The adoption of international convention by a sovereign state does not necessarily impose automatic legal obligation to issue implementing laws to put it in to effect and accordingly parties to the convention can carefully take measures of implementation depending on the concrete circumstances of the country and should harmonise their international obligation with their national laws, writes Yohannes Woldegebriel.
Commenting on my article, “The Magic of the New Food and Medicine Bill,” published in this paper on December 15, 2018, two individuals have offered their opinions. The first one, Dereje Moges, who is mentioned in this paper as “a legal consultant” involved in the drafting process of the (bill) and, a rather detailed critique by Wondu Bekele, who attempted to “detoxify” the arguments and positions presented on my comment against the bill and set himself in clarifying the “intention” and “good faith” of the Ministry of Health by writing in his declared capacity as Executive Director of Mathewos Wondu Cancer Society.
Having examined the opinions of these two individuals, I have confirmed that both persons have utterly misread, misunderstood and totally missed the core point of my article. It is recalled that I indicated on my article the bill’s failure to delineate its scope of application. I reached to this conclusion after thorough reading of each article of the bill one by one. In this regard, I was not expecting a rush, uncalled for, simplistic and very mechanical opinion from the two individuals with their confused understanding of my article that the bill is meant to cover “food traders and food establishments,” and not foods prepared “for social events and holidays …traditional healers etc…”
My argument is rather the opposite! First of all, Food, Medicine, Medical Devices, Cosmetics, Alcohol and Tobacco are so important to human beings and should be regulated in order to safeguard and protect public health by whomever they may be produced, supplied, imported, exported, stored, distributed, offered for sale or for free, whether by a business establishment or at home or even at a personal level, so long as they are put for the use of public consumption.
Indeed, the bill broadly defines these items as “regulated products” in such a way as to cover each product whether produced industrially or at home. While the definition of each item in the bill extend the scope of application of the regulatory scheme, interestingly, no mechanism or institutional set up is laid down to regulate and ensure the safety, standards or meeting the requirements of the law on foods produced and offered freely for public consumption in ceremonies such as wedding, mourning, religious duties etc… The same also apply for traditional medication, preparation and serving local homemade alcoholic liquors, cosmetics and in local tobacco snuffing, chewing and smoking. I sincerely believe that putting in place the regulatory mechanisms for these items too is highly desirable since they are put to use and have public health concerns that involve the majority of Ethiopian population in their daily life.
The new bill, in the same way as my critiques believed and understood, only addresses the public health concerns of the small proportion of urban dwellers by focusing on local industrially produced, imported and distributed products or items and served through business establishments ignoring the common fact that most Ethiopians are used to a small scale industry way of life in transforming raw materials to finished products in making food, medicine, alcoholic drinks, cosmetics and tobacco for public and individual consumption. If the bill is meant to regulate only products that are offered by such institutions, it does not worth the effort and the time of the parliament, the public money to finance the institution that would be tasked to enforce the laws and I am justified to question what kind of law or institution would be targeted to address the regulation of the same products that are used or consumed by a large junk of the population.
While the bill mentioned regarding the registration of traditional healers and medicine, it does not discuss anything about homemade food, locally brewed alcoholic liquors such as Tej, Tella, Areki, locally prepared tobacco, cosmetics etc. that are put for sale or offered for public consumptions. In fact the designated executive body under the bill talks about compliance of the regulated products with the national standard and where such standards are not available, to use acceptable international standards. I am not aware of national standards adopted on regulated products produced at home and the closest foreign international standards applicable to purely Ethiopian foods, alcoholic drinks cosmetics and tobacco that are widely consumed by the public.
This being the case, my critiques deemed the regulation of the foregoing items offered to the public for use by sale or otherwise, “beyond the mandate of the bill” as if such items are not produced, prepared and available for public consumption on a daily basis and do not constitute public health concerns. In his opinion, Wondu further accused me of “lying,” “misleading,” “over exaggerating” and “insincerity” on my comments. I wish he could have justified and refute each of these libelous words in relation to a specific statement on my article citing a provision in the bill or other legal instruments and show what he boldly and unashamedly claimed in his opinion that the bill “save lives and advance the public health.”
