REPORT ON STAKEHOLDER WORKSHOP ON THE NEMA DRAFT REGULATIONS PROHIBITING SMOKING IN PUBLIC PLACES (2003)

BY SAMUEL EJOKU OONYU

REPORT ON STAKEHOLDERS WORKSHOP ON THE NEMA DRAFT REGULATIONS PROHIBITING SMOKING IN PUBLIC PLACES (2003)

1.0. Introduction

This is a report on the deliberations, which took place at Hotel Equatoria on the 19th September 2003, aimed at hammering out comprehensive, workable and agreeable prohibitions on smoking in public places.

1.2 Opening Remarks

The opening speech was made by Mr. Justine Echaat (Representative of the Executive Director NEMA). Mr. Echaat observed that the draft regulations are an outcome of an order of Court flowing from the judgment of the High Court in TEAN -vs- AG and NEMA. Also that the regulations draw inspiration from the World Health Organization Directive 1991 and the provisions of the Framework Convention on Tobacco Control whose ratification and adoption by Uganda is underway.

About the draft regulations Echaat observed that the regulations declare certain areas smoke-free, signage of smoke-free areas and mechanisms for enforcement and compliance.

Mr. Echaat was skeptical about the fact that the regulations only referred to tobacco and observed that:"the regulations are specific on tobacco what is someone smokes something else in public".

1.3 Background and Health Effects of SHS

This was presented by Dr. Margaret Mungherera (President of Uganda Medical Association). She revealed that 525 children die per day in Uganda, 10% dying due to acute respiratory syndrome (ARS) and sudden infant death syndrome (SIDS) before the age of one year.

Dr. Mungherera dispelled doubts, put forward by BATU that there are no comprehensive and credible health costs' statistics in Uganda and vehemently stood her ground saying that, "no specific studies have been carried out in Uganda on the effects of SHS but studies have been carried out elsewhere. So we are not going to re-invent the wheel".

About the effects of SHS Dr. Mungherera also revealed that lung cancer in Uganda had increased 10 fold. Also those studies in the Heart Institute indicate that heard disease is related to SHS and active smoking.

Dr. Mungherera made two recommendations for a halt on the increased threat posed by SHS namely: -

1. Elimination of SHS from the workplace; and
2. Restriction of smoking in public places.

To let the stakeholders appreciate the gravity posed by SHS and active smoking she said that studies carried out by the Global Youth Survey indicate that 33.3 of the school going people are smoking. This revelation naturally drew a lot of interest form participants with BATU representatives remaining tight - lipped on the matter.

Dr. Mungherera then proceeded to point out approaches that may be taken in the achievement of the above two recommendations which approaches she said had already been put forward by various health promotion entities like the WHO to include: -

1. Child - related warnings on packages or pictograms.
2. Public education.
3. Health - care intervention.
4. Elimination of smoking in day care centers.

Dr. Mungherera remarked that "we are not here to fight the tobacco industry but to prevent Ugandans dying slowly".

OBSERVATION AND COMMENTS FROM PARTICIPANTS

1. BATU officials who included Mr. Henry Rugamba rejected Dr. Mungherera's submission arguing that there are no Ugandan - based statistical data relied on by her and on his behalf, Mr. Patrick Sekitoleko the Head of Standards at UNBS and the alternate chairman of the workshop overruled the objections as not valid as identical research had already been carried out elsewhere outside Uganda.

An official from the Ministry of Internal Affairs seized the opportunity to introduce a new concept, Environmental Tobacco Fumes (ETF) into the deliberations. It was so code - named for the fact that the fumes emanated from unprocessed tobacco. He said ETF was causing discomfort in the neighbourhood of the tobacco leaf processing plant. That the area of the road section between Celtel House and Jinja Road Police Station including the Ministry of Internal Affairs was under siege from the ETF. He complained that most of the visitors to the Ministry of Internal Affairs abhor the fumes and that some visitors even returned with masks in successive visits to the Ministry headquarters!!.

About the ETF Mr. Henry Rugamba (Head of Legal and Corporate affairs at BATU responded by assuring the audience that BATU is relocating when he said that "Dr. Mungherera you will be happy to know that we are serious people. Very caring and we are investing a lot to relocate to Namanve in 2005. We are bearing all the costs of transporting our equipment out of that place…".

On an interesting note some participants including Dr. Mugherera wanted the factory in the middle of Mabira forest to which suggestion Mr. Henry Rugamba rejected asserting that the present location of BATU was once several miles a way from the city but that "fortunate enough for this country the city extended upto our present location" and that the Mabira suggestions could not arise.

