A case against the penalty of using plastic bags

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BY BARNABAS ONYONKA

I am willing to put my money on the fact that you haven’t contemplated just how tactless the penalty of using banned plastic bags is. Yes, am speaking about the Sh4 million fine and/or 4years in jail.

By the time I was writing this, no one was yet to be prosecuted and fined/ jailed for using the banned plastic bags. But that’s just for now. Sooner or later someone will be in for it. Before that happens, here is my case against the penalty.

The scale of the fine

At Sh4 million, the fine is at best ridiculous. Sh4 million is an amount that most Kenyans can’t raise or even make through their whole lifetime.

The average life expectancy in Kenya is 62 years while the average income per month (GDP per capita (2016)/12 months) is about Sh12, 500. What this means is that, for a normal Kenyan to raise the fine he/she would have to work for 320 months. That’s a good 26 and half years of pure work and strict saving. This, however, is hypothetical and far from any imaginable truth. If we decide to be practical, then we should call the fine by what it really is: ‘a ticket to prison for four years’.

This raises an important question on whether it is just to send someone to the dungeons for four years for using plastic bags. From my point of view it is not fair. Locking up someone, apart from being a punishment, is also aimed at protecting the society from the criminal. The murderer, the robber, the rapist, and other criminals of similar caliber are a threat to others hence they must be locked away lest they do more harm to society.

But a paper bag user? Four years in prison or/and Sh4 million fine! Any way you look at it, it is against logic. Such a high penalty does little to achieve the letter and spirit of punishments and fines, which is to discourage misconduct and punish wrongs done. You don’t need to fine people a fortune in order to achieve compliance.

Tilted/skewed

Yet it is not only the sheer size of the fine that is unreasonable, the distribution of the fine between the transgressors is also wanting. Borrowed from psychology, apparently, all wrongdoers are not the same. According to the concept of ‘the path with the greatest/least resistance’, some follow a path with more resistance while others only just slip into trouble with little will or intention. This concept can be used to clearly illustrate the skewed nature of the fine.

The manufacturer had the idea of making the illegal plastic bags, went ahead and collected the raw materials, made the illegal stuff in bulk, and then distributed it to the sellers. The seller, consequently, invested his capital into an illegal venture with the aim of making profit and went forward to do good his plans of dealing in illegal goods. The user on the other hand, maybe, wanted to carry something but for lack of a legal option decided to use the banned plastic bag.

Is it really fair to decide the fate of these transgressors from the same manuscript? Is it fair to roast all the transgressors in the same fire?

Before you make your decision on who deserves the frying pan and who deserves to be in the fire, psychology seems to offer some sage suggestions. At least according to the concept of “path of the greatest/ least resistance”, the manufacturer deserves to be in the fire; the buyer on the frying pan and the seller somewhere in between the fire and the frying pan.

Before I roast at the stake of simplistic thinking for the sin of using basic psychology concepts to argue legal matters, let me bring to your attention a real example from law: the case of unlawful homicide.

Perpetuators of unlawful homicide are divided into two; those who commit murder and those who commit manslaughter. Murder is committed when the killing is deliberate and premeditated. Manslaughter, on the other hand, occurs when an unlawful killing is committed without malicious aforethought.

In this case, the law is considerate enough. The murderer is sent to the gallows. As for the perpetrator of manslaughter, maybe because he took the path of lesser resistance, he has to spend the rest of his life behind bars. That’s a slap on the wrist considering that he took the life of a fellow man. 

Drawing parallels aside, the penalty goes against simple logic. The number of plastic bags a manufacturer produces in a day, one user may not be able to use in his entire lifetime. The manufacturer produces more and therefore destroys the environment more, he should be fined more.

Also, putting into consideration the big differences in financial muscle between the manufacturers, sellers and users, the ban seems to be more of a witch hunt that targets the ordinary Kenyan who cannot afford to pay the fine than a well-intended move to clean up the environment.

While the move to ban the manufacture, selling or use of plastic bags is in itself bold and plausible, the penalty for using the bags of plastic is fantastic and far-fetched.