The High Court will Friday rule on whether or not the ban on plastic carrier bags will take effect on Monday as per a Kenya Gazette notice passed by Environment secretary Judi Wakhungu.
Manufacturers of plastic bags are seeking temporary suspension of the new regulations, pending determination of a case in which they are challenging her directive.
Producers of plastic bags argue that there was no public participation in issuing the ban and that it had caught them unawares, exposing them to huge economic losses.
“Without any consultation, the government issues a Gazette notice that has far-reaching ramifications, and has come as a shocker to the plastic bag manufacturers who are not able to prepare for what is to come,” said lawyer Gibran Daar for the Kenya Association of Manufacturers (KAM).
He added that stakeholders have been in consultation with the government over the past ten years regarding the management of plastic waste, claiming that it is Prof Wakhungu who had reneged on their agreement.
The Ministry of Environment through State counsel Oscar Eredi, however, argued that ten years of consultation with KAM and other manufacturers between 2007 and 2017 was sufficient public participation.
The ministry argued that public participation did not imply that all the views raised by the manufacturers had to be accepted.
Lawyer Loketo Kariu, representing importers, said the notice had created a vacuum as it did not provide alternatives to the use of plastic bags that have been criminalised.
He said the wording of the Gazette notice was also ambiguous and implied that all plastic, for commercial and industrial use, are banned.
The manufacturers alleged that a notice released by the ministry to specify which plastics would be exempted from the ban amounted to an admission that the law as drafted is wide instead of being specific. They said that in case of a dispute, reference would be made to the Gazette notice and not the notice.
Mr Eredi, however, said that the law is specific to carrier bags for commercial and household use, and does not affect plastics used in food and the medicine industry for packaging.
“Since plastic bags are not degradable, the only way to eradicate them is through burning. It is, however, common knowledge that fumes emanating from burning plastics is more toxic to human health,” he said.
The government has opposed the application seeking to suspend the law, arguing that the manufacturers have not indicated what took them so long to move to court, given that the Gazette notice is dated February 28.
The State argued that no vacuum would be created because plastic bag manufacturers, who have been importing plastics, can import clean materials for packaging.