ANALYSIS Lena Scheibinger 12 May 2021
Following some pioneering initiatives in the neighbouring East African Community,[i] the government of Malawi imposed a ban on thin plastic bags in March 2015.[ii] However, this progressive move of the Ministry of Natural Resources, Energy and Mining was overturned by the High Court after a number of plastic manufacturers had obtained an injunction that cited an infringement of business rights. After this meanwhile setback, in 2019 seven judges of the Supreme Court dismissed the appeal and thereby reinstated the original ban.[iii] Having in mind such manifestations of rising awareness and increasing acknowledgement of negative impacts of plastic items on human health and the natural environment one would expect that current legislative developments capture these recent concerns. However, specific regulations considering the issue of plastic pollution are absent from Malawi’s environmental legislation. The Environmental Management Act (2017),[iv] the country’s integrated and comprehensive framework for environmental management and resource conservation, does not mention plastic with a single word.
Even though the document does not implicate any direct reference to plastic, certain provisions in the act can be used when tackling the problem of plastic pollution. Of special relevance is Section 4 that guarantees every person “the right to a clean and healthy environment“ and formulates the corresponding “duty to safeguard and enhance the environment.” However, this provision has no constitutional status as the Constitution of Malawi (1994/2017) does not contain a justiciable environmental right. In Section 13 it solely provides for a list of principles and directives of national policy that shall contribute to the “welfare and development of the people of Malawi.” Among the goals that shall be achieved through respective policies and legislation the text indicates a responsible management of the environment that includes among others to “prevent the degradation of the environment“ and to “provide a healthy living and working environment for the people of Malawi“.
Despite the missing constitutional endorsement, the Environmental Management Act is an essential tool for the furtherance of the reduction of plastic items in Malawi. In Section 4(3) it establishes a general duty to report “all activities or phenomena that may affect the environment significantly“, whereas the pollution of lakes, rivers and forests through plastic waste could be subsumed under such a “deleterious or injurious“ act substantially threatening and damaging any segment of the country’s ecological system. Even though this provision does not outlaw the production and use of plastic items, it sets a decisive basis allowing courts to develop common law or case law dealing with the problem of plastic waste and the resulting severe harm on natural environment as well as animal and human welfare.
However, merely black letter law is not enough and there is need for the implementation and enforcement of the afforded rights and the created sanctioning mechanisms. For this purpose, the Environmental Protection Act establishes under Section 7 the Malawi Environment Protection Authority. According to the law, this autonomous board functions as the “principal agency for the protection and management of the environment and sustainable utilization of natural resources.“ The independent institution is equipped with a proactive oversight mandate and the expectation to ensure a coherent strategy in the field of environment policy. Following the general participative tenor of the document the Environmental Management Act obliges the authority under Section 9 to consult all relevant stakeholders – citizens as well as businesses – when coordinating and monitoring the use and management of the environment and natural resources. The authority itself is accountable to the Environmental Tribunal established under Section 107. This supervising organ consists of three members, whereby the chairperson must be a legal practitioner appointed by the Malawi Law Society. As provided in Section 115 the board has the same enforcement authority as High Court decisions. Thus, this institutional arrangement attributes the country’s lawyers a strong influence on the promotion of a healthy and clean environment free of plastic waste and micro-plastic.
The need for legal activism promoting the minimisation or avoidance of plastic waste is indispensable and overdue especially when one considers alarming prognosis mentioned in a comprehensive study by the Lilongwe Wildlife Trust: Already today, where plastic makes up about 10% of waste in Malawi, at least 28,000 tonnes of plastic waste enter the environment each year. With growing prosperity and consumerism, the use and wastage of plastic will rapidly continue. The concerning development is already indicated by the current finding, that the plastic component of waste increases from about 8% in low-income areas to 30% in more affluent areas.[v] In this context, Malawi’s Environmental Management Act is a strong tool to protect our planet and boost a sustainable lifestyle. However, a fundamental prerequisite for a successful implementation of legal arrangements counteracting increasing plastic pollution is the awareness and ownership of society. What must be primarily addressed within these measures is the standpoint of young people as they form the future generation that is mostly affected of the negative ramifications of current environmental pollution and climate change.
[i] For an overview of bans on plastic items in Rwanda, Kenya, Tanzania, Uganda, Burundi and South Sudan see Hagabimana, Gilbert, Omondi Robert Owino, Daniel Shayo and Ulrike Wanitzek (2019): Plastic, no thanks! Plastic bans in the states of the East African Community. In: Spectrum. The Science Magazine of the University of Bayreuth, Vol. 15 (2), pp. 22-27.
[ii] Environment Management (Plastics) Regulations (2015), Section 3: “The importation, manufacture, trade and commercial distribution of plastics, plastic bags and plastic sheets made of plastic film with a wall thickness of less than sixty micrometres is prohibited for use in Malawi.”
[iii] Pensulo, Charles (2019): Malawi wins battle against business to reinstate ban on plastic bags, online available at https://www.theguardian.com/global-development/2019/aug/02/malawi-reinstates-ban-thin-plastic-bags-campaigners-hail-fantastic-victory
[iv] For a discussion of the Act see Makanje, Gift Dorothy (2018): The Environmental Management Act (2017) and natural resource regulation in Malawi. Opportunities for and limitations to effective enforcement. In: Kameri-Mbote, Patricia, Alexander Paterson, Oliver C. Ruppel, Bibobra Bello Orubebe and Emmanuel D. Kam Yogo (eds.): Law. Environment. Africa, Baden-Baden: Nomos, pp. 393-410.
[v] Turpie, Jane, Gwyneth Letley, Yolanda Ng’oma and Kate Moore (2019): The case for banning single-use plastics in Malawi, online available at https://www.lilongwewildlife.org/wp-content/uploads/The-Case-for-Banning-Single-Use-Plastics-Report-in-Malawi.pdf, pp. 7f.