Generally, African Courts are known to be reluctant when it
comes to making tough judgments on environmental matters basically
because they tend to weigh complex issues such as locus
standi, adverse impact on the economy and the need to
stabilize peoples’ livelihoods OVER injury to the environment. This
is inspite of the constitutional obligation imposed on Governments
aand its environmental agencies to protect the environment and
enforce the right of everyone to live in a clean and healthy
environment. Failure, however to recognise this duty negates the
inter-generational equity established in the Philippines case of
1993 where the Court held that it is the duty of the State to
promote and protect the right of the present and future generations
to live in a balanced and healthy ecology.
The obligation to protect the environment became an issue in
Kenya when the Cabinet Secretary of the country’s Ministry of
Environment and Natural Resources while exercising her powers under
the Environmental Management and Co-ordination Law, notified the
public through a Gazette dated 28th February, 2017; that
the Government will ban the use, manufacture and importation of all
plastic carrier bags used for commercial and household packaging as
from 28th August 2017. To this effect, all affected
stakeholders were therefore directed to take reasonable steps to
ensure that on or before the expiry date, the production,
importation, sale and use of plastic bags in Kenya should stop,
while manufacturers of plastic bags must clear their stocks and
invest in the production of alternative bags. Under the law,
plastic carrier bags are defined as bags manufactured for single
use that generally tear or puncture after a first use while the
environmental implication of these plastic bags is that they are
easily transported by the wind which eventually end up as roadside
and shoreline litter.
Aggrieved by the proposed ban, the importers, wholesalers, and
retailers of plastic bags thereafter instituted a suit against the
Kenyan Government first at the State High Court before it was
referred to the Environment and Land Court as Kenyan
Association of Manufacturers & Others Vs
C.S. Ministry of Environment and Natural Resources &
Others (ELC PET.32/2017). In that case, the
Government argued that the ban on plastic bags was justified
because it has a constitutional obligation to conserve the
environment by eliminating activities that are likely to endanger
the environment on the basis of some of the following reasons:
- Plastic bags fall under the category of harmful items.
- Plastic takes 100 and 1000 years to decompose or
biodegrade - Domestic animals mistake nylon bags for food and as a result of
this, people who have eaten them become susceptible to various
diseases. - Plastic affects the marine life as Kenyan borders the Indian
Ocean where plastic bags, aided by wind, drift into the ocean and
end up as garbage. - Plastic bags have contributed to degrading sanitation, urban
waste and blockage to drainage channels causing floods during the
raining season. - Plastic manufacturers use Bisphenol-A (BPA) chemical to harden
plastics at production stage. Unfortunately, it poses serious
health and environmental hazards. - Burnt plastic bags emit dioxins which causes air
pollution. - Damage to the ecosystems and biodiversity.
On the other hand, the plastic importers and manufacturers were
of the view that the ban on plastic bags will affect the poor and
further lead to loss of 60,000 jobs directly and another 400,000
jobs indirectly especially as there are about 176 plastic
manufacturing companies spread across Kenya. Infact according to
United Nations Environmental Programme (UNEP), about 100 million
plastic bags are handed out every year by Kenyan supermarkets
alone.
However, the Kenyan Environment and Land Court in its recent
landmark judgment held that environmental concerns are more
important than commercial interests and fully agreed with the
Ministry of Environment & Natural Resources decision to ban the
use, manufacture, and importation of all plastic carrier bags used
for commercial and household packaging throughout the country while
the ban gives a minimum of about $19, 300 in fines or up to one
year imprisonment and maximum of $40 dollars in fines and 4 years
imprisonment.
Ii is pertinent to state that in a world characterized by
several environmental issues, this ruling by the Kenyan Environment
and Land Court has earned accolades from different environmentalist
groups across the globe. For instance, UNEP which has just
launched the ‘Clean Seas’ campaign to reduce plastic footprints and
eliminate major sources of marine litter, has commended Kenya for
its environmental leadership considering the fact that Kenya has
unsuccessfully tried to ban plastic bags since 2007. Undoubtedly,
the threat to the ecosystem and public health is real and the
enormous cost of a neglected environment cannot be imagined.
However it is noteworthy to say that Kenya is not alone in this
battle against plastic bags pollution in Africa. Rwanda, Cameroun,
Guinea-Bissau, Mali, Tanzania, Ethiopia, Mauritania, Morocco and
Malawi also have laws that have banned the production and use of
plastic bags.
What are the Lessons for Nigeria, where the rapid growth in
population and the quest for development has brought great pressure
on the environment? Firstly, the Kenyan Court ruling should inspire
Nigeria to boldly tackle the foundation of its environmental
issues. Plastic wastes surely have a role to play on the causes of
extreme flooding experienced in rainy seasons, even if minor.
Secondly, our Courts should appreciate that Law can come to the aid
of the environment and so should not hesitate to give effect to
Government’s environmental laws and policies. Moreover everyone is
aware that our streets and dumpsites are filled with polythene
bags. Some of our local foods are wrapped in nylon bags while the
“pure water’ we mostly drink is packed in nylon sachets of which
consumption has led to more drainage blockages and many health
issues. Thus, Nigeria cannot afford to ignore the symptoms of this
indiscriminate man-made pollution which negatively impact on the
health and environment of its citizens. For now, the Nigerian
Government and its relevant agencies should continue to concentrate
on providing facilities for proper waste disposal methods, wastes
recycling and enlightening users of plastic bags on their ethical
responsibility to the environment which are so stated under our
environmental laws, at least, before it tows the line of Kenya.
Oluwatomi Ajayi Esq. Chairperson, Research Committee,
African Women Lawyers Association (AWLA) Nigeria.
