districts is common. There is no regular communication between the central and district levels. However, the districts have provided very positive feedback and have expressed willingness to participate in tobacco control activities if more concrete financial and technical support can be provided. Decentralization is expected to improve with the enactment of a new constitution that provides for county-level government, while key areas that require intervention may include health promotion, awareness-raising and enforcement.

Joint national capacity assessment on the implementation of effective tobacco control policies in Kenya

2.2.2. Human resources for tobacco control are limited. 2.2.2.1. Workforce. There is one desk officer who has tobacco control as a primary, but not a sole, responsibility. Four additional staff are assigned to work part time on tobacco control, but they have other primary responsibilities.

2.2.2.2. Technical capacity. The need for technical capacity at the central and district levels is a major issue that needs urgent attention. Training of health professionals in the different aspects of tobacco control is insufficient, and there are no guidelines for handling such aspects as inspection of illicit trade and cessation procedures. 2.2.3. Tobacco control activities have insufficient funds to match their needs. The budget for tobacco control implementation in the MOH usually comes from the NCDs budget line; however, there is no specified line for tobacco control activities. The funding is insufficient to deal with the increasing demand generated by the Tobacco Control Act. Although the Department of Environmental Health has funds allocated for enforcement of the Act and the Tobacco Control Board has already started working, the lack of funds has hindered the Board’s activities. 2.2.4. There is no policy to deal with undue interference from the tobacco industry. The tobacco industry has a strong presence in Kenya, and this came out clearly in several interviews. The influence of the tobacco industry in excluding some provisions of the Tobacco Control Act has been documented. Moreover, the industry is not complying with the provisions of the law. Examples include sponsorship of certain activities and advertising at point of sales and in the print media.

2.3. RECOMMENDATIONS 2.3.1. The MOPHS should establish a clear mechanism ensuring a smooth and coordinated implementation of the different aspects of tobacco control at the different levels of governance. A coordinated mechanism to oversee the implementation of the WHO FCTC and the Tobacco Control Act is essential as there is a need for one single voice to enhance compliance by the public:

2.3.1.1. The MOPHS should spell out the roles of each division, the relationship between the divisions and the Board and the relationship between the two and the inter-ministerial coordination mechanism. Two divisions handle tobacco control in the MOPHS – Noncommunicable Diseases and Occupational Health – but there is no clear mechanism of coordination between them. Furthermore, the relationship between the two divisions and the Tobacco Control Board has not been defined. Additionally, the functions of the technical working group are not spelled out, nor are the linkages between the implementing divisions and the Tobacco Control Board. 2.3.1.2. The government should create an official intersectoral government-wide coordination mechanism for tobacco control. Given the multisectoral nature of tobacco control, there is need for an intersectoral coordination forum comprising relevant ministries and agencies such as Finance, Agriculture, Education, Trade & Industry and the MOLG and led by the MOPHS. The representation at this forum should be at a high enough level to ensure that the decisions made by it are binding on the sectors. Appropriate measures should be taken to ensure that the tobacco industry does not interfere with this forum. Caution should be taken to avoid duplication of roles of the inter-ministerial coordination mechanism and the National Tobacco Control Board.

Joint national capacity assessment on the implementation of effective tobacco control policies in Kenya

2.3.1.3. Decentralization of tobacco control activities. The linkages between the implementing divisions of the MOPHS and the subnational level should be strengthened and streamlined. Communication between the central and district levels should be regular. 2.3.2. Human resources for tobacco control must be increased. 2.3.2.1. Workforce. There is need for more personnel to work on tobacco control at the MOPHS and the MOMS, even on a part-time basis. More people should be involved in planning, implementation, evaluation and reporting to the WHO FCTC Conference of the Parties (COP). This is important not only for the MOH but also for other sectors and agencies of the government.

2.3.2.2. Technical capacity. Technical capacity should be considered a top priority in planning for tobacco control. Training in the different aspects of tobacco control should be available for health professionals, and national guidelines should be created for handling different aspects of tobacco control. 2.3.3. The tobacco control fund created by the Tobacco Control Act should be operationalized, and the MOPHS and the MOMS should establish a dedicated budget line for tobacco control activities under the relevant departments. The National Tobacco Control Action Plan 2010–2015 should be implemented and should include the roles and contributions of the different stakeholders. 2.3.4. The government should establish a clear policy to prevent undue interference from the tobacco industry. Guidance on how to prevent undue influence from the tobacco industry should be prepared and disseminated to government officials and other agencies, in accordance with the WHO FCTC. The guidance should also include the conduct of the tobacco industry in relating to government and its officials. Mechanisms to monitor tobacco-industry activities in the country should be pursued and could be undertaken by the NGO community.

Joint national capacity assessment on the implementation of effective tobacco control policies in Kenya

3. Monitoring and evaluation (Article 20 of WHO FCTC) 3.1. POLICY STATUS AND DEVELOPMENT The National Tobacco Control Action Plan 2010–2015 provides a strategy for tobacco control in Kenya. It is based on the Tobacco Control Act 2007 and has four key objectives, including “research, monitoring and evaluation in tobacco control”. The MOPHS has the stewardship role for epidemiological surveillance, as it is the ministry responsible for tobacco control. Necessary information on the outputs and outcomes of the key objectives is provided by relevant institutions, including the KEBS, the MOMS, the Ministry of Planning, NACADA, the School of Public Health at the University of Nairobi, the Kenya Medical Research Institute (KEMRI) and the Kenya Police. Data on tobacco consumption in the general population is currently captured in the Kenya Demographic Health Survey (most recently performed in 2008/2009) and MOH-conducted surveys: GYTS (2001 and 2007) and the Global Health Professions Student Survey (GHPSS) (2009). The Kenya World Health Survey (WHS) (2004) focused on the health system and population health and provided data on individual health and tobacco use. A public opinion poll on tobacco control was done in 2007. The MOH has continued its attempts to collect data by seeking funding for surveys. At present, a proposal presented to WHO for a Global Adult Tobacco Survey (GATS) is awaiting feedback. The MOPHS has made efforts to include tobacco use in the national Health Management and Information System (HMIS) tools as well as the Integrated Diseases Surveillance and Response (IDSR). KEMRI/CRDR (Centre for Respiratory Diseases Research) and the School of Public Health, University of Nairobi, have conducted small-scale research on tobacco consumption in Nairobi. However, research has yet to be conducted on monitoring tobacco control interventions. The institutions depend on research grants, which are not plentiful in this area, so there is no institutional investment in research on tobacco use. The Kenya Tobacco Situational Analysis (KTSA) Consortium, which consists of 10 organizations2 with funding from the International Development Research Centre, conducted a baseline survey in Nairobi Province to assess the enforcement of smoke-free legislation and to monitor the ban on TAPS. It also sought to identify partners, champions and allies in the campaign for the implementation of smoke-free laws in Nairobi Province.

The Consortium includes representatives from the MOPHS, KEMRI, the ILA, Institute for Natural Resources and Technology (INRS), the MOE, the Consumer Information Network, the Social Needs Network, the Tobacco and Alcohol Free Initiative, Uzima Foundation and KETCA.

