Turning the Tide: Kenya’s Ban on Plastic Garbage Bags Signals Shift Towards Sustainable Waste Management

Kenya has been making strides in the battle against plastic pollution. In 2017, NEMA banned polythene plastic carrier bags and flat bags for commercial and household use, including garbage bags and bin liners. Failure to comply attracts severe penalties such as a four-year jail term or a fine of KES 4 million. This ban has been lauded as largely successful, with NEMA reporting that 80% of the public has complied with the ban.

Despite this success, the enforcement of the ban on garbage bags and bin liners has taken some time. Moreover, the ban on plastic carrier bags has not been enough to reduce plastic pollution in Kenya as landfills such as Dandora are littered with other forms of plastics such as bottles, trash bags, and takeaway containers. These types of plastics pose long-term adverse effects on the environment and are feared to cause blockages in drainage drainage systems. This issue has been linked to the increased possibility of flooding that Kenya is currently experiencing.

To curb the effects of plastic pollution, Kenya took further positive steps in 2020 by implementing a ban on certain single-use plastics within protected areas such as parks and forests. The prohibition, which took effect on 5 June 2020, covers national parks, beaches, forests, and conservation areas. Consequently, visitors are now prohibited from bringing plastic water bottles, cups, disposable plates, cutlery, or straws into these protected environments. This ban was subsequently extended to prohibit the use, manufacturing, and importation of non-woven plastic bags in commercial and household packaging.

It can therefore rightly be argued that the Notice simply is seeking to further enhance the enforcement of an existing law. However, the timing raises questions: why now?

The Notice from NEMA on the prohibition of plastic garbage bags perhaps may be an attempt to coincide with the international community’s engagement in the fourth round of negotiations on the Revised Draft Text of the International Legally Binding Instrument on Plastic Pollution, including in the Marine Environment (the Draft Global Plastic Treaty). This treaty aims to tackle the global plastic pollution crisis through comprehensive measures aimed at significantly reducing the production, consumption, and disposal of plastic materials. Kenya has actively participated in these negotiations, advocating for high ambition commitments from the international community. These efforts by the Government of Kenya are laudable and should be highly encouraged. Against this backdrop, NEMA’s move to enforce the ban on plastic garbage bags and promote the adoption of 100% biodegradable alternatives is significant and timely. The question therefore is how effective the move is and whether it is being done in the right way.

Replacement of Plastic Garbage Bags with 100% Biodegradable Bags

What constitutes a biodegradable garbage bag/bin liner?
The term “biodegradable” does not have a clear definition within the Environmental Management Coordination Act, or the Sustainable Waste Management Act, 2022. This ambiguity could potentially present a challenge to the implementation of the Notice.

The United Nations Environmental Programme defines ‘biodegradable’ as materials capable of rapid decomposition by microorganisms under natural conditions while plastics are engineered to resist such decomposition by living organisms. Biodegradable alternatives to plastic garbage bags and bin liners may include purely plant-based or a compostable alternative that is made wholly or partly with biological polymers.

The current lack of clarity on what constitutes ‘100% biodegradable’ may therefore result in a situation where manufacturers provide biodegradable alternatives that do not decompose quickly or where the alternatives still contain plastics which defeats the purpose of the directive. This presents an opportunity for NEMA to provide some guidance in the form of guidelines or standards on the alternatives that can be used to achieve compliance with the Notice. Without this extremely critical guidance then the good intentions of the Notice may come to naught.

Effectiveness in the Implementation of the Notice
Scientific findings indicate that biodegradable alternatives, under appropriate conditions, release less harmful residue into the environment compared to plastic garbage bags once broken down, which is the reason for their preference. It has been argued that when the garbage bags are plant-based, that is bags derived from materials like sugar cane or corn starch, there is a likelihood that they will tear or collapse relatively quickly under certain conditions unless they are expressly manufactured to be tear-resistant and durable. This may mean their performance may not match that of plastic garbage bags made from a blend of recycled and virgin plastics. This poses a challenge, as the use of this type of biodegradable garbage bags to manage waste has the potential of worsening the waste management problem in Kenya. Further, Kenya does not have adequate infrastructure to manufacture biodegradable bags, this will require the importation of 100% biodegradable bags from foreign manufacturers further not achieving Kenya’s goal of localising production and manufacturing of goods.

Moreover, the informal transportation of waste in Kenya often results in waste spillage on roads. The use of plant-based garbage bags that break down under conditions of heat and moisture might aggravate this issue. This underscores the importance of considering not just the types of bags used for waste disposal, but also the efficiency of waste management systems, particularly in preventing environmental contamination.

Generally, there is a lack of consumer awareness about the legal requirement to segregate waste into organic and inorganic categories. Mandating 100% biodegradable bin liners for organic waste may be futile if households do not separate their waste. More awareness is required on waste separation at source for the public.

The effective implementation of biodegradable alternatives and other progressive initiatives requires comprehensive efforts from all stakeholders. This begins with enhanced capacity building to ensure widespread acceptance and efficient implementation. Crucial to this endeavour is the establishment of robust regulatory frameworks and enforcement mechanisms. This is what we are looking to achieve with the proposed East Africa Single Use Plastics Bill (the Bill), which seeks to standardise definitions and standards across the East African region. Additionally, the bill takes a comprehensive approach to managing the entire waste lifecycle, including reducing single-use plastic usage, implementing Extended Producer Responsibility (ERP), and improving waste management practices. The Bill was submitted to the East Africa Legislative Assembly for tabling and first reading.

Should you have any questions on this legal alert, please do not hesitate to contact Rosa Nduati-Mutero,  Faith Macharia or Huldah Ateka. 

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Contributors
1. Sharon Muoki – Associate
2. Fenan Estifanos – Trainee Lawyer
3. Eden Gatuiku – Trainee Lawyer