By kodi barth

East African Breweries’ latest advert, Bambua Tafrija, is rocking town. And the near-minute long Milele, Kenya my country, Tusker’s most famous TV advert, is more patriotic than our national anthem. When it comes up on television, even my 13-month-old son, Benjy, stops everything to give it his undivided attention. Perhaps that is why anti-alcohol crusaders are so mad. But was the government’s announcement on Thursday last week that it would ban certain tobacco and alcohol advertising defensible?

I was in a newsroom when the fax machine stuttered to life. The fax, from the government Spokesman, Dr Alfred Mutua, said that the Kenya government was banning tobacco and alcohol advertising on television and billboards. (Never mind that the necessary legislation was not yet in place – they would take care of that later, said Mutua!) To add weight to the fax, NACADA boss Joseph Kaguthi came to the newsroom to personally crusade for mega coverage of the government order.

News editors went into a crisis meeting. "There is no doubt that this is big news," said a reporter. "The question is what magnitude we will actually give it."

It was a tight rope to walk. One, news people could give this the banner headlines it deserved, and risk sour relations with advertisers who keep media organisations running. That would be a shot in the foot. Two, the newsmakers could give this a tiny, page 10 mention, and brace themselves for government sulk.

As it turned out, only a few TV stations gave the ban a fleeting mention at evening news. Some ignored it entirely. The next day, it was not front-page news. It was clear that media moguls had come to a decision. They could live with government’s temper. But they couldn’t run newspapers and airtime with Hail Marias. Advertisers must not be angered; period.

From where I stood, however, three issues were seriously at stake. A: Is it the media’s job to protect children from activities that may have negative effects? B: Does the constitutional right to free speech extend to advertising? C: Isn’t it inappropriate, even illegal, for government to stomp in with a hammer and put a top to advertising?

There is no question about the first issue. Ethics demand that the innocent be protected from stray bullets, of whatever kind. But research shows that most long-term smokers begin smoking at teenage, and become hooked for life. At teenage, adverts easily lure, thanks to the media. Drinking habits are not far different. At 13 months, my Benjy is now drawn to the Tusker milele advert on television only because of its emotive music and arresting rendition. But were he entering teenage, he would be vulnerably exposed to the wrong conclusion: that to drink Tusker is to be Kenyan. And, to drink more Tusker is to be more Kenyan.

Again, the media is to blame. Yet, really, the media is doing nothing wrong, legally. Advertising is classified as "commercial" speech. Advertisers get licensed because they plough staggering revenue into the economy. Also, because they have the right to "commercial" speech. But shouldn’t this speech be subject to a more stringent interpretation when the rights of children are at stake?

On the other hand, if a redefinition of "commercial" speech is needed in children’s terrain, where would we stop with restriction? If tobacco and alcohol advertising can be restricted, what about advertising for other potentially harmful products?

A YES to restricting advertising is premised on the threat to children’s right to a healthy life. Advertising tobacco and alcohol unfairly puts children in harm’s way; period. Because of advertisers’ use of images that appeal to and are remembered by children, the possibility is too great that minors will be tempted to smoke and drink. And because of the profound health risks and impending antisocial behaviour, restrictions need to be put on these ads.

But that is only one argument. A NO to restricting advertising, on the other hand, stands on even more solid ground. The ramifications of these adverts are profoundly negative.

Yet, even with a government ban, two problems won’t go away.

One, who can be sure that this strategy will work? Children can obtain information from elsewhere. Do a survey. Find out how many adults drink or smoke because they learnt from media adverts. It is impossible to predict with certainty that this ban would reduce the number of teenage drug abuse.

Two, a government ban on advertising is inappropriate, perhaps even illegal. It may cause a constitutional crisis. Our Constitution insists on the right to free speech. Yes, selling cigarettes and alcohol to anyone under the age of 18 should be illegal in this country (even if authorities haven’t focused on enforcing it). So, advertising to this group is clearly not protected by the right to free speech. But in court, you’ll need a miracle to prove that advertisers target minors.

That leaves, perhaps, only one solution. What’s wrong with government encouraging counter-advertising to promote the health benefits of not smoking, not drinking? Maybe government should just allow Kaguthi to carry out a counter campaign to discourage people from consuming alcohol and smoking and let the people decide. No law broken; no ethics breached. And our children’s future will be secured – at a worthwhile price. Or am I talking through my hat?