Thin plastic ban stands

The Malawi Supreme Court of Appeal yesterday upheld government’s ban on thin plastics, earning praise from environmental conservation activists.

The judgement by a seven-judge panel led by Chief Justice Andrew Nyirenda followed an appeal on a High Court ruling that put aside a June 2015 Malawi Government ban on production, distribution and importation of thin plastics of less than 60 microns.

The thin plastics were banned because they pose a threat to the environment due to their delayed rate of decomposition.

But in January 2016, Aero Plastics Industries Ltd, Rainbow Plastics and 12 other thin plastic manufacturing companies obtained an injunction against the implementation of the ban, arguing that it infringed on their business rights.

Further, they protested the closing down of their factories and imposition of fines on suspicion that they were manufacturing, distributing and or selling thin plastics.

Thus, the companies sought a judicial review of the ban, but the High Court on June 14 2018 upheld the ban.

However, High Court Judge Healey Potani suspended the ban on July 12 2018, pending an interpartes hearing which was later dismissed, prompting the companies to obtain a court injunction stopping government from implementing the ban.

The companies appealed the matter in the Supreme Court where Nyirenda and Justices of Appeal Anthony Kamanga, Anaclet Chipeta, Frank Kapanda, Edward Twea, Dunstan Mwaungulu and Rezine Mzikamanda yesterday dismissed the appeal.

Reacting to the ruling, Ministry of Natural Resources, Energy and Mines spokesperson Sangwani Phiri hailed the decision.

In an interview, he said companies that manufacture thin plastic should immediately stop doing so. He said the ministry will meet and map the way forward on the effectiveness of the ban.

Said Phiri: “We are very happy that the injunction has been lifted. This means that we can now fully implement the ban and in the process protect our environment.”

Environmental Affairs Department director Tawonga Mbale also welcomed the ruling, saying they were looking forward to a day when the country will start implementing the ban on thin plastics.

She said: “We have been looking forward to implementing the ban which will essentially reduce the waste that is coming from plastics and the nuisance and problems it is causing to the environment. We will now go full swing to implement the ban.”

In April this year, an independent South African research consultant Elaine Hake said strong political will is needed to halt the environmental degradation in Malawi due to thin and single-use plastics.

She shared some of the findings in a research she and other experts carried out on the use of thin and single-use plastic papers in the country.

The findings of the report generated a debate on the matter among environmental experts who noted that up to 75 000 metric tons of plastic papers are manufactured annually in Malawi. They said the plastic papers cause a number of woes, including toxic litter, flooding where waterways are blocked, especially in view of the fact that the litter is hardly recycled.

Said Hake: “Low rates of recycling means that enormous quantities of plastic are ending up in the environment, ultimately entering drainage systems and increasing the risk of flooding and pollution of water, rivers, lakes and fish.

“Without urgent attention, Lake Malawi is at risk of suffering crisis levels of pollution and environmental degradation.”

In an earlier interview, United Nations Development Programme (UNDP) resilience and sustainable growth manager Andrew Spezowka spelt out the need for the country to explore alternatives that may replace the use of thin plastic bags, bearing in mind the implication a ban may have on the economy of people working in manufacturing companies.

Based on the effectiveness of the ban, Malawi will join countries such as Rwanda and Tanzania which have managed to address plastic pollution through political will that saw the production, use, importation and sale of all polythene bags banned.

According to the UN report, Rwanda introduced a monthly community service day where citizens are involved in regular clean-ups, resulting in being the cleanest country in Africa.

On the regulatory framework, Rwanda drafted a law in January this year seeking to extend its ban to all single-use plastics.

The assessment was commissioned by the Malawi Government with support from UNDP and Lilongwe Wildlife Trust.

Thin plastics court battle timeline

2015:  The Government of Malawi, through the Department of Environmental Affairs, effected a national ban on thin plastics of less than 60 microns (known as the ‘Environment Management (Plastics) Regulations of 2015’).

2016: The Plastics Manufacturers Association applied to the High Court for a stay order restraining government from implementing the ban. The order was granted and the government stopped implementing the ban.

The Plastics Manufacturers Association also requested a judicial review of the two decisions made by Government.

The first decision was that of closing down the applicants’ factories and imposing fines on them and their distributors/customers for manufacturing/selling thin plastics of less than 60 microns in contravention to the Environment Management (Plastics) Regulations of 2015 without affording them a right to be heard.

The second was the decision by government to adopt, implement and enforce the Plastics Regulations without due regard to relevant factors such as hardships that Plastic Manufacturers would suffer. 2018: Government was successful in having the judicial review proceedings dismissed and in June 2018 the High Court allowed it to resume implementation of the ban.