Plastic waste: an overview of repressive legislation in African countries (1/2)

The large quantities of plastic bags thrown into the environment and not collected can prevent water from flowing through the pipes and cause dramatic flooding for the environment. The recent torrent of plastic waste that spilled into the port of Durban in South Africa following heavy rains prompts us to question the strategies implemented by African governments to combat plastic pollution. Indeed, plastic pollution is a serious threat to the environment, biodiversity, and has harmful consequences on public health. What are the legal responses of African governments to this environmental disaster?

Plastic is harmful to the environment. Plastic bags can take several decades to degrade in nature. They are not only dangerous to the environment and animals, but also pose a threat to human health. According to the African Development Bank(AfDB), 500 billion plastic bags are used worldwide each year, much of which is plastic waste that pollutes the oceans, more than 100,000 marine animals die each year from plastics and 83% of tap water contains plastic particles. In 2018, the United Nations World Environment Day aimed to raise awareness of the fight against plastic pollution around the world. African countries have mobilised by adopting different strategies to contain plastic pollution at the national level. Rwanda is the pioneer country in this area with its 2008 law, but Kenya has adopted one of the most repressive laws. According to a recent UN report published in November 2018 on global plastics legislation, other African states have implemented standards to prohibit the proliferation and use of plastics. To date, there are 34 African countries that have adopted legislation against plastic bag pollution: Tanzania is the last on this list.

Some 20 African States such as Angola, Central African Republic, Comoros, Egypt, Liberia, Libya, Nigeria, Sao Tome and Principe are lagging behind, as they only regulate the disposal of plastics at the national level through the legal regime for solid and household waste. Equatorial Guinea, Guinea, Sierra Leone, Somalia, Southern Sudan, and Sudan do not have a national law on the management of solid waste found. In Ghana, there is a law on hazardous and electronic waste that covers the recycling of environmentally dangerous waste.

This article aims to set out the legal framework for combating plastic pollution in the African context, which is currently built around national laws. Indeed, each country’s legislation is built around a defined government strategy to combat plastic pollution: Rwanda remains one of the leading African States in the fight against plastic pollution (I). Other States such as South Africa, Kenya and Senegal have forged their legislation around strict punitive measures, as evidenced by the prison sentences and fines imposed (II). Recently, Tanzania has joined the movement by instituting a legislative framework in this area (III). The objective of this first focus is to note the multiplication of national laws in Africa, particularly in the above-mentioned States.

Rwandan legislation, a pioneer in the fight against plastic pollution

Kigali is one of the 10 cleanest cities in a UN ranking. The Rwandan government launched the “plastic reform in Africa” movement by banning plastic bags in 2008. Rwanda has also succeeded in creating the Rwanda Environmental Management Authority (REMA), which has launched a major information campaign.

The introduction of Law No. 57/2008 of 10 September 2008on the prohibition of the manufacture, import, use and sale of polyethylene bags in Rwanda was a major step. This law is particularly innovative, because Article 2 defines plastic bags according to Rwandan law, which is defined as “a synthetic material of low density, composed of several simple chemical molecules called ethylene of chemical formula CH2=CH2”. Article 3 of the Act sets out the prohibition. It states that “the manufacture, use, import and marketing of plastic bags are prohibited in Rwanda”.Article 4 establishes the principle of exceptional and essential uses. According to this article, “without prejudice to the provisions of Article 3 of this Law, an order of the Prime Minister shall determine the list of types of plastic bags that may be used exceptionally in Rwanda. This list shall be updated whenever necessary. Article 5 deals with authorisation. It provides that “within the framework of the provisions of the article of this law, any person wishing to manufacture, use, import or market plastic bags shall submit a written request for authorisation to the Rwandan Environmental Protection Agency. The request must be duly substantiated and present the procedures for managing the waste resulting from the use of these plastic bags”. The same text goes on to state that “the applicant must obtain the answer within a period not exceeding 20 working days”.

