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Kenya: Notice Outlawing Plastic Bags Issued

(Mar. 31, 2017) The Kenyan government recently announced that it will soon institute a national ban on plastic bags.  In a notice in the country’s official gazette dated February 28, 2017, the Cabinet Secretary for Environment and Natural Resources, Judi W. Wakhungu, announced a ban on “the use, manufacture and importation of all plastic bags used for commercial and house hold packaging” as of August 2017.  (Gazette Notice No. 2356 (Feb. 28, 2017), 119:31 KENYA GAZETTE (Special Issue) (Mar. 14, 2017), at 1077.)  The ban will apply to two categories of bags: the carrier bag, a “bag constructed with handles, and with or without gussets,” and the flat bag, a “bag constructed without handles, and with or without gussets.”  (Id.)

While Wakhungu’s announcement does not include a penalty for violation of the ban once it is implemented, the Act on which it is based does.  According to the Act:

Any person who contravenes against any provision of this Act or of regulations made thereunder for which no other penalty is specifically provided is liable, upon conviction, to imprisonment for a term of not less than one year but not more than four years, or to a fine of not less than two million shillings [about US$19,417] but not more than four million shillings [about US$38,835], or to both such fine and imprisonment[,] or to both such fine and imprisonment.  (Environmental Management and Co-ordination Act, No. 8 of 1999, § 144 (Jan. 14, 2000), KENYA LAW website.)

This is the third attempt to ban plastic bags in Kenya.  In 2007, Kenya made a less ambitious attempt to curb the use of plastic bags; it sought to ban the manufacture and import of plastic bags up to 0.03 millimeters in thickness and imposed a universal 120% tax on plastic bag use.  (Kenya Bans Plastic Bags, INDEPENDENT (Jan. 9, 2011); George Omondi, Tough Choice for Kenya in EAC Push for Total Ban on Plastic Ban, DAILY NATION (Nov. 21, 2016).)  Then, in 2011, Kenya sought to do away with plastic bags up to 0.06 millimeters in thickness.  (Kenya Bans Plastic Bagssupra.)  Both of these initiatives were not implemented.  (Kenya Tries to Ban Plastic Bags-Again, ECONOMIST (Mar. 23, 2017).)

The proposed ban signals a policy shift.  In the past, at least going back to 2011, Kenya has consistently opposed proposals in the East African Legislative Assembly, the legislative arm of the five-member regional intergovernmental organization, the East African Community (EAC), of which Kenya is a member, to curb the manufacturing, sale, importation, and use of polythene materials, citing concerns that a ban would result in “massive job losses.”  (Editorial, Kenya Unable to Escape From a Plastic Bag, EAST AFRICAN (Oct. 16, 2011).)  While Kenya remains opposed to a regional ban on polythene, more recently it has softened its position to support the imposition of a tax on plastic bag use.  (Njiraini Muchira, Plastic Ban Bill Stalls in EALA After Opposition from Kenya, EAST AFRICAN (Nov. 25, 2016).)