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The law is supposed to protect citizens but as the case of Imen (anagram of subject’s real name in translation) shows, the Control of Smoking Act and Worker’s Compensation Act fail to protect non-smokers like her who work in cigarette smoke-filled establishments.
As other University of Botswana students who augment their meagre student allowance by working part-time at high-end restaurants, Imen waited tables at one for two years now. This was her first waitressing job. A few weeks ago, she began to experience dizzy spells which affected both her productivity at work and attentiveness in class. After failing to get good diagnosis over an extended period of time, she hit pay dirt when she went to a Chinese-run health facility at the main mall in Gaborone. After being examined, she was told that she has extremely high levels of cotinine - a byproduct of nicotine breakdown whose presence in the blood indicates recent exposure to toxic second-hand smoke in concentrations high enough to leave residues in the body. Imen is at an age where “jamming’ is a rite of passage but while she may want to do that, she swears that she doesn’t get the opportunity to do so because she would be at her waitressing job catering for those who have the opportunity to jam.
“The only place where I could have come into contact with cigarette smoke is at the restaurant,” she says.
The 2017 edition of the World Health Organisation (WHO) report on the global tobacco epidemic says that “the lowest level of protection from second-hand smoke is afforded to employees and patrons of restaurants, pubs and bars.” While Botswana became a party to the WHO Framework Convention on Tobacco Control (FCTC) on May 1, 2005, its consequent domestication of the Convention through the Control of Smoking Act amounts to very little. The Act does not set forth stringent requirements for health warnings on tobacco packaging and labeling, nor does it prohibit misleading packaging and labelling. The FCTC recommends that health warnings in principal languages of a country should be prominently displayed on cigarette packs and that those who fail to comply (manufacturers, importers, wholesalers and retailers) should be penalized. As at September 14, 2017, Botswana complied with less than 5 percent of FCTC requirements.
Outside responsibility borne by the government, individuals are also supposed to ensure that they don’t compromise public health by complying with the Act. The reality though is that what happens at public gatherings like music festivals, sporting events, weddings, funerals and political rallies clearly shows that compliance is very low.
The Control of Smoking Act prescribes designation of smoking and no-smoking areas but as WHO points out in its report, this is ineffectual.
“Measures intended to accommodate smoking, such as separate smoking rooms and ventilation systems, do not prevent exposure because they cannot effectively eliminate all second-hand smoke,” the UN body reiterates in its 2017 report.
Imen’s elaboration of this point as regards her particular situation is that her work requires her to serve smokers sitting in the smoking section. Some of those smokers, she adds, think nothing of blowing smoke in her face.
Despite the very clear evidence of how Imen’s health was compromised, the law doesn’t provide cast-iron guarantee with regard to compensation as stipulated in the Worker’s Compensation Act. In Roman-Dutch law, which Botswana uses, there is a doctrine called volenti non fit injuria - Latin for "to a willing person, no injury is done." Imen knowingly and willingly puts herself in a dangerous situation and one legal view is that she cannot sue for any resulting injuries. The Worker’s Compensation Act is very specific with regard to injuries that employees can be compensated for. The health facility that Imen went to recommended tables that cost P800 but while the Act imposes duty on an employer to compensate employees who suffer injury in the workplace, nowhere does second-hand smoke appear on the two lists (called schedules) tabulated in the Act.
However, Botswana has a very peculiar situation. With high unemployment levels and unequally shared national wealth that in the case of Imen means a meagre student allowance, people don’t have much of a choice when it comes to work. That is what drives most Batswana to do exploitative work that compromises their health. The idea of some “voluntary assumption of risk” for someone forced to take up a job in a risky work environment doesn’t quite make sense but as another doctrine (“Ignorance of the law is not an excuse”) shows, the interests of ordinary people were certainly not a priority when Roman-Dutch law was made.
Imen says that she ended up waitressing because the job fitted her schedule as a student.
“I am attending classes during the week and the only weekend part-time jobs that I can get are in places that sell alcohol where there is a lot of cigarette smoke,” she adds.
What makes this type of work even more dangerous is the fact that at 16 percent, Botswana’s adult daily smoking prevalence is one of the highest in Africa and the third highest in SADC. Part of rise in this smoking certainly has to do with the fact that while men were practically the only smokers in the past, nowadays they are getting a lot of help from an ever increasing contingent of westernised young women. Whereas cigarette smoke would only form a cumulus cloud in the past, it now forms cumulonimbus clouds that someone like Imen necessarily has to walk in and out of in the course of work.
By any standard, this is a public health emergency but the government is moving at an extremely slow speed towards the solution. Plans to amend the Control of Smoking Act were stalled last year when cabinet queried the contents of a bill that was to be presented to parliament. Tabling the 2018/19 budgetary estimates in March, then Assistant Minister of Health and Wellness, Phillip Makgalemele, said that the amendments are at an advanced stage and will themselves be tabled in this financial year. The budget session has just ended and there is no guarantee that the bill will come during the winter session. Meanwhile, the tragedy continues unabated and could be affecting a much larger group. WHO’s assertion that patrons are also afforded the least protection from second-hand smoke, means that the same or even higher cotinine levels could be found in the blood of other waitresses as well as patrons of places that sell alcohol.
The winners in tobacco trade are the businesspeople, the losers are the government and citizens - both smokers and non-smokers. WHO’s current database shows cases where taxes increased between 2014 and 2016 but the share of tax as a percentage of the price went down. This is mainly due to the fact that, in absolute terms, the price increase was larger than the tax increase. Similarly, there are cases where increases or decreases in tax as a share of price were mitigated by factors not directly related to tax rates. In the particular case of Botswana, this was attributable to prices increasing above tax increases, leading to a decrease in tax share.