The adoption of Kenya’s 2012 BMS Act was the culmination of decades-long political efforts for BMS legislation. In the following sections, we causally reconstruct the political process that led to the successful adoption of the Act. We begin with a brief account of a first attempt to introduce BMS legislation in the 1980s. We then focus on the re-emergence of BMS legislation on the policy agenda in the 2000s and the parliamentary debate and adoption of the law in 2012. In a nutshell, we argue that the efforts of women leaders, supported by male allies and transnational networks made a strong contribution towards the adoption of this landmark BMS law.
Early problem definition and advocacy
Like in many other countries, breastfeeding and BMS marketing first began being politically problematized in Kenya during the 1970s. Transnational BMS producers had first entered the Kenyan market in 1913 [60]. By the 1970s, BMS marketing had become widespread and aggressive. Nestlé’s Lactogen was the most advertised brand on Swahili radio at the time, alone accounting for 11% of all (not just BMS) advertisements [61]. Rampant advertising of BMS was associated with low exclusive breastfeeding rates and what Derrick and Patrice Jelliffe have described as “commerciogenic malnutrition” [62]. Indeed, the problem was so pronounced that Kenyans reportedly developed the term chupa-itis to “describe diarrhea and dysentery in bottle-fed babies (chupa means bottle in Kiswahili)” [63]. The situation in Kenya became a central reference point in international debates about the specific risks of BMS in the Global South. For instance, the influential 1975 documentary film “Bottle Babies” by West German filmmaker Peter Krieg, which became instrumental in the 1977 Nestlé boycott, was primarily shot in Nairobi’s Kenyatta National Hospital [64].
Women-led civil society organizations, supported by international donors, were central in advocating for stricter regulation of BMS marketing in Kenya. The first among these was the small, Breastfeeding Information Group (BIG), a voluntary women-led organization focused on breastfeeding promotion. The organization was established in 1978 in Kenya, as the first African breastfeeding advocacy group by the Ugandan Margaret Kyenkya and a group of women from various countries including Rachel Musoke from Kenya [65, 66]. BIG’s establishment was motivated by an encounter of Margaret Kyenkya with the American Helen Armstrong, a former Peace Corps and La Leche League volunteer [65, 67] and was also supported by other expatriate volunteers, such as the Canadian Linda George [68]. BIG became affiliated with IBFAN, which was founded in 1979. In the late 1980s, BIG employed twelve salaried staff members and had received most of its funds from international donors, including Norwegian International Aid for Development (NORAD), Oxfam, UNICEF, the Danish International Development Agency and the Ford Foundation [69]. Working closely with the Ministry of Health, BIG was able to push the breastfeeding agenda through individual counselling and talks with mothers in maternal and child health facilities, providing in-service training in breastfeeding management to health workers and women’s groups in rural areas, and conducting research on breastfeeding trends in the 1980s and early 1990s [70].
In 1982, BIG successfully recruited an important ally in its fight to promote breastfeeding and push for strong national BMS regulation, namely the Maendeleo ya Wanawake Organization (MYWO), then Kenya’s “biggest and politically powerful grassroots women’s organization” [65]. At the time, MYWO largely relied on funding from international donors. For instance, in 1979, MYWO launched a Maternal Child Health and Family Planning program with funding from Pathfinder International, the World Bank, USAID and NORAD [71]. MYWO was particularly influential between 1971 and 1984, when it was chaired by Jane Kiano, who enjoyed strong ties with Kenya’s ruling party and was the spouse to an influential, long-serving minister [65, 72].
