Democracy seldom collapses overnight. It erodes through negligence, apathy, and procedural shortcuts that turn government from servant to ruler. The Tobacco Products and Electronic Delivery Systems Control Bill, known as the Tobacco Bill, embodies this gradual corrosion of constitutional democracy.
A bill built on control, not consultation
The stated aim of the Tobacco Bill is to reduce smoking. Yet its mechanisms go far beyond health protection. The Bill prohibits smoking in most public and even private spaces, bans nearly all advertising and product displays, outlaws online and courier sales, and imposes plain packaging with graphic imagery. It treats cigarettes, vapes, and even non-tobacco products as identical threats, despite overwhelming global evidence that harm-reduction alternatives like e-cigarettes are 95% less harmful than combustible tobacco.
Even more troubling is the power it grants the Minister of Health as well as a proposed Monitoring Committee of minister-appointed “experts.” These unelected actors could create new regulations without parliamentary oversight. In a constitutional democracy, Parliament writes the laws and the executive enforces them. This Bill flips that principle, placing vast law-making power in bureaucratic hands.
A flawed and biased process
The Bill’s procedural history reads like a manual on how not to make law. First published for comment in 2018, it drew over 21,000 submissions. Criticism of the bill from these submissions was summarily ridiculed and ignored. Not a single submission appears to have been meaningfully considered.
When a substantially different version of the Bill surfaced in 2022, it was pushed through Parliament without reopening public consultation or updating the required Socio-Economic Impact Assessment (SEIA). This alone violates the Constitution and established SEIA guidelines, which require republication and fresh analysis when a Bill changes materially.
The original SEIA, drafted by the University of Cape Town’s Economics of Tobacco Control Project, was compromised from the start. Partly funded by the Gates Foundation, its authors were ideologically aligned with the World Health Organization’s Framework Convention on Tobacco Control (FCTC).
The report lacked any cost-benefit analysis and dismissed dissenting views as self-interested. When republished in 2022, it still failed to assess the new Bill in any way, ignored lockdown-era evidence that prohibition fuels the illicit trade, and used misleading economic comparisons to justify regulation.
Despite these defects, the Department of Planning, Monitoring and Evaluation issued a compliance certificate “on condition” that a cost-benefit analysis be added later. Three years on, no such analysis exists.
Bypassing democratic institutions
One of the gravest procedural breaches was the Department of Health’s bypassing of NEDLAC, the legally mandated forum for government, labour, and business to consult on socio-economic legislation.
NEDLAC’s 2023 annual report condemned the move as unlawful and warned it undermined public trust.
When consultation finally took place in late 2024, six years after the Bill’s drafting, the process was dominated by foreign anti-tobacco NGOs, including the Campaign for Tobacco-Free Kids, acting as part of the government delegation. Local businesses and consumer advocates were sidelined, and the final report misrepresented the degree of consensus reached.
In Parliament, the Portfolio Committee on Health, tasked with ensuring constitutional compliance, became a rubber stamp. Former chair Dr Kenneth Jacobs openly declared the committee’s duty was “to have the Bill passed.” His successor, Dr Sibongiseni Dhlomo, previously championed the Bill as Deputy Health Minister.
This is a clear conflict of interest. It is ironic, as members of the Portfolio Committee later tried to accuse ActionSA’s Dr Letlape of having a conflict of interest merely for being a member of a harm reduction-promoting NGO.
Opposition MPs repeatedly raised concerns about the lack of consultation, economic damage, and the Bill’s unenforceability amid a illicit cigarette market that dominates over 70% of sales.
They were ignored. Hearings gave preference to pro-Bill presenters from WHO-linked NGOs, while experts supporting harm reduction were cut short, ridiculed and had their credentials questioned.
Public hearings in name only
Provincial public hearings were equally defective. Notices were given with as little as one to three days’ warning, violating Constitutional Court precedent that requires at least a week’s notice. Venues were too small, inaccessible, or changed at the last moment. Materials were missing or mistranslated. Chairpersons frequently barred critics from speaking. In several provinces, attendees were misinformed that the Bill would “not ban anything.” Such deceit nullifies the legitimacy of the hearings and exposes the Bill to legal challenge.
Foreign influence and NGO capture
The WHO’s Framework Convention on Tobacco Control has been used as both blueprint and justification for the Bill, even though it is not domestic law until Parliament enacts it.
Article 5.3 of the FCTC instructs governments to protect tobacco-control policy from “commercial and other vested interests,” effectively excluding entire industries and their workers from democratic participation. In practice, this has turned the tobacco industry and anyone associated with harm reduction into pariahs, while foreign-funded NGOs enjoy privileged access to policymakers.
South Africa’s democracy is being displaced by international lobbyists masquerading as moral authorities. The Department of Health has deferred to them at every stage, even outsourcing advisory roles to organisations like CANSA and ATIM, some of which receive government funding. Meanwhile, opposition voices and local experts have been systematically excluded.
The way forward
If democracy means anything, it is that laws must reflect both the will of the people and the rule of law; the Tobacco Bill satisfies neither. It was conceived in secrecy, shaped by ideology, and advanced through procedural shortcuts that mock constitutional governance.
To pass it unaltered would not only enshrine bad law but also betray the democratic principles that the Constitution was built to protect. Public health matters, but so do liberty, transparency, and the right of citizens to be heard. The Tobacco Bill, in its current form, silences them all.
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Nicholas Woode-Smith is the Managing Editor of the Rational Standard. He is a Senior Associate of the Free Market Foundation and writes in his personal capacity.
This article was first published by Daily Friend on 4 November 2025
