BY SAM ALFAN.
Meru mugaka traders have moved to court to challenge a ban imposed by two coastal governors against the sale of the commodity.
Businessman Michael Makarina and Peter Agoro filed the case under certificate of urgency seeking orders to lift the ban imposed by Mombasa governor Abdullswamad Sherrif and his Kilifi counterpart Gideon Mung’aro, through executive orders.
The businessmen have sued Mombasa, Kilifi and Taita Taveta county governments, arguing that the decisions by the county bosses is unconstitutional, null and void.
They further seeks the court to declare the said executive order by the three Governors an irregularity, illegality and unconstitutional. They want the court to declare the said executive order as unconstitutional.
“Muguka is a variety of Miraa by taste, product and active ingredient which is still cathinone. The crop is Khat and Miraa as well as Muguka is the local name for Khat. The scheduled crop is Catha edulis which represents all varieties of Miraa which includes Muguka and any other crop that may emerge and contains Catha edulis,”Makarina said in an affidavit.
Further, they want the court to restrain the three devolved units from implementing the said executive orders.
Makarina argue that Muguka is not perceived as a drug and that is why it is legal in the country.
He further adds that there is no law separating Miraa from Muguka and no single law prohibiting its sale or consumption and despite the three counties having legitimate constitutional mandates to guarantee the safety of their citizens, they ought to have taken the legal procedures before undertaking the ban.
The two argue that the mandate of banning a product or service protected through an Act of Parliament is the sole power of the national government.
“County governments cannot choose to regulate a product or service by banning it altogether,” they argue.
The petitioners said according to Kenyan law, only Parliament through the National Assembly and Senate can declare a substance narcotic or psychotropic through legislation. The National Agency for the Campaign Against Drug Abuse (NACADA) has not declared Muguka a narcotic nor banned it.
The Crop (Miraa) Regulations 2021 recognizes both Miraa and Mugaka as legitimate crop in Kenya and the actions of the three Governors underscores the complex interplay between public health concerns and economic dependencies in Kenya,” the petition stated.
On 23rd May 2024, Mombasa Governor signed an execative order, effectively banning the entry, transportation, trade, and consumption of Muguka in the county. Through Executive order No.1 OF 2024, Kilifi Governor become the second coast region Governor to ban the entry, transportation, trade, and consumption of Muguka.
Further on 26th Nay 2024, Taita Taveta Governor also banned the entry, transportation, trade, and consumption of Muguka. They did not conduct public participation before banning Muguka.