A first attempt at BMS legislation
In the early 1980s, and especially after the adoption of the International Code in 1981, BIG and MYWO jointly advocated for the introduction of strong national BMS legislation in Kenya through a Kenya Code [73].Footnote 1 MYWO’s chairperson, Jane Kiano, threw her political weight behind the cause, reportedly demanding in a meeting that “I want this Code. Definitely. And I want it soon.” [65]. The formulation of this Kenya Code was initially led by the Ministry of Health but was soon taken over by the Kenya Bureau of Standards (KEBS), an agency under the Ministry of Industry [77]. Representatives of the BMS industry and Nestlé in particular “insisted on being full participants in the drafting process” [65] and were in fact overrepresented according to BIG [78]. Indeed, the 1982 draft of the Kenya Code fell substantially short of the standards set out in the International Code and lacked a clear enforcement mechanism [79]. After further revisions and an influential National Workshop in Infant Feeding Practices in April 1983 [80, 81], the Kenya Code for Marketing of Breast Milk Substitutes was eventually adopted as a voluntary KEBS standard in May 1983 [82].
BIG and MYWO therefore ultimately failed at generating enough political support for BMS legislation, unable to overcome the strong opposition of the BMS industry. Yet, even this adoption of a voluntary code can be viewed as a certain policy achievement. By 1991, only three African countries, Kenya, Nigeria and South Africa, had adopted such voluntary codes, while none had adopted comprehensive and legally binding BMS regulations [83]. It also appears that the 1983 Kenya Code was enforced relatively effectively in public hospitals through a series of health ministry directives. In conjunction, the Kenya Code and these directives “effectively banned the free supply of infant formula to Kenyan hospitals” [84]. Yet, the goal of adopting comprehensive BMS legislation remained unattained.
Declining interest in BMS legislation
This early policy window for adopting BMS legislation closed again after the mid-1980s, as both BIG and MYWO were weakened. Kiano, MYWO’s powerful chairperson, who had embraced the issue of BMS regulation, stepped down in 1984 [71]. Kyenkya, BIG’s founding director, moved to New York in 1987 and started working for UNICEF [65]. These personnel changes were accompanied by a funding crunch for civil society organizations. Oxfam, which had paid Kyenkya’s salary as BIG’s coordinator, withdrew from funding BIG in 1987 [69]. NORAD, which had been a major funder of both BIG and MYWO was expelled from the country in 1990 due to an unrelated political conflict between Kenya and Norway [69, 71]. All of these changes occurred in the context of the increasingly authoritarian presidency of Daniel arap Moi.
In 1989, the issue of BMS legislation briefly flared up again. At a regional conference of IBFAN Africa in Nairobi, Mwai Kibaki, Kenya’s health minister from 1988 to 1991 (who would later become president and sign the 2012 BMS Act into law), expressed commitment to enact a binding Kenya Code, “to be followed by marketers of baby foods or infant formula to protect mothers from being cheated and confused” [85]. However, nothing came out of Kibaki’s pledge at the time, likely because of a fallout with President Moi and a relatively brief tenure as health minister [86].
In the 1990s, the issue of BMS legislation largely disappeared from Kenya’s political agenda. The report of a fact-finding mission, deployed by UNICEF and IBFAN, revealed that, in the second half of the 1990s, “a broad range of actions and funding to assist protection, promotion and support of breastfeeding, have declined very markedly”, while “interest” in binding BMS legislation has “waned” [87]. Some of this had, without doubt, to do with the continued influence of BMS producers and with the fact that KEBS (rather than the health ministry) remained in charge of BMS regulation [87]. Yet, it was also a result of rising rates of HIV infections in Kenya and growing concerns about the risk of HIV transmission through breastfeeding [88]. In 1997, this led to a specific recommendation by the Kenyan health ministry that “women with HIV will be advised to avoid breast-feeding their children and use alternative feeds” [88]. In sum, political priority for BMS regulation had reached a low point in the late 1990s.
Renewed advocacy and an opening policy window
Advocacy for BMS legislation began to re-emerge in the early 2000s. One specific transnational event that “renewed interest” [87] was the participation of three Kenya-based breastfeeding advocates in a training course on International Code compliance, hosted by IBFAN’s International Code Documentation Centre (ICDC) in Penang in September 2000. The ICDC was established by IBFAN in 1985 “to conduct courses on Code implementation and Code monitoring” [12, 89]. The three participants from Kenya included Rachel Musoke, a pediatrics professor and co-founder of BIG, Catherine Muyeka Mumma, a lawyer from the Office of the Attorney General, as well as a UNICEF program officer [87]. After the training course, there was “some resolve to move the Code from the Bureau of Standards to the Ministry of Health” and Mumma was “highly motivated to draft new legislation once she gets the go ahead” [87]. Mumma subsequently began working on a draft law, which would later form the basis for the 2012 BMS Act [90].