Joint national capacity assessment on the implementation of effective tobacco control policies in Kenya

3.2. KEY FINDINGS 3.2.1. Mechanisms and capacity for national surveillance and reporting are not fully in place. A plan for research, monitoring and evaluation is currently embedded in the National Tobacco Control Action Plan 2010–2015. However, there is no clear coordination structure to ensure that multiple sectoral players can deliver. The MOPHS conducted GYTS 2001 and 2007 and GPHSS in 2009. Tobacco consumption data are currently captured in the Kenya Demographic and Health Survey for the population 15 to 64 years of age, and efforts are being put in place to include tobacco use in the HMIS tools as well as the IDSR. However, there is no calendar of commitment to indicate that these surveys are to be done on a regular basis. Funding for them depends on donors. In addition, regular national surveys, e.g. the Kenya Demographic Health Survey and the Integrated Household Budget Survey, are done every five years and provide basic data on tobacco consumption. But no central body routinely analyses and reports on the available data to inform policy. 3.2.2. Although the government has clear mechanisms for monitoring implementation of the policies cascading from Vision 2030, which include health, it does not have a specific mechanism for monitoring tobacco control. The five year Medium Term Plan (MTP) (2008–2012) is operationalizing Vision 2030, and implementation is monitored annually through an annual progress report for the MTP and a ministerial public expenditure review. These reports analyse the most recent three years to provide a trend. A monitoring framework is outlined in the MOPHS strategic plan. Monitoring is conducted jointly with the MOMS, as they share sector-specific outputs and outcomes. A division of surveillance, monitoring and evaluation and research exists with a mandate to “develop and install surveillance systems, thresholds and evaluation systems; carry out surveillance and operations research”. The strategic plan proposes a “dashboard” approach to measure progress towards goals. Most of the indicators collected are part of routine reporting and are captured in the HMIS. A few of them, such as user satisfaction, will be obtained through annual surveys. However, tobacco use is not a core indicator. Despite the availability of a strategy framework for monitoring policy implementation, there is a lack of collated baseline data to feed into it. 3.2.3. There is little systematic monitoring of tobacco-industry activities. The KTSA Consortium conducted a baseline survey to assess the enforcement of smoke-free legislation and to monitor the ban on TAPS. It was a one-off exercise at the point when legislation was enacted. There was evidence of tobacco-industry influence at the Ministry of Trade, hotels and the Police, as it was involved in facilitating training on counterfeit goods. The police are primarily interested in the tobacco industry as it relates to criminal activities such as tax evasion and goods counterfeiting. Organizations such as the KEBS, the National Environment Management Authority (NEMA) and the Ministry of Labour (Occupational Health unit) have no capacity to test for cigarette quality or to monitor indoor/outdoor air quality. They rely on the industry to self-declare. Umbrella bodies such as the Kenya Private Sector Alliance and the Kenya Tourist Board collect some data from industry players; however, the data are questionable and therefore inadequate. 3.2.4. Systematic collection, analysis and dissemination of data are limited. Data collected by a variety of institutions for their own use are difficult to analyse. The data generated are primarily supply-led, and there is no systematic way for those who require such data to access and analyse them. Research institutions are not engaged fully in providing policy-makers with needed information. Although there is a cancer registry at KEMRI and some published local research exists, the data (from 2001 and 2003) are not updated and cannot be generalized.

Joint national capacity assessment on the implementation of effective tobacco control policies in Kenya

3.3. RECOMMENDATIONS 3.3.1. The MOPHS should strengthen its human and financial capacity to undertake regular, sustained surveillance of the tobacco epidemic and its consequences. The MOPHS should identify and appoint a person (or persons) to focus exclusively on tobacco control surveillance and monitoring. This person could demand tobacco control data, compile surveillance and monitoring, coordinate across various institutions and analyse and disseminate information to various stakeholders and the public. 3.3.2. The MOPHS should collaborate with the relevant governmental agencies in defining and establishing clear mechanisms for monitoring tobacco control interventions. Core monitoring indicators should be defined, along with roles and responsibilities for data generating, and research organizations should be assigned to undertake monitoring of tobacco control interventions. The MOH should Identify key organizations – e.g. the Kenya National Bureau of Statistics (KNBS), the Universities, KEMRI – to work with the focal surveillance person to collect, analyse and disseminate needed data on tobacco control. Routine data should be embedded in national surveys such as the demographic health survey, the integrated household survey and trade and agricultural surveys. Identifying sources of research funds and encouraging grant applications by enhancing capacity at such organizations can help in moving key institutions away from dependence on tobacco-industry funding. Standard sets of indicators and standard methodologies for surveillance and monitoring that are relevant for policy action should be identified. These can be disseminated to all those involved in tobacco control and, where necessary, can be incorporated and cascaded through medium-term government strategies and ministry performance contracts to operational plans. They can also be embedded in nationwide surveys and used by researchers. This would help the MOPHS to collate and integrate diverse data to provide a comprehensive picture of tobacco control, provide the public with needed information and promote timely evidence-based policy-making. 3.3.3. The MOH should identify and assign an organization to initiate regular and systematic monitoring of tobacco-industry activities. The WHO FCTC Article 5.3 Guidelines recommend a series of activities to prevent tobacco-industry influence in public health policy-making. While the MOH could make all its tobacco control efforts public by posting them on its website, monitoring the implementation of Article 5.3 and the Guidelines will be essential for ensuring the implementation of efficient tobacco control policies. Existing models and resources for monitoring the tobacco industry's strategies and activities, such as those outlined by the WHO Tobacco Free Initiative (TFI) should be used (see WHO TFI reports and publication for monitoring the tobacco industry at http://www.who.int/tobacco/surveillance/ti_monitoring/publications/en/index.html).

Joint national capacity assessment on the implementation of effective tobacco control policies in Kenya

4. Smoke-free environments (Article 8 of WHO FCTC) 4.1. POLICY STATUS AND DEVELOPMENT The smoke-free policy in Kenya is set by the 2010 Constitution, Article 42 of which guarantees the right to a clean and healthy environment. In addition, the Tobacco Control Act 2007 provides that “(1) Every person has a right to a clean and healthy environment and the right to be protected from exposure to second-hand smoke [SHS]. (2) Every person has a duty to observe measures to safeguard the health of non-smokers. (3) Every head of family, including a parent and/or guardian, is responsible for ensuring that the children are free from second-hand smoke”. No person shall smoke in any “public place”, and the list of such places includes indoor offices and workplaces; health, education and worship facilities; and stadia and sports and recreational facilities. The owners of premises may establish DSRs, provided they meet the specifications prescribed by the Act 3. A public place is “any indoor, enclosed, or partially enclosed area which is open to the public or any part of the public, or to which members of the public ordinarily have access, and includes a workplace and a public conveyance”, and a public service vehicle has the meaning assigned to it in the Traffic Act 4. Section 34 of the Tobacco Control Act 2007 requires the manager/owner of the public place to display a sign in English and Kiswahili stating that smoking is prohibited and showing the penalty for violation. Powers, including implementation and enforcement authority, are granted to individuals appointed under Section 9 of the Public Health Act 5. One objective of the National Tobacco Control Action Plan 2010–2015 is “to protect non-smokers from tobacco smoke through implementation and enforcement of smoke-free policies”, with the three expected outcomes listed above and indicators of achievement. The health sector, the civil society organizations and other development partners are responsible for achieving this objective. Article 8 of the WHO FCTC requires the adoption of effective measures to protect people from exposure to tobacco smoke in (1) indoor workplaces, (2) indoor public places, (3) public transport, and (4) “other public places,” as appropriate. Consistent with other provisions of the WHO FCTC and the intentions of the COP, Kenya, along with the other Parties to the treaty, adopted specific guidelines to assist in meeting the obligations under Article 8 and has proposed measures that can be used to increase the effectiveness of their efforts to eliminate TAPS at both domestic and international levels 6.