Article 6 deals with control. It provides that “the institutions authorised to exercise control over the use of plastic bags are the judicial police, customs officers, staff of the Rwandan Environmental Protection Office, staff of the Rwandan Standardisation Office, national security bodies, local authorities and other necessary personnel designated by order of the Minister having Justice in his attributions”.The illegal use of plastic bags can result in fines or imprisonment. Indeed, article 7 deals with penalties, and provides that “anyone who acts against the provisions of this law shall be liable to the following penalties: industries that manufacture plastic bags, commercial companies or any natural person having in their stocks plastic bags prohibited without authorisation by manufacturing or using them, shall be punished by imprisonment for 6 to 12 months and a fine of 100,000 Rwandan francs to 500,000 Rwandan francs or only one of these two penalties. Any unauthorised person selling plastic bags is punished by a fine of 10,000 to 300,000 Rwandan francs. Any unauthorised person using plastic bags is punished by a fine of 5,000 to 100,000 Rwandan francs and their bags are confiscated. All bags belonging to the categories mentioned in this article are confiscated and kept in a warehouse set up for this purpose by the Rwandan Environmental Protection Office (REMA). In the event of a repeat offence, these sanctions are doubled”. Article 8 deals with the final provisions. It provides that “all previous provisions contrary to this law are repealed”. Article 9 provides that “this Law shall enter into force on the day of its publication in the Official Gazette of the Republic of Rwanda”.

This law now seems to be well applied, as evidenced, for example, by the exchange of plastic bags that are replaced for others, made into biodegradable components at the airport in Kigali. In this region, the leaders were convinced that the success of plastic eradication in one country depends on the willingness of all neighbouring countries to make the same decision. In support of their decision, they imposed financial penalties in the form of fines. Indeed, it is provided that “the country that violates this law will have to pay a fine of US$50,000 in addition to limited sanctions designed to dissuade member countries from importing substances that are dangerous to the environment”. The example of plastic legislation in Rwanda has been followed in East Africa, where the parliament of the Economic Community of East African States has enacted a law prohibiting the use and import of plastic bags within the member countries of the community.

The other three African countries that have instituted prison sentences and fines

South Africa (a), Kenya (b) and Senegal (c) have legislation against plastic pollution that requires a brief analysis in terms of penalties.

(a) South African legislation

South Africa adopted in 2003 the “Regulations under section 24 (d) of the environment conservation act (Act No. 73 of 1989) – Plastic carrier bags and plastic flat bags”,legislation prohibiting plastic bags less than 30 µm thick and imposing a tax on thicker bags (we will come back to the taxation mechanism in a future contribution). As a result, it is prohibited to manufacture, trade and distribute commercially plastic bags produced and imported into Canada.

Article 2 sets out the prohibition in the following terms: “The manufacture, trade and commercial distribution of domestically produced and imported plastic carrier bags and plastic flat bags, for use within the Republic of South Africa, other than those which comply with paragraphs 4 and 5 of the Compulsory Specification, is hereby prohibited”. Fines are provided for failure to comply with the requirements laid down by law and up to ten years’ imprisonment:”(1) Any person who contravenes regulation 2 shall be guilty of an offence and liable on conviction- (a) to a fine or (b) to imprisonment for a period not exceeding 10 years or (c) to both such a fine and such imprisonment; and (d) to a fine not exceeding three times the commercial value of anything in respect of which the offence was committed”.

This new law allows retailers to sell plastic bags, but not to distribute the bags for free.

(b) Kenyan legislation

The Kenyan government has tried to implement plastic reform three times in ten years, with two unsuccessful attempts in 2007 and 2011.

In a notice in the country’s official gazette dated February 28, 2017 (Notice of publication in Gazette No. 2356), the Secretary of the Environment and Natural Resources Cabinet, Judi W. Wakhungu, announced a ban on the use, manufacture and import of all plastic bags used for commercial and domestic packaging purposes. Since August 2017, the ban has applied to two categories of bags: on the one hand, the transport bag, a “bag made with handles and with or without gussets”, and on the other hand, the flat bag, a “bag made without handles and with or without gussets”.

