The development of these regulations is required by the Sustainable Waste Management Act of 2022 which states that ‘The Cabinet Secretary shall, within two years of the coming into operation of this Act make regulations on extended producer responsibility.’ The Act also requires public participation be done in the development of the regulations and provides a schedule of how this is to be done.
The development of these regulations has however been dogged by controversy. First, the development of the regulations started even before the 2022 Sustainable Waste Management Act had become law and there is the question of whether a new round of public participation is required. The fact the regulations’ development started before the enactment of the Act, suggests a deliberate preconceived plot to arrive at a desired outcome.
This plan was not however smooth as the Attorney General in 2021 recommended some changes to the regulations. Then I wrote an article in which I warned that the regulations had some very fundamental flaws and would be unable to help solve the growing problem of plastic pollution in the country. One of the flaws, I warned was the deliberate omission of the Deposit Return Scheme as the primary basis for producer responsibility.
As Kenya prepared to celebrate this year’s World Environment Day, the Ministry of Environment, Climate Change & Forestry has received another communication from the Attorney General indicating that the proposed Extended Producer Responsibility Regulations are inconsistent with existing environmental laws including the 2022 Sustainable Waste Management Act.
Following the receipt of this communiqué, the Ministry has now called for a meeting with what they call an EPR Technical Team which is going to review the regulations at a location to be communicated later according to a letter sent to Clean Up Kenya by one of the members of this team.
This is very troubling.
First of all, this technical team is an illegal entity and is not recognized in any known Kenyan law. While the SWM Act gives the power to the Cabinet Secretary to come up with the regulations, there are no provisions for the formation of an EPR Technical Team. Secondly, some members of this team have a proven history of blocking government policies and lobbying against legislation meant to combat plastic pollution in the country.
For example, the Kenya Association of Manufacturers took NEMA to court in 2017, to stop the implementation of the ban on carrier bags. Former Cabinet Secretary for Environment and Forestry, Hon. Keriako Tobiko is also on record stating that the Kenya Association of Manufacturers together with the Kenya Private Sector Alliance were working hard to block government legislation on plastics.
Some entities are also consumer brands special purpose entities which have been set up to undermine progressive legislation and influence policy on packaging pollution. The role of WWF and CEJAD as members of this group and whose interests they represent is not also clear.
We now warn that the development of the Extended Producer Responsibility Regulations is a national crisis and Kenya risks slipping behind in her war on plastics if the polluters and their special purpose organizations have their way.
Betterman Simidi Musasia
Founder, Patron and Spokesperson, Former CEO
Betterman is a sustainable public sanitation advocate and a pollution control evangelist. In 2015, after becoming extremely tired of seeing all the trash in Kenyan neighborhoods and hearing the authorities fake promises to clear the mess, he sold his trucking business to establish Clean Up Kenya. Today, the organization is a leading national sustainable public sanitation advocacy brand. In September 2020, he stepped down as Clean Up Kenya Chief Executive Officer and currently serves as Founder and Patron.
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Kenya’s Extended Producer Responsibility Regulations circus