REG. NO: G34/3295/2014
I, ONYANGO RISPER ACHIENG’, do hereby declare that this dissertation which I submit in partial fulfilment for the award of a degree of Bachelor of Laws (LL. B) at the School of Law, University of Nairobi is my original work and has not previously been submitted for a degree at another university.

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DEDICATIONTo Mr. and Mrs. Onyango,
For you are the most excellent definition of love and sacrifice. Without your constant and unwavering support, provision, wise counsel and unending prayers I would not be who I am; I would not be where I am. I greatly appreciate you; thank you.

To Nypha Dorcas Onyango and John Mark Okello,
With you have I have known and experienced the pleasures and pains of the concept: ‘Sibling’. I love and appreciate you.

ACKNOWLEDGEMENTI appreciate He who is most important; the Almighty God who has granted me life, good health and the opportunity to undertake this noble task. Without Him, it would all amount to nothing and as such; I give Him all the glory.

I also appreciate he to whom the successful presentation of this work is attributable to; whose consistent support, positive criticism and immense expertise in this area of law steered me in the right direction: my supervisor Dr. Collins Odote. Thank you for your guidance, instruction and patience throughout the course of my writing and compiling this work.

The Constitution of Kenya 2010
County Governments Act
Nairobi City County Solid Waste Management Act 2015
Environment Management ; Co-ordination Act 1999
Public-Private Partnership Act 2013
Public-Private Partnership Regulations 2014
The National Solid Waste Management Strategy
Public-Private Partnership Law 3389/2005
Law 4042/2012 (G’G A’ 24/2012) on Waste Management
The National Waste Management Plan 2015
LIST OF ABBREVIATIONSEMCA…………………Environment Management ; Co-ordination Act
NEMA…………………National Environment Management Authority
PPP…………………….Public-Private Partnership
PPPA…………………..Public-Private Partnership Act
ISWMS………………..Integrated Solid Waste Management System
MSW………………….Management of Solid Waste
WTS…………………..Waste Transfer Station
EYEP…………………. Hellenic Environmental Inspectorate
Table of Contents
TOC o “1-3” h z u DECLARATION PAGEREF _Toc524427563 h iiDEDICATION PAGEREF _Toc524427564 h iiiACKNOWLEDGEMENT PAGEREF _Toc524427565 h ivLIST OF LEGISLATION PAGEREF _Toc524427566 h vLIST OF ABBREVIATIONS PAGEREF _Toc524427567 h viCHAPTER ONE PAGEREF _Toc524427568 h – 2 -INTRODUCTION PAGEREF _Toc524427569 h – 2 -1.1 BACKGROUND PAGEREF _Toc524427570 h – 2 -1.2 STATEMENT OF THE PROBLEM PAGEREF _Toc524427571 h – 5 -1.3 RESEARCH OBJECTIVES PAGEREF _Toc524427572 h – 5 -1.4 RESEARCH QUESTIONS PAGEREF _Toc524427573 h – 6 -1.5 HYPOTHESIS PAGEREF _Toc524427574 h – 6 -1.6 JUSTIFICATION PAGEREF _Toc524427575 h – 6 -1.7 THEORETICAL FRAMEWORK PAGEREF _Toc524427576 h – 7 -1.8 LITERATURE REVIEW PAGEREF _Toc524427577 h – 9 -1.9 RESEARCH METHODOLOGY PAGEREF _Toc524427578 h – 12 -1.10 LIMITATIONS PAGEREF _Toc524427579 h – 12 -1.11 CHAPTER BREAKDOWN PAGEREF _Toc524427580 h – 12 -CHAPTER TWO PAGEREF _Toc524427581 h – 14 -LEGAL FRAMEWORK FOR PRIVATE SECTOR INVOLVEMENT IN SOLID WASTE MANAGEMENT PAGEREF _Toc524427582 h – 14 -2.1 INTRODUCTION PAGEREF _Toc524427583 h – 14 -2.2 THE LEGAL FRAMEWORK OF SOLID WASTE MANAGEMENT AND PPPs PAGEREF _Toc524427584 h – 15 -2.2.1 Constitution of Kenya 2010 PAGEREF _Toc524427585 h – 15 -2.2.2 County Governments Act PAGEREF _Toc524427586 h – 17 -2.2.3 The Nairobi City County Solid Waste Management Act 2015 PAGEREF _Toc524427587 h – 18 -2.2.4 Environmental