Some members including an official from a trade union were so incensed with Mr. Rugamba's defence and even suggested that someone should make a statement out-lawing the industry drawing giggles and cheers from participants.

1.4 Economic implications of controls/restrictions on smoking in public.

This topic was handled by Mr. Ronald Kagwa (The Environmental Economist NEMA) who in his opening remarks said that tobacco consumption has fallen in high income countries and rising in developing countries. That by World Bank estimates the increase in low and middle-income countries has been by 3.4% per annum between 1970 and 1990. That in developing countries the poor and less educated smoke more because of advertising and because of an attempt to emulate the western culture. He divided his submission into various parts as hereunder: -

a) Health Costs of Smoking:

Mr. Kaggwa said that the WHO estimates that 4 million people die every year world wide from tobacco related illnesses and that with current trends the figure will rise to approximately 10 million per year by 2030 with 70% of the deaths occurring in developing countries. He said that health costs are increasing all over the world partly due to the smoking - related diseases.

Mr. Kaggwa said that in Uganda the Department of Pathology has revealed that incidence of lung cancer has increased from 18 people per million in 1954 to 130 people per million in 1991 and that Acute Respiratory Injection (ARI) is the second leading cause of infant visits to health units and the third cause of infant deaths. Also that because of addiction the poor convert most of the money for food to smoking.

b) Environmental costs

Mr. Kagwa said that tobacco production processes contribute to deforestation, soil erosion and dissatisfaction increased risks of fires from cigarette smoking.

c) Why are governments slow in imposing smoking controls?

Mr. Kagwa enumerated various reasons to include: -

1) Tobacco companies are very rich and that BATU group has annual turnover that exceeds the GDP of some developing countries. That tobacco companies in turn offer jobs, revenue to government exports and foreign exchange.

2) Multinational tobacco companies engage in seemingly philanthropic acts of building schools and hospitals thereof buying themselves into the health and education sectors of society.

3) Distortions that for example paying scientists and other persons to cast doubt on the effects of tobacco consumption and commissioning fake research on human and economic costs.

4) Tobacco companies offer "aid" to tobacco farmers for fertilizers and insecticides and other inputs thereby involving farmers in a debt trap.

Mr. Kagwa then went on to suggest smoking control measures which include: -

1. Ban on advertising, promotion and smoking.

2. Large, clear health warnings.

3. Consumers information.

4. Research

5. Necotine replacement therapy (NRT)

6. Restrictions on public smoking and work place.

7. Taxes that raise the price of cigarettes.

d) Will smoking control harm the economy:

Mr. Kagwa observed that BAT (U) is one of the top 10 tax payers in Uganda and contributing about 37.6bn (quoting Sunday Vision 14th September 2003). That in Uganda it has been reported that 600,000 people derive their livelihood directly or indirectly from the industry.

He said that an increase in price will lead to a fall in demand minimally and gradually and that revenue will not fall but rise in short and medium terms. Mr. Kagwa illustrated this by saying that a 10% increase in price will increase revenue by 7%. That higher taxes will raise prices but demand will not fall by a big proportion since the demand for cigarettes is inelastic. That also penalties and fines will generate revenue to government.

d) Will higher taxes cause massive smuggling?

Mr. Kagwa said that even in the face of massive smuggling tax increases bring increased revenue. He gave an example of South Africa which raised taxes and smuggling increased but that collections of revenue was still high.

He however, said that smuggling can be dealt with by a clamp down and harmonization of tax polices within the region.

Mr. Kagwa said that tobacco taxes are regressive and place a heavier burden on low-income earners. He supported taxation because those low-income earners are more response to price changes the high-income earners and that therefore as demand falls the burden of SHS also falls.

He finally said that the purpose of prohibiting smoking in public is to shift the cost of smoking from non-smokers to smokers.

PROHIBITION AGAINST SMOKING IN PUBLIC REGULATIONS - OVERVIEW

The overview was done by Ms. Cornelia Kakooza Sabii (Legal Expert NEMA). She made several important observations on particular draft provisions. These included: -

Regulations 4 (1) which defined public places under 1st schedule. She wondered whether public places also includes BATU premises and also whether the inclusion of education institutions also included compounds of Makerere University or just areas of congregation like lecture rooms. Ms. Cornelia also despite observing that there are certain areas where government can not intervene wondered whether family members are not part of the public and as to why private vehicles are not regulated.

The omnibus provision of "public place" which includes any other facilitation accessible to the public was thought to be too wide and that it should be limited to words such "as may be prescribed"

Ms. Cornelia when prompted by an official from Ministry of Internal Affairs also agreed that correctional facilities e.g. prisons, police cells among others should be included in the definition of "public place".

