An analysis of the legal framework governing anti-doping in Kenya

Doping, a practice as old as sport itself, remains prevalent across various sporting disciplines today. Controlling this unethical behaviour has become a top priority for sport associations worldwide. In Kenya, like in many other countries, the spectres of doping have cast a shadow over the integrity of sports. This article shall discuss the legal framework that governs anti- doping in Kenya and it shall propose how different statutes can support this fight.

For a considerable duration, Kenya has lacked a clear-cut legal framework dedicated solely to addressing doping regulation. Section 24 of the Children Act, 2022 safeguards children from the consumption of hallucinogens, narcotics, alcohol, tobacco products, psychotropic drugs, and any other substances that may harm the proper functioning of a child's body. Certain drugs falling under this category are also included in the World Anti-Doping Agency Prohibited List.

Prior to 2013, there was no substantive legislation regulating doping in Kenya. The following are the two substantive statutes that have since been implemented to govern anti-doping in Kenya.

1.        Sports Act, 2013

Before the Sports Act of 2013 was put into effect, Kenya didn't have a comprehensive legal structure specifically aimed at regulating sports within the country. The implementation of this act marked a significant change in how sports were valued and acknowledged, as it established a framework to oversee the sector. One notable aspect of this legislation is its pioneering role in establishing a legal basis for Anti-Doping Rules. It explicitly empowers the Cabinet Secretary to formulate anti-doping regulations and mandates all individuals involved in sports to adhere to these rules.

2.      Anti-Doping Act, 2016

This is the principal act that is comprehensive and specific in regulating doping in Kenya. The Act establishes an independent anti-doping agency (the Anti-Doping Agency of Kenya - ADAK), outlines an appeal structure in cases of disputes, criminalizes offences relating to doping. This Act aims to implement both the World Anti-Doping Code and the United Nations Educational Scientific and Cultural Organization Convention Against Doping in Sport. Its objectives include safeguarding athletes' fundamental right to participate in doping-free sports, establishing coordinated methods to detect and prevent the use of banned substances or methods, ensuring fairness and equity in sports, promoting global athlete health, and protecting athletes' physical and mental well-being.

Nonetheless, there are numerous legislations in existence that can work hand in hand to support anti-doping regulation in Kenya. These Acts are implemented to govern and manage the use of drugs, and they can play a constructive role in bolstering existing measures against doping. They include:

1.        The Pharmacy and Poisons Act, 1956 – In its effort to safeguard the public, the Act mandates the labelling of drug containers, which can extend to medications containing substances outlined on the World Anti-Doping Agency Prohibited List. It can be mandatorily required that these labels must be prominently displayed, either in bold or in a way that clearly sets them apart from other medications.

2.       The Medical Practitioners and Dentists Act, 1977 - It is widely understood that doping typically involves the use of drugs, often prescribed by medical professionals. Therefore, it is crucial to improve doping education within the medical community. However, the Medical Practitioners and Dentists Act currently lacks provisions for such education. It should be revised to mandate that new entrants into the profession obtain a certification in doping regulation.

3.       The Narcotics and Psychotropic Substances (Control) Act, 1994 - The Act aims to regulate the possession, trafficking, and cultivation of narcotic drugs, psychotropic substances, and certain plants, while also facilitating the forfeiture of assets linked to illicit drug activities. However, despite its coverage of substances banned in sports, the Act does not address the regulation of doping. A recommendation is to amend the Act to explicitly include provisions for monitoring, testing, and penalizing doping violations, thus providing a comprehensive legal framework for combating doping in sports.

4.      The Children Act - Section 16 of the Act safeguards children from the consumption of hallucinogens, narcotics, alcohol, tobacco products, psychotropic drugs, and any other substances that may harm the proper functioning of a child's body. Certain drugs falling under this category are also included in the World Anti-Doping Agency Prohibited List.

It is crucial for Kenya to remain steadfast in combating doping to safeguard the well-being of athletes and maintain the credibility of sports. In 2022, 27 top Kenyan runners faced suspensions due to doping violations, constituting 40 percent of the total elite athletes suspended globally in track and field and distance running. These numbers have since increased, underscoring the urgency of ongoing efforts. It is imperative for the legal framework to consistently reinforce initiatives aimed at addressing this challenge. In addition to legal measures, continuous strengthening and adaptation of the legal framework are imperative to effectively address evolving challenges and loopholes in the fight against doping.

Sitienei J.

sitienei@alakonyalaw.co.ke