MALAWI THIN PLASTICS BAN SAGA
Plastics manufacturing companies gang up to frustrate Malawi Government efforts to stop production, distribution, sale and use of thin plastics of less than 60 micrometres.
Menace: Single-use thin plastics captured recently near buildings in Neno district. Photo by Climate Africa Digest.
Lilongwe (MALAWI) - At a time when globally nations are working tirelessly to beat plastic pollution, plastics manufacturing companies in Malawi are working tooth and nail to prevent government and its agencies from enforcing regulations to stop production, importation, distribution, sale and use of plastics of less than 60 microns in thickness, commonly known as thin plastics.
From as far as 2015, immediately after Malawi Government gazzetted plastics regulations, plastics manufacturing companies have been rushing to courts obtaining one stay order after another prohibiting government through the Ministry of Natural Resources and Climate Change and the Malawi Environment Protection Authority (MEPA) from enforcing thin plastics regulations challenging the legality of the regulations which were developed in response to the environmental and health problems associated with plastics.
When the Malawi Supreme Court of Appeal in June this year vacated a stay order that was seen as the last hurdle to the back and forth court orders that have been preventing implementation of the thin plastics ban for several years and the subsquent dismissal of a judicial review challenging the legality of the thin plastics regulations, a relatively new set of 11 plastics producing companies ganged up to obtain a fresh High Court stay order just as government agencies were about to start enforcing the thin plastics ban.
The whole saga started in 2015 when plastics manufacturers under the banner of Plastics Manufacturers Association obtained a stay order from the High Court in Blantyre restraining implementation of the ban which was later lifted with the subsquent dismissal for judicial review of legality of the thin plastics regulations. Since then, everytime government agencies have wanted to resume enforcement of the plastics regulations, the plastics companies have obtained court stay orders to either suspend implementation of a court determination pending an appeal or otherwise.
Between 2015 and May 2021, government was restrained from implementing the regulations since there was an injunction in place prohibiting it from taking enforcement action. The plastic manufacturers took advantage of the situation to continue producing thin plastics knowing that there would be no legal consequences but in May 2021 the High Court (Commercial Division) in the capital Lilongwe vacated the stay order prohibiting enforcement of the thin plastics regulations and dismissed the application for judicial review challenging the legality of the plastics regulations. The court’s determination propelled MEPA to start enforcing the ban of thin plastic bags and at the same time encouraging the public to use environmentally friendly alternative packaging material such as paper bags and re-usable bags. Government proceeded with inspections, enforcement actions as part of the implementation of the Plastics Regulations.
However, this was short-lived because in July 2021, Golden Plastics Limited obtained another stay order at the Malawi Supreme Court of Appeal, preventing the enforcement of the High Court judgement until an appeal of that judgement was heard and concluded at the Supreme Court. The Ministry of Justice through the country’s Attorney General Chambers applied to have the stay order vacated and hearing of the application to vacate the stay order was scheduled on July 15, 2021, but later adjourned several times due to the unavailability of a judge. Once again, government was unable to implement the Regulations from July 2021 to June 2024. All the years that this matter has been in various Courts, the environment has suffered from the effects of plastic waste pollution since the country continued to import, manufacture, trade, and commercially distribute thin plastics due to the inability of MEPA to implement the regulations including taking enforcement actions. .
The delay to settle the case unsettled environmental campaigners and several civil society groups like Coordination Union for the Rehabilitation of the Environment (CURE) and Centre for Environmental Policy and Advocacy (CEPA) who during activities to mark the 2023 World Environment Day commemoration organized a solidarity walk in the commercial of Blantyre asking the Judiciary to expedite the case. They lamented that the delay was favouring the plastic companies whose focus was making money at the expense of a clean and healthy environment. On the other hand, the Ministry of Justice was pushing for vacation of the stay order.
Fast forward, it therefore came as relief when on June 20 this year, the Malawi Supreme Court of Appeal dismissed with costs a thin plastics case where companies in the plastic making business were pursuing an appeal. The dismissal followed a notice of withdrawal filed by lawyers for the appellants, led by Counsel Frank Mbeta, representing Golden Plastics Limited.
But just as the ministry through MEPA was about to resume the enforcement on July 9, the 11 plastic producing companies obtained a High Court stay order to stop implementing a ban on thin plastics to the dismay of the ministry, the attorney general, environmental enthusiasts and several other stakeholders.
These 11 companies, are new parties altogether and not the ones led by Golden Plastics Limited that withdrew their case in Blantyre from a full Malawi Supreme Court of Appeal and they were granted a permission ex-parte to apply for judicial review.
The companies, through Counsel have also asked the High Court of Malawi in Lilongwe to refer the matter to the Chief Justice for certification as a constitutional matter where they want to challenge the constitutionality of the Environment, Management (Plastics) Regulations of 2015.
The new stay order has led to putting on hold the implementation of the thin plastics unless this new court injunction is fought and vacated.
Regretting the development, Attorney General Thabo Chakaka Nyirenda, described the new twist to the case as an abuse of the court process and a tactic by the plastic producing companies to delay implementation of the ban on thin plastics.
“All the 11 companies that have obtained this fresh injunction are new; they were not parties to the withdrawn case. If these companies indeed have sufficient interest in the case, what made them not to join the initial case that has been in courts for years? This is clear abuse of court process,” the Ministry of Justice Facebook page quoted the Attorney General as saying.
The Attorney General went on to say that for a matter that ended up before the full bench of the Malawi Supreme Court where the appellants voluntarily withdrew their appeal, he expected at least inter-partes application in which the ministry responsible and his office could have been heard before the granting of the fresh injunction.
Meanwhile, the Attorney Genral’s office is working on having the stay order vacated and two former attorney generals have offered to work for free with the current attorney general in challenging the matter in court. On the other hand, the Malawi Council of Churces and several non state actors are also advocating thin plastics ban. What is clear is that as the attorney general’s chamber is working challenging the stay order, the companies continue maximising profits from the trade which has left the country littered with thin plastics.
During a media briefing that was held immediately after the supreme court had dismissed the appeal, that was before the fresh stay order, the Secretary for Natural Resources and Climate Change, Dr. Yusuf Mkungula emphasized on the use of altanative carrier bags, saying plastics take a long period of time to degrade which can exceed 100 years.
“They are difficult to dispose of and the most common method of disposal is burning which releases toxic fumes into the air and has the potential to cause human health and environmental problems. Plastics have also contributed to the death of fish, livestock and other animals when consumed,” he said.
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