By Martin Mutua

Drinkers might have to stockpile three days’ worth of alcohol in their residences during the General Election if proposed changes to the Alcoholic Drinks Control Act are passed.

The man behind the Act, Naivasha MP John Mututho is proposing three days of prohibition leading up to and including the date of the General Election, during which no one will be allowed to sell or buy alcohol.

His proposed amendments to the laws, which are popularly referred to as the “Mututho laws”, would tighten loopholes that have seen them flouted indiscriminately across the country. The MP believes the proposed measures will ensure voters are sober enough to cast their ballots on polling day.

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“I will be asking the approval of Parliament to amend the laws so that during the election time for three days all liquor licenses will be suspended for Kenyans to vote with a sober mind,” said the Naivasha legislator.

Mututho told The Standard in an exclusive interview that the practice has worked in other countries like Venezuela where alcohol is banned for a week during voting.

The legislator says he will seek to amend the law to have all places, including supermarkets, off license establishments and private members’ clubs adhere to the drinking hours of 5pm to 11pm on weekdays and 2pm to 11pm on weekends.

He also wants nightclubs to operate strictly from 7pm to 3am.

However, Mututho said the proposals would not affect tourists in hotels, as they would be allowed the 24-hour drinking as long as they are partaking it at their local bar.

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And Mututho warned those who have been flouting the laws that their days are now numbered as Section 34 of the Act is now properly documented and those caught either selling or drinking after the requisite hours will be slapped with a Sh50, 000 fine or jailed.

“For the last eight months I have been carrying out a research on why the laws were not being effective and that is the reason why I have come up with these amendments to tighten the loopholes,” he added.

Another amendment would see the establishment of a Fund to which a shilling from every bottle of alcohol sold will go to fund rehabilitation of alcoholics. Said he would also be amending the laws to come up with Fund that would be used to rehabilitate people suffering from alcoholism. Mututho also wants advertising of alcoholic drinks put under closer scrutiny by the State through an amendment to the Act to set up a special committee within the National Agency for the Campaign against Drug Abuse (Nacada) to deal with all advertisements related to alcoholic drinks.

“Any advertisements that deal with alcohol will have to pass through the committee for vetting before it can either be aired in the electronic media or printed in newspapers,” he said.

To protect children from being lured into drinking through alcoholic adverts on television, Mututho wants to amend the laws to ensure such adverts are only aired between 10pm and 6am.

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Another proposed change would force insurance firms to include alcoholism as a disease so that alcoholics can get health cover for the ailment in the same way other diseases are catered for.

However, the debate on whether one can one be arrested and prosecuted for consuming alcohol early in the day or late at night has refused to go away.

Those who believe one can be charged for taking liquor before 5pm or after 11pm seem to have vowed never to be convinced otherwise.

Following the enactment and coming to effect of the Alcoholic Drinks Control Act last year, a hide-and-seek game developed between the police and alcohol lovers.

Section 34(a) of the Act states, “Any person who sells an alcoholic drink or offers or exposes it for sale or who bottles an alcoholic drink except under and in accordance with, and on such premises as may be specified in a license issued in that behalf under this Act, commits an offence and is liable: (a) for a first offence, to a fine not exceeding Sh50, 000 or to imprisonment for a term not exceeding nine months, or to both.”

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In this section, police officers and provincial administrators found a basis to embark on massive crackdown on both alcohol sellers and consumers.

Within the first weeks of the Act coming into force, dozens of patrons arrested in bars after 11pm were bundled into police cars, locked up in cells overnight and dragged to court the following morning.

Those who escaped the dragnets were henceforth forced to keep one eye on the exits when enjoying their favourite tipple or to take them in the safety of their homes. Those who got to court were charged with consuming alcohol or liquor contrary to the Section 34(a) and or before or after the permitted hours. Some were fined Sh30, 000 or more and others jailed for months. Magistrates in Nairobi and its environs were eager to implement the new law, some without having a second look at the print.

Due to the publicity of the arrests and prosecutions, Nairobi lawyer Mbugua Mureithi filed an application at the High Court to have 12 of the cases reviewed.

High Court judge Mohamed Warsame called up the 12 files from various courts to determine whether or not the charges were proper.

In February, Justice Warsame read his ruling before the 12 victims of the new law, some of who were still in jail. Apparently, Section 34(a) only deals with the sale of alcohol and not consumption.

“I have looked at Section 34(a) very closely and in doing so I have not discovered the said section as criminalising consumption of alcohol or alcoholic drinks,” Warsame ruled.

“There is no offence against persons found consuming alcohol as alleged in the charge sheet whether it is outside the regulated hours or not. The provisions of Section 34(a) do not criminalise consumption of alcohol after or before the said hours. The said section deals or addresses only people who sell and not consumers of alcohol.”

He went on: “My interpretation of Section 34 and the Act as a whole is that the institutions that manufacture and sell alcoholic drinks are required not to sell the same to customers outside the regulated period. There is nowhere in the Act where consumption or drinking of an alcoholic drink is criminalised,” he added.

The judge said a charge under Section 34(a) alleging drinking or consuming alcohol or alcoholic drink is in contravention of the law.

“In essence, a person cannot be charged to have consumed alcohol under Section 34(a) either outside or within the stipulated time,” said Justice Warsame.

“I do not know whether the failure to criminalise consumption of alcohol outside the stipulated period was intentional or otherwise. My role as a judge is to interpret provisions of a statute to discern or discover whether an act has been criminalised as an offence in a particular section,” he ruled.

Real discrimination

Justice Warsame said the marginal notes in Section 34 states ‘breach of license’; clearly indicating Parliament did not intend to criminalise consumption of alcohol under that section. He ruled that the charges against the 12 accused persons were in contravention of the law and the indictment against the accused persons was defective and bad in law.

It had real prejudices and embarrasses the accused persons.

He set aside the convictions and the sentences and ordered that any of the accused persons who had pleaded not guilty released on bail and their charges terminated.

In addition, those who had paid fines were entitled to a refund, he ordered.

Justice Warsame then directed that the ruling be distributed to all the magistrate courts within the jurisdiction of the Nairobi High Court to ensure that such discrepancies are not repeated.

Some regular drinkers made copies of the ruling and newspaper cuttings and still carry them to pubs just in case they encounter adamant or ignorant police officers.