High Court declares shisha ban unconstitutional

 

Court bars government agencies from enforcing two notices issued in 2025 targeting shisha traders and businesses. [File, Standard]

The High Court has lifted the shisha ban after declaring the continued enforcement of the prohibition unlawful and unconstitutional, effectively stopping the government from relying on regulations that had long ceased to have legal effect.

In a judgment delivered on Tuesday, Justice Bahati Mwamuye held that the legal foundation upon which the ban was enforced collapsed after the State failed to regularise the Public Health (Control of Shisha Smoking) Rules, 2017 within the timeline set by the High Court in an earlier case.

The court consequently barred government agencies from enforcing two notices issued in 2025 targeting shisha traders and businesses.

"A conservatory order be and is hereby issued restraining the government, their agents and employees from enforcing the unlawful notices issued on 3 February 2025 and 14 April 2025 against the members of the association," Justice Mwamuye ordered.

The dispute was filed by the Novel Tobacco Products Association which challenged the government's position that the nationwide prohibition on shisha remained legally enforceable despite an earlier court decision that found procedural defects in the regulations establishing the ban.

Justice Mwamuye observed that although the High Court had temporarily preserved the regulations to give the government time to correct the identified defects, the State failed to take the necessary legal steps within the period granted by the court.

As a result, the judge found that the regulations could no longer provide a lawful basis for continued enforcement of the prohibition.

The court therefore declared the government's continued reliance on the expired regulations, including through a press statement issued on February 3, 2025 and a crackdown notice dated April 14, 2025, to be unlawful and unconstitutional.

Justice Mwamuye further ruled that the government's actions violated constitutional protections enjoyed by members of the petitioning association, including the rights to equality before the law, protection of property, fair administrative action and a fair hearing.

The judge also addressed the legal framework governing tobacco products, holding that the government cannot outlaw the consumption of tobacco products through subsidiary legislation that does not comply with the Statutory Instruments Act, 2013.

"The consumption of tobacco products could not be prohibited through subsidiary legislation that failed to comply with the requirements of the Statutory Instruments Act, 2013," the judge held.

The court further found that the existing legal framework treated different tobacco products unequally without constitutional justification.

Justice Mwamuye declared that the preferential treatment accorded to some tobacco products while prohibiting others was unconstitutional because it violated Article 27 of the Constitution, which guarantees equality and freedom from discrimination.