Management and Coordination Act (EMCA) 1999 PAGEREF _Toc524427588 h – 18 -2.2.5 Policy Statement on Public Private Partnerships 2011 PAGEREF _Toc524427589 h – 20 -2.2.6 The Public Private Partnerships Act 2013 (herein PPPA) PAGEREF _Toc524427590 h – 21 -2.2.7 The Public Private Partnerships Regulations 2014 PAGEREF _Toc524427591 h – 22 -2.3 AN ANALYSIS OF THE LEGAL FRAMEWORK: (Involvement of the Private Sector in Solid Waste Management) PAGEREF _Toc524427592 h – 23 -2.4 LOOPHOLES IN THE CURRENT LEGAL FRAMEWORK PAGEREF _Toc524427593 h – 26 -2.4.1 Lack of County-focused PPP Regulations and Policies PAGEREF _Toc524427594 h – 26 -2.4.2 Lack of Provisions guaranteeing the Promotion of Public-Participation PAGEREF _Toc524427595 h – 26 -2.4.3 No Provision for Joint-Development Agreements PAGEREF _Toc524427596 h – 28 -2.4.4 Lack of Government Incentives for PPPs PAGEREF _Toc524427597 h – 29 -2.5 CONCLUSION PAGEREF _Toc524427598 h – 29 -CHAPTER THREE PAGEREF _Toc524427599 h – 31 -SOLID WASTE MANAGEMENT IN THE MUNICIPALITY OF KOZANI, GREECE PAGEREF _Toc524427600 h – 31 -3.1 INTRODUCTION PAGEREF _Toc524427601 h – 31 -3.2 THE LEGAL FRAMEWORK GOVERNING SWM IN GREECE PAGEREF _Toc524427602 h – 32 -3.3 THE LEGAL FRAMEWORK GOVERNING PPPs IN GREECE PAGEREF _Toc524427603 h – 34 -3.4 FROM THEORY TO PRACTICE: Kozani Waste Management Unit PAGEREF _Toc524427604 h – 38 -3.5 CONCLUSION PAGEREF _Toc524427605 h – 41 -3.5.1 Strengthening Local Authorities PAGEREF _Toc524427606 h – 41 -3.5.2 Promoting Regional Waste Management Plans PAGEREF _Toc524427607 h – 42 -CHAPTER FOUR PAGEREF _Toc524427608 h – 43 -CONCLUSION AND RECOMMENDATIONS PAGEREF _Toc524427609 h – 43 -4.1 RESEARCH FINDINGS PAGEREF _Toc524427610 h – 43 -4.2 RECOMMENDATIONS PAGEREF _Toc524427611 h – 45 -4.2.1 Civic education on PPPs PAGEREF _Toc524427612 h – 45 -4.2.2 Promotion of Public Participation PAGEREF _Toc524427613 h – 45 -4.2.3 Promotion of Transparency and Accountability PAGEREF _Toc524427614 h – 46 -4.2.4 Amendment of the current legal regime governing PPPs and SWM PAGEREF _Toc524427615 h – 47 -5.1 BIBLIOGRAPHY PAGEREF _Toc524427616 h – 48 -Journal Articles PAGEREF _Toc524427617 h – 48 -Online Articles PAGEREF _Toc524427618 h – 48 –
CHAPTER ONEINTRODUCTION1.1 BACKGROUNDEvery person has the right to a clean and healthy environment which includes the right to have the environment protected for the benefit of present and future generations through legislative and other measures, particularly those contemplated in Article 69 (Constitution of Kenya 2010) and to have obligations relating to the environment fulfilled under Article 70 (Constitution of Kenya 2010). In light of these provisions, it is imperative that appropriate measures are put in place and enforced to secure these rights. This stands true in the management of Solid Waste.

Waste management means the activities, administrative and operational, that are used in handling, packaging, treatment, conditioning, reducing, recycling, reusing, storage and disposal of waste. In Kenya, this is the mandate of the County Government as stipulated in the Fourth Schedule of the Constitution. While poor management of solid waste is a general problem in Kenya, it is probably worst in Nairobi. Increasing urbanization, rural-urban migration and population growth have resulted in increased solid waste generation which has not been accompanied with equivalent capacity to handle the waste generated. Some of the challenges facing solid waste management in Nairobi include lack of waste separation facilities, inefficient waste collection and transportation and lack of proper disposal facilities.

