The current global challenges posed by unsustainable consumption and waste generation underscore the pressing need for a transition toward a circular economy. This model prioritizes the reuse and regeneration of materials over the traditional linear model where natural resources are taken, transformed into products, and disposed of after use.

In response, Kenya has taken a notable stride by enacting the Sustainable Waste Management Act (Act), a robust piece of legislation that aims to redefine waste management practices.

The Act is rooted in the constitution's provisions that safeguard citizens' right to a clean environment, thereby creating a potent foundation for the Act's objectives.

The Act mandates county governments to introduce their sustainable waste management legislation by July 2024. Some counties have embraced the challenge, but others are yet to comply, leading to suboptimal implementation of the law. Hopefully, there will be increased compliance as the deadline approaches.

Under the Act, county governments are tasked with establishing essential waste management infrastructure. This includes central waste collection centers, recovery and recycling facilities, as well as sanitary landfills. The waste recovery facilities are aimed at ensuring that recoverable waste can be retained and recovered for reuse, while sanitary landfills shall be used in the disposal of non-recyclable waste. Presently, waste management in counties primarily relies on open dumpsites, with only a fraction of waste being collected by private entities or informal groups engaged in waste recovery.

The Act places significant emphasis on waste segregation, deeming it a shared responsibility for both public and private entities. It envisages the segregation of non-hazardous waste into organic and non-organic fractions, requiring proper labelling and color-coded receptacles. This endeavor demands substantial investments in infrastructure and comprehensive public awareness campaigns.  The Act seems to take cognisance that this shall require a multi-stakeholder approach.  It particularly encourages partnerships with the private sector through PPPs and other interventions in recognition that the private sector may be better placed to mobilise the funding, technology, and innovation required. As a result, we are witnessing extensive innovation in the processing of waste into valuable products such as fertilizer, animal feed, briquettes, and synthetic fuels, among others.

Of particular note, is that the Act embraces Extended Producer Responsibility (EPR), a critical concept in a circular economy. EPR mandates manufacturers and producers to assume accountability for their products throughout their lifecycle, including post-disposal stages. By doing so, the Act encourages sustainable product design, waste reduction, recycling, and addresses resource depletion.

The Act is not without some shortcomings.  Despite its prescriptive provisions, its effective implementation and enforcement could potentially pose a challenge. For example, the Act designates the National Environment Management Authority (NEMA) to enforce its provisions in consultation with county governments. A question arises as to whether NEMA possesses the requisite institutional capacity to monitor compliance, on issues such as segregation at source and the use of designated containers across all forty-seven counties. This will need to be critically looked at as county governments work on aligning their local legislation with the Act, so as to ensure that we have a full-proof legal framework. 

Another issue is that the Act introduces stringent penalties for private entities failing to adhere to proper waste management practices, but fails to do the same for public entities. It, instead, places the liability on the officer in charge of a public entity. The absence of prescribed penalties for public entities creates an area for potential improvement within the legal framework.

All in all, the Act has set a solid legal foundation for sustainable waste management. Its overarching objectives, if achieved, can lay the groundwork for a more resilient and environmentally conscious economy.

The article was featured in the Business Daily on 29 August 2023 and can be accessed here.