Institutions: legal, rules and regulations

In 1999, the Environmental Management and Co-ordination Act was passed as a framework for environmental law, under which further subsidiary laws were passed to manage the environment and the solid waste (Haregu et al., 2017; Republic of Kenya, 2012 [1999]). In the following years, solutions to the waste management issue kept being put on the table and it kept failing. The Constitution of Kenya from 2010 declares that every citizen has the right to a protected and clean environment, sustainably managed to ensure that the future use is not compromised by the present use (Constitution of Kenya, 2010). The constitutional statements regarding the environment were followed by The National Environment Policy (2013a), stating

that the government would create an SWM strategy, encourage using economic incentives for SWM, and promote the establishment of proper SWM facilities. The National Solid Waste Management Strategy (NEMA, 2015) did indeed follow up on the National Environment Policy, and there the government further states that they will develop solutions to manage solid waste in the country and create a shared action platform for all stakeholders involved in solid waste management in Kenya. The main goal of the strategy is for Kenya to follow the Zero Waste Principle, in which no resource goes wasted, but rather is put back into the economy, creating more employment opportunities, wealth generation and simultaneously have a positive impact on the environment (NEMA, 2015). Additionally, the strategy aims to create a list of minimum requirements when it comes to waste management, such as ensuring that waste is collected, transported to a designated site using designated vehicles, and having the site regulated and the waste weighed at its arrival.

These requirements were followed first by the Nairobi City County Solid Waste Management Act (2015) (NCCSWMA) and then the Sustainable Waste Management Bill (2019) (SWMB).

The NCCSWMA stipulates, among other things, the responsibility for collection, transportation, treatment and disposal of waste. The goal of the Act was to create a legal framework to aid in achieving the Integrated Solid Waste Management Plan for the City of Nairobi, Kenya 2010-2020. The Sustainable Waste Management Bill enacted in 2019 is the most recent addition to the legal framework on solid waste management in Kenya. Its goal is to create a legal framework for sustainable waste management in a green economy, protecting the constitutional right “to a clean and healthy environment” (Constitution of Kenya, 2010, § 42). The Act defines the division of responsibility regarding waste management, stipulates the measures and actions needed to achieve a clean and healthy environment free of mismanaged waste, specifies which duties each entity are in charge of to ensure sustainable solid waste management, as well as identifies the role of the public, access to information, financial sources for SWM, and finally how the processes and legal requirements will be monitored. The two acts clearly state that the responsibility of solid waste management lies with the County Governments, both regarding delivering collection centers, infrastructure that allows for proper segregation, collection, and recovery, collecting data on waste, and be in charge of the budgeting of SWM in the respective counties (Government of the Republic of Kenya, 2019;

Republic of Kenya, 2015). In the NCCSWMA, the responsibility of private individuals is also stipulated, from the responsibility of the person to segregate waste at home, to their responsibility to have it collected by a county approved SWM company. The NCCSWMA also

describes the different offenses related to SWM, such as not segregating waste at home not using the appropriate color-coded bin liners, using an SWM collector not approved by the country government, or disposing of waste anywhere but in a designated waste container, among other things (Republic of Kenya, 2015). These two acts play key roles in the Kenyan legal framework regarding SWM, as waste management receives its own acts focusing on creating the basis for developing a well-functioning waste management system.

Between these two acts, the perhaps most heavily enforced legal regulation came: the plastic bag ban. It prohibits the use of plastic bags such as shopping bags, smaller flimsy bags used for fruit and vegetables, small plastic bags for food storage like bread, and large bags for bins and household waste (except the ones specifically produced for waste companies). The ban is an addendum under the Environmental Management and Co-ordination Act sections 3 and 86, prohibiting the “use, manufacture and importation of all plastic bags used for commercial and household packaging defined as follows: (a) Carrier bag – bag constructed with handles, and with or without gussets; (b) Flat bag – constructed without handles, and with or without gussets” (The Kenya Gazette, 2017). Bags for industrial use are exempt. The ban is heavily enforced, with controls at the airports for import of bags and in general it being impossible to purchase plastic bags anywhere. Breaking the law, for instance by importing bags, can lead to fines starting from four million Kenyan shillings (around USD36,600) or a minimum of one year in prison (NEMA, 2017).

The latest addition to the legal framework is the Environmental Management and Co-ordination (Extended Producer Responsibility) Regulations (2020), which are regulations under the Environmental Management and Co-ordination Act. These regulations aim to make it mandatory for all producers to create products and packaging that are sustainable throughout the entire life cycle of that product or packaging. By using a life cycle perspective, the products and packaging need to be environmentally sustainable from their start to finish. This means that the producers are also responsible for the end-of-life of the products and need to use materials that are possible to reuse or recycle, compostable or if not schemes for returning the products at the end of their lives have to be created. Additionally, waste at the production source has to be minimized, circular economy and environmental consciousness promoted, and environmental costs have to be added to the final price of the product. All actors that either produce or import products are involved in the regulations but are not necessarily the ones that will have to do the collection or recycling as this can be contracted out to waste management

companies or others with the relevant expertise. The importance of the Extended Producer Responsibility (EPR) regulations is that by giving the responsibility to the producers, it is possible to do more in terms of achieving the first step of the waste hierarchy, which is the upfront prevention of waste. Although all waste will not be prevented, by forcing producers to have an environmentally sustainable production process with reduced waste generation at the production source, some waste elements will have to be removed as they are not sustainable, cannot be reused or recycled, or are superfluous, which will contribute to reducing the amount of waste generated in total. Although the EPR cannot alone solve the waste management problems in Nairobi, such regulations are an important step in the right direction – if they are actually implemented and enforced.

Other legal documents that are important for waste management in Kenya are:

Environmental Management and Co-ordination (Waste Management) Regulations of 2006, (Republic of Kenya, 2006a) stating that anyone who generates waste is responsible for collecting it, segregating hazardous waste from other waste, and dispose of it in the proper facility. The Occupational Safety and Health Act (2007) is stating that in workplaces that produce chemicals, the employer is responsible for ensuring a proper collection, recycling, and disposal system. The County Governments Act (2012), where public services’ tariffs and pricing should promote recycling of waste, among other things. The Environmental Management and Co-ordination (Water Quality) Regulations (2006b) prohibiting dumping of any kind of toxic waste into water sources and to use any kind of wastewater for irrigation. The Environmental (Impact Assessment and Audit) Regulations (2003) requires project reports to be made for any kind of project that uses materials in their project. The reports should include a description of materials, by-products, waste, and waste treatment. Additionally, an environmental impact assessment report should be made on the effects of the project on the environment, and an audit and monitoring report on continuous effects on the environment, including waste generation.