To aid in the proper functioning of the sector, various laws have been put in place to guide the management of solid waste key being Environment Management and Co-ordination Act (EMCA). It establishes The National Environment Council which is charged to formulate policy, determine objectives and goals for the protection of the environment and ensuring cooperation amongst all players in the sector. It also establishes the National Environment and Management Authority (NEMA) whose functions are instrumental in promoting a sustainable solid waste management system. These include; Coordinating various environmental management activities being undertaken by lead agencies and promoting the integration of environmental considerations into development policies, plans, programs and projects, with the view of ensuring a sustainable, proper management and rational utilization of environmental resources. These ensures that the SWM laws and policies are designed to support the improvement of human life for the citizens of Kenya. The agency is also mandated to take up, while in cooperation with relevant lead agencies, such programs as would enhance environmental education and public awareness on the importance of sound environmental management. This ensures that the relevant agencies in charge of the management of solid waste have the required public support as they pursue various means to achieve a sustainable solid waste management system. In its mandate to give advice and technical support to entities engaged in the management of natural resources and the protection of the environment, NEMA aids such entities in the provision of satisfactory services and their meeting of the necessary requirements that would ensure a clean and healthy environment.
The EMCA Solid Waste Regulations was promulgated to provide general guidelines for waste management license application. Despite the existence of laws and policies guiding waste management, weak implementation and poor practices have led to Nairobi being overwhelmed by its own waste. As of 2010 the total waste generation in Nairobi was at most about 3121 tons/day with over half of the residents failing to receive any collection services (in a survey of 128 households found 48% did not receive any service) In times past, the government has lacked adequate working materials, equipment, and transport and communication facilities needed to enable this department to carry out its functions. Such mismanagement typically results in the pollution of the natural environment and may pose substantial danger to public health and welfare. Like in many countries this led to the inclusion of the private sector in the administering of public services. This practice dates back to the need to change the mode of public procurement due to concerns of the level of public debt. Another factor that sparked Public-Private Partnerships (PPPs) was the issue of water-tight budgets and debt crises facing most governments and as such they couldn’t provide basic amenities and effective public services for the citizens. In UK’s 1992 Autumn Statement, The Private Finance Initiative (PFI) which was the first systematic programme with the aim of encouraging public partnerships, was announced by the then Chancellor, Norman Lamont, to increase the involvement of the private sector in the provision of public services.This sort of relationship has trickled down to various jurisdictions in the different continents including Africa. Kenya begun such partnership with the private sector in the provision of this public service as far back as 1998 with companies like Bins (Nairobi) Services Limited and Domestic Refuse Disposal Services Limited (DRDSL) registering to manage, collect and dispose solid waste (at the Dandora land-fill site) from industries, institutions, commercial establishments, and high income residential areas.
This development resulted in the drafting of laws to govern the relationship established between the public and private sectors, key being the Public-Private Partnership Act, the Public-Private Partnerships Regulations and the Public Private Partnerships policy of 2011.

However, much as various advantages have arisen from these partnerships, the sector is still a far cry from being effective and efficient in the provision of services with confusion rising around licensing and regulation of the private collectors, transporters and recyclers in the conduct of their activities. The major challenges that affect implementation of the PPPs include supplier identification, supplier selection and evaluation, supplier performance management, supplier relationship management and project monitoring and evaluation.

1.2 STATEMENT OF THE PROBLEMThe governance of Solid Waste in Nairobi is the mandate of the County Council of Nairobi. In times past, increased urbanization and growth in population coupled with other limitations saw the efforts of the then Nairobi City Council to provide efficient public services crippled. These very problems have been inherited by the newly established county governments. Most towns and cities, including Nairobi have inefficient waste collection and disposal systems as indicated in a study that showed about 30-40% of the waste generated is not collected and less than 50% of the population is served. Despite the establishment of county governments and the vesting with constitutional powers to manage solid waste, Nairobi continues to be inundated with solid waste bringing to the fore the need for the involvement of the private sector in service delivery.

1.3 RESEARCH OBJECTIVESTo find out the nature and scope of PPPs in Solid Waste Management in Nairobi.

To identify the legal and regulatory framework governing PPP Agreements in Solid Waste Management in Nairobi.

To evaluate whether the framework in place is efficient and suitable to the needs of a sustainable Solid Waste Management system in Nairobi.

1.4 RESEARCH QUESTIONSThis paper seeks to answer the following questions:
What is the nature and scope of PPPs in the management of Solid Waste in Nairobi?
What is the legal and regulatory framework governing PPP Agreements in the management of Solid Waste in Nairobi?
Is the legal and regulatory framework efficient and suitable to meet the needs of a sustainable Solid Waste Management system in Nairobi?
1.5 HYPOTHESISThis research paper takes off from the premise that the law is a useful tool in ensuring effective solid waste management and further the assumption that the legal and regulatory framework governing PPP Agreements for the delivery of a public service has not been well implemented which has thus hindered cooperation between the Nairobi County Council and the private operators that they contract to provide the service.

1.6 JUSTIFICATIONThis study draws its justification from the paramount importance of a sustainable solid waste management system which includes promoting environmental protection and job creation.

