By Isaac Salima
The government’s plans to enforce a ban on thin plastics have been put on hold as 11 companies have obtained a fresh court injunction, effectively tying its hands on the issue.
The development comes when, last week, the government was expected to enforce a ban on the production and use of thin plastics after companies that had been challenging the matter withdrew their court challenge a fortnight ago.
But in the latest development, 11 plastics manufacturers have stopped the Minister of Natural Resources and Climate Change and the Attorney General from implementing the Environment Management (plastics) Regulations passed in 2015.
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The regulations promote environment conservation practices.
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The companies that have, in the latest case, pushed the court are City Plastics Industry, Flexo Pack Limited, G. Plastics Wholesale and Retail, Jagot Plastics Limited, O.G. Plastic Industries (2008) Limited, Plastimax Limited, Polypack Limited, Qingdao Recycling Limited, Sharma Industries and Shore Rubber (Lilongwe) Limited.
In the court order, the companies are being represented by Wapona Kita, who wants the High Court sitting in Lilongwe to refer the matter to the Chief Justice to certify it as a constitutional matter.
The companies, which are fresh parties in the matter, are, therefore, challenging the constitutionality of the 2015 regulations on thin plastics.
Kita told The Daily Times Wednesday that the ministry flouted some procedures when coming up with the regulations.
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“The minister made the regulations without recommendations from the Environmental Management Council. And that means the regulations are invalid and unconstitutional. Secondly, laws are made in Parliament. We understand that Parliament has powers to delegate its powers but, in this case, the delegated powers to the minister are very restrictive and they are only to deal with management of pollution.
“In other words, Parliament told the ministry not to make laws to ban the plastics but, rather, to manage pollution [alleged to be caused in the cause] of [using] those plastics. [The] minister has no powers to ban the use of plastics. We are taking the matter to the constitutional court,” Kita said.
In his response, made through the Ministry of Justice’s official Facebook page, Attorney General Thabo Chakaka Nyirenda described the injunction as an abuse of the court process and a tactic by plastics companies to delay implementation of the ban.
“The Malawi Supreme Court of Appeal, you can recall, dismissed with costs a ‘thin plastics’ case where companies in the plastic[s]-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.
“In the new matter, 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 that initial case that has been in courts for years? This is a clear abuse of the court process,” Chakaka Nyirenda said.
He further indicated that his office would challenge the injunction with the view to having it vacated.
The matter started in 2015 when, using the regulations, the government banned plastics of less than 60 microns on the ground that they are hazardous to the environment since they take a long time to decompose.
However, the High Court overturned the ban in 2016 after 14 plastics manufacturers challenged the matter, describing the move as an infringement of their right to engage in legal business of their liking.
In May 2021, the High Court (Commercial Division) in Lilongwe vacated an injunction prohibiting the enforcement of the thin plastics regulations and dismissed the judicial review in which some of the parties to the case challenged the legality of thin plastics regulations by the applicant, Golden Plastics Limited.
Thereafter, the Malawi Environment Protection Authority proceeded with inspections, enforcement actions and conducted training workshops for city and district councils on the enforcement of plastics regulations.
And around July 2021, Golden Plastics obtained a stay order at the 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 of Appeal.
When the case resumed in court a fortnight ago, lawyer representing Golden Plastics, Frank Mbeta, applied to the court, asking it to withdraw the case.
One of the judges, Dorothy Kamanga, accepted the application.
