Wednesday, September 13, 2017

The hagiography of the "ban"

Plastic bags used for primary industrial packaging are, however, exempted so long as they are used for industrial primary packaging at the source of the product and are not available for sale at the counter or given freely outside the industrial setting. The exemption also includes disposal bags for biomedical and hazardous waste and garbage bin liners. Furthermore, these bags must be labeled with the name of the industry manufacturing the product and the end-user. Plastic sheets used for construction, greenhouses, covering as well as cling films/stretch films used for wrappings and bopp self-adhesive tapes are also excluded from the ban. Bags issued at duty free shops are also exempted due to ICAO and IATA rules. (Gathara and Cherono, Business Daily)
Gazette Notice No. 2356 of 2017 does not say anything of the sort. It makes no exemptions for "primary industrial packaging", "disposal bags for biomedical and hazardous waste and garbage bin liners", "plastic sheets" or "bags issued at duty free shops". It does not require that "disposal bags for biomedical and hazardous waste and garbage bin liners" be "labelled with the industry manufacturing the product and the end-user".

Gazette Notice No. 2356 of 2017 merely and explicitly bans all "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." That's it. Save for the business of the Notice taking effect after six months from the date of its publication, there are no exemptions granted by or under the Notice and no indication that they will be granted by or under the Notice or who will grant those exemptions, under what circumstances or for what duration.

Gathara and Cherono, if they read the plain text of the Notice, will most certainly have seen this. This begs the question: where did they find the provisions on the exemptions to the application of the provisions of the Notice? Lawyers are advised against speculating as to the kinds of proofs that prove or disprove a proposition but having visited the National Environment Management Authority, we know where Gathara and Cherono have discovered the "exemptions" to the application of Gazette Notice 2356 of 2017. As professionals they must know that the NEMA website is not the Kenya Gazette and that the documents published by NEMA purporting to grant exemptions to the application of the provisions of the Gazette Notice are about as robust as puffs of smoke.

The constitutional and statutory infirmities of Gazette Notice No. 2356 of 2017will not dissipate with the hagiography perpetrated in favour of the "ban". The Cabinet Secretary continues to lack the mandate to ban plastic bags; sections 3 and 86 of the Environmental Management and Conservation Act, 1999 continues not to grant the powers that the Cabinet Secretary purports to exercise. We are now in the coverup stage of the "means-justifies-the-end" gambit. A patently unconstitutional act has been committed. Interested parties are now rallying to obfuscate the constitutional, statutory and regulatory environment to provide cover for the unconstitutional act.

We all want the benefits of a clean and healthy environment but if it takes statutory power-grabs to achieve these ends, sooner or later, the clean and healthy environment may not be ours to enjoy after our rights and fundamental freedoms are given equally short administrative shrift by similarly iron-fisted Cabinet Secretaries in the future.

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