The Act requires that they “are ventilated to ensure that air from the area is directly exhausted to the outside and does not re-circulate or drift to other areas within the public facility; are separate, enclosed and sealed from the floor to the roof with a door; non-smoking individuals do not have to enter the area for any purpose while smoking is occurring; and they are cleaned or maintained only when smoking is not occurring in the area”. The Traffic Act is available at: http://www.tobaccocontrollaws.org/files/live/Kenya/Kenya%20-%20Traffic%20Act%20-%20national.pdf The Public Health Act, originally enacted in 1940, is a comprehensive act concerning numerous aspects of public health in Kenya and establishing the ministry responsible for public health (Chapter 242 - Public Health Act. An Act of Parliament to Make Provision for Securing and Maintaining Health. Available at http://www.kenyalaw.org/kenyalaw/klr_app/frames.php). Guidelines for implementation of Article 13 of the WHO Framework Convention on Tobacco Control (Tobacco advertising, promotion and sponsorship). Available at: http://www.who.int/fctc/guidelines/article_13.pdf

4 5

Joint national capacity assessment on the implementation of effective tobacco control policies in Kenya

4.2. KEY FINDINGS 4.2.1. By prohibiting smoking in most public places, the Tobacco Control Act made significant progress in protecting Kenyans’ health. However, despite good compliance in most public offices, government buildings and other workplaces, exposure to tobacco smoke continues to be observed in the hospitality/entertainment sector. The law empowers enforcement officers and specifies rules for smokers and managers of public places, but enforcement is still not optimal. Public health officers have the power to inspect, but they are not able to arrest; they need to be accompanied by city council police, who are not always available or allocated to assist with arrests. Despite being regularly trained for law enforcement, police officers generally view enforcing the smoke-free policy (violation of which is considered to be a civil offence) as competing with their need to respond to criminal acts. Public health inspection is therefore limited to observing the existence of signage and issuing summons to smokers on the spot. The assessment team observed uneven compliance of the established DSRs with the technical requirements laid out by the Tobacco Control Act 2007. Inspection and prosecution vary from one county to another, due to uneven capacity and sometimes to the personal commitment of the public health officers. The following aspects were identified as potentially hindering better compliance:

4.2.1.1. Pending regulations have not been issued. The “duty of signage” specified for the manager/owner of the premises does not prescribe the size and text of the No Smoking signs. Although the law mentions that further regulations “may be prescribed”, none has been passed. Although large, visible signs are placed in front of most of the central government buildings, most public establishments either do not display any signs or have a variety of signs, most of which are in English, more or less visible and spread throughout the establishment. In addition to this, some of the duties recommended by the WHO FCTC Article 8 Guidelines for appropriate enforcement – e.g. listing a toll-free complaint-line number or any other way to report violations, a requirement that business owners, employers and supervisors remove ashtrays from the premises – are not mentioned in the law. Although the manager or owner of any area in which smoking is prohibited may order any person who smokes within the area (or within the immediate vicinity of the entrance to the area) to cease smoking forthwith or to leave the area, there is no provision of a concrete penalty for an owner/manager who does not fulfil these responsibilities. Overall, the lack of further regulations to make the enforcement of the Tobacco Control Act 2007 operational (specified duties, inspection protocols with checklists, mechanisms and responsibilities for reporting violations, monitoring compliance, communicating to the public, etc.) results in uneven enforcement efforts at county, district and municipal levels, closely related to the personal commitment of authorized officers. 4.2.1.2. A general perception that public institutions have good compliance results in lack of a perceived need to strengthen enforcement. Although compliance with the Act is not consistently monitored and therefore difficult to acknowledge, the general perception is that compliance is very high, which might be creating some complacency that is delaying the consolidation of progress. This perception is contradicted by a recent survey conducted by the KTSA Consortium in Nairobi that revealed smoking still occurring in indoor places (schools, health facilities and other public places such as bars, bus terminals, parking bays, receptions and cinemas).7

Report of Full Situational Analysis of Tobacco Control in Kenya in September 2010.

Joint national capacity assessment on the implementation of effective tobacco control policies in Kenya

4.2.1.3. Past and present efforts of the tobacco industry generate confusion about law enforcement. A legal loophole that practically exempts streets from the public places covered under the Tobacco Control Act has been exploited by the tobacco industry to generate confusion and negative public reaction to enforcement of the law, as well as to counter eventual enforcement of smoke-free bylaws introduced by representatives of local communities (e.g. Smoke-free Nakuru, Nairobi, Mombasa). 4.2.1.4. Public education efforts and awareness campaigns do not result in consistent community support for enforcement. The central structures involved in tobacco control have limited capacity and funding for regular and sustained awareness-raising campaigns. Although local enforcement structures appear to be keen to focus on awareness and trust-building efforts to mobilize public support for and compliance with the smoke-free provisions, competing health priorities and a cultural context of historical low trust in public institutions have limited educational efforts to inform the public about the dangers of exposure to tobacco smoke and to empower non-smokers to defend their right to health. 4.1.2. The current permitting of establishing DSRs hinders universal and effective protection against tobacco smoke and is not in line with WHO FCTC Article 8 Guidelines. Establishing DSRs in public places where smoking is restricted is generally permitted. However, some governmental institutions and private businesses are implementing the smoke-free policy mandated by the law (e.g. central and local government offices, private businesses in the hospitality sector, education and health facilities). They have voluntarily adopted and enforced a 100% smoke-free policy. However, even strong voluntary policies have major limitations that make them much less effective than legislation. They are ultimately non-binding and lack a mechanism of enforcement; they do not provide comprehensive and universal protection; and they leave the majority of workers, particularly in the hospitality sector, unprotected.

4.3. RECOMMENDATIONS 4.3.1. The MOH, in close collaboration with governmental and non-governmental tobacco control stakeholders, should re-ignite efforts at enforcement of the Tobacco Control Act 2007. Options for implementation of enforcement include:

4.3.1.1. Make the enforcement of current Tobacco Control Act 2007 smoke-free provisions operational through prompt development and adoption of specific regulations. Relying on minimal but regular and dedicated financial investment, these regulations should include: • An overall enforcement plan that could eventually integrate existing legal instruments to enforce smoke-free environments and would rely on existing authorized inspection capacity. Local governments (county/district public health officers, as well mayors and other local authorities, such as police) should be encouraged to be key players in enforcement. The public health officers should inspect public places on a regular basis, in combination with unscheduled, surprise inspections, and make visits in response to complaints. Compliance inspections may be integrated into business licensing inspections, health and sanitation inspections, inspections for workplace health and safety, ﬁre safety inspections or similar programmes. Such routine activities could result in regular data collection for key indicators that would facilitate the evaluation of success (e.g. compliance rates; decreased exposure to SHS in public places and workplaces; air-quality monitoring). Specifications for consistent size and text of signage should be provided, the removal of ashtrays should be encouraged and public complaint systems (e.g. a toll-free telephone complaint hotline) should be implemented to encourage the public to report violations.

Joint national capacity assessment on the implementation of effective tobacco control policies in Kenya

• A process for regular and effective training of all enforcement agents. • A plan for educating business owners through their umbrella organizations, in particular, the hospitality industry (i.e. KEPSA with all its affiliates) and their workers' representatives about smoke-free provisions and their rights and obligations, as well a plan for integrating them into a regular monitoring system.

4.3.1.2. Re-energize efforts and discourage complacency by regularly communicating the compliance rates to all tobacco control stakeholders and also to the public. Compliance rates should be part of the inspection and monitoring tools that include databases and reporting formats to enable comparable reporting of compliance (rate of inspections, rate of violations) and enforcement (rate of issuance of warnings/prosecutions/fines). 4.3.1.3. Provide adequate resources to monitor and respond to tobacco-industry activities that undermine the implementation and enforcement of the Tobacco Control Act 2007. 4.3.1.4. Increase efforts for raising awareness and educating the public, using appropriate channels of communication adjusted to the local communities. Awareness-raising efforts would eventually engage community members’ support for the smoke-free provisions by encouraging them to report violations. Messages should be embedded in local media (the written press, local interactive radio programmes, local radio celebrities, websites of local public institutions) to empower non-smokers and to thank smokers for complying with the law. Integration of tobacco control health-promotion initiatives should be incorporated in nationwide health-promotion activities. 4.3.2. The MOH should pursue collaboration with all relevant stakeholders for amending the current smoke-free provisions to eliminate tobacco smoke in all indoor public places, workplaces and public transportation by removing the option of creating DSRs. Article 8 of the WHO FCTC requires the adoption of effective measures to protect people from exposure to tobacco smoke in (1) indoor workplaces, (2) indoor public places, (3) public transport and (4) “other public places”. Article 8 creates an obligation to provide universal protection by ensuring that all these places are free from exposure to SHS. No exemptions are justified. In addition, Article 8 creates a continuing obligation for Parties that are unable to achieve universal coverage immediately to move as quickly as possible to remove any exemptions and make the protection universal. Each Party should strive to provide universal protection within five years of ratifying the WHO FCTC. In order to eliminate tobacco smoke from all the places specified in the guidelines, legislators in Kenya should remove the provisions allowing DSRs from the Tobacco Act as early as possible. The MOH should take the lead in proposing amendments and facilitating debate in the government and Parliament, as well as with the public.

