Kenya has made tremendous effort to address waste management and pollution control. The Sustainable Waste Management Act 2022 whose date of assent was 6th July, 2022 was meant to be a game changer in management of both organic and inorganic waste. It made it mandatory to segregate waste at home into three fractions namely organic, dry non-hazardous and hazardous fractions. These fractions are to be taken for composting or to the material recovery facilities for further sorting and sale to recyclers while the residual waste will be taken to landfills. Dumpsites will no longer exist in Kenya.
To enhance management of inorganic waste, Section 13 of the SWM Act 2022 states that:
- Every producer shall bear extended producer responsibility (EPR) obligations to reduce pollution and environmental impacts of the products they introduce into the Kenyan market and waste arising therefrom
- Every producer shall fulfill their extended producer responsibility obligations individually or collectively in a compliance scheme
A producer is defined in SWM Act “an entity that introduces goods, products and packaging into the country using authorized means by manufacturing, importing, converting, filling, refilling, repackaging or rebranding”
The commencement date for the SWM Act was 26th July 2022 and hence it is fully operational. The law makes it mandatory for all producers to undertake EPR obligations and hence are supposed to demonstrate efforts to comply with this law.
Although the law requires the Cabinet Secretary (Ministry of Environment, Climate Change and Forestry) to develop regulations on extended producer responsibility, this does not in any way call for a delay by the producers to take action for the waste emanating from the products and packaging they introduce into the Kenyan market. The EPR regulations 2022 are at advanced stage of development and will be enacted soon.
However, we would have expected that since July 2022 the producers could have been busy reorganizing their operations to comply with Clause 13 of SWM Act. It is worrying that since commencement of this law, there has been little effort by the producers to reduce pollution and environmental impacts of their products and packaging through EPR. Producers continue to import and manufacture items for the Kenyan market without showing an ounce of responsibility at post-consumer level.
It is important to note that even in absence of legislation, Kenya has been running two voluntary EPR schemes since 2019 and have recorded high levels of success. The two schemes are PETCO and KEPRO dealing with PET plastics and LDPE bread packaging respectively. Thousands of tonnes of valuables have been recovered from waste and hence diverted from the dumpsites. Hence producers have no excuse that they are waiting for enactment of EPR regulations before they can comply with the SWM Act 2022.
With the SWM Act 2022 section 13 in place, it is expected that producers would put in place mechanisms individually or collectively to manage the waste emanating from their products and packaging as a matter of urgency to demonstrate compliance to the law. Nothing prevents them from establishing new or joining the existing EPR schemes that have been running since 2019. Hence, the prevailing business as usual scenario is a demonstration of impunity to the rights of Kenyans to a clean and healthy environment.
Since waste is a devolved function to counties, action should be taken to demand compliance with Section 13 of the SWM Act 2022. Since July 2022, the producers should have established individual EPR schemes as they wait for the regulation, since the extended producer responsibility is for each individual entity. Now it appears that most producers are just waiting for the regulation and doing nothing which is non compliance to the law, whose basic penalty is withdrawal of related products from the shelves.
Non-compliance to SWM Act 2022 Section 13 is denying Kenyans the following:
- The right to a clean and healthy environment since these products are dumped daily and nobody is showing responsibility.
- Jobs and employment especially for those offering collection services such as waste pickers and other waste service providers. At the moment only paper, plastics, and metal is being collected as they are the only ones considered valuable since there is demand for them for recycling. The other products are left to pollute the environment as there are no incentives to enhance their collection. EPR would have made every product valuable and deserving compensation for collection service and this would have created jobs and livelihoods for thousands of Kenyans.
- Declined growth of the recycling sector since there are very many products and packaging that are considered unworthy and hence not collected. EPR will ensure availability of huge volumes of products and packaging for the recycling sector, and this will attract more recycling facilities, hence jobs and economic growth.
- Continued existence of dumpsites, and resultant GHG emissions. Compliance with EPR law will divert huge volumes of waste from dumpsites through recovery of valuables.
Producers should therefore take up their EPR responsibilities immediately without further delay as required by SWM Act 2022 section 13. The upcoming regulations would only serve to streamline their operations and should not be used as an excuse to delay taking up EPR obligations by the producers.
Counties have ever complained being unable to manage some waste fractions at the dumpsites such as plastics and diapers among others. The EPR requirement in SWM Act gives counties an opportunity to demand for action from the producers. Counties should scrutinize every producer putting products in County markets to establish their compliance with SWM Act Section 13.
Ministry of Environment and Forestry (2021) Sustainable Waste Management Policy, Government Printers, Nairobi
Republic of Kenya (2022) Sustainable Waste Management Act, Government Printers, Nairobi.