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Court ruling on plastic ban a positive step

BAGS

Judges said there are jurisdictions that have successfully banned plastic bags. FILE PHOTO | NMG

The Kenyan courts have recently shown great positivity in dealing with environmental matters. As a lawyer fresh from Law School, I remember being awed by judgements from Ugandan courts in the past.

Routinely, Uganda was the one country whose Judiciary not only appreciated the importance of environmental conservation, they also issued trailblazing judgements. Kenyan environmental lawyers, like myself were not just impressed, we kept wondering what it would take for the Kenyan Judiciary to take a similar approach.

Kenyan courts would routinely dismiss cases about the environment on technicalities. This reputation of courts has, however been changed over time. Starting from cases in the 2000 following the enactment of the comprehensive law on the Environment, the Environmental Management and Co-ordination Act, Kenyan Courts have slowly been asserting their role in protecting the environment.

The greatest turning point was the adoption of the 2010 Constitution, labelled a green Constitution because of its progressive provisions on the environment. Since then the courts have increasingly released important decisions affirming the importance of the Right to a Clean and Healthy Environment.

The last such decision was issued on 22nd June 2018 by a three judge Bench of the Environment and Land Court comprising Judges Samson Okongo, Kossy Bor and Bernard Eboso. The case involved a challenge by the Kenya Association of Manufacturers and several others against the decision by the government to ban the use, manufacture and importation of defined categories of plastic bags for commercial and household packaging.

The complaints against the ban was stated as being lack of public participation, being against public-private partnership and ongoing consultations to address the challenge of polyethene in the country. In addition, the private sector argued that the ban would negatively affect their business and deny many Kenyans a livelihood from employment and trade in the industry.

The judges, in their decision made far-reaching decisions. In affirming the ban, they pointed out that development cannot trample over environmental conservation imperatives as a country. It is important that policy makers always balance between the interests of environment with the need for development.

In the case of ban of plastic bags, they were clear that the dangers posed by the bags to human beings, environment and animals far outweighs the benefits of their continued use. This arises from their non-biodegradable nature.

By affirming the ban Kenya joins a list of several countries that have made steps towards eliminating plastics from their environment. This by far is amongst the most far-reaching decision in the environmental field that Kenya has made in the recent past.

The courts have supported this decision. In the process though it is clear that in making the decision the Government may have ignored certain critical steps, most importantly the requirement for laying the gazette notice before Parliament in accordance with the Statutory Instruments Act. The court decided that the failure to lay it before the National Assembly was not fatal. It, however, demonstrates the fact that there may have been haste. It is also evidence of the need for more careful thought and follow through of any policy decisions that government makes.

The court also dealt with the issue of public participation. The complaints that the public had not been involved was dismissed but not without underscoring the need to involve critical stakeholders in environmental decisions.

The saving grace for government was the fact that the discussions on an appropriate strategy for dealing with the polythene paper had been ongoing for over a decade in Kenya.

Therefore, although the Government may not have had an immediate consultation before the gazette notice, previous numerous debates on this matter justified the action taken.

It is important though that public agencies realize that despite the benefits of a public policy they propose, they must always take into account the reality that the necessity for consulting the public is a constitutional edict. To ignore it has the potential of jeopardizing important plans and proposals.

READ: Plastic bag makers suffer major blow after judges reject bid to revoke ban

The Courts have demonstrated once again their appreciation of the need for conservation of the Country’s environment and action that support protection initiatives. It is important that the judgment provides impetus to the principal government agency responsible for environment management, the National Environment Management Authority, to take more decisive action to ensure that the various threats to the environment are dealt with. In doing so, they need to recognize that the success of their initiatives will depend on the extent to which they bring other actors on board.

As the plastic ban case demonstrates, the Judiciary plays a catalytic role in environmental conservation initiatives. Engaging them is quintessential. The Judges in that case confessed that they were not experts on matters plastic.

Yet, in the final analysis, they were required to make the all-important decision on the ban. This underscores the need for awareness raising amongst the public so that they are aware of the issues surrounding critical policy decisions relating to environmental conservation