The collapse of Kenya’s shisha ban should anger every Kenyan who believes that government exists to protect public health; it is a bitter pill for the countless champions who have dedicated so much energy and resources to the cause.
Before long, hotels, restaurants, lounges, and nightclubs across Kenya may once again be offering shisha in every imaginable flavour, drawing in a new generation with aromas that mask a deadly reality.
The air in our entertainment spaces could become thick with smoke, leaving not only smokers but also innocent patrons, workers, and families to inhale dangerous second-hand smoke against their will.
This is not simply the story of a court case. It is the story of missed opportunities within the Ministry of Health. It is a story of how one of Africa’s strongest tobacco control programmes has gradually been weakened, not because the science changed or because the law was inadequate, but because those entrusted with implementing the law failed to do their job. The greatest tragedy is that this outcome was entirely preventable.
When former Health Cabinet Secretary Dr Cleopa Mailu introduced the Public Health (Control of Shisha Smoking) Rules in December 2017, Kenya demonstrated bold public health leadership. The decision was based on overwhelming scientific evidence. Contrary to popular belief, shisha is not a safer alternative to cigarettes.
A single smoking session exposes users to high levels of nicotine, carbon monoxide, tar and numerous toxic chemicals. The growing popularity of shisha among young people presented a serious public health threat that demanded decisive action. Dr Mailu made the difficult decision to act in the interest of public health despite significant resistance from commercial interests and sections of government concerned about the impact on business and tourism. History will remember that decision as the right one.
There has been a dangerous misunderstanding about the recent court decisions. The High Court never declared that shisha is safe. Neither did it reject the public health reasons for the ban. Instead, the Court found that although the Ministry of Health had legitimate public health reasons for introducing the ban, it had failed to comply fully with the legal requirements under the Statutory Instruments Act.
Recognising the importance of protecting public health, the Court gave the Ministry nine months to regularise the regulations while allowing the ban to remain in force. The Ministry was handed a lifeline.It failed to use it. Nine months became years. Successive administrations ignored the Court’s clear directions. The inevitable happened. The legal foundation supporting enforcement of the ban eventually collapsed not because public health lost the argument, but because the Ministry failed to complete a simple legal process. This was not a judicial failure. It was a failure of governance.
The collapse of the shisha ban is an indictment of leadership within the Ministry of Health. Good public health policies require more than announcements and press conferences. They require competent implementation, legal diligence and accountability. For nearly a decade, the Ministry had every opportunity to correct the procedural shortcomings identified by the Court. It did nothing. The consequence is that Kenya has lost one of its strongest public health measures because of avoidable administrative negligence. No amount of public statements can erase that reality.
The Ministry’s handling of nicotine pouches tells a similar story. Kenya was among the first countries in Africa to recognise the growing threat posed by oral nicotine products. Early regulatory action acknowledged concerns about youth access and uncontrolled distribution.
Yet instead of maintaining a clear and consistent public health position, Kenya entered years of regulatory uncertainty. Products returned to the market while comprehensive legislation remained incomplete. Health warnings became the subject of negotiations. Court cases multiplied.Meanwhile, nicotine pouch use among young people continued to grow.
This regulatory inconsistency has benefited manufacturers far more than it has protected public health. Once again, the problem has not been a lack of scientific evidence. The problem has been inconsistent implementation.
The tobacco industry does not need to defeat governments outright. It only needs governments to delay. Delay regulations. Delay legislation. Delay implementation. Delay court compliance. Every delay creates another opportunity to market addictive products. Every procedural mistake creates another opportunity for litigation. Every policy vacuum creates another opportunity to recruit a new generation of nicotine users.The greatest ally of the tobacco industry is not necessarily weak laws. It is weak implementation.
Kenya now stands at another crossroads.The Tobacco Control (Amendment) Bill, 2024, seeks to close loopholes that have allowed emerging nicotine products to escape effective regulation. Yet the Bill has faced repeated delays through procedural objections and prolonged public participation processes.Public participation is a constitutional requirement. But it must never become a tool for endlessly delaying urgent public health protections. Every month that passes without stronger legislation allows tobacco and nicotine companies to continue exploiting regulatory gaps. Kenya cannot afford another shisha moment.
The Ministry of Health has a constitutional duty to protect the health of all Kenyans. That duty requires more than issuing policy statements. It requires implementing court orders. It requires defending public health laws. It requires engaging openly with civil society and technical partners. It requires placing public health above commercial interests at every stage of policymaking. Kenya has the evidence. Kenya has the law. Kenya has the expertise. What has been missing is consistent leadership.
The collapse of the shisha ban should be remembered not as a failure of public health policy, but as a warning of what happens when institutions fail to protect the very policies they create. Unless lessons are learned, history will repeat itself and the next generation of Kenyans will pay the price.
The writer is Chief Executive Officer at the Kenya Tobacco Control Alliance (KETCA).
