The availability, low cost, and functionality of single-use plastics in Kenya has crescendoed into the country’s most significant solid waste management challenge. By 2017, Kenya’s capital city of Nairobi reportedly produced a cautious estimate of 480 tonnes of plastic waste a day with conflicting estimates of how much of the waste was recycled (anywhere between 2 and 8 per cent). Fully aware of the growing plastic pollution and its effects, the then Environment Minister, Prof. Judi Wakhungu, declared plastic pollution a “national disaster”, one that required a paradigm shift in our attitude and behaviour towards plastics.
In a bid to address the problem, a ban on the use, manufacture and importation of plastic bags used for commercial and household packaging was instituted on 28 August 2017 by the National Environment Management Authority (NEMA). Less than two years later, the ban was extended to include non-woven polypropylene bags, which retail outlets such as supermarkets had been using to replace plastic carrier bags, after NEMA, which is charged with enforcing the prohibition, found that manufacturers were producing poor quality non-woven bags that could not be reused. The 2017 ban allows for companies to apply for exemptions where they can demonstrate that plastic packaging is necessary to preserve product integrity and alleviate health concerns.
The strictest of its kind globally, the ban is in line with universal calls for decisive action to combat the destructive effects of plastics on health and the environment. In Nairobi, a follow-up to the fifth session of the United Nations Environment Assembly focussed on the role of nature as a cornerstone of environmentally sustainable socio-economic development and its resolution on plastic pollution echoed the intent of Kenya’s ban on plastic bags. Further, the ban aligns with Article 42 of the Constitution of Kenya 2010 which guarantees the right to a clean and healthy environment and extends this right to future generations. Moreover, reducing plastic pollution is consistent with Kenya’s overarching policy plan, Vision 2030, and its mid-term configurations which depend on restoring and maintaining the natural systems that support agriculture, energy supplies, livelihood strategies, and tourism.
The plastic ban is a form of social regulation, catalysed by public interest concerns. NEMA has partnered with the police to ensure widespread enforcement but the disproportionate impact on small and medium-sized enterprises led the agency to refine its strategy to target larger importers and distributors through an inter-governmental enforcement task force whose members are drawn from the National Police Service, the Directorate of Criminal Investigations, Customs Police, Kenya Revenue Authority and the Anti-Counterfeit Authority.
NEMA reports a self-evaluated success rate of 80 per cent compliance, which indicates a commendably high return on regulatory investment. To illustrate this, in response to a 2018 petition by the Kenya Association of Manufacturers challenging the constitutionality of the ban, the Environment and Land Court agreed with NEMA that the ban had legal merit, did not violate any rights, was centred on the public interest and that its communal benefits outweighed its concentrated costs. Success in the secondary objective of ensuring compliance with the ban, however, must not be conflated with success in the primary objective — the policy goal of eradicating plastic pollution. While there has been a reduction in plastic bag waste, single-use plastics, such as plastic water bottles, are still firmly in circulation, causing the same environmental challenges and bringing new ones.
Firstly, not only is single-use plastic litter an aesthetic nightmare, its proliferation is jeopardizing the “Magical Kenya” brand and the narrative of Kenya as a clean and idyllic tourist destination. With tourism accounting for an estimated 8 per cent of GDP in 2019, single-use plastic pollution is still a visible economic risk.
An example of this is to be found beneath the dense canopy of Karura Forest in the heart of Nairobi, a portal into the lush past of the Green City in the Sun. With a misty waterfall, caves with a pre-colonial history and a meandering river walk, this illusion of paradise is periodically shattered by the harsh reality of plastic waste. The rivers in the forest reserve that Nobel-prize winning Wangari Maathai fought so hard to protect are often laden with plastic bottles, interfering with the resident wildlife. Despite a presidential directive banning all single-use plastics in protected areas such as forests, the boundaries of these special zones have proven porous to the plastic pollution beyond them.
There are therefore legitimate questions about the efficacy of the 2017 ban, and its surgical focus on plastic carrier bags, given the proliferation of other single-use plastics. The proliferation of discarded single-use plastics such as polyethylene terephthalate (PET) may demand the amputation of the plastics industry as a whole. Simply put, a partial ban as currently constructed is an effective first step, but it is inadequate in scope. Given the scale and gravity of the effects of plastic pollution, a full ban on single-use plastics would be a much more coherent policy.
In the same vein, a confusing framework consisting of a single set of regulations, three clarifications, an exemption process and a partial ban creates uncertainty and reduces legal clarity. It introduces regulatory fatigue, reducing long-term prospects for compliance and creating opportunities for corruption.
Secondly, the lack of robust plastic waste management systems leads to the informal incineration of single-use plastic waste which releases toxic fumes into the environment. From the dumpsites of cities and rural towns across the country, informal waste pickers commonly referred to as chokoras pick through plastic waste to distinguish what has resale value and burning the pickings that do not make the cut.
Given the scale and gravity of the effects of plastic pollution, a full ban on single-use plastics would be a much more coherent policy.