Generally, African Courts are known to be reluctant when it
comes to making tough judgments on environmental matters basically
because they tend to weigh complex issues such as locus
standi, adverse impact on the economy and the need to
stabilize peoples’ livelihoods OVER injury to the environment. This
is inspite of the constitutional obligation imposed on Governments
aand its environmental agencies to protect the environment and
enforce the right of everyone to live in a clean and healthy
environment. Failure, however to recognise this duty negates the
inter-generational equity established in the Philippines case of
1993 where the Court held that it is the duty of the State to
promote and protect the right of the present and future generations
to live in a balanced and healthy ecology.
The obligation to protect the environment became an issue in
Kenya when the Cabinet Secretary of the country’s Ministry of
Environment and Natural Resources while exercising her powers under
the Environmental Management and Co-ordination Law, notified the
public through a Gazette dated 28th February, 2017; that
the Government will ban the use, manufacture and importation of all
plastic carrier bags used for commercial and household packaging as
from 28th August 2017. To this effect, all affected
stakeholders were therefore directed to take reasonable steps to
ensure that on or before the expiry date, the production,
importation, sale and use of plastic bags in Kenya should stop,
while manufacturers of plastic bags must clear their stocks and
invest in the production of alternative bags. Under the law,
plastic carrier bags are defined as bags manufactured for single
use that generally tear or puncture after a first use while the
environmental implication of these plastic bags is that they are
easily transported by the wind which eventually end up as roadside
and shoreline litter.
Aggrieved by the proposed ban, the importers, wholesalers, and
retailers of plastic bags thereafter instituted a suit against the
Kenyan Government first at the State High Court before it was
referred to the Environment and Land Court as Kenyan
Association of Manufacturers & Others Vs
C.S. Ministry of Environment and Natural Resources &
Others (ELC PET.32/2017). In that case, the
Government argued that the ban on plastic bags was justified
because it has a constitutional obligation to conserve the
environment by eliminating activities that are likely to endanger
the environment on the basis of some of the following reasons:
- Plastic bags fall under the category of harmful items.
- Plastic takes 100 and 1000 years to decompose or
biodegrade - Domestic animals mistake nylon bags for food and as a result of
this, people who have eaten them become susceptible to various
diseases. - Plastic affects the marine life as Kenyan borders the Indian
Ocean where plastic bags, aided by wind, drift into the ocean and
end up as garbage. - Plastic bags have contributed to degrading sanitation, urban
waste and blockage to drainage channels causing floods during the
raining season. - Plastic manufacturers use Bisphenol-A (BPA) chemical to harden
plastics at production stage. Unfortunately, it poses serious
health and environmental hazards. - Burnt plastic bags emit dioxins which causes air
pollution. - Damage to the ecosystems and biodiversity.
On the other hand, the plastic importers and manufacturers were
of the view that the ban on plastic bags will affect the poor and
further lead to loss of 60,000 jobs directly and another 400,000
jobs indirectly especially as there are about 176 plastic
manufacturing companies spread across Kenya. Infact according to
United Nations Environmental Programme (UNEP), about 100 million
plastic bags are handed out every year by Kenyan supermarkets
alone.
However, the Kenyan Environment and Land Court in its recent
landmark judgment held that environmental concerns are more
important than commercial interests and fully agreed with the
Ministry of Environment & Natural Resources decision to ban the
use, manufacture, and importation of all plastic carrier bags used
for commercial and household packaging throughout the country while
the ban gives a minimum of about $19, 300 in fines or up to one
year imprisonment and maximum of $40 dollars in fines and 4 years
imprisonment.
Ii is pertinent to state that in a world characterized by
several environmental issues, this ruling by the Kenyan Environment
and Land Court has earned accolades from different environmentalist
groups across the globe. For instance, UNEP which has just
launched the ‘Clean Seas’ campaign to reduce plastic footprints and
eliminate major sources of marine litter, has commended Kenya for
its environmental leadership considering the fact that Kenya has
unsuccessfully tried to ban plastic bags since 2007. Undoubtedly,
the threat to the ecosystem and public health is real and the
enormous cost of a neglected environment cannot be imagined.
However it is noteworthy to say that Kenya is not alone in this
battle against plastic bags pollution in Africa. Rwanda, Cameroun,
Guinea-Bissau, Mali, Tanzania, Ethiopia, Mauritania, Morocco and
Malawi also have laws that have banned the production and use of
plastic bags.
What are the Lessons for Nigeria, where the rapid growth in
population and the quest for development has brought great pressure
on the environment? Firstly, the Kenyan Court ruling should inspire
Nigeria to boldly tackle the foundation of its environmental
issues. Plastic wastes surely have a role to play on the causes of
extreme flooding experienced in rainy seasons, even if minor.
Secondly, our Courts should appreciate that Law can come to the aid
of the environment and so should not hesitate to give effect to
Government’s environmental laws and policies. Moreover everyone is
aware that our streets and dumpsites are filled with polythene
bags. Some of our local foods are wrapped in nylon bags while the
“pure water’ we mostly drink is packed in nylon sachets of which
consumption has led to more drainage blockages and many health
issues. Thus, Nigeria cannot afford to ignore the symptoms of this
indiscriminate man-made pollution which negatively impact on the
health and environment of its citizens. For now, the Nigerian
Government and its relevant agencies should continue to concentrate
on providing facilities for proper waste disposal methods, wastes
recycling and enlightening users of plastic bags on their ethical
responsibility to the environment which are so stated under our
environmental laws, at least, before it tows the line of Kenya.
Oluwatomi Ajayi Esq. Chairperson, Research Committee,
African Women Lawyers Association (AWLA) Nigeria.