The policy window for BMS legislation slowly began to open with the election of President Mwai Kibaki in December 2002, which ended the 24-year rule of Daniel arap Moi. From the beginning, Kibaki demonstrated a greater willingness to support women’s political leadership. His appointment of Charity Ngilu as the first woman Minister of Health (2003–2007) indicated his trust in women’s leadership in the health sector. Appointing “a woman at the helm of health was a strategic decision that served to refocus the ministry to women’s healthcare, which was in dire need of attention” [91]. In 2007, the publication of a new South African study on the effects of exclusive breastfeeding on mother-to-child HIV transmission motivated the health ministry leadership to revisit the issue of BMS regulation [92]. This resulted in the formation of a technical team within the health ministry, headed by Annah Wamae of the Division of Child and Adolescent Health, that began to reconsider the issue of BMS regulation.
The policy window further opened after the highly disputed general election of December 2007, in which both Kibaki and opposition leader Raila Odinga had claimed victory. After post-election violence that claimed over 1,000 lives, the two conflicting parties entered into a power sharing agreement that resulted in a “grand coalition” government with Kibaki as president and Odinga as prime minister from 2008 to 2013. This arrangement shaped the political process of Kenya’s 2012 BMS Act in several ways. It facilitated an important constitutional reform in 2010 and translated into a less divided parliament [93], which would diminish the role of party lines in the legislative adoption process of the law in 2012.
Creation of a public health ministry
Most immediately, the formation of a coalition government in 2008 had important consequences for Kenya’s health ministry, which was back in charge of BMS legislation. The power sharing agreement led to the formation of an inflated, 43-person cabinet [94]. To create new cabinet positions, some ministries were split up during the 2008–2013 period. This included the Ministry of Health, which was divided into the Ministry of Medical Services (MoMS) and the Ministry of Public Health and Sanitation (MoPHS). This newly created MoPHS sought to shift the “focus of government and donor spending from curative to preventive health strategies” [95]. The Division of Child and Adolescent Health, which had begun to re-engage with the issue of BMS regulation in 2007, was allocated to the MoPHS. Significantly, the MoPHS and the MoMS soon displayed distinct perspectives on BMS. The MoMS viewed BMS primarily as a curative medical product. The MoPHS, in contrast, viewed BMS primarily as a hindrance to breastfeeding, especially in the many cases where formula feeding was not necessary. The creation of the MoPHS therefore provided a distinct institutional space for this public health perspective on BMS.
President Kibaki appointed Beth Mugo to lead the new MoPHS. Mugo would become the most influential political actor behind the 2012 BMS Act. At the time, she was a member of Kibaki’s Party of National Unity and had served as an Assistant Minister for Tourism and Information in Kibaki’s previous government [96]. Mugo was well connected in Kenya’s political elite, in part because she was the “favorite niece” of Jomo Kenyatta, Kenya’s first post-independence president [97], and enjoyed a close relationship with President Kibaki [96]. Mugo had been a member of Kenya’s (then) unicameral parliament since 1997. Doubling as minister and legislator from 2008 to 2013 allowed Mugo to be closely involved in both the formulation and adoption of the BMS Act. Beth Mugo was broadly committed to public health promotion, for instance, through the implementation of Kenya’s 2007 Tobacco Control Act [98, 99].