Joint national capacity assessment on the implementation of effective tobacco control policies in Kenya

5. Offer help to quit tobacco use (Article 14 of WHO FCTC) 5.1. POLICY STATUS AND DEVELOPMENT The MOPHS has approved an action plan (MOPHS, 2010) that will introduce treatment for tobacco dependence, among other things. The objective will be to provide self-help manuals; brief counselling by health-care workers at all levels, but with emphasis on primary health-care services; referral services, with the possibility of prescribing pharmacotherapy; and support telephone lines to help smokers quit. The Tobacco Control Act 2007 calls for creation of a tobacco control fund to be used to meet the capital expenditures relating to, among other things, promoting national cessation and rehabilitation programmes. However, the fund has not yet been established. Nicotine replacement therapy (NRT) patches and gum and Bupropion are available in Kenya through chemists.

5.2. KEY FINDINGS 5.2.1. Little counselling to assist quitting is offered in the public health-care system. Some cessation services are offered by NACADA and some private hospitals, and attempts have been made to implement tobacco-dependence treatment at the service-provision point in the public healthcare system. Despite these efforts, cessation services are few, unsystematic and lacking in standardization. The potential for primary health-care services to offer brief advice to smokers is notably underused. 5.2.2. There are no national-consensus, evidence-based guidelines to treat tobacco dependence in Kenya. NACADA indicates that it has integrated national standards for tobacco-dependence treatment into guidelines for treatment of substance abuse. The assessment team was not able to obtain a copy to determine whether they constitute appropriate national guidelines. However, NACADA refers to tobacco use as a form of substance abuse, which clearly implies that there is no safe level of consumption. 5.2.3. One quitline exists as part of a general help line for drug abuse, but it is not well known. Although NACADA has a help line for substance abuse, it does not appear to be well known. The NACADA website does not offer any information on the existence of this help line.

5.3. RECOMMENDATIONS 5.3.1. Implement brief advice in all primary health-care services. Within the next five years, all tobacco users should be offered brief advice by a health-care provider when visiting any primary health-care service; the advice should be given in a systematic and standardized manner. Within the next 18 months, at least 20% of the primary health-care services should be offering brief advice.

Joint national capacity assessment on the implementation of effective tobacco control policies in Kenya

The MOPHS should plan to achieve these goals by partnering with the MOMS and institutions offering medical training to all cadres to: • Introduce and institutionalize brief advice in the package of services offered by the public health-care system. • Train health-care workers through short in-service courses after developing a curriculum based on best-practice capacity-building. • Monitor the implementation of the brief advice service and training, according to preset targets and standards. 5.3.2. Develop national-consensus evidence-based guidelines to treat tobacco dependence. All appropriate agencies and health professional organizations should be convened to develop by consensus national evidence-based guidelines to treat tobacco dependence. Treatment guidelines should be systematically developed to help service managers, practitioners and patients make decisions about appropriate treatment for tobacco dependence and cessation. The guidelines should include as broad a range of interventions as possible and should cover all settings and all providers, both within and outside the health-care sector, taking into account national circumstances and priorities. 5.3.3. Expand the reach and capacity of the existing quitline. The MOPHS should explore with NACADA the possibility of expanding the existing NACADA help line into a well-funded and publicized, proactive national quitline8 that adheres to established quality standards.

See the WHO quitline manual for reference on how to create such a quitline.

Joint national capacity assessment on the implementation of effective tobacco control policies in Kenya

6. Warn people about the dangers of tobacco (Articles 11 and 12 of WHO FCTC) 6.1. PACKAGING AND LABELLING 6.1.1. POLICY STATUS AND DEVELOPMENT Section 21 (1) of the Tobacco Control Act 2007 requires that information be provided on the health hazards arising from the use of tobacco products or from their emissions. Section 21 (2) states that every package of tobacco product shall have at least two warning labels containing the same health message in English and Kiswahili, covering not less than 30% of the total surface area of the front panel and 50% of the total surface area of the rear panel; both warnings must be located on the lower section of the package. The warnings must be in black capital letters, in conspicuous and legible 17-point type on a white background, contrasting by typography, layout or colour with all other printed material on the package. Schedule 21 (3) prescribes a set of 14 health warnings that are to be rotated every 12 months. Section 21 (4) of the Act provides that the Minister may, by notice in the gazette, mandate a pictorial warning or pictogram for tobacco product packages. However, no pictorial warnings have been prescribed. (Articles 11 of WHO FCTC)

6.1.2. KEY FINDINGS 6.1.2.1. The existing health warnings on tobacco product packages are in text only; there are no pictorial warnings. Although the Tobacco Control Act provides for pictorial warnings or pictograms for tobacco product packages, they have not been implemented. 6.1.2.2. There is no mechanism to monitor and regulate the labelling and packaging of tobacco products. Neither the MOPHS nor the KEBS has a mechanism to monitor health warnings on tobacco products. The agencies rely on self-compliance by the tobacco industry.

6.1.3. RECOMMENDATIONS 6.1.2.3. The government must develop and publish pictorial health warnings for all tobacco products. There is global evidence proving that pictorial warnings are effective in reducing the prevalence of use of tobacco products and in dissuading potential users from taking up tobacco use. Because one-fifth of the schoolchildren 13 to 15 years of age in Kenya smoke cigarettes (GYTS 2007) and children are increasingly exposed to other tobacco products, the MOPHS should build its capacity in this area or work with civil society organizations to develop and pretest pictorial/graphic health warnings for tobacco products, as mandated under the Tobacco Control Act.

Joint national capacity assessment on the implementation of effective tobacco control policies in Kenya

6.1.2.4. A mechanism for regulation and enforcement of labelling and packaging of tobacco products must be developed and implemented. A mechanism to regulate, implement, enforce and evaluate labelling and packaging provisions must be developed by the MOPHS, in coordination with key stakeholders. The Kenya Revenue Authority (KRA) should be involved in regulating and enforcement at entry points into the country and at the manufacturing level. The drug inspectors and public health officers may be required to monitor in the field. The mechanism should be linked with trends in quitting, and the general awareness derived from the warnings should be assessed.

6.2. PUBLIC AWARENESS AND MASS-MEDIA CAMPAIGNS 6.2.1. POLICY STATUS AND DEVELOPMENT

(Article 12 of the WHO FCTC)

Part III of the Tobacco Control Act 2007 concerns Information, education and communication (IEC) regarding the dangers of tobacco and clearly describes the role of the government in undertaking IEC activities for tobacco control. Section 9 (1) of the Act provides that “the government shall promote public awareness about the health consequences, addictive nature and mortal threat posed by tobacco consumption and exposure to SHS and the harmful effects of tobacco growing and handling through a comprehensive nationwide education and information campaign through the relevant Ministries, departments, authorities and other agencies”. Section 9 (3) states that “the government shall provide training, sensitization and awareness programmes on tobacco control for community workers, social workers, media professionals, educators, decision makers, administrators and other concerned persons for proper information dissemination and education on tobacco and tobacco products”. Section 10 of the Act states that “the ministry responsible for education, utilizing official information provided by the Ministry of Health shall integrate instruction on the health consequences, addictive nature and mortal threat posed by tobacco consumption and exposure to tobacco smoke at all levels of education, including informal and non-formal and indigenous learning systems”. Article 11 (1) states that tobacco control IEC shall form part of the health-care services of health-care providers. The MOPHS promotes public awareness of the harmful health effects of tobacco and has a department of Health Promotion that provides necessary support to the technical departments. They are key in developing the IEC materials for the ministry. The role of the media is however not well defined in the National Tobacco Control Action Plan 2010–2015. The Ministry of Information (MOI) has a policy on substance abuse and alcohol in general, and tobacco is a part of it. There is no separate policy for mass-media campaigns on tobacco control. NACADA has a mandate to provide awareness campaigns and capacity-building in substance-abuse control, as well as alcohol and tobacco control. The Ministry of Youth and Sports (MOYAS) has separate departments of youth development and drug abuse but no clear framework to address tobacco control issues.

