Study Finds Arrests And Fines Ineffective In Curbing Illicit Alcohol, Suggests Better Solutions

The continued ban on traditional brews, and the enforcement approaches that focus on punishment has led to underground production and consumption of illicit alcohol in the country.

A study has revealed that the challenge of illicit alcohol requires a nuanced understanding of the historical contexts, complexities, the policy and legal frameworks, the prescriptions and responses and the available opportunities for different actors in the alcohol sector.

The National Crime Research Centre (NCRC) has warned that penal and enforcement approaches tend to focus on punishment, but often fail to address the underlying causes and complexities of the problem.

“An economic incentive for illicit production was created as traditional brews remained popular due to their affordability and cultural relevance.

According to the NCRC in their report released on Friday, the growing demand ensures that despite the risks, production continues, often in unsafe and unregulated conditions.

“This legacy is replete with the present-day commercialised informal alcohol sector, with profound challenges of adulterated traditional brews and illicit second generation alcohol with greater risks for public health and safety,” NCRC said.

The report states that sustainable solutions must address the underlying root causes of illicit alcohol, such as poverty, cultural factors, and limited access to legal alcohol for certain segments of the population, among others.

To many, especially in economically disadvantaged rural and informal urban areas, dealing in illicit alcohol is a viable livelihood strategy. The challenge requires a more holistic approach that goes beyond penal measures.

“Addressing illicit alcohol solely through penal code and enforcement approaches of stringent regulations, bans, crackdowns, arrests, prosecutions, and fines may not be sustainable in the long run for a developing country such as Kenya where significant sections of the population are low income earners and the periphery of the economy.

Simply penalizing these individuals without providing alternative livelihoods or economic opportunities does not address the root cause of their involvement. This can lead to a cycle of arrests and prosecutions with limited deterrent effect or without any real reduction in illicit activity.

Secondly, alcohol has deep cultural and social significance in many Kenyan communities. A purely punitive approach ignores these cultural aspects and can alienate the communities, leading to resistance rather than cooperation in fighting it.

The continued production and consumption has also been linked to weak regulatory frameworks, widespread corruption within sections or some rogue law enforcement, regulatory, and enforcement agencies.

NCRC noted that some producers, sellers and consumers of illicit alcohol operate in the informal sector and may not have the skills, resources, or opportunities to transition to legal setups or other sources of livelihood.

“Therefore, without strategic support for such transitions, penal measures simply push these people deeper into illegality,” the report states.

Legal alcohol remains unaffordable or inaccessible, and certain segments of consumers will continue to seek illicit options, regardless of the risks and penalties involved. This is why Kenya has experienced cyclic mortality and morbidity from the consumption of killer alcohol over the years.

The research revealed that the production, distribution, sale and consumption are major issues of concern for various reasons, ranging from public health risks, insecurity; social and economic impacts.

Alcohol is also a critical issue of public concern because of its negative repercussions such as alcohol-related deaths and ill-health. Others are an increase in violence, crime and insecurity in the localities; alcoholism and addiction problems; mental health issues, sexual and gender-based violence in families; parental and spousal neglect; loss of government revenues; school dropouts and illiteracy.

“Most police stations lack secure and tamper-proof storage facilities with instances of alcoholic exhibits in legal custody finding their way back into the market with profound consequences for public safety.

The challenge of lack of access to the Government Chemist services is a major hindrance in the testing of exhibits and prosecution of illicit alcohol-related cases.

Cases collapse or take an inordinately longer time to resolve because of the inaccessibility of the government chemist. Another fact is the classification of illicit nalcohol-related offences as part of petty crimes and the accompanying lenient fines and sentences.

Cultural and social factors due to the persistence of illicit alcohol; and cross-border proliferation and smuggling of counterfeit alcohol and ethanol into the country were cited as factors encouraging the flourishing of the illicit alcohol sub-sector in urban and rural areas.

Court rulings have often been deliberately misinterpreted to imply that traditional brews for commercial purposes are allowed in Kenya, even when they do not meet the requirements of the Alcoholic Drinks Control Act, 2010).

Cases in point are, for example, the “Ndeiya Traditional Brewers Petition of 2023, where the High Court declared that muratina is not an illicit brew and allowed its preparation and consumption as part of the Agikuyu culture and tradition.

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In addition, the “Rose Adhiambo Aluoch vs Republic: Criminal Appeal No. 44 of 2016”, where the court ruled that “kangara” is not an alcoholic drink but a substance used for the purposes of making chang’aa, which is an alcoholic drink.

Whereas these cases have had merit in law and the Constitution, they have been misinterpreted to imply that “illicit” traditional brews for commercial purposes are permitted by Kenyan laws without regard to the merits and demerits of such cases and petitions.

Some illicit brewers have taken advantage of these misinterpretations and misinformation to produce traditional brews for sale, contrary to the provisions of the Alcoholic Drinks Control Act, 2010.