Here is why the proposed Kenya Extended Producer Responsibility law is likely to fail

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After almost two years of development, the 2021 Environmental Management and Co-ordination (Extended Producer Responsibility) Regulations is now heading to the Kenyan Parliament, where it will be debated and possibly passed. This regulation has been developed by the Ministry of Environment and Forestry and is set to see producers adopt more responsibilities for their packaging and end-of-life products.

The law proposes that each producer will be required to join a Producer Responsibility Organization (PRO), which will undertake several activities on behalf of the producer to ensure their packaging does not affect the environment. These activities include recovery, collection, sorting, recycling, and treatment. The producer will pay certain fees to the PRO for this work.

The law borrows from similar regulations that have been set up in other countries, particularly in Europe, and is based on the principle that producers are solely responsible for what they produce.

While this may look like a solution to Kenya’s packaging waste problem, after careful analysis, if the law passes in its current form, it is not going to solve the issue, particularly for plastics.

The law has three fundamental flaws.

The Deposit Return Scheme Question

The first weakness in the law is a lack of emphasis on the Deposit Return Scheme (DRS). This law does not provide for a mandatory DRS as a first-line strategy for producer responsibility and only uses the word ‘may’ to indicate that a producer could choose, only if they wish, to adopt such a model to ensure none of their packagings affects the environment. This is despite studies both locally and internationally that show DRS as the best evidence-based strategy that can prevent pollution for certain types of packagings.

For example, both soda and beer corporations have over the years used a DRS locally to manage glass packaging. Imagine what would happen if East African Breweries Limited and Keroche Breweries removed the deposit on their beer bottles?

An emphasis on DRS in the Kenya Extended Producer Responsibility law would have also extended the model to other uncovered corporations deploying similar glass packaging such as those in the wines, spirits, and imported beers industry. Heineken for example exports millions of beers into the country in single-use glass bottles, which are not subject to any take-backs or DRS and have become a big menace with no recycling facilities handling them locally.

Apart from glass, DRS has also been implemented successfully for other types of packaging globally. Countries, where most PET plastic bottles are collected such as Norway, Germany, Canada, Lithuania, several Australian and US states, all have a deposit system for PET.

In fact, calls for Deposit Return Schemes are increasing around the world. In 2017 UN Environment encouraged countries to set up deposit schemes and in 2019 the European Union set a target for member states to collect 90% of all plastic bottles by 2029, which experts say is only possible with a deposit system.

This is why the exclusion of placing emphasis on mandatory DRS for some kinds of products in the 2021 EPR regulations is a bit strange.

Deposit Return Schemes are effective methods for handling packaging pollution because they give consumers a tangible incentive to recycle. The introduction of DRS can also be a critical influencer for reuse and a key mechanism to help companies achieve recycled content targets and is also the key to circular economy.

In short, the exclusion of DRS in the 2021 EPR regulations is a fatal flaw and there is no reason why Kenya should accept a defective law that does not prioritize DRS as the primary basis for producer responsibility.

James Wakibia, Kenya’s prominent plastic waste activist, has observed, “The Deposit and Return scheme should be mandatory for all plastic drink bottles, simply hoping corporations will do it willingly is being very naive.”

James Wakibia is one of the most vocal proponents of DRS in Kenya.

The EPR Monopoly Question

Secondly, the proposed law is going to create EPR monopolies in the country.

In an earlier version, the law proposal stated, ‘there shall be only one Producer Responsibility Organization (PRO) per product’, with a product defined in the First Schedule as being either leather, plastic, rubber, glass, composites, paints, pharmaceuticals, among others. This has since been replaced on the advice of the Attorney General to put the 19 streams of waste into five categories and now reads, ‘there shall be established Producer Responsibility Organizations as per categories provided in schedule 1’.

We wrote to Oraro and Company Advocates to seek an opinion on the question of EPR monopolies and they are of the view that the intervention by the Attorney General may help stop the monopolization of PROs.

However, in the Eighth Schedule which provides for how the PROs will be registered, the regulation uses these strong words to confirm an urge to create an EPR Monopoly:

  • If the Authority receives more than one PRO applications, the interim officials will be given one month to meet and reach consensus for one PRO to be registered and submit minutes of meeting and the joint resolution.
  • If the multiple PRO applicants fail to agree, the authority shall choose one applicant to be registered as the PRO.

