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Analysing ban on plastics through Statutory Instrument No. 65 of 2018

SISHEKANU

Analysis: MAKWETI SISHEKANU
THE government of the republic of Zambia, through the Ministry of Water Development, Sanitation and Environmental Protection recently issued Statutory Instrument (SI) No. 65 of 2018 to be enforced by the Zambia Environmental Management Agency (ZEMA) in the spirit of section 58 of the Environmental Management Act of 2011. Essentially, the SI seeks to enforce the principle of extended producer responsibility (ERP) by restricting, among other things, plastics below 30 microns in thickness. Regarding this development, many Zambians have asked and are asking two predominant questions: Firstly, why not simply ban all plastics in the country; and secondly, is this the best way to regulate the plastic problem?
This article is set out to answer the two questions. In doing so, the author does not seek to represent the perspective of ZEMA, nor does he place himself in any position to speak for, and/or, on behalf of ZEMA. Rather, the author takes a purely personal, neutral, objective and analytical view of the whole development from an environmental law and regulatory ethos.
Why not ban all plastics in the country? It is not as easy as it sounds, especially from a regulatory position. Firstly, the production and distribution of plastic material is a lawful activity recognised and registered under the relevant jurisdictions of corporate and business law. To this effect, we are also reminded that it is not the manufacturer of the plastic who disposes of and/or dumps it on the heaps of garbage we see around the cities. Rather, it is the end users of the plastic material who hold the power to decide when to turn a once new and usable plastic material into garbage by the way the material is disposed of.
Therefore, to promulgate a complete ban on plastics is tantamount to excessive exercise of Command-and-Control regulation which would itself be based on a contestable assumption that all plastic material being produced is inherently a pollutant. But environmental reality demonstrates otherwise – that while all pollution is a result of waste material, not all waste materials cause pollution. It is this very reality that gives birth to the concepts of recovery, recycling and re-use. In essence, a complete ban on all plastic material will eliminate huge opportunities for recovery, recycling and re-use of plastic. These are all viable industries which should emerge to replace the banned thin plastic.
Further, a complete ban on plastic would be representing a wrong assumption that end users of the material are merely passive actors who have no role to play in the plastic value chain. Yet the truth is daunting; it is the end users of the material that turn it into a pollutant by virtue of how they dispose of it – not the manufacturer. This boils down to the underpinning philosophy of environmental law and regulation, i.e. to influence human behaviour within both the built and the natural environments.
On the other hand, the plastic problem, like many other environmental issues, is a complex multifaceted social dilemma. It has social, cultural, political, economic and technological faces to it. Which of these dimensions would provide the best entry point to solve the problem while focusing on its root causes? To impose a complete ban on all plastics would be a wrong statement purporting that economics is the sole culprit in this complexity, and that politics, sociocultural and technological facets of the problem are insignificant factors. Therefore, if there is anything that ZEMA should be applauded for, it is the establishment of an entry point into solving such a complex problem. To find the most appropriate entry point into such complex phenomena requires thorough and carefully sketched stakeholder engagement. This should explain why it has taken so long to finally enforce the EPR regulations.
As such, is this the best method of solving the plastic problem? It is a right question that unfortunately comes too early. All environmental issues evolve as trends, and so their management should be expected to follow trends. The SI simply triggers a new trend that must be watched carefully if this question has to be answered correctly in the end. The trend will be triggered by the fact that manufacturers of the banned plastic will respond in seeking to extend their producer responsibility; the distributors like chain stores and street vendors, and the end users in homes will respond to market forces which the ban will trigger. Ultimately, socio-economics, political environments, culture and technology will have a huge influence on this trend. ZEMA’s biggest regulatory task henceforth is to monitor and evaluate the trend which the S.I triggers.
The trend will take two possible trajectories. First, it may lead us to the intended goal of sustainability in tandem with the spirit of the law and the expectations of society in general. For instance, the trend may lead to the resurgence of the basket and weaving industries as well as an upsurge of recycling facilities. Government may want to support this trend by subsidising all recycling equipment coming into the country or provide them with tax exemptions. At this stage we would look at the circulation of plastic as solid waste material to state whether this was the best way to regulate the problem or not.
Secondly, depending on how the players and market forces respond within the plastic value chain, the trend may lead to a pervasive effect where the ban causes an unintended problem instead of solving what it was intended for. This is called the Catch-22 syndrome; digging a pit to bury another pit. An example of such effect would be to resort to the use of unrecycled paper carrier bags requiring more trees to be felled for making the bags. Should the trend take us in that direction, the SI would have created a huge incentive for deforestation while the manufacturing of paper bags becomes an added driver of deforestation in the country.
Environmental regulatory systems in the world fail on this part. They become blind to the trends which their own regulations trigger within the broader society. Therefore, determination of the success and/or failure of the SI No. 65 of 2018 largely depends on the effectiveness of the monitoring and evaluation system to assess the trends which the instrument triggers henceforth. Only then could we be accurate to state whether or not the SI was the best method of regulating the problem.
The author is an environmental law and regulation expert maksishe@gmail.com.

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