By the time Beth Mugo became Minister of Public Health and Sanitation, she was already a key figure in the Kenyan women’s movement. Mugo ran a family business and was Kenya’s national chairperson of the International Federation of Business and Professional Women from 1984 to 1987 [99]. When Mugo became a member of parliament (MP) in 1997, she was one of six elected women MPs [100]. In 2000, Mugo sponsored a landmark affirmative action bill that sought to increase the political representation of women and other marginalized groups [101]. In 2001, Mugo co-founded (together with Martha Karua and Charity Ngilu) the Kenya Women’s Parliamentary Association (KEWOPA), a bi-partisan women’s caucus dedicated to supporting women’s representation and women-centered policies in parliament [102]. KEWOPA would later play a vital role in the parliamentary adoption of the BMS Act.
Creation of a nutrition division
The new Ministry of Public Health and Sanitation created a dedicated new Division of Nutrition, focusing on the implementation of preventative nutrition interventions. This portfolio was previously with a Unit, which had more limited autonomy. Initially, the allocation of nutrition-related departments was contested between the MoPHS and the MoMS [103]. The Division of Nutrition was eventually allocated to the MoPHS (while a new Unit of Clinical Nutrition was created in the MoMS). From 2008 to 2014, this division was headed by Terrie Wefwafwa, a nutritionist and career civil servant, who had worked as a provincial nutrition officer since the 1970s. Her strong support for BMS regulation was informed by her experience with the negative effects of bottle feeding as a District Nutrition Officer. During her time at the helm of the Division of Nutrition, Wefwafwa showed strong political leadership for public health nutrition, ranging from breastfeeding promotion to mandatory food fortification [104].
Wefwafwa’s work emphasized better coordination among stakeholders and a strengthening of government leadership in the field of nutrition. Historically, nutrition programming in Kenya was often fragmented and dominated by NGOs [105]. After a severe drought and famine in 2006 [106] and the creation of the Division of Nutrition in 2008, development partners such as UNICEF and the WFP began clarifying their roles and responsibilities. This resulted in a 2009 “partnership framework”, which formalized a “common vision for nutrition services”, including the “transition of leadership and governance” to the health ministry [105]. In practice, this resulted in the creation of an interagency coordination committee and several government-led working groups, including a Maternal, Infant and Young Child Nutrition (MIYCN) Technical Working Group [105]. The MIYCN working group, which brought together representatives from the government, WHO, UNICEF, IBFAN and other NGOs, played an important role in the formulation of the 2012 BMS Act.
The new political leadership at the Ministry of Public Health and Sanitation soon focused on Kenya’s poor trends in child mortality indicators. The country’s infant mortality rate, after years of decline, had actually increased in the 1990s to reach 77 deaths per 1,000 live births in 2003 [35]. While this rate was back down to 52 in 2008/09, this was still significantly higher than the Kenya Vision 2030 target of 25 by 2012 [37, 107]. The MoPHS and its partners argued that the promotion of exclusive breastfeeding during the first six months, even for mothers with HIV, was one of the most effective interventions for reducing child mortality [105, 108]. And, crucially, they re-focused on the regulation of BMS marketing as a central tool for promoting and protecting exclusive breastfeeding. In this context, IBFAN Africa’s 2007 regional conference in Maputo was an impactful event, as it highlighted that Kenya had become a regional laggard in breastfeeding protection and International Code implementation. Indeed, Tanzania and Uganda, two of Kenya’s key neighboring countries, already had BMS legislation in place by 2006 [93].
Drafting of the BMS bill
The main drafting process of Kenya’s BMS Act began in 2008 under the leadership of Terrie Wefwafwa [109]. This process was supported by the assignment of a state legal officer from the Attorney General’s office. The drafting process occurred in close coordination with WHO and UNICEF, in particular with David Clark, a legal specialist from UNICEF headquarters in New York [110]. The first complete draft of Kenya’s BMS Act was completed by 2012 and was largely in line with the International Code.
