The High Court has lifted the nationwide ban on shisha, ruling that the continued enforcement of the prohibition is unlawful and unconstitutional. This decision effectively prevents government agencies from acting on regulations that had lost their legal standing.
Justice Bahati Mwamuye delivered the judgment, highlighting that the foundation for the ban collapsed after the State failed to regularise the Public Health (Control of Shisha Smoking) Rules, 2017 within the timeline set by the court in an earlier case.
The ruling came in response to a petition by the Novel Tobacco Products Association, which challenged the government's claim that the shisha ban remained legally enforceable despite procedural defects identified in the regulations.
Key Court Findings
- The government did not correct the procedural irregularities in the shisha regulations within the prescribed period.
- Enforcement notices issued in February and April 2025 against shisha traders are unlawful and cannot be acted upon.
- The ban violated constitutional rights including equality before the law, protection of property, and fair administrative action.
- The government cannot prohibit tobacco consumption through subsidiary legislation that fails to comply with the Statutory Instruments Act, 2013.
- The existing legal framework treats different tobacco products unequally without constitutional justification, breaching Article 27 on equality and non-discrimination.
Justice Mwamuye issued a conservatory order restraining the government and its agents from enforcing the disputed notices, emphasizing that the consumption of tobacco products cannot be banned through improperly enacted subsidiary laws.
This ruling marks a significant legal development for shisha traders and users, reaffirming constitutional protections and underscoring the need for proper legislative processes in regulating tobacco products.
