Environmental Regulations (Plastics) 2015: Mere scarecrow?

By Titani Chalira*

My experience of cattle dying after ingesting plastic bags remains vivid after two decades. There was a strong sense of attachment to the cattle. This was because I had herded the cattle belonging to my grandfather for far too long too. The cattle that my grandfather lost those years were a result of waste in form of plastic bags, improperly disposed. The economic loss he suffered had more negative ripple effects unlike my feelings.

The issue of plastic bags and waste management is a serious one to our country. Waste management has seen its worst days over the two decades. It can be argued that the leadership we have lacks the clout and political will to deal with this problem.

On Chrism Mass in 2013, Pope Francis said a true shepherd must have the smell of his sheep. This meant living the experience of those being led. The leaders that have been there have failed to live the spirit of Pope Francis’s words.

They seem so far removed from the lived realities of their subjects. It can be argued that much has not been done with regard to waste management in the country. The attempts to tackle the problems in this area have been half-hearted.

The UNDP statement entitled “Beating Plastic Pollution” does acknowledge the global crisis of plastic pollution that affects Malawi as well. The statement asserts that Malawi produces an estimated 75,000 tonnes of non-recycled plastics and 80% of it being single use plastic.

The statement further, states that, “the social, environmental and economic costs of plastic pollution are vast, resulting in damage to soil, water and food production, increased risk of floods, costs to human health and losses in tourism revenue” (UNDP, 2019:1). This statement indicates that plastic pollution, as part of waste management, is a weighty issue with many costly implications.

Jane Turpie and others in their paper “The Case of Plastic banning in Malawi” take note of the rising concern of plastic use on the world ecosystems and more especially developing countries.

They argue that “Malawi is experiencing a rise in the population and waste generation consequently. Malawi has weak systems in waste collection and the resources to put up a better system are not available” (Jane Turpier, 2019: 8). As a developing country with a booming population and experiencing an increase in waste generation, Malawi needs a strong system to deal with waste.

Plastics are not the main solid waste, generated in Malawi but they still constitute the rising worrisome waste per capita that beats most of Sub-Saharan Africa. Jane Turpier and others further assert that “Malawi’s cities produce 1,000 tonnes of worst per day and affluence correlates with more waste generation, the plastic component of waste ranges from 8% in low-income areas to 30% in more affluent areas” (Jane Turpier, 2019: 9).

It is stated that over 280 000 of solid waste is left uncollected in urban areas and 10% of it being plastic waste, at least 28,000 tonnes of plastic waste enters the environment each year. The negative effects of the plastic waste that enters the environment are many.

“The usage of products and packaging has health related implications once ingestion or inhalation of micro plastic particles or hundreds of toxic substances happen” (Jane Turpier, 2019: 11). There could also be direct and indirect health risks for workers and nearby communities. This would arise from the toxic substances released into the air, soil and water after incineration as a form of managing plastic waste.

It is against the aforesaid background that the Government made regulations to contribute in tackling the challenge of solid waste specifically plastics. The Environmental Regulations (Plastics) 2015 were put in place. However, they are one luke-warm solution that emanates from section 37 of the Environmental Management Act 1996 which has been repealed, but section 56 of the Environmental Management Act 2017 provides for the same. This provision mandates the minister to couch regulations to do with waste management.

In 2015 Atupele Muluzi, the then Minister of Natural Resources Energy and Mining, promulgated the regulations on the ban of plastics that have a thickness of less than 60 micro metres. In these regulations one notices a timid approach that fails to deal with the issues of plastic bags decisively. This path that lacks boldness is also shared by the Judiciary. Thus, it fails to

take up the issue decisively. It only rubber stamps the thinking in the regulations.

The regulations give forth exemptions with broad parameters. The minister has more discretionary powers of determining what plastics are to be banned. He is also given unreasonable freedom in the making of arrangements for phased implementation of the prohibition in regulation 3 with the concerned stakeholders. The penalty is not stiff enough with a petty imprisonment period of three months.

In the Environmental Regulations Act 2015 on the ban of plastics less than 60 micrometres, regulation 4 exempts plastics used for primary packaging and other single use plastics. This regulation gives leeway to the banned plastics in regulation 3 (those with less than 60 micrometres) to sneak through the back door on the pretext of being used for purposes in the exemption regulation.

It is argued that, with considerable rising consumerism, quelling the problem of plastic waste while it is relatively modest is better than later, when the consequences will be overwhelming. The exemption to the ban is rather a weak approach as compared to a full ban on single use plastics.

The argument of alternative solutions being costly on the economy and job losses as argued by the manufacturers of plastics in the High Court case of the Aero Plastics Limited v State and the Director of Environmental Affairs is not enough to stop a full ban.

The regulation could have been better if it was a full ban to nip in the bud the growing problem of plastic pollution. Rwanda effected full ban. It has resource constraints like Malawi and experienced the economic challenges that made us opt for a partial ban but it went on with a full ban. Rwanda was named the cleanest city in Africa by UN Habitat and this full plastic ban contributed.

The minister has more discretionary powers in regulation 3 (g) to determine any other plastic as designated for exemption or not. This provision is not good considering our political economy. Either the minister can, through political influence, exempt those plastics manufactured by fellow politicians or powerful business person with interests or the minister can with strong political will hit where necessary by extending the ban where it is needed.

The minister is also given powers in regulation 7 (1) of the Environmental Regulations (Plastics), 2015 to make arrangements of phased prohibition of the ban in regulation 3. This is an opening for abuse if the minister has an interest.

The possibility of prolonging the phases to continue benefitting from the status quo is a likely scenario. People engaged in the same business and having more political influence would do things akin to filibustering to buy more time. This would frustrate the efforts to beat plastic pollution making the regulations not effective anymore.

The offences that are committed contrary to the regulations lead to imprisonment in regulation 6 (1) for a term of 3 months. This term of imprisonment is not stiff enough considering that it is meant to deter would be offenders. The cost of imprisonment and continued operations of producing banned materials cannot be compared. Many manufactures would opt to serve the sentence than stop their activities.

The regulations are a positive stride for the country. The challenge is to refine them in the areas put forth herein. Other attendant interventions like awareness and recycling are crucial. Waste not properly managed is a public health issue apart from negative economic implications.

*Titani is a contributor to The Lamp magazine