The ban on muguka by three Coastal counties has suffered a setback after a section of leaders, stakeholders and lawyers went to court seeking to have the Executive orders quashed.
Senate Majority Leader Aaron Cheruiyot stated that governors and their counties were overstepping their mandate by banning the sale and distribution of muguka in their territories.
Cheruiyot explained that the governors effected the bans without interrogating the law properly, leading to what he described as a poor policy decision.
"It's a noble thing for the Coastal counties to seek to regulate the distribution of Muguka in their turf. However, the truth is Counties have NO such powers. The best thing is for the counties to lobby their MPs to present before Parliament a bill seeking to ban the use of gokss (muguka)," Cheruiyot said in a post.
Legal Opinion
Speaking to Kenyans.co.ke, Shadrack Kipkorir, a lawyer explained that the bans effected by Mombasa, Kilifi and Taita could face legal headwinds in court since Muguka is a scheduled crop in line with the Crops Act, 2013.
"The legal status of muguka is derived from a national legislation, The Crops Act, 2013 which is superior and vetoes any county legislation or order that is inconsistent thereto. The law prescribes that any Act by a County Government either by decree, order or legislation that contradicts the national legislation is null and void to the extent of the inconsistency. This is for a noble reason."
"By virtue of the conflicts clause enshrined in the Constitution and the Crops Act, the County Governments have no mandate to ban muguka. The conduct by the relevant Coastal counties is therefore unconstitutional, bereft of any legal foundation and is of no legal effect," Kipkorir stated.
The legal mind said that the counties in question should have lobbied the National Assembly and the Senate to amend the Crops Act to regulate the growing and sale of muguka.
This will be subjected to the legislative processes including but not limited to public participation.
Coast Governors Stand Firm
However, governors from the counties have stood by their decision, arguing that the orders were in the best interests of their constituents.
In an interview with Kenyans.co.ke, Kilifi Governor Gideon Mung'aro confirmed that he had already given instructions to his officers to enforce the directive.
Mung'aro explained that the legal teams in Mombasa and Kilifi were planning the next course of action after the legal suit filed against the executive orders.
"Of course, we issued an executive order but our assemblies are going to resolve it and integrate it into our county laws. Our legal teams from Mombasa and Kilifi are also meeting to chart a way forward. Our enforcement officers have enforced the executive orders," said Mung'aro.
The county boss said the situation was bad in the streets of Kilifi as underage children continued to abuse muguka rendering them addicts and subsequently inhibiting their personal and academic progress.
He dismissed leaders protesting the ban accusing them of not being objective to see the Coastal counties perspective.
"If you go to Mombasa and Kilifi today, you will be shocked. Very many young kids of, say, class four are consuming muguka. People view it differently but there is no difference between what we are doing and the fight against alcohol in the Mount Kenya region. If we are protecting the youth we must do it across the board. I know we have a drug issue that we cannot handle ourselves but we will do what we can to save our kids," said a passionate Mung'aro.
On his side, Mombasa Governor Abdulswamad Sheriff Nassir painted a grim picture of the situation, confirming that the drug was contributing to the wasting away of youth in the region.
Nassir explained that the numbers in medical care facilities in Mombasa county were shocking.
"I walked into Port Reitz hospital which is a county-run psychiatric hospital 45 out of 70 patients admitted there are admitted courtesy of Muguka. If you go to Mombasa Women Network, which is a society-run organization, out of 100 patients, 80 of them are muguka patients. The figure of those who got admitted last year versus this year, we are not even halfway through the year and we are surpassing," the governor explained.