Joint national capacity assessment on the implementation of effective tobacco control policies in Kenya

6.2.2. KEY FINDINGS 6.2.2.1. There is no well-defined policy for sustained tobacco control awareness activities or media campaigns. Although the Tobacco Control Act clearly describes the role of the government in promoting IEC activities for tobacco control in the country, no policy has been developed by any key stakeholder. Different departments have infrastructure for public awareness activities and capacity-building in tobacco control. Most of the awareness activities are undertaken as part of substance-abuse and alcohol control policies and programmes by agencies other than the MOPHS. The public awareness and education campaign undertaken by the MOPHS is centred on celebrations of World No Tobacco Day. IEC material for public education and advocacy is developed by the MOPHS in collaboration with WHO, but the material does not reach peripheral health and district units. Civil society organizations under the umbrella of KETCA are also involved in IEC campaigns on tobacco control, but they have limited resources. Media groups and associations are generally not aware of tobacco-related issues or the WHO FCTC. 6.2.2.2. The government has limited capacity for training in tobacco control. Some training activities in tobacco control are undertaken as part of substance-abuse and alcohol control programmes by NACADA, the MOE and civil society organizations such as KETCA. Training needs for different groups, e.g. policy-makers, health professionals, teachers, media personnel, community leaders, are also not identified. 6.2.2.3. There is no dedicated funding for IEC and training on tobacco control activities. Although the Tobacco Control Act provides detailed information about the source of funding for tobacco control activities and also describes the IEC activities to be undertaken for tobacco control, the activities suffer because of lack of funds.

6.2.3. RECOMMENDATIONS 6.2.3.1. A national policy/strategy for education and media campaign on tobacco control should be developed. The MOPHS should coordinate and partner with key stakeholder departments (e.g. NACADA, the MOI, the MOE, the MOYAS), media groups (e.g. the Association of Media Women in Kenya) and civil society organizations (e.g. KETCA) to formulate a sustained media campaign guided by Article 12 of the WHO FCTC. The Department of Health Education & Promotion under the MOPHS should be involved in developing awareness campaigns and IEC material for tobacco control. IEC material should be developed and pretested for different target groups. Relevant, high-quality IEC material should be made available by the MOPHS for different levels of health care, educational institutions, civil society and government departments.

Joint national capacity assessment on the implementation of effective tobacco control policies in Kenya

6.2.3.2. Capacity-building for tobacco control training should be undertaken. Training-needs assessments for different target groups should be undertaken, and relevant training material should be developed. A well-defined strategy for training of health workers, teachers, media personnel, community leaders, faith-based organizations and communities should also be developed by the MOPHS in coordination with key stakeholders. 6.2.3.3. Dedicated funds must be provided for education and media campaigns and for training on tobacco control. As mandated under the Tobacco Control Act, funds should be provided to develop quality IEC material, to undertake education activities and to develop media campaigns and training on tobacco control, as well as for evaluation of these activities.distribution of IEC materials. Activities at the national and provincial levels have been primarily focussed around World No Tobacco Day each year, and information and education materials have been produced and distributed by VINACOSH. Ongoing earned media activities undertaken by HealthBridge Canada include the development of a network of journalists who are regularly briefed on tobacco control issues. In addition, VINACOSH has worked with the American Cancer Society to present a series of training workshops for journalists on tobacco control and to promote a competition among journalists to publish media articles on tobacco control issues.

Joint national capacity assessment on the implementation of effective tobacco control policies in Kenya

7. Enforce bans on advertising, promotion and sponsorhip (Article 13 of WHO FCTC) 7.1. POLICY STATUS AND DEVELOPMENT The Tobacco Control Act 2007 establishes a comprehensive ban on TAPS. Nevertheless, there are loopholes for Internet and corporate social responsibility activities. The prohibition of sponsorship is limited to the events and activities mentioned, and therefore, sponsorship of individuals or organizations may be permitted. In addition, the Act does not provide a definition of tobacco sponsorship, which makes the interpretation of some provisions difficult.

7.2. KEY FINDINGS 7.2.1. Compliance with the TAPS ban seems to be high, but it is limited for direct advertising and moderate for indirect advertising. The assessment team found good compliance with the ban on TAPS. However, there are reports of subtle advertising, including prices in the print media and the use of accessories such as matches to advertise some brands. Promotion of some products was also noted, including the offer of lighters with the purchase of some brands. Moreover, compliance with the ban on indirect advertising is only moderate. In May 2011, the Strathmore Business School named BAT Kenya the most family-friendly employer among 40 local organizations, which was widely reported in the press. Also, some forms of sponsorship have been reported, including sponsorship of business programmes, education grants and community programmes, mostly in tobacco-growing areas. With few exceptions, local governments have not mobilized public health officers to actively enforce the provisions of the Act banning TAPS. 7.2.2. Tobacco product placement in entertainment media products is unchecked. The Kenya Film Classification Board9 (KFCB) is the public regulator of films destined for public exhibition, distribution and broadcasting in Kenya. The Board examines, rates and approves films according to age suitability. It typically bases its ratings on the amount and frequency of violence, sex and profanity, but it also considers the amount and frequency of use of tobacco products. However, the weight of this criterion in the final rating is not clear. In addition. Although the KFCB discourages the use of tobacco products and brands in the production of Kenyan entertainment media products, the board does not have the infrastructure or capacity to enforce the recommendation. 7.2.3 .Almost four years after the entry into force of the Tobacco Control Act 2007, important provisions have not been implemented. The Act authorizes the Minister of Pubic Health and Sanitation to prescribe information that manufacturers shall provide to the Tobacco Control Board, including information on sales and advertising. However, the Minister has not issued any regulations. Since the law allows and/or is unclear regarding some forms of 9 The Board was established as a statutory body under part III of the Films and Stage Plays Act Cap. 222 of the laws of Kenya. It operates as a department under the MOI.

Joint national capacity assessment on the implementation of effective tobacco control policies in Kenya

tobacco promotion and sponsorship, it is particularly important for the government to monitor tobaccoindustry TAPS activities and expenditures on them. Also the Act envisions the prohibition of misleading descriptors on packaging. Because the Minister has not prescribed or prohibited any specific terms or actions, it is unclear whether or what misleading promotion is prohibited.

7.3. RECOMMENDATIONS 7.3.1. The MOPHS should engage with the MOLG and local governments to actively enforce the provisions of the Act banning TAPS. Enforcement of the Act is primarily the responsibility of local public health officers. The MOPHS should engage with the MOLG and local governments to • Create a political commitment to actively enforce the provisions of the Act banning TAPS • Implement operative plans to enforce the Act across the country • Strengthen the enforcement capacity of public health officers, since they are also responsible for enforcing other parts of the Act. Capacity-building efforts should be part of the overall strengthening of enforcement recommended in other sections of this report. 7.3.2. The KFCB should develop and implement guidelines for rating entertainment products that depict tobacco products, use or imagery of any type as suitable only for adults over 18 years of age. In addition, the KFCB should • Prohibit the depiction of identifiable tobacco brands or tobacco brand images in association with or as part of the content of any entertainment media product • Require the display of prescribed anti-tobacco advertisements at the beginning of any entertainment media product that depicts tobacco products, use or images. 7.3.3. Develop and implement the regulations called for in the Tobacco Control Act 2007. Regulations should be developed regarding disclosure to the government by the tobacco industry of information on TAPS activities and expenditures. These include regulations prescribing the information that manufacturers must provide to the Tobacco Control Board and regulations describing specifically which forms of misleading promotion are prohibited.

