Tuesday, August 15, 2017

Unconstitutional and unenforceable

IN EXERCISE of the powers conferred under section 3 and 86 of the Environmental Management and Co-ordination Act, it is notified to the public that the Cabinet Secretary for Environment and Natural Resources has with effect from 6 months from the date of this notice banned the use, manufacture and importation of all plastic bags used for commercial and household packaging defined as follows:
(a) Carrier bag—bag constructed with handles, and with or without gussets;
(b) Flat bag—bag constructed without handles, and with or without gussets.
Dated the 28th February, 2017.Gazette Notice No. 2356 of 2017, Kenya Gazette
The 28th August is less than two weeks away and the ban on the use, manufacture and importation of all plastic bags used for commercial and household packaging (carrier bags and flat bags) will come into force. Or will it?

The obvious question is: Does the Cabinet Secretary have the power to impose the ban under sections 3 and 86 of the Environmental Management and Co-ordination Act (No. 8 of 1999)? I am afraid that the Cabinet Secretary does not enjoy such powers. Moreover, the East African Community Customs Management Act, 2004 is the statutory regime governing the import of plastics in the East African Community (see sections 18 and 19, and the Second Schedule to the Act). These, however, are not difficult bans to impose because imports can be seized at the ports of entry into Kenya and manufactured goods can be seized in the manufacturing plants and factories or distribution centres.

The ban on the use of plastic carrier and flat bags is something else altogether.  The agency that is likely to be charged with the mandate of enforcing this ban is the National Environment Management Authority, NEMA, and not devolved governments. The former does not have the capacity -- neither human nor financial -- to enforce the ban that the latter have.

Use is likely to be common at the individual and household level, and at industrial level, and the vast majority of offenders are likely to be individuals found "using" plastic bags. The enforcement of the ban is likely to catch in its dragnet hundreds of thousands of Kenyans, at whom the law-books will be hurled with self-righteous environmental zealotry. Can you imagine the millions of man-hours that will be wasted detaining and punishing the hundreds of thousands of Kenyans who will be accused of contravening the provisions of the ban?

Kenya is not Rwanda, our nearest neighbour to have imposed the plastic ban. A nation that has a high degree of centralised official power where, because of its history, the national government enjoys enormous powers, it was easy to impose a plastic ban. Because of its small plastic manufacturing base, there was muted opposition to the plastic ban. None of the circumstances that prevailed in Rwanda prevail in Kenya.

We don't have a centralised government anymore; the devolved governments have a role to play in environmental management under the Fourth Schedule to the Constitution. We have a very wide plastic manufacturing base as well as a well-entrenched import/export and distribution network. Finally, though we are yet to witness vigorous litigation, this ban will not come to pass without opposition -- strong opposition.

There was a way of achieving the objects of the ban without imposing a ban. It would have required the hard work of policy-making that the Ministry has failed to engage in. Public policy works best when it takes into account all the relevant concerns of key stakeholders. In this case, the needs of millions of Kenyans were given short shrift by the Ministry and their behaviour was seen only in one context; they were seen mostly as litterbugs, and they had no other use for plastic bags but to use and thoughtlessly and haphazardly discard in the "environment".

Environmentalism zealots often live in a utopian world where their creed brooks no dissent and naysayers are shunned, at best, or prosecuted to the fullest extent of the environmental law. Environmentalism has attained the status of a religious canon in the Ministry and NEMA even as environmentalism's apostates continue to highlight its shortcomings and false assumptions. I will be interested to see how this clash of worldviews is handled when it becomes -- inevitably -- apparent that the ban is unconstitutional and, therefore, unenforceable.

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