86. Standards for waste
The Cabinet Secretary shall, on the recommendation of the Authority—
(1) identify materials and processes that are dangerous to human health and the environment;
(2) issue guidelines and prescribe measures for the management of the materials and processes identified under subsection (1);
(3) prescribe standards for waste, their classification and analysis, and formulate and advise on standards of disposal methods and means for such wastes; or
(4) issue regulations for the handling, storage, transportation, segregation and destruction of any waste.
The above provision of law is to be found in the Environmental Management and Co-ordination Act (No. 8 of 1999). It is one of the provisions that the Cabinet Secretary for Environment and Natural Resources relied on to promulgate a "ban" on plastic bags. One of the rationales advanced by the National Environment Management Authority, NEMA, for the plastic bag is,
Plastic bags are usually manufactured for single use and generally tear or puncture after a first use. They are easily transported by the wind and are some of the most visible components of roadside and shoreline litter. Plastic bags are produced from oil and natural gas, and never fully biodegrade, remaining in the environment as small or even microscopic particles, essentially forever.
If the Cabinet Secretary had intended to be effective in dealing with the way plastic bags are handled so that they are reduced as "visible components of roadside an shoreline litter", as well as reducing the amount of non-biodegradable plastic "remaining in the environment as small and microscopic particles, essentially forever", her best strategy would have been to use the powers conferred by section 86, specifically subsections (3) and (4).
As it is we are confronted with the possibility that even if manufacturing and importation of plastic bags are suspended, the impact of the ban on individuals will be profound. Because the "ban" does not prescribe a punishment for contravening its provisions, we are forced to rely on section 144 which is, to say the least, extremely draconian: "imprisonment for a term of not less than one year but not more than four years, or to a fine of not less than two million shillings but not more than four million shillings, or to both such fine and imprisonment". It is foolishness to expect that every individual who is likely to contravene the provisions of this "ban" would see the fairness of a term of imprisonment of one to four years or a fine of between two and four million shillings! Now, if they had been dumping nuclear waste, I could understand the application of such a harsh penalty; but plastic bags?
This ban was made without properly considering how Kenyans live their lives on a day to day basis. Plastic bags are not just used to transport groceries from supermarkets or Gikomba; they are handy for keeping our meat fresh while being transported from the butchery and into our fridges; they are useful in storing our veggies too. There isn't a household in Kenya that does not reuse plastic bags in innovative ways: the legions of women who have to carry their heels to work as they walk in their flats, and the spectacularly slothful men who wrap their carried lunches in yesterday's Tuskys carrier bag. But the most important thing about plastic bags is their usefulness in disposing of waste in our homes. It isn't just the dust we've swept up or the leftover food from the kitchen that we must consider. We must also remember that in Nairobi's "informal settlements" the flying toilet relies on plastic bags otherwise the cholera pandemic the rich keep wishing on Korogocho, Kibera and Mathare Valley will become a reality.
It is clear that the Ministry and NEMA had no strategy for the day after the "ban" went into effect by the way they both keep revising the targets of their ban. Flat bags used for the disposal of garbage are banned. But then they are not so long as they are "within the required specifications". (What those specifications are and where they are published are known only to the environmental zealots on the Ministry and NEMA.) Few of us have any love for the petrochemical industry but we also know that environmental wars are not won by fighting ill-considered and badly-planned battles. To prevail in this fight against plastic bags, the "ban" is a loser. What we need is a credible national strategy that takes into account the critical role played by county governments in solid waste managment. The Ministry's diktats are not it.