Joint national capacity assessment on the implementation of effective tobacco control policies in Kenya

8. Raise tobacco taxes and prices (Article 6 of WHO FCTC) 8.1. POLICY STATUS AND DEVELOPMENT The Ministry of Finance (MOF), through the Department of Economic Affairs, is responsible for the development of statutory tax policies covering taxes, as well as administration. Tax policies are released either as an act of Parliament or though regulations gazetted by the Minister. The Constitution enacted in 2010 introduced significant changes to the process of developing tax laws. Although the MOF retains its role, Parliament, though the Budget Committee, is given enhanced powers to review and amend. In line with this, the Constitution requires the MOF to submit budget proposals, including tax proposals, at least two months before the beginning of each financial year. The MOF has been grappling with restructuring tobacco taxes for more than eight years, having changed the structure three times during this period. Prior to 2003, excise tax on cigarettes was charged on ad valorem rate based on the ex-factory selling price. This system was replaced with a four-tier specific tax based on the retail selling prices. In 2008, the MOF made a major structural change, introducing taxation on the basis of product and packaging characteristics. However, as a result of Industry lobbying, the change was reversed by Parliament in 2010. In 2011, the MOF proposed to Parliament a new tax structure in which the tiers were abolished and all taxes were based on a single rate of 1,200 Kenya shillings (Kshs) per mille or 35% of the retail selling price, with the latter targeted at the high-end tobacco products. The new structure raises taxes on the lower-end tobacco products by approximately 82% and results in a global increase of approximately 35%. Tax laws are developed through a defined consultative process, which involves receiving proposals from the various stakeholders, including the tobacco Industry. After approval, the proposals are forwarded to Parliament though a bill. The parliamentary process is also consultative and allows for submissions from industry and members of the public. The Department of Economic Affairs has embarked on ambitious scheme to build capacity by carrying out staff development through sponsorship of Masters and Doctoral degrees in various areas of specialization relating to economic policy development.

8.2. KEY FINDINGS 8.2.1. The MOF is committed to realization of the public health objectives through fiscal policies, the tax structure and rates on tobacco products, but it has not benchmarked on global best practices. • The MOF does not have a specific tobacco taxation policy. The taxation of tobacco is guided by externalities associated with tobacco consumption, primarily the health-related costs. It is encouraging to note that the driving objective in the development of the tax proposals contained in Finance Bill 2011 was the attainment of public health objectives. • The tobacco industry, as observed in the previous tax policy development cycles, still has significant influence on the process. It remains the single most critical challenge to the realization of the new proposals for tobacco taxation.

Joint national capacity assessment on the implementation of effective tobacco control policies in Kenya

• Although the MOF expressed a strong commitment to the realization of the public health objectives through fiscal policies, the tax structure and rates on tobacco products have not been benchmarked on global best practices. • The MOF has not developed clear empirical public health models to support its tobacco taxation policies. Therefore it may be difficult to quantify the public health output of the current policies.

8.3. RECOMMENDATIONS 8.3.1. The MOF should develop a close working relationship with the MOPHS. The MOF might also explore the possibility of technical assistance from relevant agencies such as the World Bank and the WHO to further develop capacity in tobacco taxation. • The MOF should benchmark its tobacco tax policies to the best global practices. The existing tax is 35% of retail selling prices, compared with the 70% global best practice. • The MOF should work with tobacco control partners to research and develop evidence to build advocacy to neutralize the influence of the tobacco industry in the tax policy development process.

Joint national capacity assessment on the implementation of effective tobacco control policies in Kenya

9. Elimination of illicit trade in tobacco products (Article 15 of WHO FCTC) 9.1. POLICY STATUS AND DEVELOPMENT KRA is the agency in the government of Kenya responsible for collection and enforcement of customs and domestic taxes (excise, value-added tax [VAT] etc.). KRA is also engaged with MOF/Department of Treasury in tax policy development as it impacts the revenue administration. This includes submission of tax proposals to MOF/Department of Treasury for consideration in the budget. In the recent past, KRA has supported raising taxes on tobacco products to achieve two objectives – increased revenue and decreased demand for tobacco products. The Kenyan Customs, Excise and VAT administrations have the necessary legal provisions and technical capacity for effective enforcement and control of illicit trade in tobacco products. KRA officers are also regularly sent on training to further enhance their enforcement capacity The evasion of domestic excise taxes and cross-border smuggling of cigarettes continue to be major concerns of KRA. The government has undertaken a number of reforms in the past few years to combat evasion of domestic excise taxes and VAT. These include the introduction of tax stamps in 2003 to combat counterfeiting, deployment of “resident officers” in the two cigarette factories, forfeiture of contraband cigarettes and destruction of seized cigarettes. The recent introduction of online/e-cargo tracking (more than 1,900 trucks per day) has also been highly effective in tracking goods in transit/bond (i.e. non-tax-paid).

9.2. KEY FINDINGS 9.2.1. KRA has undertaken a number of measures to eliminate domestic tax evasion and cigarette smuggling. The existing customs/excise/VAT laws are adequate to combat smuggling and illicit trade in tobacco products. KRA has the necessary resources to enforce the relevant laws. Police and anti-counterfeiting agencies also collaborate with KRA in the enforcement efforts. Despite all these efforts, domestic tax evasion and cross-border smuggling of cigarettes are still major concerns for KRA. The introduction of smokeless tobacco, chewing tobacco, sheeshah tobacco etc. in the country has been largely unnoticed in KRA, and the agency has no information or intelligence on these products.

Joint national capacity assessment on the implementation of effective tobacco control policies in Kenya

9.2.2. KRA is fully engaged in intergovernmental negotiations under WHO FCTC and World Customs Organization activities. The revenue authorities in East African Community (EAC) countries are also engaged in combating smuggling and illicit trade in cigarettes. KRA officials have participated in the ongoing WHO FCTC negotiation of the Protocol on Illicit Trade in Tobacco Products. The engagement between EAC Member States is ongoing and is aimed at developing a customs union. All the EAC countries are obligated to harmonize their respective tax systems and customs administrations, including processes of sharing of information and intelligence. The process of engagement between revenue authorities has not been very effective, as their enforcement capacities differ.

9.3. RECOMMENDATIONS 9.3.1. KRA should develop a comprehensive policy to effectively eliminate all forms of smuggling and illicit trade in tobacco products. As cigarette smuggling continues to be significant, it is essential that KRA take enforcement measures to secure the entire supply chain of tobacco products (e.g. tracking and tracing, licensing, record keeping, customer verification and identification, control of manufacturing equipment). The proposed introduction of a comprehensive track-and-trace system should be fully compliant with the WHO FCTC draft Protocol on Illicit Trade in Tobacco Products. All possible efforts must be made to clearly distinguish tobacco products “meant for home consumption” from “tobacco products meant for export”. The global best practices and lessons learnt in efforts to combat illicit trade and smuggling of tobacco products need to be shared with KRA and other enforcement officials to further build their capacity. KRA should carry out market research and investigate smuggling trends on other tobacco products, including smokeless tobacco, chewing tobacco, sheeshah tobacco and e-cigarettes. A number of imported pan masala and gutkha brands are available in the market (e.g. Kuber). 9.3.2. KRA should take the lead and engage with other EAC Member States in devising a regional strategy to combat illicit trade and smuggling of tobacco products. As cigarette smuggling is a key concern for all the EAC countries, it is important to agree on a coordinated mechanism and a shared strategy in the working committee(s) on VAT and excise taxes and the committee(s) handling customs and trade facilitation/enforcement issues. Coordination between revenue authorities in EAC countries needs to be further streamlined to facilitate real-time sharing of trade data, intelligence, joint investigations etc. This may also require harmonizing the proposed track-and-trace systems that will be introduced in these countries so that online tracking of shipments across countries will be possible.