Thirdly, plastic pollution comes with a rancid medley of negative externalities. The Dandora dumpsite in Nairobi is a dystopian world far away from the Karura Forest. The 30-acre expanse of mounds of varying shapes and colours of discarded plastic reveals the true scope of a plastic pollution problem that cannot simply be burned away. For the residents of Dandora, the dumpsite is in defiant breach of their constitutional right to a clean and healthy environment. It is not just the aesthetic gap that matters here; the mounds of plastic waste provide a breeding ground for harmful organisms and disease. Moreover, the distressing number of children — who should be in school — picking through the often dangerous and contaminated rubbish is a stark illustration of the child-labour implications of plastic waste.
It is important to note that while the partial ban has successfully mobilized the public around the indiscriminate use of plastic packaging, it does not address the issue of Kenya’s weak solid waste management systems. NEMA’s National Solid Waste Management Strategy (2015) proposes a normative culture shift toward a 7R-oriented society — Reducing; Rethinking; Refusing; Recycling; Reusing; Repairing and Refilling waste. The strategy prioritizes prevention as the preferred option which in the case of plastics would imply a preference for elimination rather than minimisation and management, which address the symptoms and not the cause. The correct order should therefore be Rethink (before going for plastic), Refuse (using plastic bags), Reduce (avoid generating plastics or use alternatives), Reuse (reuse plastic containers), Recycle (what can be recycled), Repair (before throwing away a plastic item) and Refill (waste site).
With the long-term feasibility of recycling plastic in question given that, unlike glass, the recycling process for even the most robust plastics compromises functional quality, weakening the structure of the plastic with every cycle, lobbying by the private sector to keep the ban partial takes on a more sinister hue. A partial rather than a full ban on single-use plastics was predicated on the plastics industry self-regulating the recycling of exempted single-use plastics through PETCO. With only 9 members out of a potential membership of approximately 170, it is clear that this voluntary body is unwilling or unable to cater to Kenya’s plastic waste management needs. The volume of plastic waste demands a more concerted regulatory response.
As long as the cost of producing (and dumping) a new single-use plastic bottle is significantly lower than the cost of recycling an old one, all recycling attempts by PETCO remain performative. The cost of recycling a bottle versus making a new one varies, depending on where the bottle is and the international price of oil. According to PETCO Country Manager Joyce Gachugi, “a rise in the crude oil market also determines as a rise in crude oil prices increases demand for recycled plastic”. However, in 2021, the low value of scrap and the high costs of recycling, coupled with low oil prices, meant that in many parts of the globe recycled plastic cost more than manufacturing virgin plastic. Thus, conceivably, a scheme that forces producers, importers and distributors to reflect the true cost of plastic waste, including the debilitating social cost of pollution at the point of purchase, could incentivize recycling and dissuade production of new plastic.
As long as the cost of producing (and dumping) a new single-use plastic bottle is significantly lower than the cost of recycling an old one, all recycling attempts by PETCO remain performative.
The real cost of plastics has been externalized to the public space where we have to deal with the collection, disposal and negative health effects of plastics. Ideally, this is a cost that should be reflected in the price of each piece of single-use plastic packaging. Actualizing the true cost of single-use plastic would entail designing a tax on plastic production, importation and distribution that would incorporate the cost of collection, aggregation, and recycling of plastics in a co-regulation scheme with NEMA.
However, since even highly-recyclable plastic such as that used in water bottles will degrade in quality over time, becoming unusable after just two to three recycling cycles, this would only be, at best, a stop-gap measure since the recycled plastic would inevitably end up as waste. The ban fails to provide incentives to current plastics importers to switch to more eco-friendly alternatives to prevent plastic production in the first place. No incentive programmes exist to subsidize and scale-up eco-friendly alternatives to single-use plastics. The ban was thus a missed opportunity to catalyse the creation of a robust eco-friendly packaging industry, one that has the potential to provide Kenya with a first-mover advantage. The synergy of phasing out single-use plastics, reducing pollution and creating eco-friendly packaging industries with global potential, may present Kenya with a production competitive advantage.
Finally, NEMA’s self-declared 20 per cent non-compliance with the ban was mainly a result of the challenge of borders that are porous to contraband plastics. This is an important reminder that plastics are a global, transboundary issue, and any regulation aimed at curbing plastic pollution must adopt a regional and perhaps global advocacy strategy. The dynamics of a shifting world order in a world reeling under plastic pollution coalesced with the negotiation of a free trade agreement between Kenya and the United States where Kenya has reportedly been under pressure to reverse the ban.
The ban fails to provide incentives to current plastics importers to switch to more eco-friendly alternatives to prevent plastic production in the first place.
As the re-distributive effects of globalization re-shape the world, countries like Kenya must guard against the extractive intent of corporations and governments willing to externalize their plastic waste problem. Kenya may have to align with like-minded global partners to protect the integrity of her “end-plastic pollution” stance. Similarly, Kenya’s position in the East African Community, the African Union and the world stage requires a level of committed international advocacy for the phasing out of plastics.
Kenya’s stance on environmental protection is likely to lead both to opportunities and threats and, in this regard, the goal of eliminating plastic waste from her borders must be coherent in regulatory intent, design and effect in the ways highlighted here. It is however encouraging to see that Declaration 3 of the Nairobi UNEA meeting highlights the decision of the Environment Assembly to establish an intergovernmental negotiating committee to develop an international legally binding instrument to end plastic pollution. Kenya’s global leadership in curbing the proliferation of plastic may be one step towards the global push-back against plastic production.
