Plastics ban enjoys fresh air from the ‘new’ Constitution

Kenyans are adjusting to life without plastic bags after the ban that came into effect on August 28, 2017.

The ban stems from the global trend of phasing out plastic paper bags, which are blamed for disastrous effects on marine life and the environment in general.

Countries like Denmark and Ireland which have imposed charges and taxes on use of plastic bags, leading to a steep decline in the production and use of these materials, are the frontrunners in this endeavour.

Closer home in Africa, Rwanda carries the torch. It has enacted strict laws against the use of plastic bags to the extent that those visiting the country have to hand over all plastic bags before entering.

In a speech delivered at a stakeholder forum in UN-Gigiri on June 21, the director general of National Environment Management Authority (Nema) said a 2010 survey showed that an estimated 24 million plastic bags were used in Kenya monthly.

These materials take anything between 20 and 1,000 years to bio-degrade.

Like most developing countries, Kenya is yet to develop efficient and eco-friendly waste management strategies for the disposal of plastic bags.
As a result, there is a widespread pollution across most ecosystems and the situation gets worse.

Some of the hazards posed by the use of plastic bags are damage to the ecosystem, air pollution when the bags are burnt, blockage of drainage systems as well as risk to the health and lives of animals upon consumption.

Article 42 of the Constitution guarantees every person the right to a clean and healthy environment. Such environment is to be created and protected through legislation.

The State is obligated to ensure a sustainable exploitation and conservation of the environment and to eliminate all activities that are likely to endanger the environment.

The Environmental Management and Co-ordination Act, (the Emca) provides for the precautionary principle of sustainable development. 

Unesco notes that the purpose of this principle is to diminish or avoid risk that is likely to cause harm to human beings and the environment.

It is against this backdrop that, Judi Wakhungu, the Environment Cabinet Secretary , issued the Gazette Notice Number 2356 of 2017, which was published on March 14, 2017. It is now an offence for any person to use, import or manufacture plastic carrier bags in Kenya.

The effect of this Gazette notice is to ban all plastic carrier bags and flat ones used for packaging.

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Plastic bags used for primary industrial packaging are, however, exempted so long as they are used for industrial primary packaging at the source of the product and are not available for sale at the counter or given freely outside the industrial setting.

The exemption also includes disposal bags for biomedical and hazardous waste and garbage bin liners.

Furthermore, these bags must be labeled with the name of the industry manufacturing the product and the end-user.

Plastic sheets used for construction, greenhouses, covering as well as cling films/stretch films used for wrappings and bopp self-adhesive tapes are also excluded from the ban.

Bags issued at duty free shops are also exempted due to ICAO and IATA rules. However, any traveller coming into Kenya is required to leave such duty free bags at the point of entry. 

The general penalty for contravening the provision of the Emca is imprisonment for a term of not less than one year but not more than four years, or to a fine of not less than Sh2 million but not more than Sh4 million, or to both.

According to the Kenya Association of Manufacturers (Kam), there are more than 176 plastic manufacturing companies in Kenya that directly employ 2.89 per cent of all Kenyan employees and indirectly employ more than 60,000 people.

READ: Why Kenya must get rid of plastic bags

These jobs and livelihoods will be endangered by this ban. Small-scale traders and bag manufacturers have also complained that the ban would result in loss of jobs and profits.
Kam recently filed a suit in the Nairobi Environment and Land Court challenging the ban, arguing that, if upheld, it would lead to massive losses in the affected industries.

The court, however, dismissed the suit holding that if Kam’s orders were granted the plastic bags would continue to suffocate the environment to the detriment of the Kenyan population as a whole, while serving the commercial interests of a section of the population.

Nema has developed an implementation strategy covering publicity, compliance enforcement and scientific information mobilisation.

Manufacturers and importers are required to declare all their remaining stocks to Nema for the necessary action.

Nema has further entered into an arrangement with major supermarkets — Uchumi, Tuskys and Nakumatt — for the collection and recycling of plastic bags.

All manufacturers, importers and users of plastic bags used for primary industrial packaging are required to obtain clearance letters, on application and justification to Nema, allowing them to continue with the manufacture, importation and use of plastic bags.

READ: Plastic bags ban will bring us closer to achieving SDGs

This is not the first time that Kenya has attempted to ban the use of plastic bags. It is the third time.

Unfortunately, past attempts have failed because of stiff opposition from manufacturers of these products on grounds of profit and alleged loss of jobs.

In all these occasions, commercial interests have prevailed over the common good.

One can only hope that in the spirit of the 2010 Constitution, which is people-centred, this latest ban will be implemented sustainably to its logical conclusion to enable the industry to re-engineer itself and come up with environmentally acceptable alternatives.

If this move succeeds, other countries in the region are likely to follow suit and East Africa may very soon become a beacon of hope in environmental conservation.

Gathara is an associate at Iseme Kamau & Maema Advocates and Cheronoh is a candidate attorney in the same firm.