Joint national capacity assessment on the implementation of effective tobacco control policies in Kenya

10. Contents of tobacco products and regulation of tobacco product disclosures 10.1. POLICY STATUS AND DEVELOPMENT

(Articles 9&10 of WHO FCTC)

Section 21 (5) of the Tobacco Control Act 2007 states that every package of tobacco products shall bear a statement as to the tar, nicotine and other constituents and that such statement shall be placed directly on the right-hand side of the package in a conspicuous and prominent format. The statement is limited to disclosure of the contents of the product and not their quantities. Kenya is a member of the Working Group on Articles 9 and 10 set up by the WHO FCTC COP.

10.2. KEY FINDINGS 10.2.1. The Tobacco Control Act provides for testing of tobacco products, but there are no standards or validation methods. As there are no standards or validation methods to comply with the provisions of the Act, KEBS is currently using East African Standard (EAS) 110:2005 for regulating the contents and emissions of cigarettes. Testing of tobacco products is undertaken on tobacco industry premises, because the government agency for standards lacks the capacity for an independent laboratory. 10.2.2. The Tobacco Control Act mandates that every tobacco product package shall bear a statement as to the tar, nicotine and other constituents and shall display the same on the packages. No regulation, however, has been codified in respect to testing tobacco products for tar, nicotine and other constituents. The public sector laboratories have no capacity to test tobacco products, and there is no monitoring mechanism. The tobacco industry is currently complying on its own.

10.3. RECOMMENDATIONS 10.3.1. The government should develop standards for testing tobacco products for contents, emissions and display. The MOPHS should develop standards for testing of tobacco products for tar, nicotine and other constituents and their display on packages. The standards should be fully compliant with the guidelines under Articles 9 and 10 of the WHO FCTC and the Tobacco Control Act provisions. The standards and validation methods used and recommended by the WHO TobLabNet may be referred to. The standards should be developed by a body that is independent of the tobacco industry. 10.3.2. The government should work towards building its capacity to regulate, prescribe and test emissions of all tobacco products. The provision for regulation of contents, emissions and display on tobacco products packages provides an opportunity to strengthen capacity for testing and regulating emissions of tobacco products. The MOPHS should lead the process of getting the regulation in place. Since Kenya is a manufacturing hub, it should have a testing laboratory to facilitate product regulation.

Joint national capacity assessment on the implementation of effective tobacco control policies in Kenya

11. Alternative Livelihoods/ Alternative Cropping (Articles 17 and 18 of WHO FCTC) 11.1. POLICY STATUS AND DEVELOPMENT Agriculture is the backbone of the Kenyan economy, directly contributing 24% of GDP and 65% of export earnings and indirectly contributing another 27% through links with manufacturing, distribution and service-related sectors. The tobacco industry provides about 1% of the national annual government revenue. In Kenya, most of the tobacco is grown in three provinces: Nyanza (Migori, Kuria and Homa Bay districts), Western (Bungoma, Busia, Teso and Mount Elgon districts) and Eastern (Meru district). However, 80% of the country’s tobacco production comes from the South Nyanza region. An estimated 35 000 farmers are currently growing tobacco, and the number has been increasing over time as a result of the collapse of important agriculture sectors such as cotton and pyrethrum and decreasing incomes from the coffee and tea industries. The land under tobacco cultivation in Kenya has also increased from 500 hectares in the 1960s to 15,000 hectares today, at the expense of traditional food crops and livestock activities. Tobacco-growing places high demands on wood fuel and farmers’ time and poses serious health issues. All of these factors have led to increased poverty levels in tobacco-growing areas. Urgent action is needed that can solve a multitude of tobacco farming problems – economic, sociocultural and gender issues; food insecurity; occupational and health hazards; and environmental concerns. Article 17 of the WHO FCTC, on provision of support for economically viable alternative activities, requires that “Parties shall, in cooperation with each other and with competent international and regional intergovernmental organizations, promote, as appropriate, economically viable alternatives for tobacco workers, growers and, as the case may be, individual sellers”. Article 18, on protection of the environment, requires Parties to the WHO FCTC to ensure “protection of the environment and the health of persons in relation to tobacco cultivation and manufacture within their respective territories”. However, progress in implementing this article has been very slow, and its prioritization is undercut at both the global and regional levels without due consideration of the fact that most tobacco production is now shifting to poor countries whose economies depend on agriculture. Emphasis at these levels has been on tobacco demand reduction; no priority has been given to protection of the environment (life-supporting systems) and the small tobacco producers who are among the most affected, especially women and children. Through partnerships among ministries and key stakeholders, the MOPHS supports the provision of alternative crops and other livelihoods for tobacco farmers by indirectly giving them viable options enabling them to easily switch to other crops. The MOPHS approaches the issue from a macro level without specific targets (i.e. tobacco farmers or tobacco farming regions) to ensure equity and fair distribution among all farmers countrywide. Some of the successful initiatives promoting alternative crops and livelihoods are listed in Table 11.1.

Joint national capacity assessment on the implementation of effective tobacco control policies in Kenya

Table 11.1: Initiatives Promoting Alternative Crops and Livelihoods Institution • • • • Migori Bamboo Farmers Cooperative Society Ltd Kuria Bamboo Farmers Cooperative Society Ltd Homa bay Bamboo Farmers Cooperative Society Ltd Suba Bamboo Farmers Cooperative Society Ltd Roles Established in 2010 by the Ministry of Cooperatives Development, whose main goals are promoting alternative crops and alternative livelihoods.

Kenya Soya Beans Farmers Association

Promoting soya beans as an alternative crop to tobacco farmers in South Nyanza

NEMA environmental regulations on the protection of the environment require that all practices of manufacturing enterprises (including contract tobacco farming on company-leased land parcels) be audited periodically to determine impacts on the environment and possible mitigation measures.

11.2. KEY FINDINGS 11.2.1. The MOA has no tobacco control policy, and government ministries have a “hands-off” policy on tobacco farming. • No policy regulations on economically viable alternatives for tobacco farmers have been formulated by the Ministries of Agriculture, Livestock, Fisheries and Cooperatives. Hence, there are no tobacco control focal points at the ministries for implementing Article 17 of the WHO FCTC. • Various government ministries at the national and local levels have a “hands-off” policy towards tobacco farming. Government representatives attend and occasionally officiate at functions organized by tobacco companies on the basis that tobacco is a legitimate cash crop and business. Periodic MOA reports document production and incomes received from tobacco on the basis of information received from the tobacco industry. Tobacco companies are also listed as members of grass-roots government agricultural sector multi-stakeholders forums. However, to protect the interests of farmers, the provincial administration intervenes when there is a dispute between the farmers and the companies, especially when crop payments are delayed. • There is no special fund for alternative livelihoods. The MOF does not support the establishment of earmarked funding, because special funds targeted to raising resources for certain interventions have made tax collection complex, bureaucratic, ineffective and inefficient. Instead, tobacco alternatives are indirectly supported through rural poverty alleviation, agricultural and rural development programmes. 11.2.2. Tobacco growers in Kenya are incentivized through government subsidies on fertilizers and funding from the tobacco industry, but there is no market support mechanism. • The government provides a subsidy for DAP (diammonium phosphate) fertilizers to increase food production and security in the country. However, the subsidy is also accessed by tobacco farmers. This implies that the government is indirectly using the exchequer budget to subsidize tobacco farming. It has implemented poor fertilizer policies that are linked to political objectives rather than economics. • The government does not provide direct access to agricultural inputs through a loan system like the one used by tobacco companies to attract members. Tobacco industry incentives (inputs and corporate social responsibility activities) targeting small farmers exceed government support for alternative crops. • The MOA is focused on crop and livestock production and not on a market mechanism for agricultural products, which is the mandate of the Ministry of Cooperatives. The government has not developed a workable marketing structure or market-value chain for agricultural products, such as cereals and horticultural and dairy products, which are produced in tobacco-farming regions.