I am aware that the Ministry of Health is mandated among other legal duties to “ensure the proper execution of food, medicine and health care regulatory functions.” Therefore, safeguarding and protecting the health of Ethiopians and ensuring that its regulatory functions that have public health implication are well in order on foods, medicines, medical devices, drinks, tobacco whether produced at home or in industries and provided by business establishments. Accordingly, this legal responsibility is conferred to and assumed by the Ministry for implementation as a matter of obligation.
Even if it is possible to think of “good faith” on the “intention” of the Ministry of Health that Wondu repeatedly emphasized in his opinion which is but totally irrelevant, unfortunately the Food and Medicine bill as it stand now, leaves large areas of public health concerns on foods, medicines, alcoholic liquors, tobacco etc…locally produced at home and provided for public consumption virtually uncovered and unregulated.
Finally, despite my comment covering several regulated products of public health concerns, tobacco was singled out among all others, meriting Wondu’s detailed analysis and examination in his critique. Understandably, tobacco is a hotcake for an appeal to increasingly stricter regulatory framework by anti-tobacco campaigners, lobbyists and their sponsors at home and abroad. As underlined in his critique, I have also noted Wondu’s planned ambition for the government of Ethiopia “to sustain and defend the global recognition given to the country’s public health achievements of the past two decades.” Regulatory schemes must be drafted, approved and implemented primarily to safeguard and protect the health of all Ethiopians and not for the purpose of face saving, win global recognition and obtain obsequious flattery showered from foreign institutions to certain individuals.
I have learnt in one of his informative power point presentation about Mathiwos Wondu – YeEthiopia Cancer Society, under the title “what MWECS is doing in promoting Cancer care in Ethiopia” freely accessible online, that Wondu had “14 years of working experience with National Tobacco Enterprise, as Human Resource Administration Manager & Public Relation Officer” and had been “Tobacco addict for more than 17 years.” Based on these hard facts, it is true that I cannot be in the same position to comment on tobacco in par with the marvelous depth of knowledge, experience and affiliation that Wondu has.
As a freelance legal commentator and nonsmoker with no affiliation to the only tobacco producing enterprise in the country, however, I shall attempt to refute the fallacies and hypocrisy of my critiques as follow.
Growing and locally using dried tobacco leafs by smoking and the fresh tobacco leafs, by chewing and snuffing reportedly started in Ethiopia in the 16th century. In several rural areas and market places tobacco is still smoked using single or multiple tubes for the purpose of pleasures. The use of tobacco, however, was not without restriction or prohibitive social, religious and secular sanction. There was royal sanction against the use of tobacco mainly inspired by religious consideration. While the use of tobacco is still prevalent in various rural areas in Ethiopia, the bill still does not regulate such practices in the same way as industrial production, distribution and use of tobacco products. As if there is no adverse health impact, the areas of application of international and national legal instruments is excluded.
Modern production, distribution and use of tobacco commenced during the last century and the production as a state monopoly started during the era of Menelik II and continued up to present day Ethiopia. For several decades, the National Tobacco Enterprise (NTE) has been engaged in growing tobacco leafs and industrial production of tobacco cigarette. For several decades, the enterprise unfailingly served its customers and contributed in creating employment to tobacco growers in the farm and cigarette producers in the factory, generating income for various kinds of taxes contribution for government coffer. Some decades ago, therefore, it was common to see the sensational advertisement on big and small billboards hanging on the side of highways or on the roof of shops or windows, stating “Gissila Atisu” “Gureza Atisu” or “Nyala Atisu” etc. that has now become illegal nationally and internationally. The production of tobacco nonetheless continued and few years ago, the state owned NTE was floated for privatization that fetched record high and most lucrative bid of 1.2 million dollars.