This then ensures that a product like PET falling under a specific category will only have a singular PRO and all corporations that deploy this kind of product will be forced to become a member and a shareholder of this PRO unless they are prepared to set up their own private scheme. This will ensure that environmental policy on packaging waste will largely be in the hands of singular entities.

Already, the Kenya Association of Manufacturers has set up KEPRO, as their preferred PRO for a range of products from their members, a clear sign of an intention to form a monopoly, which will inhibit competition and innovation and thus aid bureaucratic bottlenecks that ensures no real progress is achieved in preventing materials waste impact on the environment.

Monopolies are a disaster anywhere. They create cartels, undermines people’s freedoms, and weakens democracies. And once you create them, it is hard to dismantle them.

A good example is an organization called Ecoembes in Europe. An investigation by Changing Markets Foundation has found that Ecoembes, a powerful EPR monopoly, is spearheading the defense of industry interests in Spain and is being used to distract, delay and derail legislation, and effectively undermine solutions to solving the packaging pollution in the country.

Ecoembes has been accused of viciously fighting to undermine any possibilities of a Deposit Return Scheme. This is because the corporation gets more money in fees as more plastic packaging is produced and the introduction of a DRS would dry their coffers. Thus, if the 2021 EPR Regulations became law, as presently proposed, KEPRO will become a humongous monopoly that would fight tooth and nail to protect the packaging billions.

In fact, KEPRO is simply the Indian industry in Kenya. They are afraid that plastics will be banned and have come up with a very clever plan where they pool money together (or the carrot), to ostensibly end plastic pollution, but instead, they give the money to one of their own, while the Kenyan environment remains polluted and the government is hoodwinked. This is the true circular economy for them, where the packaging money rotates within the cartel.

Benedict Wermter and Isabelle Vanhoutte have studied many PROs in Europe and they argue that ‘few governments succeed in sufficiently controlling or directing Green Dot organizations’ and eventually the PROs gain great power in influencing policy.

There are also other dangers. The monopolistic PRO could work with their members to shift packaging waste responsibility to consumers through the pricing of products and unduly increase the prices of consumer goods in the country.

It is impossible to imagine then that the policymakers at the Ministry of Environment and Forestry and the Office of the Attorney General have failed to look into the dangers of an EPR monopoly. There are some who will argue that officials may have been compromised or unduly pressed considering the Cabinet Secretary for Environment and Forestry, Mr. Keriako Tobiko, is on record as indicating that Kenya Association of Manufacturers and Kenya Private Sector Alliance are working to undermine progressive plastic legislation.

Mr. Christopher Muriithi, Clean Up Kenya Advisory Board Vice Chairman, has observed that even Members of Parliament may also be approached by the ‘cartel’ to allow this law to pass in its present form. The law is weak in every angle – but great for the Indian industry! Even the fines that are being proposed for non-compliance are very weak. It is a very bad law.

In short, having one PRO per category of products will create a monopoly in the country and is subject to abuse by key industry players and defeat the purpose of the law. For checks and balances, producers should also not be shareholders of a PRO. This will create a scenario where the largest producers could have undue influence in the management of PROs and packaging policy in the country. A suggestion could be for the law to abolish private schemes unless they are based on mandatory DRS or takebacks, allow two initial competitively selected PROs all acting as Service Providers per category of products with the Authority given the power to license more based on market size and other emerging factors.

Christopher Muriithi (Right) speaking with Jada Neema (9-year-old member of Clean Up Advisory Board) at a past event

The Vulnerable Groups Question

Thirdly, the proposed 2021 Environmental Management and Co-ordination (Extended Producer Responsibility) Regulations do not protect Vulnerable Groups (VGs) such as waste pickers. Not even once, in the whole document, has there been the recognition of the work of waste pickers, the closest this has been done is referring to them as ‘waste service providers’. Yet for many years, VGs have stomached the burden of recycling in the country. They have often done this for their livelihoods. Poor women picking Coca-Cola’s plastics on a dumpsite so that they can sell to a recycler and get a few coins for a meal to feed their babies, effectively ensuring the bottles don’t end up in the rivers and the oceans. Yet, they have not been mentioned in the whole document. It is scandalous.

