MPs have demanded the immediate suspension of a Gazette notice that banned the production, importation and use of plastic carrier bags beginning September, potentially handing a major victory to manufacturers.
The move is a big setback to Environment secretary Judi Wakhungu’s effort to curb widespread pollution caused by the non-biodegradable plastic bags.
The National Assembly’s Environment and Natural Resources committee said the decision to back a petition seeking suspension of the Gazette notice was based on the “unreasonableness of the time frame to implement the legal notice.”
On February 28, Ms Wakhungu published the legal notice announcing a ban on both domestic and commercial use of plastic bags from September this year.
“This is informed by the lack of adequate stakeholder consultation, which is a mandatory constitutional and legal requirement in policy and legal formulation and implementation,” committee Amina Abdalla chair says in a report to the National Assembly.
The committee argues that the notice is not in compliance with provisions of the Statutory Instruments Act, 2013, which requires parliamentary approval of any notices or regulations published by Cabinet secretaries.
The Kenya Association of Manufacturers (KAM), through Kisumu Town West MP Olago Alouch, had petitioned the National Assembly, through the Environment and Natural Resources committee, to suspend the Gazette notice for lack of stakeholder consultations.
The committee said that although the Environment ministry and the National Environment Management Authority (Nema) held several meetings and discussions that generally addressed standards, thickness, plastic management and levies; evidence by the ministry indicated there were no specific discussions with KAM on the subject of ban on use, manufacture and importation of plastics.
“In instances where the subject was on the agenda for discussion, there was no evidence adduced by the ministry to indicate participation of KAM in such meetings,” said Ms Abdalla.
The committee report is now awaiting debate by all MPs.
The legal notice was not tabled in Parliament within seven days as required under the Statutory Instruments Act 2013, the report argues. “Sections 6,7,8,11,12, 13, 17, 18, 19 and 24(1) of the Act regulate the making, scrutiny and publication of statutory instruments (Legal Notices),” the MPs said.
The committee reckons that even if the Legal Notice had complied with the relevant provisions of the Act, the timeline of six months given in the notice for companies to cease operation was unreasonably short.
“The committee noted that the companies would require ample time to clear all stocks, dispose-of assets and fulfil contractual obligations to employees and suppliers,” the MPs argued.
They said the lack of strict implementation of a memorandum signed between the government and KAM on joint implementation for the sustainable management of plastic waste and laxity on the part of Nema gave impetus to the mushrooming of illegal and unregulated manufacture of less than 20 microns plastic bags in the country.
The MPs now want the Treasury to ring-fence the revenue generated from excise duty levied on plastic bag manufacturers and specifically applied to implement projects and programmes related to plastic waste control and management.
“The committee recommends that the government should close down all unlicensed manufacturers of plastic bags operating at the expense of legally recognised ones and take legal action against those found to have flouted the law,” Ms Abdalla says.
The MPs are also calling for the application of part of the levies paid by manufacturers to fund research and entrepreneurial activities geared towards production of alternatives to plastic bags.
“The national government should enact strategic policy and legal framework to guide county governments in waste management,” the MPs said.