As a signatory to the Framework Convention on Tobacco Control, Ethiopia implemented several restrictions and regulatory measures recommended with a view to prevent the negative public health impacts and control the production promotion and consumption of tobacco products. The bill is aimed to heighten the legal sanction among others, against the production, distribution, promotion of tobacco products. While the measure taken previously and proposed in the bill have basis under the convention, the drafters of the bill have gone much further and asserted to be more catholic than the pop supposedly in their bid to claim “global recognition” and possibly receive congratulations at the expense of the freedom of action and choices of individuals to smoke, loss of employment opportunities for tobacco products growers, producers, distributors and sellers, generation of revenues for business establishments and individual income and last but not least, contribution of varies types of taxes to the government.
In his critique, Wondu claimed that “no provision proposed in the bill is unique to Ethiopia!” In reality, the proposed bill encroach the fundamental constitutional freedom of citizens for personal action and choice, good or bad, and mandate public bodies to decide on behalf of citizens as if the state is a caretaker or tutor and treating individuals as a child below 18 years of age. A constitution need not list down the innumerable types of freedoms that government must restrict its interference against citizens and all personal freedoms that a person can legitimately exercise are categorized under freedom of action and choice.
The bill also purports to impose 70 percent space of health warnings on packages of tobacco when the convention actually requires not less than a minimum of 30 percent and ideally 50 percent. This requirement impose extra burden to legal tobacco products and provide enormous opportunities for the market of contraband tobacco that are not always free and not bound under any obligation to comply with health warnings.
While avoiding the sale of tobacco products from store shelves that are easily accessible is recommended, requiring retail sellers to hide even the availability for sale of the product to smokers is tantamount to providing shield and coverage to offer for sale illicit tobacco that will be detrimental. The flow of contraband tobacco through the long and porous border of Ethiopia has always been a challenge. Unlike any other country in the world, Ethiopia shares a long border with a Somali nation that had no functioning state for several decades. This border has always posed so many challenges for the steady flow of all kinds of contraband goods including tobacco that according to a study has already reached 40 percent of circulation and up to 90 percent in the eastern part of the country. It is entirely irresponsible to disregard this fact and push for a bill that would encourage the flow contraband tobacco.
The ban imposed for the sale and smoking of tobacco and obligatory distance laid down under the bill are also impractical and far from the actual reality. In fact the absence of restricted area for smokers is another irrational addition that does not tally with the requirements of the international convention. The net effect of this ban is so short sighted that would have the effect of paralyzing the businesses of hotels and entertainment with far reaching consequences on their competitiveness and profitability.
While the bill rightly banned the sale of tobacco products to minors and ironically it not only banned sale of tobacco products by minors notwithstanding the 14 years of minimum age threshold provided under Ethiopia’s labor law and departed even much further in prohibiting sale of tobacco by minors by providing punitive measures of up to six months of imprisonment and a fine of five thousand birr. This provision militate against the widespread practice in the Ethiopian objective realities in which minor children are helping and supporting their poor family in mobile personal cigarette vending activities. The prohibition of sale of tobacco products by minors is warranted on condition that “economically viable alternatives are promoted for individual sellers.” The drafters of the bill have the unique luxury to ignore the actual reality of Ethiopia wherein children of poor family are denied the sale of tobacco products without any alternative employment and revenue generation opportunity.
While I still maintain on my position that regulating tobacco products are necessary in line with the international convention, I do not think imposing extra burden on local producer, importer, distributor and sellers would enable to achieve the objective intended by the proclamation other than self-serving global recognition to certain individuals. If tobacco products are useless and only contribute to exacerbate the negative health impact of the person, it would have been reasonable, legitimate and much easier to cease production and eliminate the factory while it was under government ownership. Having decided to privatize the enterprise and inviting foreign investor to acquire and invest on it, it is total naivety to propose and decide to adopt a law that would stifle its activities within the limit the law permits.
The adoption of international convention by a sovereign state does not necessarily impose automatic legal obligation to issue implementing laws to put it in to effect and accordingly parties to the convention can carefully take measures of implementation depending on the concrete circumstances of the country and should harmonize their international obligation with their national laws. It is a bizarre to try to issue local laws and requirements far more than the international convention require to brag for “global recognition” without assessing the legal, financial, investment, employment etc…implications.
Ed.’s Note: Yohannes Woldegebriel is a legal expert. The views expressed in this article do not necessarily reflect the views of The Reporter. He can be reached at [email protected].
