In 2016 Yash Ghai wrote critically of former President Uhuru Kenyatta’s efforts to persuade countries that had banned miraa to reconsider their decision to protect the miraa growers of Meru and Embu. (I shall not go into the distinction between miraa and muguka. Both are of from the khat plant.)
In a fascinating article in the Weekly Review (last Sunday Nation), John Kamau describes how there were traditional limits on who could consume khat. He also tells how the colonial government passed laws restricting its growth and use in 1946, and how in 1977 Parliament lifted the ban at the insistence of Jomo Kenyatta – for the economic benefit to Mt Kenya. The 1946 Ordinance restricted growing and use to Meru and Embu, allegedly to protect communities the regime considered vulnerable – namely in the North.
The issue has been a good deal discussed over the years. A parliamentary debate was held in the 1990s. A study was done for Nacada in 2013 of the socio-economic and health effects of chewing khat. It recommended health education and awareness programmes, jobs for the unemployed youth, development of alternative cash crops, more research and a cost-benefit analysis of growing the crop.
People may get in the habit of chewing, enjoying perhaps a sense of euphoria, enjoying communicating with others, and having a sense of being full of ideas. Probably followed by at least a sense of lassitude – and where chewing is widespread and regular, this can mean working days begin rather late. Various other more problematic symptoms are possible. On the other hand. KEMRI produced a report (funded by the Kenya Government, supporting the Mt Kenya growers) saying there was nothing really wrong with it. Muguka is said to have more pronounced and serious impacts than miraa.
National law
No national law makes growing, using or possessing khat, under any name, illegal. The effective ingredients cathinone and cathine are listed in the Narcotic Drugs and Psychotropic Substances (Control) Act as psychotropic substances. Possession of psychotropic substances is a crime, yet it is not an offence to possess khat. Cannabis (bhang) is prohibited because of the substance it contains but it is specifically listed as a plant along with three other plants. Khat is not. It is clear from the Hansard that the government did not intend to include khat, though some MPs did press for it to be banned.
The crop is recognised in the Crops Act, and specific 2022 regulations made to “facilitate the growth and development of the miraa industry”.
Counties
Now, instead of complaining that foreign countries have banned miraa, the growers are faced with Kenyan county governments that do not want it.
Five coastal counties have tried to ban or restrict muguka. What powers do the counties have?
First: they cannot do anything without law. We find the Governor of Kilifi trying to make orders having no legal force appear valid by issuing them as a Gazette notice. He published in the National Gazette instructions to unspecified “county agencies” to stop vehicles bringing muguka into the county, and close all shops and other outlets selling muguka.
Governments have only the power that the law gives them. True, the County Governments Act says that “all important formal decisions made by the Governor” must be published in the county gazette. But a Gazette Notice is not law (unless an Act of Parliament or County Assembly makes it so). Counties have no power to stop people or vehicles from entering their borders.
Second: even laws or legally based decisions may be unconstitutional, because there was no power to make the law. Only the courts can finally decide these issues.
Schedule Four (County Governments Item 13) of the Constitution does say counties have the power to control drugs. This is a bit hard to understand and may become a major issue in court cases. One will be (should be): is muguka a “drug?” The active ingredients are listed as “psychotropic substances” in law, but is this the same as a “drug” under the Constitution?
Another argument will clearly be that Item 13 refers only to control of what has been declared by national law to be a controlled drug, not making their own law. Also, counties cannot make criminal law – that is for the national government
Furthermore if a county did pass laws to control some drugs, I suspect the courts would say national law should prevail because it would not be workable to have different laws for each county (Article 191)(3). National law clearly recognises khat as not prohibited.
Thirdly: counties may not impose taxes other than property rates and entertainments tax (unless Parliament allows them by law) (Article 209). They do have power to issue trade licences, regulate undertakings selling “food” (is muguka food?) and regulate markets. Charging higher fees, trying to price muguka out of the market, or charging “cess” on transporting it is essentially taxation. I have previously written about the rather unsatisfactory cases on this matter of cess. Even if Kwale county has passed law increasing the charges for transporting muguka, this is taxation and unconstitutional. Governor Achani even called them “taxes”.
Fourth, county laws and decisions must not violate human rights. Banning vehicles crossing county boundaries violates freedom of movement.
Also, counties must not discriminate, violating Article 27(4). Counties may have powers to regulate where miraa/muguka-related activities are carried out, as the physical planning authorities, and regulators of markets. Even the power to control public nuisances (large number of customers, or debris left by chewers) might be relevant. Would this be unlawful discrimination if affecting only muguka? It is not clear whether the courts would or should include as a prohibited ground of discrimination a choice of retail trade. It is not a personal characteristic, and is not something that cannot be changed. If there is no good reason, it is unfair – but not all unfairness is unconstitutional.
However, such decisions might, in effect, discriminate against particular communities which either chew or trade in muguka. If so the county would have to show that its discriminatory rules were for a good purpose and reasonable – guided by Article 24. And, again, there must be law to back up the discriminatory decision.
Fifthly, if miraa/muguka is part of the culture in some communities, would prohibiting it not run into the issues faced in connection with muratina? A recent case held that it was unconstitutional to apply the Alcoholic Drinks Control Act to muratina because of the right to enjoy one’s culture (Article 44). (There are weaknesses in the reasoning in this case– but I won’t bore you with that).
Finally, there is the necessity for public participation in decision making and law making even if there is the power in principle to do so.
A bit of a mess
We have several counties that are concerned – not without reason – about the impact of muguka, especially on the young. There may, of course, be other factors at play. At the same time, we have the national government supporting the growing industry, even financially.
Is the solution banning it? Would this not just produce a black market, as John Kamau said happened under the 1940s Ordinance. Illegality of trade in goods that people really want can lead to violence and exploitation, poverty for some and enormous wealth for others, as we see with heroin.
I do not know if it is practically possible to distinguish between miraa and muguka and ban just the latter.
The issues need to be confronted – in a way that ideally does not mean confrontation between communities. Simply insisting, “You don’t have the power”, is probably an inadequate response. And the courts are probably not the best place to deal with the issues.
And we need constructive policies and government will. Youth need to have something to look forward to. Farmers perhaps should be helped to develop alternative crops.