Making sense of two tobacco cases
In 2016, the British American Tobacco-Uganda (BAT-U), filed a constitutional petition before the Constitutional Court in Uganda, challenging the constitutionality of the Tobacco Control Act.
The matter was heard and is currently awaiting a court decision.
Some of the provisions of the Tobacco Control Act that were challenged include Section 12(1), which prohibits smoking in public places, workplaces and means of public transport as being in violation of Article 40(2) of the Constitution.
Section 16 (1) of the Tobacco Control Act, which prohibits sale or purchase of tobacco products in certain places such as hospitals, clinics, education institutions as being in violation of Article 40(2) of the Constitution.
But in the course of hearing the main petition, BAT-U, filed an application for a temporary injunction seeking to stop the implementation of the Tobacco Control Act. However, the said application was dismissed on the basis that BAT-U had not made out its case for the court to issue a temporary injunction. The five justices who dismissed the application by BAT-U included former Deputy Chief Justice Steven Kavuma, Justice Remmy Kasule, Justice Richard Buteera, Justice Hellen Obura and Justice Cheborion Barishaki.
“The short decision of this court on this application is that we find the applicant, BAT-U, has not made out a case to be granted a temporary injunction in the terms prayed for in the application. This application stands dismissed,” ruled the five justices on May 17, 2017.
Likewise, BAT-U sued the Attorney General of Uganda in the East African Court of Justice, challenging the provision of Uganda’s Excise Duty Act No. 11 of 2014. BAT-U claimed that the provision of the excise duty on cigarettes, which uniformly applied to all such goods originating from any of the East African Community partner states, was in violation of the treaty establishing the East African Community.
However, the decision of the East African Court of Justice is in no way related to the constitutional petition here in Uganda where BAT-U has challenged the provisions of the Tobacco Control Act before the Constitutional Court. The decision of the East African Court of Justice has no legal bearing on the constitutional petition where BAT-U, has challenged the provision of the Tobacco Control Act in the Constitutional Court. This means that the decision of the East African Court of Justice does not prevent the government of Uganda from imposing taxes on tobacco or tobacco products.
Further, the decision of the East African Court of Justice does not prevent Uganda’s right to determine and establish its own taxation policies taking into account its national health objectives concerning tobacco control and adopt or maintain, as appropriate, measures such as implementing tax policies.
The Tobacco Control Act is an Act to, among others, control the demand for the consumption of tobacco and its products, to control the supply of tobacco and its products to the population; to protect the environment from the effects of tobacco production and consumption and exposure to tobacco smoke; to promote the health of persons and reduce tobacco related illness and deaths and to protect persons from the socio economic effects to tobacco production and consumption.
David Kabanda,
Lawyer
