A Mombasa court has declared the ban imposed on shisha sale and smoking unconstitutional. 

In a ruling made on Thursday, March 28, Senior Principal Magistrate Joe Mkutu affirmed that the ban is unconstitutional and set some 48 people arrested in recent crackdowns free.

While making the ruling at Shanzu Courts, the Judge noted that the Cabinet Secretary for Health who imposed the ban failed to regularize it through Parliament even after the High Cort ordered so and, as such, the ban was unlawful.

He therefore noted that the charges leveled against the accused persons were non-existent.

“What comes out of the prosecution’s submissions is that the Cabinet Secretary did not comply with the order by the High Court to regularize to the letter the shisha ban within the nine months that the High Court ordered,” Chief Magistrate Mkutu ruled.

“In fact, there has not been placed before the court anything to show that the process of regularizing the ban was ever commenced or even attempted during the nine (9) month respite.”

In the ruling, the judge reminded the prosecution that the High Court in a decision made in 2018 found the ban on shisha to be irregular and ordered the Ministry of Health regularize it. 

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Why ban on shisha is non-existent

According to Chief Magistrate Mkutu, the High Court allowed the ban to remain in force for nine months to allow the then Cabinet Secretary to regularize it through parliament.

However, according to the Thursday ruling, the Ministry had failed to comply with order and as such the Magistrate asserted that the ban became non-existent after the lapse of the nine months window.

“I understand the High Court to be saying that in the event the irregular rules are not regularized by the Cabinet Secretary within nine (9) months, then they would stand rendered as irregular and their force would immediately cease,” he noted in the ruling.

“With profound respect. I drastically disagree with the prosecution, particularly on the view Mr. Musyoka takes that the shisha ban remains in force even after non-compliance by the Cabinet Secretary.”

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The ruling came as a relief for nightclubs in the country and revelers who had been targeted in a nationwide crackdown on shisha smoking. In the month of February, the National Campaign Against Drug Abuse (NACADA) in collaboration with the police sustained a crackdown against nightclubs serving shisha in what led to the arrest of revelers and managers.

NACADA had also launched a crackdown on revelers turning to people’s homes and rooftop parties to smoke shisha in a bid to enforce the ban. In a Gazette notice issued in December 2018, Cleophas Mailu- the then Health Cabinet Secretary announced the ban on shisha to curtail a growing popularity of the deemed to have harmful health effects on the human body.