Seemingly, there are adequate laws and policies put in place as regards Solid Waste Management in Kenya and the Agreements between the Public and Private sectors in the provision of Public services. However, proper and adequate Solid Waste collection and disposal is still a far cry away for the people of Nairobi County. Those mandated to collect and dispose Solid Waste from different parts of the City have neglected their duty which has resulted in a vast area of Nairobi remaining littered with uncollected waste.

There is an urgent need to identify whether the laws and policies set out are effective to curb the continuous poor performance in the quest for a sustainable Solid Waste Management system in Nairobi.

The study is therefore keen to help identify where disconnect arises between the laws and policies as are and their implementation.

1.7 THEORETICAL FRAMEWORKThis paper is premised chiefly on the Principal-Agent Theory, commonly known as The Agency Theory. It was initially developed within the economics discipline dating as far back as 1970 with its originators identified as being Spence and Zeckhauser (1971), Ross (1973), and Arrow (1971)
The theory looks at the relationship between the owner (principal) of an asset and the persons (agents) contracted to manage that asset on the owners’ behalf. The agent is contracted or employed by the principal to provide a good/ service that has some value to which remuneration will be given. The ideal situation in this framework for perfect competition is the perfect flow of information between the buyers and the sellers in an exchange, which is rarely the case in reality. This relationship is usually coupled with an information asymmetry because the agent will always have better information concerning his activities as compared to the principal. Further, the two parties frequently have divergent interests, goals, motivations and attitudes to risk and as such it is not automatic that the agent will act in the best interest of the principal. The principal bears the risk of eventual failure of the project but also adopts effects of agents’ execution of the mission after the agreed payment to the agent is issued. Other risks faced by the principal include;
Adverse selection – this is a result of hidden characteristics where they do not have all the information about the agent before the contract is signed.

Moral hazard – effected where there is no certainty as to the sharing of all information by the agent, a consequence of the self-interest of both parties.

Hold-up – this is where the agent behaves in an opportunistic manner after the principal has invested money to the project.

To cure or minimize the above, the principal encounters transactional costs as a result of screening, assessing, negotiating with and monitoring the agents. On the other hand, various incentives are offered to the agents to best align the interests of the two parties including commissions, profit-sharing, competitive tendering and efficiency wages.

Most governments use a number of principal-agent or funder-provider type models to deliver policy or provide services both between governments and from governments to the community and Kenya is no different. There are partnerships between the County Government of Nairobi and various Private operators in the delivery of services concerning the management of solid waste. Consequently, there exist information asymmetries and goal conflicts which create favourable conditions for agency problems.

This paper seeks to assess the effects of such models, their strengths and weaknesses. Using this theory, it will analyse the relationship between the County Government of Nairobi and the Private operators they engage in the management of Solid Waste. Are the laws and policies set out best for the assessment and monitoring of the various private operators that will seek to be contracted to provide this public service? To what extent have the private stakeholders been given leeway to function? What incentives are offered to ensure both parties to the contract achieve their stipulated goals?
Lastly, the paper seeks to answer the question of whether involving the private sector in the provision of this public service (the collection and disposal of solid wastes) is prudent and sustainable.

1.8 LITERATURE REVIEWA wealth of literature will inform the substance of this paper.

In the book, Partnerships, Governance and Sustainable Development: Reflections on Theory and Practice, Jennifer M. Brinkerhoff looks at the contribution of partnerships in enhancing governance effectiveness, legitimacy and conflict management. Some of the advantages she cites are that it enables actors to address problems that otherwise remain beyond the grasp of any one actor owing to scope or complexity, it fosters agreements amongst competing or conflicting actors that may prevent progress or solution and is a forum for exchange and mutual learning through access to more complete and verifiable information.

Nicholas Awortwi in his article, Getting the Fundamentals Wrong: Woes of Public-Private Partnerships in Solid Waste Collection in Three Ghanaian Cities, argues that turning over public service delivery to the private sector without ensuring the fundamentals that make them successful are securely in place leads to a worse situation and outcome than portrayed in literature about the benefits of PPPs. He quotes amongst others the Principal-Agent theory as being one of the fundamentals that needs to be right in ensuring that the expected results of Public-Private Partnerships are not elusive, emphasizing the need to build the competence and effectiveness of Local Governments as pre-requisites to successful Public-Private Partnerships. He also lays out the difference between PPPs and privatization.

In a paper prepared for The Institute of Economic Affairs (IEA, Kenya) David O. Ong’olo spells out the various advantages of PPPs and the challenges faced in their subsequent implementation. He lists questions usually overlooked in light of the agreements between the two sectors and gives possible solutions and recommendations to help better the workings of the partnerships.

