Kenya Petition 32 & 35 of 2017 & Judicial Review Application 30 of 2017 (three cases consolidated)

The Kenya Association of Manufacturers and others challenged the Kenyan ban on “the use, manufacture and importation of certain types of plastic bags used for commercial and household packaging” Kenya Petition 32 & 35 of 2017 & Judicial Review Application 30 of 2017 (three cases consolidated), at para. 1.

The petitioners claimed, among other things, that the ban was an unconstitutional limitation of their rights. The agency countered that the Kenyan Constitution recognizes the need to respect and sustain the environment for the benefit of future generations, secures the right to a clean and healthy environment and places upon the State the obligation to ensure that the right is protected, and creates positive obligations on part of the State to ensure sustainable management of the environment, in addition to recognizing the precautionary principle. Kenya Petition at Para. 27-28 (citing to Preamble, Arts. 42, 69, 70). Furthermore, the Environmental Management and Co-ordination Act (“EMCA”) provides for the right to a clean and healthy environment and empowers the agency to issue guidelines and prescribe measures for the management of hazardous materials and processes. Id at Para. 29 (citing EMCA Sections 3, 86). The government respondents explained that, “it was scientifically determined under Section 86 of EMCA that plastic is a hazardous material and plastic bags were identified as the most harmful.” Specifically, the respondents presented that “plastic carrier bags and flat bags are easily blown around and cause harm when ingested by livestock and wildlife. . . . [D]ue to their non-biodegradable nature, plastic bags are known to endanger both flora and fauna, block waterways leading to flooding, emit harmful dioxin and furans when burnt, and are persistent pollutants of the environment.” Id. at Para. 30.

After reviewing the arguments from both sides, the Environment and Land Court at Nairobi concluded: “We are not persuaded that the benefits to be derived from plastic outweigh its negative effects on the environment. . . . [W]e are persuaded . . . that the ban on plastic bags will work positively to protect the environment from plastic waste.” Id. at Para. 148.

The Court reviewed a decision from India dismissing an interlocutory application seeking a stay of an order “imposing a ban on the manufacture, use, sale, distribution and storage of all plastic materials such as one-time use bags, spoons, plates, PET bottles and also thermocol items. . . . In support of the ban, the State had cited the plastic waste as well as the deaths of whales and cows which were found to have kilograms of plastics in their stomachs.” Id. at Para. 153 (citing Maharashtra Plastic Manufacturers Association v. State of Maharashtra and Another on 13 April 2018). In agreeing with the Indian court’s conclusion that the ban was reasonable, the Kenyan court said: “We are fully in agreement with this decision. This case confirms that dealing with plastic waste is an issue of the moment the world over.” Id. at Para. 154.

The Court ultimately held that although the plastic bag ban did limit the petitioner’s rights, this limitation was reasonable and justifiable. Id at Para. 158. This is true even though some ordinary Kenyans may suffer some economic losses, because the plastic ban “is for the common good of the general public and as such lawful.” Id at Para. 162. Accordingly, the Court declined to annul the ban and dismissed all three suits. Id at Para. 164.