Capital Ethiopia Newspaper

Legal Perspective: A Smokey Piece Of Culture In Addis?



‘Oh! hookah of the magic bowl,

Thou dost bring me greatest pleasure,

Who likes not thee, hath not a soul,

And can know of joy no measure.

Thy fragrance brings me visions bright–

Dispels the shadows of the night’.

Since recent years, Shisha (also referred to as nargile, peace pipe, hookah, hubbly bubbly) has started to be used outside the traditional shisha smoking groups and societies. Its origin, some argue, came from Turkey 500 years ago while significant others claim that Shisha originated in Syria and India. To put it in context for readers who are not ‘au fait’ with Shisha, it is basically a flavored tobacco which is soaked in fruit shavings such as apples, grapes, and strawberries or floral flavors such as rose and coconut. The smoking process involves the use of a hookah, which consists of a base, pipe, bowl and hose or a mouthpiece. An aluminum foil covers the bowl and small charcoal pieces are then placed on the foil, which is punctured using a pin to gently heat the tobacco.

Despite the generally held view, studies show that Shisha smoking more than doubles the risk of developing lung cancer, respiratory illnesses such as Chronic Obstructive Pulmonary Disease (COPD), and for pregnant women, low birth weight babies. Studies further indicate that the nicotine exposure from one session of Shisha smoking is equivalent to smoking 10 cigarettes.

Regarding its legal status, there is no universality across legal systems. While some countries allow its use by issuing business licenses and collecting tax from it, others see it as having a destabilizing effect on society and hence, have criminalized it. In this brief opinion, we will try to give a short reflection of its legal status in Ethiopia, by referencing legislations and precedents that may have relevance. While some laws in Ethiopia are clear in intent and address, the same however cannot be said about others.

Questions such as how Shisha crosses the Ethiopian Customs authorities? In particular, what legal framework applies to various service providers giving out Shisha service to their customers? Is there a specific permit given by the business license issuing authority for Shisha service providers? Or do they simply get a restaurant business permit and provide Shisha altogether? How does this pass the Ethiopian Revenue and Customs Authority, as almost all such businesses have to issue receipt to customers regarding the particular service they render and the amount they charge for it? Or, is Shisha simply circulating in the informal economy and not contributing much to the overall economic development of the country?

For all goods imported into Ethiopia, a standard custom procedure is applied with the view of avoiding the incidence of contraband, commercial fraud, and maintenance of public security and collecting government revenue. According to Customs Proclamation No. 622/2009, goods with encumbrance upon entering the country are classified into either ‘prohibited good’ or ‘restricted good’. Article 2 (25) of the Customs Proclamation provides that prohibited goods means ‘goods of which the importation, exportation or transit is prohibited by laws or international agreements ratified by Ethiopia’. A good example in this regard could be the importation of criminalized substances or pornography.

‘Restricted goods’ on the other hand refers to ‘goods which the importation, exportation or transit is restricted unless it is permitted by the competent authority in accordance with legal procedures’. A good example for this is the special permit granted to allow the importation of radioactive medicines or narcotic, psychotropic and poisonous substances as per the Food, Medicine and Health Care Administration Control Proclamation No. 661/2009, and its implementing legislations. However, it is worthy to note that the Ethiopian Tobacco Enterprise Share Company (previously the National Tobacco Enterprise) is given a monopoly interest in purchasing, preparing, manufacturing, importing, selling and exporting tobacco products as per Proclamation No. 37/1992. Given that Shisha is a product with tobacco as its main ingredient, the Tobacco Enterprise Share Company basically has a monopoly around almost everything that has to do with from importation up to its circulation in the domestic market, hence, making Shisha a ‘restricted good’ for the purposes of customs clearance with ERCA. Furthermore, Proclamation 661/2009 requires the need to obtain a special permit for the import, export or whole selling tobacco products under its Article 22. Hence, Shisha is a restricted product as regards custom clearance at importation. Alas, substantial quantities of the product entering the country do not get the prior blessing of the appropriate authorities, and hence, often enters the market by contraband which is a criminal offence severely punishable by law. Importing Shisha for personal effects in very limited amounts however seems to be allowed at Customs.

The ‘Commercial Registration and Business Licensing Proclamation No. 686/2010’ which complements the 1960 Commercial Code provides that mainstream businesses that are professionally done and for gain need a business license given by the Ministry of Trade or appropriate bureaus exercising delegated function. So far, the Ministry of Trade or its bureaus, at the Federal level at least, do not issue any particular permit to businesses providing Shisha smoking services. Many Shisha service providers in Addis Ababa do have a restaurant and bar business license, but serve Shisha in parallel. Article 34 (1) of Proclamation No. 686/2010 stipulates with clarity that businesses holding a business license may not carry on any commercial activity that does not fall within the scope of the field of activity for which the license is issued. Shisha service does not fall in the Restaurant and Bar business category. This could result in either suspension or cancellation of business licenses. Even worse, a fine punishment extending from ETB 150,000 to ETB 300,000 coupled with rigorous imprisonment from 7 to 15 years may also come about. Hence, those conducting the Shisha business in the informal economy for commercial ends will be severely punished if/when found.   

If this is the case, what is even more interesting is how Shisha serving business in the informal economy get by unnoticed at least by the Ethiopian Revenue and Customs Authority? Well, some of them do not even give receipts while others that give out a receipt to customers (and some do really) use a tactic not to get noticed by the tax collecting authority. In particular, some such service providers, instead of billing customers and giving receipts with Shisha description, give out receipts with various names such as “VIP Lounge Service’, ‘Amarula’, ‘Baileys’ and ‘shishamintmix’. By employing these maneuvering names often referring to alcohol types or incomprehensible mix of words, these service providers often bypass scrutiny and investigation by the Revenue collecting and other concerned authorities. This of course is done by the consent of the customers. We wonder whether this could have a spill-over effect in the criminal prosecution of the customers who are witnessing and collaborating with the service provider’s criminal act in this respect.

The FDRE Criminal Code puts a clear restriction in the planting, producing, manufacturing, possessing, importing and selling poisonous, narcotic and psychotropic substances. It also imposes severe penalties on those who commit such crimes. However, our reading of the Food, Medicine and Health Care Administration and Control Proclamation No. 661/2009, relevant international categorizations also adopted by Ethiopia and from the opinions collected from pharmacists in town, Shisha does not qualify either as poisonous, narcotic or psychotropic substance. Hence, smoking or possessing it merely does not qualify as a criminal offence under said provision. However, the recent law on ‘Road Traffic Safety Regulations of the Addis Ababa City Government No. 27/2009’ prohibits in its attached Schedule driving on the road ‘while drunk, drugged or having chewed chat or having smoked shisha’. Accordingly, it seems this prohibition on drivers has come about as a result of the apparent side-effects the substance has in the mind set of drivers. Those found committing this crime of driving while having smoked Shisha are subject to a penalty of ETB One Hundred Sixty (160). There is, however, an apparent limitation in technology and the capacity of the enforcement organ in following up and detecting such violations of the law as they occur.

Though we do not claim to have done more than what a short opinion piece can achieve, we strongly believe that the legal framework surrounding the status of Shisha can be used creatively, but without violating fundamental criminal law principles, to address an issue that is developing to become an unhealthy and undesirable new puff culture in our nation. Rumor has it that there is a big campaign in town against Shisha these days.

This opinion does not establish any sort of client-attorney relationship with readers.