An alarming new series of reports in the international media claims that the US oil and petro-chemical lobby is putting considerable pressure on Kenya to roll back its environmental protections related to plastic waste. The report has led to strong reaction by the African Commission on Human and Peoples’ Rights. Kenya has played a leading anti-pollution role in Africa, for example with its 2017 ban on the manufacture, sale and distribution of plastic bags. Now the African Commission is urging Kenya’s President Uhuru Kenyatta not to give into pressure that seeks to link the US trade deal he desires with freer access to Kenya by US plastics manufacturers.
Read statement by African Commission on Human and Peoples’ Rights
For years Africa, and Kenya in particular, has played a central role for businesses involved in the manufacture of plastic. And while conservation activists have been urging that the world should move away from plastic, major oil companies want to make more plastic – and they need new markets for their products.
Last week the New York Times published a lengthy, in-depth article that exposes the threat posed to Kenya, and the rest of the continent, by the drive of these companies to find a dumping ground for plastic waste and an additional market for plastic products.
This was followed by a similar report in The Guardian, which said major oil companies were lobbying the US to pressure Kenya into changing its world-leading stance against plastic waste.
Both reports cite an expose by the Greenpeace publication, Unearthed, which says that a lobby group, ‘representing oil and chemical companies, including Shell, Exxon, total, DuPont and Dow, has been pushing the Trump administration during the pandemic to use a US-Kenya trade deal to expand the plastic and chemical industry across Africa.’
Unearthed adds that the American Chemistry Council (ACC) which includes Shell, Exxon and Total, wrote to the US Trade Representative and US International Trade Commission, saying, ‘Kenya could serve in the future as a hub for supplying US-made chemicals and plastics to other markets in Africa through this trade agreement’. The letters also urged lifting limits on the waste trade.
In response, the African Commission on Human and Peoples’ Rights has acted with unusual speed to issue a major statement, urging that Kenya’s environmental rights be protected.
Apparently referring to these news articles, the commission says it is concerned about reports ‘that a petrochemical industry group is lobbying to influence trade negotiations between [Kenya] and the United States of America, to allow the import of plastic waste into Kenya from the US.’
Authors of the NYT article said they had ‘reviewed’ documents showing that an industry group, representing ‘the world’s largest chemical makers and fossil fuel companies’, was lobbying to influence trade negotiations with Kenya, and to persuade Kenya to ‘reverse its strict limits on plastics – including a tough plastic-bag ban’.
Kenya has a strong environmental tribunal that has been responsible for a number of significant decisions, and three years ago the country passed a tough law against plastic bags. Kenya is also a signatory to an international agreement to stop importing plastic waste, an agreement said by the NYT to be strongly opposed by players in the chemical industry.
Last year alone US exporters sent millions of kilograms of plastic waste to nearly 100 countries, including Kenya. While the alleged intention was for the waste to be recycled, much of it is too difficult to re-work and ends up choking rivers and waterways.
Part of the new aggressive approach to dumping waste in Africa can be traced back to China’s 2018 closure of its ports to most plastic rubbish. Since then exports of waste have ‘more than quadrupled’.
Immediately the story broke, the African Commission swung into action. Together with its working group on extractive industries, environment and human rights, and the commissioner responsible for the promotion and protection of human and peoples’ right in Kenya, the commission expressed concern about the situation. It was particularly worried about reports that ‘a petrochemical industry group’ was lobbying to influence trade negotiations between Kenya and the USA, so that the trade deal would be tied to permitting the importation of plastic waste into Kenya from the US.
The commission applauded the strong action taken by Kenya in 2019 when it pledged to limit the importation of foreign plastic waste in line with its responsibilities as a signatory to the Basel Convention on controlling hazardous waste across national boundaries. It also praised Kenya for its strong national legislation outlawing the manufacture, sale and distribution of plastic carrier bags since 2017, a move that has made Kenya a continental leader.
In the view of the commission these restrictions were needed to safeguard the environment as well as to mitigate the health and livelihood hazards that result from plastic waste. Efforts by plastics and chemical manufacturing companies to use Africa as the dumping ground for plastic waste should not succeed, it said.
‘The Commission expresses its grave concern about the consequences of allowing our countries to be used for dumping plastic waste, including the impact on the health and wellbeing of people and the environment, as water bodies and land are spoiled with plastics and plastic waste.’
States that are party to the African Charter were required to ensure that the rights guaranteed by the charter were not ‘interfered with by any third party’, said the commission.
Kenya’s president, Uhuru Kenyatta, who is hoping for a trade deal with the US, is being subjected to considerable pressure, as part of that deal, to permit importation of plastic waste and the easing of the plastic bag ban. However, the commission stresses that states ‘have an obligation to protect their citizens from damaging acts that may be perpetrated by third parties and to take reasonable decisions and other measures to prevent pollution and ecological degradation.’
It reminded Kenya that, as a signatory to the African Charter, it was obliged to restrict the use of materials that damage the environment and to stop foreign economic exploitation including environmentally damaging terms that might be included in trade and other agreements.
Not rolled back
It also urged Kenya to ensure that in its negotiations with other states, the best interests of the people of Kenya were served and that existing environmental protections were not rolled back.
The commission also appeals to Kenya’s civil society organisations to ‘support and urge’ the state to uphold ‘national and international human rights and environmental obligations’ in all trade dealings with third countries.
Responding to this aspect of the commission’s appeal will be quite a challenge for Kenyans, however, given the lack of freedom for rights activism in that country: the President is not amenable to the input of rights lobbyists, just keeping up with recording the number of extra-judicial police killings is a major task for civil society, journalists are routinely the target of abuse and attack and court orders are often simply ignored by government.
* 'A matter of justice', Legalbrief, 8 September 2020