Kenya has introduced a prison sentence of up to four years or a fine of up to USD 40,000 for offenders. It should also be noted that in May 2014, the City of Nairobi adopted a regulatory act, The Nairobi city county plastic carry bags control bill, aimed at controlling the use of plastic bags.

(c) Senegalese legislation

Act No. 2015-09 of May 4, 2015prohibits the production, import, holding, distribution, use of thin plastic bags and the rational management of plastic waste. This Senegalese legislation prohibits not only the production and import of plastic bags with a thickness of less than 30 microns (article 2), but also the possession and use of plastic bags with a thickness of 30 microns or more (article 3).

Operators in the plastics sector are required to offer households and other users a system for collecting or taking back plastic waste for recovery, recycling or disposal (Article 6).

In the event of a breach of the legislation, offenders may be liable to imprisonment with fines. For example, the production or manufacture of plastic bags in violation of the provisions of article 2 of this law is punishable by a fine of 10,000,000 to 20,000,000 CFA francs and imprisonment from three months to six months or only one of these two penalties (article 10). The importation into the national territory of plastic bags with a thickness of less than 30 microns is a customs offence established, prosecuted and punished in accordance with the provisions of the Customs Code (Article 11). The use, possession for the purpose of offering for sale, offering for sale and selling or distributing free of charge plastic bags of a thickness of less than 30 microns shall be punishable by a fine of 20,000 to 50,000 CFA francs (article 12). A fine of 10,000 to 30,000 CFA francs shall be imposed on anyone who abandons or throws plastic waste elsewhere than at the collection or return points provided for that purpose (article 14). Legal entities other than the State, local authorities and public institutions shall be criminally liable for offences provided for in this Act committed on their behalf by their organs or representatives. The liability of legal persons does not exclude the liability of natural persons, perpetrators or accomplices in the same acts (Article 15). The penalties incurred by legal persons who commit the offence shall be punishable either by a fine at a maximum rate equal to five times the rate laid down for natural persons by the law punishing the offence, or by the permanent closure or for a period of five years at most of one or more of the company’s establishments used to commit the offences, the confiscation of the thing that was used or intended to commit the offence or the thing that is the proceeds or the posting of the decision or its dissemination either in the written press or by any means of communication to the public by electronic means.

Tanzanian legislation adopted in May 2019

Tanzania has just adopted plastic legislationpublished under Government Notice No. 394 of May 17, 2019 to prevent the import, export, manufacture, sale, storage, supply and use of plastic bags, regardless of their thickness (article 4). According to Article 1, this Regulation entered into force in mainland Tanzania on June 1, 2019. This legislation also prohibits the sale or offer for sale of goods packaged in plastic unless the nature of the goods requires plastic packaging (Article 6).

In addition, after June 1, 2019, no competent authority may register or issue a licence or permit to any person who intends to import, export, manufacture or sell plastic bags must register to obtain a licence or permit (section 7).

Finally, this regulation imposes severe penalties on individuals and institutions found guilty of violating the regulation. For example, the manufacture or importation of prohibited plastic bags and plastic packaging may result in fines of up to one billion shillings or imprisonment for up to two years, or both (article 8 (a)). Similarly, possession and use may result in fines of up to 200,000 shillings or imprisonment for up to seven days, or both (article 8 (e)).

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There are currently 34 African countries that have adopted legislation to combat plastic pollution.

The following is a summary list of these States by African sub-regions:

This first focus of the study of African national legislation on the fight against the scourge of plastic has examined the most significant and innovative laws in this field. Rwanda is the leading country on the continent and in the East African region in raising awareness of the plastic threat to health and the environment. Senegal, Rwanda and Kenya do not deny this movement, as their laws provide for prison sentences and fines to any natural or legal person who contravenes the new standard adopted. In a second focus to come, therefore, we will provide developments on other plastic pollution control mechanisms implemented by other African States.

By Chancia PLAINE
Jurist in environmental law, Huglo Lepage Lawyers
@Chancia Plaine (Twitter) – @DroitEnvAfrique (Twitter)

Further reading: UN environment, Legal Limits on Single-Use Plastics and Microplastics: A Global Review of National Laws and Regulations, report, December 2018, 114p.