Joint national capacity assessment on the implementation of effective tobacco control policies in Kenya

11.3. RECOMMENDATIONS 11.3.1. The MOA and other agencies need to create a tobacco control policy to advance implementation of the WHO FCTC. Tobacco control focal points need to be established in the MOA and the Ministry of Environment and Mineral Resources. The mandate of those focal points should be the institutionalization and operationalization of WHO FCTC Articles 17 and 18 and the Tobacco Control Act 2007. Support for diversification and value addition in agriculture, livestock and fisheries should be provided through establishment of sustainable market-value chains for viable alternative agricultural products. Since agriculture is the backbone of the Kenyan economy, promotion of sector-wide approaches to enhance agricultural productivity of viable alternative crops and livestock through empowerment of small tobacco farmers and other stakeholders through the existing programmes should be a priority. Public-Private Partnerships (PPPs) in service delivery and development of viable alternative agricultural products should be encouraged. The MOH should ensure that the MOA leads the participation of the government of Kenya in the Articles 17 and 18 Working Group Meeting. 11.3.2. The MOA should explore development of a market support mechanism for alternatives to tobacco growing. The MOA should work with the MOF to develop a market support and pricing mechanism to incentivize tobacco farmers to switch to alternative cropping; the mechanism should include development of PPP options under existing programmes and schemes. As food crops such as maize are a high priority, the MOA should explore the possibility of introducing minimum support prices for food production and other measures to ensure that farmers have appropriate incentives to switch from tobacco-growing. The MOA should also explore ways to ensure that the fertilizer subsidy meant for food crops is not wrongly accessed by the tobacco growers.

Joint national capacity assessment on the implementation of effective tobacco control policies in Kenya

Annex 1. List of assessment team members 10 Assessment team: Richard Ayah Vera da Costa e Silva Jenninah Kabiswa Jagdish Kaur Simon Kibias Jacob Kibwage Dorcas Kiptui Charles Maringo Caxton Masudi Ngeywo Possy Mugyenyi Joyce Nato Nurseline Onsongo Ahmed Ezra Ogwell Ouma Armando Peruga Vinayak Prasad Luminita Sanda Emma Wanyonyi School of Public Health, University of Nairobi - Nairobi, Kenya WHO / Temporary Advisor - Rio de Janeiro, Brazil Centre for Tobacco Control in Africa - Kampala, Uganda WHO / Temporary Advisor - New Delhi, India Deputy Head - Department of Primary Health Services, Kenya University of Nairobi - Nairobi, Kenya Ministry of Public Health and Sanitation - Nairobi, Kenya Public Health Specialist, Kenya Kenya Revenue Authority - Nairobi, Kenya Centre for Tobacco Control in Africa - Kampala, Uganda WHO Country Office - Nairobi, Kenya Administrative Assistant, Ministry of Health, Kenya WHO Regional Office for Africa - Brazzaville, Congo WHO / Tobacco Free Initiative - Geneva, Switzerland WHO / Tobacco Free Initiative - Geneva, Switzerland WHO / Tobacco Free Initiative - Geneva, Switzerland Institute for Legislative Affairs - Nairobi, Kenya

10 in alphabetical order

Joint national capacity assessment on the implementation of effective tobacco control policies in Kenya

Annex 2. List of all recommendations, chapter by chapter COORDINATION AND IMPLEMENTATION OF TOBACCO CONTROL INTERVENTIONS 1. The MOPHS should establish a clear mechanism ensuring a smooth and coordinated implementation of the different aspects of tobacco control at the different levels of governance. 2. Human resources for tobacco control must be increased. 3. The tobacco control fund created by the Tobacco Control Act should be operationalized, and the MOPHS and the MOMS should establish a dedicated budget line for tobacco control activities under the relevant departments. 4. The government should establish a clear policy to prevent undue interference from the tobacco industry.

MONITORING AND EVALUATION 1. The MOPHS should strengthen its human and financial capacity to undertake regular, sustained surveillance of the tobacco epidemic and its consequences. 2. The MOPHS should collaborate with the relevant governmental agencies in defining and establishing clear mechanisms for monitoring tobacco control interventions. 3. The MOH should identify and assign an organization to initiate regular and systematic monitoring of tobacco-industry activities.

PROTECT PEOPLE FROM TOBACCO SMOKE - SMOKE-FREE ENVIRONMENTS 1. The MOH, in close collaboration with governmental and non-governmental tobacco control stakeholders, should reignite efforts at enforcement and self-enforcement of the Tobacco Control Act 2007. 2. The MOH should pursue collaboration with all relevant stakeholders for amending the current smoke-free provisions to eliminate tobacco smoke in all indoor public places, workplaces and public transportation by removing the option of creating DSRs.

OFFER HELP TO QUIT TOBACCO USE 1. Implement brief advice in all primary health-care services. 2. Develop national-consensus evidence-based guidelines to treat tobacco dependence. 3. Expand the reach and capacity of the existing quitline.

Joint national capacity assessment on the implementation of effective tobacco control policies in Kenya

WARN PEOPLE ABOUT THE DANGERS OF TOBACCO 1. Packaging and labelling 1. The government must develop and publish pictorial health warnings for all tobacco products. 2. A mechanism for regulation and enforcement of labelling and packaging of tobacco products must be developed and implemented. 2. Public awareness and mass-media campaigns 1. A national policy/strategy for education and media campaign on tobacco control should be developed. 2. Capacity-building for tobacco control training should be undertaken. 3. Dedicated funds must be provided for education and media campaigns and for training on tobacco control.

ENFORCE BANS ON ADVERTISING, PROMOTION AND SPONSORHIP 1. The MOPHS should engage with the MOLG and local governments to actively enforce the provisions of the Act banning TAPS. 2. The KFCB should develop and implement guidelines for rating entertainment products that depict tobacco products, use or imagery of any type as suitable only for adults over 18 years of age. 3. Develop and implement the regulations called for in the Tobacco Control Act 2007.

RAISE TOBACCO TAXES AND PRICES 1. The MOF should develop a close working relationship with the MOPHS. The MOF might also explore the possibility of technical assistance from relevant agencies such as the World Bank and the WHO TFI to further develop capacity in tobacco taxation.

ELIMINATION OF ILLICIT TRADE IN TOBACCO PRODUCTS 1. KRA should develop a comprehensive policy to effectively eliminate all forms of smuggling and illicit trade in tobacco products. 2. KRA should take the lead and engage with other EAC Member States in devising a regional strategy to combat illicit trade and smuggling of tobacco products.

PROVISION OF SUPPORT FOR ECONOMICALLY VIABLE ALTERNATIVE ACTIVITIES 1. The MOA and other agencies need to create a tobacco control policy to advance implementation of the WHO FCTC. 2. The MOA should explore development of a market support mechanism for alternatives to tobacco growing.

Joint national capacity assessment on the implementation of effective tobacco control policies in Kenya

CONTENTS OF TOBACCO PRODUCTS AND REGULATION OF TOBACCO PRODUCTS DISCLOSURES 1. The government should develop standards for testing tobacco products for contents, emissions and display. 2. The government should work towards building its capacity to regulate, prescribe and test emissions of all tobacco products.

Joint national capacity assessment on the implementation of effective tobacco control policies in Kenya

Key facts

Organisation World Health Organization (WHO)

Document type Publications

Adoption date November 5, 2012

Source World Health Organization