Muhammad Sair Khan in his research thesis (Solid Waste Management in Westlands Suburb of Nairobi: A comparison between private and City Council garbage management services) provides the reader with a brief history of privatization in Solid Waste Management in Kenya. He analyses Solid Waste Management in the Westlands Suburbs of Nairobi and goes ahead to look more specifically at the generation of waste and interval of collection by both private companies and the City Council. He highlights both the achievements and limitations experienced during the initial stages of privatization.

Some of the achievements he notes are increased efficiency in service delivery and revenue collection, creation of jobs and improvement in solid waste collection. He also lists the limitations of the arrangements some of which were non-fulfilment of obligations from both parties and lack of competition in cases that listed only one contractor.

The National Solid Waste Management Strategy compiled by the National Environment Management Authority (NEMA) contains guidelines for sustainable Solid Waste Management (SWM) in Kenya in the effort to ensure a healthy, safe and secure environment. It highlights the country’s current SWM situation as being coupled with improper waste management systems, insufficient technical and institutional capacities and the lack of implementation of the laws already in place. Some of the laws listed include The Constitution of Kenya 2010, The Environment Management and Coordination Act (EMCA) and its Waste Management Regulations and The County Governments Act. The strategy also seeks to build on the basic requirements necessary for addressing poor SWM including: designating, securing and manning of the disposal sites, and promoting efficient collection and transportation of waste.

This paper aims to analyse the extent to which the private sector’s involvement in the provision of public services; more specifically in the management of solid waste, is governed and promoted in Nairobi. It will highlight areas where the framework in place promotes public private partnerships, where there are gaps and possible recommendations to facilitate efficient operations of private sector in its participation in the public sector domain.

The literature provided will thus help this research paper analyse the relationship between the public and private sectors and the laws and regulations governing such relationships in the managing Solid Waste. It will also help to draw conclusions as to whether such a relationship is viable and efficient in the provision of Solid Waste Management services.
1.9 RESEARCH METHODOLOGYThe writing of this paper relied heavily on a desk based approach. The study involved;
Library research
This entailed looking at publications specifically related to the topic of study. Some of the sources of information included The Constitution of Kenya 2010, Acts of Parliament, policies, journal literature, articles and books.

Internet Browsing
This method was helpful in evaluating the general global opinion on the relationship between the public and private spheres.

1.10 CHAPTER BREAKDOWNThe study is divided into 5 chapters.

Chapter one provides the background to the study. It considers the historical background, the statement of the problem and the justification of the research being pursued. It further sets out the objectives of the research, the research questions that are addressed and the hypothesis of the study. Lastly, it states the theoretical framework that run the course of the study, the literature that is reviewed and the methodology of the research.

Chapter two evaluates the nature, rationale and scope of PPP Agreements. It focuses on the legal and regulatory framework that governs this relationship in the offering of public services particularly, the management of Solid Waste in Nairobi, while analysing and offering a critique of the extent to which the legal framework above regulates the PPPs. It further evaluates where applicable the effectiveness of the laws and policies and determines any gaps and loopholes that may prevent the realization of the desired sustainable Solid Waste Management system.

Chapter three outlines in a comparative perspective, the situation as witnessed here in Nairobi, Kenya by assessing the legal regime, regulations, management and other measures put in place in the municipality of Kozani, Greece in regard to PPPs. The discussions as highlighted offer alternatives that Kenya could consider in effort to better ensure a sustainable solid waste management system.

Chapter four concludes the study by drawing out key lessons and giving comprehensive recommendations and solutions steered towards a sustainable solid waste management system.

2.1 INTRODUCTIONPublic-private partnerships as an alternative to publicly provided waste management is rapidly being explored in developing countries leading to the conclusion that the private sector can operate more efficiently than the public sector in providing municipal solid waste services and that it is a possible opportunity, not a panacea, for improving solid waste management in developing countries.
A Public-Private Partnership can be viewed as a situation where on one hand of the continuum the private agency provides for, and produces products or services. On the other extreme the government completely divests all responsibility for products and services. A partnership is thus any such arrangement that exists between these two extremes. It can take a number of forms, including household and commercial collection, operation of transfer stations, compaction and transport to treatment and disposal facilities, material separation and recycling, and treatment and disposal through build-operate-transfer (BOT) or design-build-finance-operate (DBFO) contracts (World Bank 2005).