The policy window for introducing the BMS draft law into parliament fully opened in August 2010 when Kenya adopted a new constitution through a referendum, replacing the country’s previous constitution of 1969. Just two weeks after this referendum, Beth Mugo publicly announced that “plans are underway to enact the regulatory law of breast milk substitutes on the Kenyan market” [111]. The new constitution facilitated the adoption of BMS legislation in multiple ways. It enshrined human rights through a comprehensive bill of rights, which in the following years gave rise to a general atmosphere of reform to realize these newly defined rights [112]. New constitutional provisions that “every child has the right to […] basic nutrition, shelter and health care” as well as to “parental care and protection” provided a direct justification for the BMS Act [113].
The new constitution also cleared a crucial veto point that had previously hindered stricter BMS regulation. BMS legislation had previously been stalled by Kenya’s long-time attorney general Amos Wako, who had been in office since 1991. He had acquired a reputation for being complicit in various corruption cases [91]. As “the principal legal adviser to the Government” [113], the Attorney General plays a central role in Kenya’s legislative process, including in legislative drafting. Indeed, Beth Mugo would later report that a draft bill once even disappeared from the Attorney General’s office [114, 115]. Kenya’s new constitution, however, explicitly required Wako to step down within one year, which he did in August 2011 [116]. Wako was succeeded by the politically much less entrenched Githu Muigai, which cleared the crucial veto point of the Attorney General’s office.
Parliamentary debate of the BMS bill
On 2 August 2012, the Breast Milk Substitutes (Regulation and Control) Bill was introduced into Kenya’s (then still unicameral) National Assembly [117]. The bill was guided through the parliamentary process by Beth Mugo, who was also a member of parliament. Mugo was motivated to get the bill passed quickly, as a breast cancer diagnosis in January 2012 made her consider retirement from political office, which she would later announce in December 2012 [118].
Throughout the parliamentary process, the bill faced strong opposition from the transnational formula milk industry. While BMS producers abstained from speaking out openly against the bill, they strongly mobilized against the bill behind the scenes. Farah Maalim, the deputy speaker of parliament and one of Mugo’s major allies in support of the BMS bill, noted during the parliamentary debate that “it is an open secret that the stakeholders from the industry have been camping out there” [119]. Maalim later specified that “when we were enacting the breast milk law […] Nestle gave us a serious pushback. The Nestle lobby in Parliament was well oiled & very loud” [120]. Incidentally, Nestlé had replaced its Nairobi-based regional Chief Executive Officer in June 2012 “to attain a firmer grip on the [African] region” [121]. The Kenya Association of Manufacturers (KAM) opposed the law explicitly, as it would “hinder the business of affected companies” [122].
The main parliamentary debate of the BMS bill occurred on 19 and 20 September 2012. Representatives of UNICEF initially followed the debate from parliament’s public gallery but later decided to leave to avoid the impression of an externally imposed law. While no member of parliament openly argued against the bill as such, there was strong pressure to weaken the bill through amendments. In particular, three (ultimately rejected) amendments would have significantly reduced the stringency of the BMS bill. A first amendment (proposed by Charles Keter) would have added three industry representatives, nominated by the Kenya Association of Manufacturers (KAM), to the newly created National Committee on Infant and Young Child Feeding, to ensure that “the manufacturers have their representation” [119]. This would have granted industry representatives a privileged position to influence the implementation, monitoring and enforcement of the law. A second amendment (also proposed by Keter) would have allowed enforcement officers to access the premises of BMS manufacturers or distributors only with a court warrant, which would have greatly complicated enforcement. A third amendment (proposed by Robert Monda) would have allowed health workers and proprietors to accept financial assistance from the formula milk industry, e.g., through research grants, as long as there was full disclosure. This amendment would have arguably gone furthest in weakening the bill, as it would have opened substantial space for conflict of interest and industry influence over the healthcare system. the promotion of BMS and complementary feeding products. All three of these amendments were eventually rejected and the BMS bill was passed with only minor amendments on 20 September 2012.
