The High Court Friday, August 25 2017, determines whether the ban on the use, manufacture and importation of plastic bags should be suspended.
Judge Bernard Mweresa Eboso reserved his ruling until then following an urgent application by Kenya Association of Manufacturers and businessmen Frederick Gichuhi and Stephen Mwangi who want the ban suspended.
The importers and retailers of plastic bags have implored the court to suspend the February 27 2017 gazette notice by Environment CS Judy Wakhungu which will see the ban effectively enforced from Monday August 28 2017 next week.
According to the petitioners, the ban is illegal allegedly because there was no public participation by the relevant stakeholders and that they stand to lose huge economic investments in the plastics bags trade.
The legal notice No 2356 of 2017 has been faulted on grounds that it lacks clarity and intelligibility to the anticipated users which is a mandatory requirement under the Statutory Act.
Lawyers said the move would deprive them of a right to earn a decent living, likening it to a draconian economic sabotage and that the legal notice “does not give an alternative remedy” apart from being non-complaint with the Constitution.
KMA has argued that the six months given for them to comply with the directive is “too short” as they will require time to clear all stocks and fulfil their contractual obligations.
The court heard that the petitioners stand to suffer irreparably economically if the ban is not halted.
Over 100 million plastic bags are handed out by supermarkets alone in Kenya, half of which end up in the solid waste mainstream and now constitute the biggest challenge solid waste management in the country.
In 2007, the government had issued a ban against bags below 0.3 millimetres in thickness, a move that never bore any fruits. In January 2011, the National Environmental Management Agency (NEMA) declared another vain ban on below 0.6 millimetres in thickness.
According to CS Wakhungu, the only plastic bags that will be allowed are those for industrial purposes and not those given over the counter.
Ksh145 million project
The United Nations has praised the move by the CS as an effort to conserve the environment and pumped a reported Kshs145 million in the project.
MultyTouch International, an NGO for conservation and management of the environment through its lawyer Julius Anyoka told the court that KAM was insincere in its request.
“They are not honest, they have been indolent of the looming ban since 2005…” Anyoka submitted.
He said the effects of plastic bags cannot be overemphasized and that a clean and healthy environment protected for the benefit of present and future generations cannot be sacrificed at the later of economic sustenance.
The NGO’s CEO Christine Wangari represented by Anyoka joined hands with the CS, NEMA and AG in the fray as the fourth respondent.
She states in her affidavit that Articles 69 and 70 of the Constitution of Kenya enjoins state organs to initiate positive measures geared towards eliminating processes and activeness that are likely to endanger the environment.
“The ban is, in fact, being implemented in phases where in the first phase of the purge, only polyethene bags that are bought for carrying products is targeted,’ Wangari’s affidavit reads.
Anyoka said Rwanda, Tanzania and South Africa have been successful in eliminating the use of plastic bags.
The court heard that already manufacturers of paper based products and other biodegradable packaging that are Eco-friendly are showcasing their products which will instantly fill the void that is likely to result from the ban.