The ban
Marine and environmental pollution by plastic material has for several years been a global concern. The United Nation Environmental Programme’s (UNEP) initiative dubbed the “#CleanSeas campaign”, among others, urges governments to pass plastic reduction policies. In August 2017, Kenya became the 11th country to embrace the campaign by enacting a ban on plastic bag and imposing the stiffest penalties in the world. The ban outlaws the use, manufacture and importation of all plastic bags used for commercial and household packaging.
The exemptions
The ban is however not total. Plastic bags used for industrial primary packaging of products, garbage liners as well as plastic bags for disposing medical waste and chemicals are exempt from the ban. Also exempted are plastic sheets used for construction, greenhouses and other covering; cling/stretch films used for wrapping; and bopp self-adhesive tapes (together the “exempted products”).
In context, fast moving products which are widely consumed such as bread and cereals, whose packaging is exempted, pose a potential for pollution if unchecked.
Given the nature and extent of the exemptions, will Kenya be able to achieve the goal of the ban and/or do the exempted products provide commercial opportunities that would result in Kenya achieving its goal of eradicating environment pollution by plastic bags?
Possible reasons for the exemptions
It is likely that Kenya allowed the exemptions on account of the following:
- as a participant in the global market, Kenya appreciates that other jurisdictions use plastic bags for industrial primary packaging;
- alternative viable packaging materials e.g paper may have been deemed difficult to implement;
- there exist waste management solutions to deal with any waste from the exempted products; and
- being the third attempt at banning plastic bags, it was felt that a compromise with manufacturers be reached through the exemptions.
Opportunities behind the ban
Various opportunities exist in ridding the existing pollution from plastic bags and managing incoming plastic waste arising out of the exempted products. To harness the opportunities, some challenges must be overcome.
The first hurdle is reducing, if not entirely reversing, the pollution and damage already caused by plastic bags before the ban and the anticipated pollution from the exempted products. To achieve this, the government should cultivate and implement various sensitisation policies and incentivize the local communities as well as the private sector to monetise waste recovery and recycling programs. Awareness campaigns, corporate social responsibility activities and school curriculums that relate to the importance of and actual recycling and managing plastic waste may prove effective in the long term. Moreover, such waste recovery and recycling programs can further create employment opportunities that may spur the economy.
The second hurdle would be managing waste that result from the exempted products. The Government should formulate and enforce policies and mechanisms encouraging the proper disposal and recycling of such waste. The reach of the private sector and community based groups in providing and extending proper waste disposal facilities should be harnessed. In the horticultural sector in Naivasha for instance, the government as incentive encourages farmers to collect all plastic materials on their farms which it then buys based on quantities in kilograms.
The Government can and should sell the collected waste products to licensed commercial recycling plants for them to complete the waste disposal cycle. It may also be prudent for the Government to designate space for waste separation centres to ensure proper waste management.
The emergence of innovative alternative materials to eliminate the need for the exempted products may just be another lucrative opportunity which the “go-green” Kenyan government may be eager to embrace and support. This is not farfetched, just a few years back for example, bread was not packed in plastic bags.
Appreciating the heavy financial and technical burden on the government’s shoulders, the private sector and community backed programmes hold the key to unlocking the commercial opportunities behind the ban. The government should therefore create conducive public private partnerships in this area for the private sector to weigh in. Attracting foreign investors armed with financial muscle and resources and experience in plastic waste recovery and management could bridge the financing gap the government faces in its development initiatives. Several avenues are available. Borrowing from Rwanda, tax breaks incentives may encourage manufacturers of plastic bags to start recycling. The incentive can also be extended to manufacturers of alternative environment friendly carrier bags, currently a niche market in Kenya following the ban. These manufacturers could equally be beneficiaries of special economic zones (SEZ) type incentives, among others, thus bringing down the costs of the alternative packaging materials, reducing pollution by plastics and ultimately contributing to growth of the economy and to reduction in pollution.
Conclusion
The ban on plastics in Kenya is a great leap towards transforming the country into a plastic bag free economy. The greater obligation, however, lies in managing the plastic waste resulting from the exempted products and eradication of existing pollution.
Article written by Waringa Njonjo, Partner and Kenneth Likoko, Lawyer, and Joy Kamau, Lawyer at MMAN Advocates.
Disclaimer: This article has been prepared for informational purposes only and is not legal advice. This information is not intended to create, and receipt of it does not constitute, a lawyer-client relationship. Nothing on this article is intended to guaranty, warranty, or predict the outcome of a particular case and should not be construed as such a guaranty, warranty, or prediction. The authors are not responsible for any actions (or lack thereof) taken as a result of relying on or in any way using information contained in this article and in no event shall be liable for any damages resulting from reliance on or use of this information. Readers should take specific advice from a qualified professional when dealing with specific situations.