Sources of support for the BMS bill
The first and most central factor behind the successful adoption of the BMS bill was the strong, bipartisan support by all women MPs. This support was institutionally facilitated by KEWOPA, which endorsed the bill [123]. KEWOPA members embraced the bill as a women-centered and women-led law. For instance, Rachel Shebesh argued that such a bill was only possible “because we have a woman as a Minister and that is why we need more women Ministers” [119]. During the parliamentary debate, no female MP opposed the bill.Footnote 2 Instead, many KEWOPA members actively supported it. Key among those was Martha Karua, who together with Beth Mugo had co-founded KEWOPA in 2002 and had served as justice minister from 2005 to 2009. Karua’s support was significant as she was the former Minister for Justice and Constitutional Affairs, often described as the “iron lady” of Kenyan politics. On several occasions, Karua rose to support Mugo in defending the bill against hostile amendments.
While KEWOPA’s support was central in establishing a bipartisan basis of support, female MPs made up only 10% of MPs in 2012 [124]. Hence, broad support from “male allies” was essential for the adoption of the bill [53]. Such male support was not a given, as all parliamentary opposition to the bill was voiced by male MPs (see Table S2). Indeed, Karua had explicitly called out her “male colleagues” for attempting to delay the parliamentary debate on the bill [114]. But Mugo managed to successfully recruit several influential male legislators to support the bill. After Mugo had introduced the bill on 19 September, she was seconded by Amos Kimunya, the male transport minister. Indeed, the fact that Mugo decided to have her bill co-sponsored by a male rather than a female legislator even surprised the parliament’s deputy speaker in charge of the session, who noted to Mugo that “my presumption was that you would look for a lady who has breastfed like you” [119]. The bill was then formally supported by two other male MPs before other female MPs expressed their support. Another important male ally was trade minister Moses Wetangula, whose support was significant given that the trade ministry often sides with industry interests.
Overcoming opposition to the BMS bill
Another factor that contributed to the successful adoption of strict BMS legislation was the effective bypassing of public participation requirements. Public participation requirements, e.g., in the form of “notice and comment” procedures, are often introduced as an instrument to “democratize” policymaking. In practice, however, formalized public participation requirements have been shown to create an access point to policymakers that is primarily used by business actors [125]. Kenya’s 2010 constitution introduced the requirement that parliament “facilitate public participation and involvement in the legislative and other business of Parliament and its committees” [126]. In 2012, however, the modalities of such public participation in the legislative process had not yet been clarified [126]. The parliamentary proponents of the BMS bill exploited this temporary opportunity and proceeded without formal public participation in order to limit industry influence. The Kenya Association of Manufacturers later lamented the limited involvement of industry actors in the formulation of the law and the deliberate exclusion of the private sector from the newly established National Committee on Infant and Young Child Feeding, which was to advise the government on the implementation of the law [122, 127, 128]. This strategic bypassing of public participation mechanisms limited industry influence and thus contributed to the successful adoption of the BMS Act.
In October 2012, after the BMS bill had already been passed by parliament, the Global Alliance for Improved Nutrition (GAIN) sought to convince the government to not sign it into law [129]. GAIN is a public-private partnership focused on reducing micronutrient deficiencies through food fortification [130]. At the time, GAIN was primarily funded by the Bill & Melinda Gates Foundation, while its business partner network included the transnational formula milk corporations Danone and DSM [129, 131]. GAIN prepared an antagonistic policy briefing that it sent to the MoPHS [129]. GAIN’s main concern was that the bill also sought to restrict the advertising of “complementary food products”. But GAIN did not just advocate for the exemption of specific, relatively more accepted complementary food products, such micronutrient powders for home fortification, which reportedly was negotiated anyway [132]. Instead, GAIN lobbied for weaker regulation of “all complementary foods” [129], which would have also included growing-up (or toddler) formula. To convince the government not to proceed, GAIN claimed that the bill was “not currently consistent with international recommendations or Scaling Up Nutrition (SUN) interventions for complementary feeding” and suggested that “if this Act is adopted, there is a risk of reduction of investment in infant and young child nutrition” [129].Footnote 3 Kenya’s government, however, was unmoved by this lobbying attempt and President Kibaki signed the BMS bill into law on 11 October 2012.