COMMENTS ON REGULATION BY BATU

The general comments were made by Mr. Henry Rugamba (Head of Corporate and Regulatory Affairs BATU who was advocating for rights of owners premises and said that there should be take into account and noted that they should have a right to have their premises to be for "smoking only". He wondered why a smoker who refuses to stop smoking in a public place should be evicted. That "this is discrimination" "It is imperative to allow owners to run business in the best way they choose".

Mr. Rugamba said "we agree to the establishment of regulation on public smoking and for unknown reasons suggested that the words "indoor places" used in the draft should be amended to "any indoor place".

He objected to smokers' use of detached buildings/rooms as treating a smoker as the leper in the bible. He also said that authoritative statements like shall in the draft should be excluded.

Mr. Rugumba viewed the obligations on everybody to smoke out a smoker as being equivalent to a police state. He then said that the regulations had the effect of a total ban on smoking but that NEMA can achieve its objectives without a total ban and gave an example of France which ignored the regulations because of lack of recognition of the total stakeholders "our position is that public smoking regulations can be by voluntarily achieved as was done at this to include Kampala Club, Golf Club and may health clubs. Those did not need this kind of dracoman statement to do that".

About the document Mr. Rugamba said "… let us involve everybody in the process of dialogue the document is unreasonable and unworkable yes, smoking can be regulated but must be done reasonably. Send the document wider a cross the country for digestion especially the, hospitality industry…"

COMMENTS FROM PARTICIPANTS

One of the participants said that the fines under regulation!!! Should be amended from shillings to currency points.

Another participant said that the regulations are not dracoman as Mr. Rugamba suggested. That the Criminal Procedure Code authorizes any person to arrest a person who has committed or about to commit an offence and hand them over to the police.

A Trade Unionist in the workshop suggested that leisure parks, churches and mosques and other religious gatherings should be included in the meaning of public place and on an interesting note it was argued that some religioun worship while smoking.

A representative of Save Planet Earth suggested that NEMA should integrate Parish Committees in their programme names the Environmental Action Planning in the implementation of the regulations.

WAY FORWARD:

The participants gave several suggestions and recommendations to include: -

1. Putting pressure on government and byelaws for local governments.

2. Homes should not be ignored. That 47.3% of children in Arua live in homes where adults smoke in their presence.

3. Mr. Sekitoleko recommended that regulations of the draft should read the prominent display must be "in words" and also about regulations for he wondered as to how 20% of a building can be made to "identifiable rooms".

4. Civil Society should take up the challenge of lobbying parliament including demonstrations.

5. Additional places should be recommended including correctional facilities.

6. Incorporate tobacco in Children's Statute and Domestic Relations Bill.

7. Time frame for adoption of regulations.

OVERVIEW OF EXISTING POLICY AND LEGISLATION RELATED TO SECOND HAND SMOKE AROUND THE WORLD by Phillip Karugaba (Spokesperson TEAN)

The presenter of this topic started by quoting a number of statements made by the tobacco industry, which were materially contradicting. He quoted BATU at one moment saying that they believe smoking to be harmful to health and later making another statement casting doubt as to whether smoking is harmful.

Mr. Karugaba was particularly critical of the practice that the hospitality industry had adopted in so far as smoking in public places is concerned. This practice has been termed "courtesy of choice" whereby both smokers having designated tables within the hold restaurant in pub. He demonstrated the unreasonableness and unworkability of "courtesy of choice" by putting up a non-peeing section in a swimming pool which definitely made a bluff of the courtesy of choice argument knowing very well that water moves and mixes freely within the swimming pool and that therefore nothing short of a physical barrier can stop smoke from crossing.

He went on to enlist policies that other countries have adopted to deal with second hand smoke. One of the policies he cited was prohibition of smoking in public places. He enlisted a number of countries that had put up restrictions on smoking in public places including Tanzania. Mr. Rugumba complained that stakeholders had been ignored and that he personally took the initiative to invite members of the hospitality industry which had been ignored and that the regulations on smoking in public infringed their rights to conduct business in the best way they could. This prompted members of the hospitality to shoot-up to the defence of smoking in public places and even surprised participants by dishonestly arguing that most of their Clients were smokers! This drew a hot debate, which proceeded even to extent that participants wondered whether the hospitality industry did not mind losing their non-smoking clientele. The argument from the hospitality industry struck the minds of many participants as if they had been hired by the tobacco industry.

CLOSING REMARKS:

The Executive Director NEMA urged stakeholders to submit in any comments in writing. He said that he would meet the hospitality industry within two weeks and that the regulations will be gazetted by the end of December 2003.