The law establishes a legal and institutional framework for the sustainable management of waste to ensure realization of the right to a clean and health environment.
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· This Act was assented into law on 7 July 2022.
Quick Link: http://www.kenyalaw.org:8181/exist/kenyalex/actview.xql?actid=CAP.%20387C
· The Act sets out rights and responsibilities for residents and property owners with respect to solid waste management and is therefore relevant to developers, homeowners and landlords.
· The law establishes a Waste Management Council (WMC) under section 6 which will be supported by a management secretariat.
· Section 8 provides that NEMA shall develop standards and guidelines on sustainable waste management and enforce waste management legislation in consultation with county governments, among others.
· Section 9 provides that county governments shall be responsible for implementing the devolved function of waste management and ensuring county legislation is in conformity with the Act within one year of coming into operation of the Act. This is an area where county governments will need support in developing their legislation to align with the Act. Other functions of county governments are: to provide central collection centres for materials that can be recycled; establish waste management infrastructure to promote source segregation, collection, reuse and set up for materials recovery; and maintain data on waste management activities and share the information with NEMA.
· Section 13 imposes the extended producer responsibility by providing that an entity engaged in the production or importation of products and packaging shall bear extended producer responsibility over the products or packaging for the purpose of reducing environmental impacts of the products or packaging. This responsibility includes/entails the design of environmentally friendly products and recyclable products, physical collection and management of waste, and financial contributions to a collective scheme.
· This law which imposes additional waste management responsibilities on developers or management companies may have an impact on housing since the costs of segregating waste and related statutory duties will be passed on to homeowners in the form of service charges.
· It is proposed that segregation should be simplified into ‘organic’ which can be collected in green bags, and ‘dry / non-organic’ which can be collected in black bags. This can be standardized across the country and easily scale up efficient waste collection. The only other waste can be medical/hazardous waste, which can be standardised into red bags.
· Overall, there is also a need for more aggressive timelines within the Bill within which various institutions are to be set up or regulations/guidelines formulated, especially considering the urgency of the issue. Recycling Facilities are currently at full capacity which means that more players will begin to participate in recycling once this Bill takes effect. For instance, the period of setting up the Waste Management Council can be reduced from the current one year to around 3 or 6 months; the timeline for preparing model guidelines for counties should be within 3 months with counties required to adopt the guidelines within 1 year.
· There is also need to harmonize timelines within the Bill. Clause 10 of the Bill gives the Cabinet Secretary two years to develop regulations and policies for operationalization of the Act whereas other entities such as NEMA are required to develop their action plans within a year under clause 8(2)); and Clause 11 gives county governments two years after coming into force of the Act to develop county legislation-this needs to be reduced to one year; relatedly clause 17(a) provides that each county government shall enact a county sustainable waste management legislation within a year.
· The provision imposing a duty on private entities of setting up a waste management plan and annual monitoring plan may be unduly burdensome and unnecessarily increase compliance costs thereby disincentivizing investment. In addition, the same may be superfluous and not make economic sense especially for small entities which do not have much waste footprint. Accordingly, there is need to have a threshold of say organizations/entities with more than a maximum defined people daily (suggested more than 1, 000 people only to have to adhere to this obligation).