Why not set up a Waste Pickers Fund and require a percentage of the fees paid by producers to the PROs to be donated to this fund to improve waste pickers welfare?

Poor women working at a dumpsite in Kenya with their children. These poor women work under very difficult circumstances earning very little, in a form of modern-day corporate slavery. In Eldoret, for example, a kilo of PET fetches 3 Kenya Shillings while a subsidy partner for industry gets 22 Kenya shillings. © Clean Up Kenya

The proposed law uses the term free-rider as an entity that does not pay fees to a PRO yet benefits from the work of that PRO. I will tell you who a true free-rider is. It’s an entity that helps establish a PRO they can control so as to escape taking full responsibility for their packaging and taking advantage of the toil of vulnerable persons to claim responsibility for recovery from the environment of the plastics they created. Coca-Cola is such an entity.   

Understanding existing business models adopted by the industry is key to understanding why the proposed Kenya Extended Producer Responsibility law is bound to fail.

In 2018, the Ministry of Environment and Forestry entered into a Framework of Cooperation with the Kenya Association of Manufacturers to establish a voluntary EPR scheme. That’s how PETCO Kenya was born. This entity, which is housed under the headquarters of Coca-Cola in Nairobi, uses a model of providing subsidies to help increase the collection of PETs from the Kenyan environment. The thinking behind subsidies is that recovery would increase if the waste materials gain a ‘manufactured value’, thus giving a direct incentive to collectors, to do more collections.

Unfortunately, these subsidies go to the Indian cartel and a few greenwashing entities who sell the sad narrative of ‘people empowerment’ but have failed to end plastic pollution. The cartel takes the money and gives a token payment to the waste collectors. What this means is that the cartel has created a fake initiative with the help of government institutions to benefit themselves financially and not really help the environmental work nor the people whose toil keeps the environment clean. That is why plastic pollution is everywhere.

No wonder a senior Indian manager of a leading corporation accused me of threatening industry in 2019 when I raised these issues in the Framework of Cooperation group that I had been invited to. The same gentleman advised me to ask children who come to our sanitation clinics to pick plastics on the streets on their way home from school so they can make money when I went to the Kenya Association of Manufacturers to discuss plastic pollution.

What can we do then?

The failed 2018 Framework of Cooperation experiment between the Ministry of Environment and Forestry, National Environment and Management Authority, and the Kenya Association of Manufacturers is now at the cusp of being regularized through a defective law. That is why it is important for all persons and organizations of goodwill working to reduce pollution in Kenya to act now – even the ones who don’t agree with our methods!

First, as a matter of urgency, quickly familiarize yourself with the process and the law, secondly write to your Member of Parliament directly and let them know of the flaws in this law, then lastly, if you are an organization, kindly get in touch with us for a Joint Memo to Parliament. We plan to write to each Member of Parliament, Speaker, Senator, and Governor individually and when the time is right, which is subject to the parliamentary calendar and standing orders, we will seek to make submissions to highlight the flaws in the proposed law.

It is of crucial importance to make sure that the Kenya Extended Producer Responsibility legislation is robust from the start and that we need the industry to be held accountable and have a transparent system. That will not happen with this law as presently proposed.

IMPORTANT NOTE: The use of the term ‘Indian Industry’ is not meant to put the community in bad light but simply to highlight the problem in the recycling industry in Kenya. Sincere apologies to anyone who may be hurt by the use of this term.

Summary Points

  • Mandatory Deposit Return Schemes and takebacks should be made the primary basis for producer responsibility
  • The law should guard against EPR monopolies
  • The law should protect Vulnerable Groups such as waste pickers from exploitation by producers and PROs
  • This means appropriate clauses have to be inserted into the law to empasize mandatory DRS, guard against monopolies and protect Vulnerable Groups
  • Lastly, the products which have now been categorized in the First Schedule should be entirely removed from the law with National Environment Management Authority or the Cabinet Secretary given the authority to from time to time publish them in a Gazette Notice based on independent research showing the products that are subject to mandatory deposit schemes and those that are not. The First Schedule should then be published six months after passing of the law to give the Authority time to put structures in place for implementation.

ABOUT THE AUTHOR

Betterman-Simidi-Musasia---Clean-Up-Kenya

Betterman Simidi Musasia

Founder & Patron, Clean Up Kenya

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.