On 30^th August 2023, the National Environment Management Authority (NEMA) published a public notice calling on all producers in Kenya to submit their Extended Producer Responsibility (EPR) plans for the goods, products and packaging they introduce into the Kenyan market.

The environment agency explained that it was doing this pursuant to section 13 of the Sustainable Waste Management (SWM) Act which was enacted into law in July 2022. In this Act, a producer is defined as any “entity that introduces goods, products and packaging into the country using authorized means by manufacturing, importing, converting, filling, refilling, repackaging or rebranding.”

The producers are then required to submit their EPR plans individually or through a collective scheme and are given up to the end of October 2023 to do so before NEMA commences non-compliance inspection and enforcement.

This comes in spite of Kenya not having Extended Producer Responsibility regulations in place as required by the SWM Act. These regulations have been in the process of development for the last few years. The SWM Act gives the Cabinet Secretary for Environment two years to publish the regulations from the time the Act came into operation.

National Environment Management Authority however interprets that both section 13.1 (which mandates producers to bear extended producer responsibility for what they introduce into the market) and section 13.2 (which requires the producers to do this individually or through a compliance scheme) ‘are already active.’ The agency ignores section 13.3 which requires the publication of the EPR regulations.

In defence of this, Dr. Ayub Macharia, Director of Environmental Enforcement, in a presentation available on the NEMA website states, “Ideally, implementation for most legislation commences with compliance, but in this case, enforcement will come first due to lack of EPR regulations.” He further states that NEMA plans to implement EPR immediately even as the agency waits for the Attorney General to finalize the drafting of the regulations and for the Cabinet Secretary to sign them. This is very problematic.

Without the regulations, NEMA has no legal basis to ask producers to comply with section 13.1 and section 13.2 since the regulations would provide a governance and operational framework under which the producers would engage with the law and fulfil their extended producer responsibilities.

In their justification for the premature enforcement of EPR, NEMA claims their decision is informed by the existence of ‘joyriders’ who are not members of the voluntary EPR systems being implemented by KEPRO and PETCO (which has rebranded to PAKPRO). In other words, the agency now wants the producers as defined in the Act to become members of these entities even before the EPR regulations are signed. For the avoidance of doubt, Dr Ayub Macharia’s PowerPoint Presentation suggests that a compliance scheme needs to have a market share of not less than 30 per cent of the registered producers and since these entities have a first-mover advantage, they are likely to benefit. There is, however, no law or regulation that allows this monopolistic requirement.

In 2021, I wrote an article to comment on the EPR regulations development process in which I pointed out several weaknesses in the draft that the then Ministry of Environment and Forestry had published on their website. In this article, among others, I pointed out that an EPR monopoly is dangerous for the country. It does not only ensure a few actors have an undue monopoly on waste management policy but it also concentrates financial might in the hands of a few actors, making the work of government to provide a robust regulatory climate difficult.  If we were to take the example of the public transport sector, imagine if Matatus only had one Sacco. They would unilaterally make far-reaching decisions including singly deciding the costs of transportation. Likewise, these EPR monopolistic entities would unilaterally set membership fees and create other EPR taxes which would increase the cost of living for citizens and financially shift producer responsibilities to consumers.

In the NEMA public notice which producers are now acting upon, the agency has published a list of 12 things that an EPR plan should contain. They include; 1) the list of products introduced into the Kenyan market, 2) If you are a member of a collective scheme, provide evidence of membership, 3) the estimated annual volume/quantity of product(s) introduced into the market, 4) mechanisms put in place for identification and tracking of your product(s), 5) list and location of your drop off or collection points per county, 6) evidence of payment for waste collection service for each product, 7) planned awareness strategy and activities, 8) workplan per county and budget for fulfilling EPR obligations, 9) contracts with NEMA licensed waste transporters to move recovered products from collection points, 10) collection schedule from collection points, 11) contracts with waste processing facilities such as recyclers, incinerators, landfills, and 12) Environment Impact Assessment (EIA) or Summary Project Report (SPR) approvals as advised from the County NEMA office.

It will be difficult for any producer to individually comply with all these requirements within 2 months.

That is why KEPRO, a brainchild of the Kenya Association of Manufacturers (KAM), has been busy recruiting EPR members. Going through the membership portal on their website, one will see that KEPRO is accepting eight categories of members. They include Packaging Users, Packaging Convertors or Manufacturers, Raw Materials Suppliers, Supply Chain Operators, Waste Collectors, Waste Recyclers, Waste Sorters and, Retail Traders.

All these categories except Packaging Users and Packaging Converters are required to pay an annual membership fee.  In addition to this fee, Packaging Users, defined as “brands, fillers, packers, re-packers, and importers of products that are sold in the market that require some form of packaging,” and Packaging Converters also pay monthly EPR fees which are calculated based on the volume of packaging purchased or consumed. KEPRO says that these fees from packaging users are what would support the collection, sorting, and recycling ecosystem in the country.

There is however a grave problem when you look at the details for the Retail Traders category. Retail Traders are defined by KEPRO as “distributors, food outlets, restaurants, clubs, hotels, resorts & retailers of packaged goods. All sizes of retailers are included from shopping malls to kiosks, from large modern retail to small informal retail.”

It is not clear whether the National Environment Management Authority is aware that KEPRO is planning to collect fees from kiosks in Kenya to support EPR capacity and whether the entity is changing the rulebook on who a producer is as defined under the Sustainable Waste Management Act. Without producing a comprehensive list, and this can only be done through the EPR regulations, entities like KEPRO may abuse this system. The regulations should also define the amount of fees a compliance scheme should collect from members and how these are to be used.

KEPRO claims the ‘illegal’ membership fees they are collecting or plan to collect from Kiosks and others are to increase their organizational capacity. What this means is that this is no longer an extended producer responsibility system but an extended business responsibility system for pollution.

Finally, there are many regulations that the Ministry of Environment needs to develop before the full implementation of the SWM Act. These include regulations on, categories of waste as mandatory segregation at household and other source areas are expected, a national colour-coding system for waste, a schedule for collection of segregated waste, the design of waste transportation vehicles, development of material recovery facilities, conversion of dumpsites into landfills, management of e-waste, importation and exportation of garbage, take-back schemes, extended producer responsibility, sustainable waste management curriculum, among others.

These regulations are meant to ensure the orderly conduct of waste management in counties and to properly define policies, coordination, and oversight for waste management to enable the SWM ACT to be successfully implemented. The Act requires most of these regulations to be in place two years from the time the Act came into force. This means the deadline for most of this is set for July 2024.

There is no evidence that NEMA has started compliance with the other sections of the SWM Act where the regulations have not been developed and signed by the Cabinet Secretary. This begs the question of what is the hurry by the environmental agency to implement EPR compliance when the accompanying regulations have not been signed?

To put this into proper perspective, imagine county inspectors going from homestead to homestead to inspect compliance of the segregation of waste at the source without regulations for waste colour codes having been published.

So that stakeholders do not read mischief, it is critical that the publication of EPR regulations for Kenya and all other regulations associated with the SWM ACT are fast-tracked and that the agencies and actors involved in the implementation of the Act follow the law.  

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