The recent revelation by Shanzu Senior Principal Magistrate Joe Omido regarding the invalidity of regulations banning shisha has sparked crucial questions and confusion surrounding the enforcement of the ban, leaving shisha enthusiasts and businesses in a state of uncertainty.
Magistrate Omido's ruling, which discharged all 48 individuals charged with selling and smoking shisha, has raised doubts about the legality of the ban itself.
According to Omido, the ban on shisha lacked formalization under the Public Health (Control of Shisha Smoking) Rules, 2017, as required by the Constitution.
Consequently, any criminal cases or charges based on these unformalized regulations have been deemed invalid and cannot be used for prosecution.
The ruling further highlighted significant procedural lapses, with Omido noting that the charges against the accused failed to meet the requirements outlined in the Criminal Procedure Code.
The absence of specific offences within the charge sheets rendered them legally deficient, leading to the dismissal of all consolidated matters related to shisha offences.
Operation of Clubs and Shisha Outlets
With the uncertainty surrounding the formalisation of regulations prohibiting shisha, clubs and shisha outlets may find themselves in a legal grey area.
Without clear guidelines, it remains to be seen whether these establishments can continue operating without the threat of prosecution.
The absence of formal regulations leaves both proprietors and patrons unsure about the legal status of shisha consumption within such premises.
Today, March 30, Cabinet Secretary for Defence, Aden Duale reiterated that the government will continue to fight illegal brew, drugs, and shisha.
Speaking in Kwale, Duale stated, “ Lazima tupigane na dawa ya kulevya, pombe haramu na shisha.”
Legal Status of Arrested Individuals
The fate of individuals arrested for shisha-related offences, particularly those released or awaiting trial, is now under scrutiny.
Magistrate Omido's ruling effectively dismisses charges against the 48 individuals previously apprehended, citing the lack of specific offences under the existing legal framework.
This raises questions about the status of individuals currently in detention or facing trial for similar offences.
Legal experts anticipate potential challenges to ongoing prosecutions, pointing to the need for clarity regarding the legal standing of shisha-related charges.
Confiscated Properties
Another pressing issue arising from the ruling pertains to properties confiscated during shisha-related arrests and raids.
With charges against individuals deemed invalid, the status of confiscated assets, including shisha paraphernalia and establishments, remains uncertain.
Stakeholders seek clarification on whether confiscated properties will be returned to their owners or if alternative measures will be implemented to address this aspect of enforcement.
The ruling by Magistrate Omido has not only raised fundamental questions about the legality of the shisha ban but also prompted a broader dialogue on public health regulations and their implementation.
As stakeholders await further developments, the uncertainty surrounding the future of shisha regulation underscores the need for a comprehensive and transparent approach to public health policies.
