President Uhuru Kenyatta signed into law the Sustainable Waste Management Act, 2021, on Thursday 07, July 2022. This Act, developed by the Ministry of Environment and Forestry, was passed into legislation with amendments by the Kenyan National Assembly on 23rd February 2022 and passed by the Senate on 16th June 2022 without amendments.
Here are thirty things you should know about the new law
- The Cabinet Secretary for the designated Ministry of the Environment is responsible for policy on sustainable waste management and will do this in consultation with the counties.
- For this reason, the Cabinet Secretary will make regulations in consultation with counties and National Environmental Management Authority (NEMA) to enable the provisions of the Sustainable Waste Management Act to be implemented. In some cases, the time-frame for the development of the regulations has been set to between six months to two years with others being left open-ended. This means the law will be fully operational after two years.
- Such regulations will for example cover categories of waste segregation, conversion of dumpsites into landfills, material recovery facilities, schedule for collection of segregated waste, management of e-waste, importation and exportation of garbage, a national color-coding system for waste, the design of waste transportation vehicles, take-back schemes, extended producer responsibility, sustainable waste management curriculum, among others. Many of these regulations are meant to ensure the orderly conduct of waste management in counties and to properly define policies, coordination, and oversight of waste management.
- The Cabinet Secretary will also be responsible for ensuring the Sustainable Waste Management Act does not contradict any international laws and conventions for which Kenya is a signatory.
- The Cabinet Secretary will develop a timetable in consultation with the county governments for the county governments to adopt the law and the guidelines as developed.
- The Sustainable Waste Management Act has created a Waste Management Council whose core mandate will be to develop a National Sustainable Waste Management Strategy and Action Plan. This Council will have a Chairman appointed by the President and a Vice-Chairperson appointed by the Council of Governors (CoG). The Council will also have representatives from the Kenya Private Sector Alliance (KEPSA), the Kenya Association of Manufacturers (KAM), the civil society, and another member representing no sector as a waste management expert. Three other members may be co-opted into the Council to offer specific expertise. The Director-General of NEMA will also be a member of this Council.
- The Cabinet Secretary will operationalise the Waste Management Council within one year of the Sustainable Waste Management Act coming into law.
- The first National Sustainable Waste Management Strategy and Action Plan is expected to be developed within two years and will be revised every five years.
- National Environmental Management Authority (NEMA) will have the mandate of developing standards and guidelines for sustainable waste management, enforcing waste management legislation, issuing licenses for waste management except for areas where counties have jurisdiction, conducting research, training, and creating awareness.
- Additionally, NEMA will be responsible for developing a national information system for waste management and acting as the national knowledge center on sustainable waste management, developing analytical reports and disseminating information to ministries, agencies, and counties, and supporting their work on the same. Consequently, counties are to ensure they collect data including keeping a register on waste service providers and sharing reports with NEMA.
- County governments are responsible for the implementation of the devolved function of waste management. Consequently, they will be required to ensure county waste management laws conform with the Sustainable Waste Management Act within two years. The Cabinet Secretary will publish model county laws and regulations from which each county can develop theirs.
- Additionally, counties are required to provide the necessary financial and operational conditions for the effective function of the law in counties. On operations, this includes ensuring all waste is managed within borders unless there is an inter-counties agreement, ensuring they establish waste infrastructure including establishing Material Recovery Facilities (where the waste will be subjected to sorting, segregation, composting, and recycling), and landfills for disposal of non-recoverable and residual waste. On finance, counties are to ensure they properly budget for waste management and integrate these into their planning activities.
- As soon as the applicable guidelines are published, it will be illegal for any person not to segregate waste at the household level. Fines for non-compliance are set at 20,000 Kenya Shillings or six months in jail or both.
- As soon as the applicable guidelines are published, it will be illegal for all public and private entities not to segregate non-hazardous waste into organic and non-organic waste in clearly color-coded and properly sealed bags, bins, receptacles, and containers. Fines for non-compliance are 20,000 Kenya Shillings or six months in jail or both.