The Kenyan Government has joined the list of countries that partner with the private sector for various projects and consequently PPPs have become a major force behind multi-billion-shilling infrastructural projects in the country. Some of the opportunities offered by PPPs include; improvement of technologies and technical competencies, reduction of the gap of insufficient funding, increase in quality services being offered to citizens, better management of projects, a high standard of transparency and accountability, reduction in government sovereign borrowings and associated risks and the generation of sustainable employment.

This chapter seeks to evaluate the various laws and regulations in the country that govern both solid waste management and public-private partnerships. It also seeks to examine whether the laws in place are effective in facilitating the involvement of the private sector in the management of solid waste in Nairobi.

2.2 THE LEGAL FRAMEWORK OF SOLID WASTE MANAGEMENT AND PPPs2.2.1 Constitution of Kenya 2010Article 42 of the Constitution of Kenya gives every person a right to a clean and healthy environment including the right to have the environment protected for the benefit of present and future generations through legislative and other measures, particularly those contemplated in Article 69 and to have obligations relating to the environment fulfilled under Article 70.

As it relates to the obligations in respect of the environment the state is mandated to encourage public participation in the management, protection and conservation of the environment; establish systems of environmental impact assessments, environmental audit and monitoring of the environment; eliminate processes and activities that are likely to endanger the environment; and utilize the environment and natural resources for the benefit of the people of Kenya. Further, every person is charged with the duty to cooperate with State organs and other persons to protect and conserve the environment and ensure ecologically sustainable development and use of natural resources while Part 2 of the Fourth Schedule explicitly provides that the County Governments shall be responsible for, refuse removal, refuse dumps and solid waste disposal.
Article 185 (2) allows a county assembly to make any laws that are necessary for, or incidental to, the effective performance of the functions and exercise of the powers of the county government under the Fourth Schedule. These functions are such as the management of solid waste including refuse removal, refuse dumps and solid waste disposal. Further a county assembly may receive and approve plans and policies for the management and exploitation of the county’s resources; and the development and management of its infrastructure and institutions. Devolving solid waste management has had various advantages including raising public awareness on environmental concerns and promoting public participation in such issues. It also allows each county to easily mobilise different stakeholders interested in the sector, to focus on its priority areas and set up the necessary infrastructure to cater for them.

The Constitution is also keen to provide an avenue for the enforcement of environmental rights where it states a person alleging a right to a clean and healthy environment recognized and protected under Article 42 has been, is being or is likely to be, denied, violated, infringed or threatened, the person may apply to a court for redress in addition to any other legal remedies that are available in respect to the same matter.

These provisions would go a long way in promoting a sustainable and integrated solid waste management system; governing the agencies tasked with the responsibility of sustaining a clean and healthy environment for the citizens and protecting the partnerships formed with other stakeholders including the private sector in the fulfilment of this objective.

2.2.2 County Governments ActThis is an Act of Parliament which gives effect to Chapter Eleven of the Constitution; to provide for county governments’ powers, functions and responsibilities to deliver services which include solid waste management and for connected purposes.
Section 6 stipulates the powers of the county governments to include entering into partnerships with any public or private organization in accordance with the provisions of any law relating to public or private partnerships for any work, service or function for which it is responsible within its area of jurisdiction.
The principles for public service delivery are stipulated in section 116 which include equity, efficiency, accessibility, non-discrimination and transparency, accountability, sharing of data and information, and subsidiarity. These standards and norms for public service delivery are further elaborated in section 117 which cites a county government and its agencies shall in delivering public services give priority to the basic needs of the public and notwithstanding that shall adopt and implement tariffs and pricing policy subject to the existing National Government laws and policies, promote the development of the public service delivery institutions and ensure that all members of the public have access to basic services. The county government is also mandated to carry out regular review of the delivery of services with a view to improvement.
In reference to SWM, county governments are mandated to adopt and implement a tariffs and pricing policy that amongst other guidelines; promotes the economic, efficient, effective and sustainable use of resources, the recycling of waste and other appropriate environmental objectives in the provision of public services. Further, in its adherence to the Fourth Schedule of the Constitution, this Act equips the county government to carry out functions that pertain to refuse removal, refuse dumps and solid waste disposal.

2.2.3 The Nairobi City County Solid Waste Management Act 2015This Act makes provision for the management of solid waste in the County of Nairobi. Section 5 of the Act entitles every person within the county to a clean and healthy environment and a duty to safeguard and enhance the quality of the environment. In this regard, the county Government is mandated to promote, facilitate and ensure public education on solid waste management to enhance the levels of awareness and knowledge of all stakeholders on general and specific aspects of sound solid waste management. Further the executive committee member in consultation with the governor are allowed to facilitate the participation of all persons including individuals, corporate entities, and community and neighbourhood associations and organizations in all aspects of solid waste management in order to attain and maintain high and sustainable standards in solid waste management within the county.

