Ex-CJ Mutunga’s post on shisha ban splits online users

Former Chief Justice Dr Willy Mutunga has faulted Health Cabinet Secretary Dr. Cleopa Mailu for imposing a ban on the sale and smoking of shisha in Kenya.

Mr Mutunga claims Mr Mailu did not follow the right procedure in declaring a ban on shisha, saying chances are high that the CS did not consult Attorney General Githu Muigai before gazetting the ban.

“The chances are that the CS (Mailu) has not consulted the AG on his Constitutional and legal powers to announce such a ban,” tweeted Dr Mutunga on Thursday, December 28.


“For a person who does not believe that the right to health is a public good, this ban smirks of hypocrisy and dictatorship,” added the ex-CJ.

Kenyans on Twitter took to the micro-blogging site to react to Mr Mutunga’s statement, with different sections posting tweets in support of or against his rationale.

Nairobi lord tweeted: “Whether Constitutional or not, this is the right thing to do. Let it be challenged in court, but eventually it shall prevail. What is smoked in those pipes is very harmful to our youth. Public good must always prevail.”

A user by the name Rishashi said: “So, ex-CJ what should we do to save our society from this and other addictive and dangerous habits?”

A section of Twitter users, who supported the former chief justice include AWG Kenya and Davis Mathers.

AWG Kenya wrote: “We should not wake up to executive decrees. We are past that age. Rule of law must be honoured and public participation must be the center of all laws.”

Davis Mathers said: “The CS is out of order on this. Shisha does not even get one high; it is the mixing it with alcohol that becomes fatal.”

In a Legal notice dated December 27, Health Cabinet Secretary Dr. Cleopa Mailu said anyone who will be found guilty of contravening the control of shisha smoking rules, where no penalty is expressly provided for such offence, will be “liable to a fine not exceeding Ksh50, 000, or to imprisonment for a term not exceeding six months, or to both and, if the offence, contravention or default is of a continuing nature, to a further fine not exceeding Ksh1, 000 for each day it continues.”

CS Mailu cited Chapter 242, Section 36 (m) of the Public Health Act, which gives the Cabinet Secretary powers to come up with regulations “for prevention of diseases whenever any part of Kenya appears to be threatened by any formidable epidemic, endemic or infectious disease.”

According to the act, the CS may “make rules for all or any of the following purposes powers to any other purpose, whether of the same kind or nature as the foregoing or not, having for its object the prevention, control or suppression of infectious diseases.”

The Director of Medical Services Jackson Kioko confirmed the ban on shisha use and sale, saying their decision was informed by the negative social and health effects of smoking shisha, which he says have been supported by scientific evidence.



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