- As soon as applicable guidelines are published, every household and all public and private entities will be required to transfer their segregated waste to licensed waste service providers for the purpose of legally transporting and disposing of the said waste to licensed facilities and likewise, it will be illegal to transport non-segregated waste. The fine for non-compliance is 50,000 Kenya Shillings or six months in jail or both for waste service providers.
- Public entities are now required to prepare Waste Management Plans and integrate these into their corporate strategy. A person in charge of a public entity will now be personally liable to pay a fine of 1,000,000 shillings or face a jail term of one year or both if the waste generated from the entity is disposed of contrary to the law. The officer from the entity that causes this illegal discharge of waste will pay a fine of 200,000 Kenya Shillings or face imprisonment for six months or both.
- Similarly, private entities as defined by NEMA through a gazette notice six months from when the Sustainable Waste Management Act became law, will now be required to submit a three-year Waste Management Plan and thereafter submit yearly reports. The reports will highlight the actual quantities of waste generated by the entity, waste management methods applied, and any other information that NEMA will require. The entities which fail to comply with this provision will pay a fine of not more than 200,000 Kenya shillings and the persons responsible to be liable for imprisonment for three months in addition to the fine.
- All hazardous waste will continue to be handled as prescribed by the Environment Management and Coordination Act of 1999
- Additionally, private entities that fail to segregate hazardous and non-hazardous waste will be liable to pay five percent of net income in the previous year or pay a fine of five million shillings, whichever is higher with the responsible officers paying a fine of two hundred thousand shillings each. The officers will continue to pay further fines, as high as 20,000 Kenya shillings on a daily basis if the entity continues to violate the law after a conviction has been reached.
- NEMA will issue restoration orders to persons who pollute any areas and the person will be required to clean up and restore the site to its natural state. Any restoration orders will have to comply with other existing laws such as the Environment Management and Coordination Act of 1999 or new regulations that may be developed with aggrieved parties being able to seek an appeal from the National Environmental Tribunal.
- A general penalty of not less than two million and not more than four million or imprisonment of four years or both has been set for any illegal actions not covered in the law.
- The National Environment Tribunal will address disputes from aggrieved parties which may be caused by the failure of NEMA to issue any license, imposition of limitation, condition, or restriction on a license, imposition of restoration orders, or any fees payable under the Act.
- Counties will now have to ensure that those working in waste management are observing certain health, safety, and environmental standards. This will affect waste service providers, their employees, and informal waste pickers.
- Once the applicable guidelines are developed, it will be illegal for producers not to belong to an Extended Producer Responsibility compliance scheme ensuring all producers take responsibility for their products’ life cycle.
- Any person who has any complaints related to the provisions of the Sustainable Waste Management Act will be required to lodge and submit evidence to the National Environment Complaints Committee
- Any person who hinders the National Environmental Management Authority from performing its functions under the Sustainable Waste Management Act, such as refusing to give or giving false or misleading information in the cause of a compliance inquiry will be committing an offense and will be required to pay a fine of one million shillings or face five years in jail or both.
- The Cabinet Secretary in consultation with the Cabinet Secretary responsible for finance will introduce incentives for locally produced and imported equipment and machines to expand private investments in material recovery and recycling.
- The Sustainable Waste Management Act recognizes the primacy of public participation and has a schedule that outlines the procedure for these engagements. The public consultations will affect several guidelines, plans, policies, and actions at the county and national levels and will be gazetted before these take place.
- While it is not clear what these would be, the Sustainable Waste Management Act requires counties to incentivize the collection and separation of waste in informal settlements and neighborhoods.
- Finally, all regulations of the Environment Management and Coordination Act of 1999 will remain in force until the corresponding regulations of the new law are published in the Kenya gazette.
NOTE: This article is not legal advice and any misreporting is not intended and such will be corrected as they are brought to our attention or in subsequent reviews.
ABOUT THE AUTHOR
Betterman Simidi Musasia
Founder, Patron and Spokesperson, Former CEO
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.