Adhering to our Constitution as a Matter of Principle

By Phyllis Wakiaga

When the parliamentary environment ​committee tabled its recommendation for the suspension of the implementation of the ​plastic bag ban in June this year, it did so with foresight and the understanding that the manner in which the ban had come into place would leave this country in economic disarray and in the end, will not give us a clean environment as intended.

It noted that the country was one of the first to implement a total ban on commercial, household and industrial plastics​ and that recycling of plastics was a preferred measure to address plastic waste management. The report by the committee further​ cited, among other reasons, what it termed as the ‘Unreasonableness of the time frame provided’ to implement the legal notice.

This unreasonableness points to the fact that there was little consideration of the procedure provided for in the Statutory Instruments Act​ to carry out public participation and an economic impact assessment.

At the same time, there is the insidious tacit message being relayed to current and future investors in this country, which is that the Government can arbitrarily change and effect regulations to the detriment of businesses and the socio-economic stability of our country.

The truth is that there are valid environmental concerns on waste disposal and the end goal is to ensure that we have a clean and sustainable environment for all. ​This endeavour to make lives better for future generations that has us determined to clean up our environment, is the same one that drives us to advocate for a favourable business environment that nurtures local industry and attracts investment. They are two sides of the same coin and one should not be pitted against the other.

A green economy needs​ both of these aspects working together in order to achieve a sustainable economy and, broad-based inclusive growth. Creating a scenario which depicts the need for predictability and the adherence of the rule of law for business, as going against the need for a clean environment is simplistic and distracts us from the very complex issues that have led to our dependence on plastic bags, lack of proper waste management and an increasingly callous consumer culture towards environmental conservation.

Other countries have managed to make this endeavour work seamlessly through phased approaches that take into consideration the views of different stakeholders. In​ its first step to​ implement the ban on plastic bags, Rwanda acknowledged that as a country it did not have any facilities to manage plastic waste and therefore went ahead to provide tax incentives to local manufacturers to start recycling the plastic waste. These tax incentives were meant to enable local companies to purchase equipment that would help recycle plastics.

In recognizing the contribution of local businesses to effecting the ban, the Rwandan Government was able to fuse the need for a clean environment, with the need to nurture and sustain local industry, to achieve its end goal. This being said, though, Rwanda is currently struggling with a growing black market for plastic bags because the alternatives provided proved insufficient in meeting everyone’s needs.

However, there are also instances in which the ban has not worked at all as ​envisioned. ​A good case in point being the city of Austin in Texas, USA. In 2013, the city outlawed single-use plastic bags, and two years later an investigation into the effectiveness of this regulation showed that the city was worse off environmentally. This is because officials discovered that the plastic bag had a much lower carbon footprint than that of paper and cotton alternatives. The reusable bags were equally harmful to the environment as they were made from non-recycled, low density polyethylene which has a very high carbon footprint compared to the single use bag.

The law in Kenya requires any regulation-making authorities to employ ‘high standards in the drafting of statutory instruments to promote their legal effectiveness, clarity and intelligibility to anticipated users’. So far, since the gazettement of the plastic ban, there have been at least four different notices from NEMA and the Ministry, with contradictory statements in an effort to make exemptions (without stakeholder consultations) and even issuing new directives only days to the date the ban should take effect.

The ban has also gone beyond single use plastics bags and touches industrial plastics thus creating uncertainty in industry with industrial users having to seek exemption from NEMA to use industrial packaging.

This uncertainty, lack of clarity and unpredictability is part of the arbitrariness that we are witnessing in the execution of a policy, which, according to the Parliamentary Committee for environment, did not even comply with the Statutory Instruments Act in the first place.

Additionally, the fact that this committee’s’ recommendations were not considered and have been glossed over in every decision-making process towards effecting this ban goes against the spirit of our constitution where regulation making is a delegated role from Parliament. Therefore ​this becomes larger than the plastic ​ban issue – it is a matter of principle. The principle to respect the rule of law and to provide investors with a predictable environment in which they can make long-term investment and do business.

Everyone’s right to exist and earn a living is enshrined in the constitution, that includes the rights of Mama Mboga to run her kiosk, as well as that of businesses to secure their investments. Circumventing it, to reach one goal at the expense of the other should be discouraged.