WAR ON DRUGS

OCHAMI: Why Nassir's muguka ban is illegal and unconstitutional

The Mombasa governor has assumed criminal law authority which is vested in the national government per the schedule.

In Summary
  • Many Kenyans have legitimate political, medical and religious concerns against muguka.
  • The time to ban muguka, khat and other such like products is ripe but strong moral, religious and medical arguments do not amount to law. 
Mombasa Governor Abdulswamad Nassir during the Madaraka Day celebrations at Mama Ngina Waterfront on June 1, 2024.
MUGUKA BAN: Mombasa Governor Abdulswamad Nassir during the Madaraka Day celebrations at Mama Ngina Waterfront on June 1, 2024.
Image: HANDOUT

On May 22 Mombasa Governor Abdulswamad Sharif Nassir proclaimed an executive order prohibiting the entry, distribution, sale and consumption of the hallucinogenic muguka or its products within Mombasa.

The order decrees an indefinite prohibition and directs the county government’s inspectorate authority to enforce the stringent prohibitions.

 The governor cited what he alleged to be medico-scientific data demonstrating adverse negative effects associated with consumption of the plant and an alleged concurrence with Nacada. He also alleged public pressure for prohibition to justify the new measures.

Among other laws, Nassir cited Article 179 of the 2010 Constitution which he argues confers executive authority in the devolved government on the governor. He also stated that per the Fourth Schedule of the supreme law county government retain the constitutional authority to license and regulate trade, “control drugs and substance abuse”.

By a stroke of a pen, thousands have been rendered jobless, denied their right to property and favourite recreation.

Press reports indicate that Lamu, Kwale and Kilifi counties have followed Mombasa’s example. Prior to Nassir’s edict, a group of religious leaders and anti-narcotics activists led a crusade against the stimulant.

Several questions arise about the legal and constitutional basis of the executive order and whether the affected traders and transporters  besides consumers are protected by law to engage in and with this product for recreation and financial gain.

Critiquing the legal basis of Nassir’s action is not a denial of whether muguka is a proven narcotic with crippling negative effects for these are separate arguments.

Many Kenyans have legitimate political, medical and religious concerns against muguka. On the basis of available medical and psychosocial impact data, conceivably, the time to ban muguka, khat and other such like products is ripe but strong moral, religious and medical arguments do not amount to law or justification to invent or break it. Thus, the governor has no legal feet to stand on to prohibit the sale or consumption of this product in Mombasa.

This is because the governor has misconstrued the powers of the county government to promote public health, license trade and control drugs under the Fouth Schedule. The misconstruing has misdirected him to illegally, assert and enforce the overall health policy, drug and medicine control and consumer protection policies which are reserved for the national government under the same schedule.

Additionally the governor has assumed criminal law authority which is vested in the national government per the schedule. Any assumption of national government power by a gubernatorial power must flow from the supreme law and statutes and not, arbitrarily, as Nassir has done.

Executive authority at the county and national government can only be enforced in accordance with the supreme law, national legislation, not popular or moral grounds. For governors there is an additional layer of county statutes to enforce their mandates but all such county statutes or regulations must, as a constitutional principle, cohere with national legislation and the constitution.

This means that even if the Mombasa or Kilifi county governments were to pass laws or declare regulations, banning a substance, permitted by national legislation, such a subsidiary law or regulation will be null and void. So far the local legislature has not passed such a law and neither have the local medical authorities issued such regulations.

Constitutional courts have ruled, many times that subsidiary laws and regulations decreed by the Executive must be validated by the Legislature and nullified many statutes and regulations created by county assembly for breach of the constitution.

The plain meaning of Nassir’s order is a total and indefinite ban on or proscription of the contested product. And the ban was arbitrary and without due process or fair hearing.

The first strike against the governor’s order is that muguka is not a banned or controlled substance under the Narcotic Drugs and Psychotropic Substances Act 1994 and as amended several times.

Per Schedule 4 the county government holds the constitutional authority to license trade but that power is, merely, regulatory and does not include arbitrary cancellation of a trade license or refusal to license a trade where one is qualified by law.

Whereas it is true that per the schedule the gubernatorial authority has authority to control dugs, such authority can only be exercised in concurrence with national legislation. Legally the devolved government can only control and regulate with county and national legislation.

For clarity Section 13 and part 2 of the Fourth Schedule do not authorise the county government to “control drugs and substance abuse” as alleged by Nassir. The text states that county governments control “drugs and pornography”.

Clearly, pornography is illegal in Kenya by national statutes and the devolved government can ban or restrict it without breaking Kenyan law. But all crops, botanically, classified as Catha Edulis which includes muguka and khat were designated as legitimate agricultural crops for sale and consumption -through the Crops (miraa) Regulations 2021 by the Agriculture Cabinet Secretary in a gazette notice pursuant the Crops Act.

This means only a repeal or variation of the regulations by the Senate or National Assembly can ban any of the variants of Catha Edulis.

Since Nassir’s edict on muguka amounts to a total and indefinite ban, that specific law-Section 12 and part 2 of the Fouth Schedule- which he cited to defend his action and the above stated regulations are, expressly, flouted. Control and regulation is not similar to or equivalent to a ban or proscription, especially when such a ban is contrary to national law.

Supposing county authorities arrest and detain those violating the order to where will be detainees be taken? Will they be prosecuted? For violating what law? Or will the produce, just be destroyed?

The proper procedure for Nassir and others to follow, if they are so convicted, is to either lobby the national Executive, through Nacada to declare muguka a controlled or prohibited substance under the above stated Act or lobby Parliament to ban it.

If this edict is allowed to stand Nassir and other governors will incite bans on many other products, including legitimate alcohol and tobacco.

The Mombasa-based journalist is an advocate of the High Court of Kenya 

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