2.2.4 Environmental Management and Coordination Act (EMCA) 1999The Act provides for the establishment of an appropriate legal and institutional framework for the management of the environment and for matters connected therewith and incidental thereto. It stipulates that every person in Kenya is entitled to a clean and healthy environment and has the duty to safeguard and enhance the environment.

There is established a council to be known as the National Environment Council whose functions include the promotion of co-operation among public departments, local authorities, private sector, Non-Governmental Organizations and other organizations engaged in environmental protection programs. An authority to be known as the National Environment Management Authority (NEMA) is also established with its object and function being to exercise general supervision and co-ordination over all matters relating to the environment and to be the principal instrument of Government in the implementation of all policies relating to the environment. This includes the co-ordination of the various environmental management activities being undertaken by the lead agencies, the promotion of the integration of environmental considerations into development policies, plans, programs and projects to ensure the proper management and rational utilization of environmental resources on a sustainable yield basis for the improvement of the quality of human life in Kenya, undertaking programs intended to enhance environmental education and public awareness about the need for sound environmental management as well as for enlisting public support and encouraging the effort made by other entities in that regard.

NEMA is also tasked with receiving and approving applications for Environmental Impact Assessment (EIA) licences. These assessments provide decision makers with the necessary information regarding the environmental impact of the projects that seek to be undertaken and as such enable them to determine which projects proceed; and the prerequisite measures that have to be in place to ensure there is minimum adverse impact on the environment. The licence is to be obtained before any project proponent can finance, commence or proceed with any specified project; regardless of any other licences, permits or approvals that have forthwith been given. Without doubt, this requirement also caters for any project that may be undertaken in the Solid Waste Management sector. Consequently, in the case where private sector investors are involved in the provision of this public service, NEMA is able to ensure the projects including the construction of waste plants or the operation of landfills are to such standards as those which promote the protection of the environment and its sustainable utilization. It is also able to give recommendations and proposals on how better to undertake various tasks in the quest to ensure a clean and healthy environment.

The Act establishes The Standards and Enforcement Review Committee which in consultation with the relevant lead agencies, recommends to NEMA measures necessary to prescribe standards for waste, their classification and analysis, and formulate and advise on standards of disposal methods and means for such wastes; or issue regulations for the handling, storage, transportation, segregation and destruction of any waste.

The Act also provides for the application process for a waste license, the conditions necessary for the discharge and disposal of any wastes, whether generated within or outside Kenya and offences by bodies corporate, partnerships, principals and employers with regard to wastes.

2.2.5 Environmental Management and Co-ordination (Waste Management) Regulations 2006
These regulations, whose implementation are overseen by NEMA, are in effect of sections 92 and 147 of EMCA to prescribe the standards in waste management operations which include the generation, handling, storage, collection, transport, treatment and final disposal. It provides the requirements needed by licensed waste collectors, transporters and recyclers; their duties and responsibilities with regard to such handling of wastes. As such, these regulations ensure all persons involved in the activities of solid waste management do so within the stipulated requirements and with regard to the protection and conservation of the environment.
2.2.6 Policy Statement on Public Private Partnerships 2011The purpose of the policy is to articulate the Government commitment to PPP and to provide a basis for the enactment of a PPP Law to strengthen the existing legal and regulatory framework. It is also expected to provide a foundation for the establishment of institutions to champion the PPP Agenda, facilitate mobilization of domestic and international private sector investments, and to provide for Government support for PPP projects as well as providing a clear and a transparent process for project development.

It states the principles of PPPs, goals and benefits. These include; maximizing the benefits of private sector efficiency, expertise, flexibility and innovations; allocating risks to the party best able to control them; enhancing the health, safety, and wellbeing of the public; achieving value for money particularly as compared to the conventional payment; and promoting participation of small and medium sized enterprises in PPP project; to name but a few.

2.2.7 The Public Private Partnerships Act 2013 (herein PPPA)This is an Act of Parliament to provide for the participation of the private sector in the financing, construction, development, operation, or maintenance of infrastructure or development projects of the Government through concession or other contractual arrangements; the establishment of the institutions to regulate, monitor and supervise the implementation of project agreements on infrastructure or development projects and for connected purposes. The provisions of this Act apply to every contract for the financing, construction, operation, equipping or maintenance of a project or for the provision of public services undertaken as a public private partnership.

Section 4 establishes a Committee to be known as the PPP Committee whose functions include ensuring that each project agreement is consistent with the provisions of the Act; formulating policy guidelines on public private partnerships, ensuring that all projects are consistent with the national priorities specified in the relevant policy on public private partnerships, approving project proposals submitted to it by a contracting authority, reviewing the legal, institutional and regulatory framework of public private partnerships and ensuring the efficient implementation of any project agreement entered into by contracting authorities.

