New alcohol law well-intentioned but doomed to fail

This week, the Alcoholic Drinks Control Act 2010 came into force. In effect, we have created a statute that attempts to contain the excesses of alcohol abuse through a logic and methods that others have used and failed.

“Control” laws only succeed where they apply to disease outbreaks and violence. Sustaining a balance between social goals and legitimate enterprise is best framed in the language and logic of “regulation.”

This new law will be expensive to implement and is eventually doomed to fail. It is not disputable that excessive alcohol consumption is a threat to health and our social fabric.

It contributes to the high level of traffic accidents and wastes precious man hours of society. It is also true that we must find a way of restricting under-age drinking and improper contact between the inebriated and young people, particularly in learning institutions.

The challenge of how to deal with this problem does not reside with those who want to preach the moral outrage of drinking alone. It is a call to all groups in society finding mutually acceptable alternatives to the status quo.

The new law does not reflect that inclusive solution. It has ignored the very encouraging initiative of main brewers to dialogue on sustainable alcohol production and use that had been going on for a time.

Physical distance between schools and bars is not a particularly radical method of limiting under-age drinking. Nor does it make sense to administer it in tandem with ensuring that pubs open after 5 p.m. – when schools have closed.

What will happen to hotels which exist before schools are built in their neighbourhood? We sure need to address the proximity issue, but a solution which assumes the guilt of those running drinking enterprises from the outset will have a bumpy time in implementation.

One of the problems that have bedevilled doing business in Kenya in the past has been the hostile licensing regime where companies are dragged through a long red tape as if trading is a privilege accorded to the entrepreneur by the state.

While we have been busy cutting down the number of clearing houses for doing business in the country, we have found it wise to go in the opposite direction with beer selling enterprises.

A trader is expected to seek clearance from the National Environmental Management Agency Nema), the Government Chemist, the Kenya Bureau of Standards (Kebs), the National Campaign Against Drug Abuse (Nacada) and then the district liquor licensing board.

Making licensing complicated and expensive has one guaranteed set of results: the rich will dominate legitimate enterprise, the cost of red tape will be loaded on the consumer without a demonstrable benefit to the tax man, and rent seeking is given a shot in the arm.

Nacada has been most known in this country for its good campaign against drug abuse. It is next renowned for its fundamentalist vibes on alcohol as a drug.

It has now been given the key role of issuing a preliminary clearance, then seating as secretary to the district liquor court. We are appointing an institution which sees sale of alcohol as our ultimate perversion into the custodian of legitimate trade in the same.

It is like appointing the most outrageous crusader against organised labour minister for Labour. What is most surprising about this assumed solution is a simple truism.

Whenever you make legitimate alcohol trading difficult, you move most consumption underground and out of the reach of both sanitary and taxation authorities.

In Kenya this problem has been doubled. By a new law, we have licensed traditional drinks to be sold openly. When we now have a law making the sale of beer more difficult, the state is assisting consumers to vote with their feet to chang’aa, muratina and busaa dens.

The ills that have informed the framers of this legislation are more squarely reflected in the consumers of those low-cost drinks than their richer counterparts.

Kenya has made many strides in opening up space for both the individual and enterprise. Some of this space has been abused and is cause for substantial collective concern.

But the route for dealing with these negative consequences is not one where we assume a moral high ground and dictate to the society how it will behave. The sustainable solutions reflect careful dispassionate consultations framed in a way that shows exposure to best practices that others in similar situations have used.

For those who appreciate the critical role that Nema and Kebbs have to play as we seek to create EAC standards for process and product design and production, as we seek to move into a new momentum to make up for lost time in pursuit of the goals of Vision 2030, we shudder to countenance a legislation that will bog down these key institutions in the noble business of licensing beer houses.

Dr Mukhisa Kituyi is a former minister for Trade and Industry. He is a director of the Kenya Institute of Governance. [email protected]

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