Kenya Ratifies the Bamako Convention After 20 Years of Waiting

By Jackson Okata

In 2007, Metal Refinery (EPZ) Ltd, a lead-acid battery smelting plant, started operations in Owino Uhuru slums, an informal neighbourhood at Kenya’s coastal City of Mombasa. Operating near homes, businesses, and waterways, and without proper environmental safeguards, the company extracted lead from old car batteries through smelting. Apart from lead,the smelting process generated lead dust, toxic fumes, sludge, and wastewater. The pollutants found their way into the air, soil and water sources used by locals.

According to the World Health Organisation (WHO), extreme exposure to Lead, a highly toxic heavy metal, harms cardiovascular, renal and neurological systems and affects brain development in children. Residents of the Owino Uhuru settlement started reporting symptoms of lead poisoning, including severe headaches, chest pains, anaemia, and developmental issues with livestock and pets dying after grazing on contaminated soil. More than 20 deaths were attributed to the effects of lead poisoning, with many more suffering chronic health problems.

Kenyan laws guiding licensing of Export Processing Zones companies prohibit the issuance of licenses to businesses with harmful environmental impacts or those that may cause a health hazard. In total disregard of this provision, the company was issued a license without due regard for the adverse environmental consequences of poorly disposed heavy metals, contrary to the requirements of the Basel Convention, which Kenya is party to.

Even though the company closed down in 2014, residents and the government have been engaged in a legal tussle after residents moved to court to seek justice for victims of lead poisoning. In 2020, Kenya’s Environment and Land Court in Mombasa ruled in favour of the 3000 Owino Uhuru community, awarding KSh 1.3 billion (USD 12 million) in compensation for loss of life and injury. The court also ordered that the pollution be cleaned up.

The government appealed against the judgment, which was then overturned by the Court of Appeal, before the residents also filed an appeal to the Supreme Court. In December 2024, the Supreme Court of Kenya upheld the award, affirming that state agencies must account for environmental harm and restore the area. The Judges said the National Environmental Management Authority (NEMA) was negligent in the conduct of its duties.

Enforcement Lapse

Dr Faridah Were, a researcher and lecturer at University of Nairobi’s department of Chemistry describes the Owino Uhuru lead poisoning as “a deliberate failure by relevant authorities to enforce what the law prescribes’’.

“It was a wrong and risky move to allow a lead smelting plant to operate within a human settlement without proper safeguards. Even after an alarm was raised about possible lead poisoning, authorities were reluctant to hold those responsible accountable’’ she said.

The Owino Uhuru case highlights the dangers of weak environmental regulation enforcement. The Bamako Convention, which Kenya signed, obligates states to control, manage, and prevent harm from hazardous waste within their borders.

Adopted in 1991, the Bamako Convention on the Ban of the Import into Africa and the Control of Transboundary Movement and Management of Hazardous Wastes within Africa prohibits the import of all hazardous and radioactive waste into Africa and seeks to control and minimise hazardous waste movements within the continent.

Although Kenya signed the Bamako Convention in 2003, it took 20 years to ratify it and make it legally binding domestically. Dr Were says ratification obligates Kenya to enact national laws that would ensure full compliance with the provisions of the convention.

Journey to Ratification

Though slow, Kenya has taken formidable steps towards the domestication and enforcement of the Bamako Convention. This includes both legal guidelines and regulations that have been passed and enacted. In July 2023, the Kenyan National Assembly adopted a report on ratification. Under Kenya’s Treaty Making and Ratification Act (2012), Parliament is required to debate and adopt a motion approving the treaty. Kenya’s constitution requires Parliament to adopt a treaty before it is ratified.

Kenya’s Parliamentary Committee on Environment and Forestry chairperson David Gikaria, told Talk Africa that Kenya’s ratification of the Bamako Convention was long overdue and will save Kenya’s major lakes from massive dumping of hazardous waste that has been ongoing.

“The delay in ratifying the convention was unfortunate. There is a lot of toxic dumping into our lakes (Victoria and Naivasha) and the Indian ocean and actioning the convention will help address this mess’’ said Gikaria.

According to Gikaria, Kenya has formidable environmental laws and regulations which only need full enforcement to help guide the domestication of the Bamako Convention.

“The existing legal guidelines are sufficient. What we need is the alignment of the East African community environment laws to deal with the transboundary and crossborder aspect’’ he said.

In 1999, Kenya passed the Environmental Management and Co-ordination Act (EMCA), a principal law regulating hazardous waste. The law was revised in 2015 and 2019. The law gives the Minister in charge of Environment powers to determine criteria for classifying hazardous wastes based on advice from the National Environment Management Authority (NEMA).

The law prohibits the importation of hazardous waste into Kenya and requires a valid permit from NEMA and written consent from the competent authority of the receiving/transit country for the export and transit of hazardous waste. Under the Bamako Convention, the import ban and strict regulation of export/transit of toxic waste are core rules, with parties required to prohibit hazardous waste import from outside Africa and strictly control transboundary movements within Africa.

Director general of NEMA, Mamo Mamo notes that the EMCA is strong enough to be the anchor law for the domestication and enforcement of the Bomako Convention.

“After ratification, enforcement of the convention should not be a problem because we already have a legal framework in place. Our challenge has been with enforcement but with sufficient resources this can be addressed’’ said Mamo.

To operationalise the EMCA, Kenya’s parliament passed the Environmental Management and Co-ordination (Waste Management) Regulations, 2024. The regulations specifically focused on the classification and handling of hazardous wastes, export and transit permits. The regulations also establish the National Waste Information System, a digital system for tracking permits and hazardous waste data. These regulations operationalise many obligations expected of Bamako Parties, especially transboundary movement controls, prior informed consent, and environmental sound management standards.

Hazardous E-waste Dumping

Another national law that will be key in the domestication of the Bamako Convention is the Sustainable Waste Management Act, 2022, which introduced extended producer responsibility (EPR) to enhance structured waste management, a principle promoted under the Bamako Convention. Kenya is also developing its E-waste Management Regulations, focused on electronic waste. Mumo observes that the regulations will help deal with the increased toxic e-waste problem.

“Management of e-waste is a real problem. We have a lot of toxic e-waste subtly finding its way into many African countries. Enforcement of the Bamako convention will help address the transboundary movement of such waste,” said Mamo.

Further, Mamo notes that the ratification of the convention would help Kenya address gaps in regulation and monitoring of hazardous waste since it would be required to establish clear reporting systems, inventories, and enforcement mechanisms for hazardous waste.

“Domesticating the Bamako Convention will enhance transparency and inter-agency coordination while strengthening our capacity to prosecute illegal handling of hazardous waste,” said Mamo.

Dr Were argues that domestication of the Bamako Convention will help address future crises similar to the Owino Uhuru one in case they occur. “If Kenya had ratified and domesticated the convention, the Owino Uhuru case on accountability and compensation would have been easy for the judiciary to handle and it wouldn’t have escalated to the Supreme Court’’.