On May 22, Mombasa Governor Abdulswamad Nassir proclaimed an executive order prohibiting the entry into, distribution, sale and consumption of the hallucinogenic muguka and its related products in Mombasa.

The order decrees an indefinite prohibition and directs the county inspectorate to enforce the stringent measures

To justify the new measures, Nassir cited what he alleged to be medico-scientific data demonstrating adverse negative effects associated with consumption of the plant and an alleged concurrence with the anti-drug abuse agency NACADA. He also alleged that he was under public pressure to prohibit the plant.

Among other laws, Nassir cited article 179 of the Constitution that he argued confers executive authority in the devolved government on the governor. He also stated that per the Fourth Schedule of the supreme law, county governments retain the constitutional authority to license and regulate trade and “control drugs and substance abuse”.

With the stroke of a pen and a gubernatorial edict, thousands have been rendered jobless, denied their right to property and favourite recreational activity. Press reports indicate that Lamu, Kwale and Kilifi  have followed Mombasa’s example. Before Nassir’s edict, a group of religious leaders and anti-narcotics activists led a crusade against muguka.

Several questions arise about the legal and constitutional basis of Nassir’s  order and whether the affected traders and transporters, besides consumers, are protected by law to engage in and with this product for recreation and financial gain. Critiquing the legal basis of Nassir’s action is not a denial that muguka is a proven narcotic with crippling negative effects, for these are separate arguments.

Many Kenyans have legitimate political, medical and religious concerns about muguka. On the basis of available medical and psychosocial impact data, conceivably, the time to ban muguka, khat and other such products is ripe, but strong moral, religious and medical arguments do not amount to law or justification to invent or break it. Thus, the governor has no legal feet to stand on to prohibit the sale or consumption of this product in Mombasa. This is because the governor has misconstrued the powers of the county government to promote public health, license trade and control drugs under the Fourth Schedule – powers that  are reserved for the national government under the same Schedule. The governor has also assumed criminal law authority that is vested in the national government per the Schedule. Any assumption of national government power by a gubernatorial power must flow from the supreme law and statutes, and not, arbitrarily, as Nassir has done.

Executive authority in the county and national governments can only be enforced in accordance with the supreme law, national legislation, not popular or moral grounds. For governors, there is an additional layer of county statutes to enforce their mandates, but all such county statutes or regulations must, as a constitutional principle, cohere with national legislation and the constitution.

This means that even if the Mombasa or Kilifi county governments were to pass laws or declare regulations, banning a substance, permitted by national legislation, such a subsidiary law or regulation will be null and void. So far, the local legislature has not passed such a law and neither have the local medical authorities issued such regulations.

The first strike against the governor’s order is that muguka is not a banned or controlled substance under the Narcotic Drugs and Psychotropic Substances Act 1994 and as amended several times.

— The writer is an Advocate of the High Court of and a Journalist based in  Mombasa