There is also established the PPP Unit under Section 11 of the PPPA as a department within the National Treasury to specifically handle projects under the PPP domain. The Unit is the resource center for best practice and guardian of the integrity of the PPP process. It plays a fundamental role in identifying problems, providing suitable recommendations to the PPP Committee on potential solutions and ensuring the projects meet such quality criteria as affordability, value for money and appropriate transfer of risk. It also serves as the secretariat and technical arm of the PPP Committee by providing technical support (technical, legal& financial) to various government agencies (contracting authorities) keen to implement PPP projects
Further, the Act also focuses on project identification and the selection of the private party, prequalification procedures to be followed by a contracting authority which intends to enter into a project agreement with a private party, the execution process of a project agreement, price setting and success fees for delivering a facility or services in relation to a project. All projects are to be procured through a competitive bidding process and are to be guided by the principles of transparency, free and fair competition and equal opportunity.

2.2.8 The Public Private Partnerships Regulations 2014These Regulations apply to every contract for the design, financing, construction, operation, equipping or maintenance of a project for the provision of public services undertaken under the Public Private Partnership Act. In the case of negotiations the contracting authority is to take all reasonable steps to prevent a conflict of interest by officers of the contracting authority, to ensure that the contracting authority obtains value for money in relation to the negotiations, to avoid private solicitations in relation to the negotiations and where private solicitations have been made, determine whether or not to discontinue the negotiations and to ensure that the laws relating to public financial management, ethics and integrity of public officers are complied with at all times during the negotiation.

2.3 Critical Appraisal of the Legal Framework on Involvement of Private Sector in Solid waste Management
The Constitution of Kenya seeks to create an enabling environment for PPPs. Article 10 stipulates national values and principles of governance including public participation, devolution of power, equity, sustainable development, transparency and accountability, which bind all state organs, state officers and public officers. This ensures democratic governance and institutional stability which is mandatory in the sustenance of PPPs even with regard to solid waste management. Article 6 of the Constitution provides for the national and county governments which are distinct and inter-dependent and which are to conduct their mutual relations on the basis of consultation and cooperation. The functions of these two levels of government are highlighted in the Fourth Schedule; where the county government is tasked with county health services which include refuse removal, refuse dumps and solid waste disposal. The provisions on the protection of the environment as previously highlighted go a long way in ensuring a clean and healthy environment for the citizens of Kenya.

The provisions in the County Governments Act empowering the county governments in relation to any partnerships with any public or private organization for any work, service or function ensures clarity as to which level of government is mandated to deal with issues of waste disposal in the country thereby establishing a harmonious environment for the sustainable management of solid waste. It is however important to have the provisions married with relevant sector laws such as those governing solid waste management to ensure the promotion of the principles of devolution in PPPs.

The PPPA being the foundational legislation dealing with PPPs in Kenya also contributes to the facilitation of an appropriate environment for involvement of the private sector in solid waste management. Having the PPP Committee, as has been considered, responsible for PPP policy guideline formulation, projects approvals and monitoring and evaluation oversight of the PPP Program in the country goes a long way in realizing the formation of efficient partnerships to provide public services including solid waste management. In addition to this, the PPP Unit supports the contracting authority right from project identification, through to phases of appraisal, procurement, negotiation, contracting and the operational phases. Such support promotes effective functioning of public-private partnerships including those established with a view of promoting sustainable solid waste management in Nairobi.

The legal framework in place makes provision for capacity building through organized and continuous training, workshops and conferences for both the public and private sectors especially the public sector employees in ministries, departments and agencies on PPPs to enhance their capabilities and broaden their knowledge. In this regard, the PPP Unit and nodes in various ministries and parastatals have sought to employ people skilled in this area of development. While these provisions have greatly promoted PPPs, it is time the government considered revising the PPPA and its Regulations to hasten the process of investments into the country. This is according to the Chairman of the Lamu Port-South Sudan-Ethiopia-Transport (LAPSSET) Corridor project, Ambassador Francis Muthaura. The failure to sufficiently provide for the role of the county governments in PPPs is evident throughout the framework with specific instances being;
Making no provision for the inclusion of county corporations such as county water service providers as contracting authorities with powers to enter into PPPs. This would devolve such tasks, including the management of solid waste and ensure an efficient hands-on approach in the procurement process and provision of such services.
The lack of the requirement for approval by the PPP Committee of feasibility study reports for county projects; approval of negotiated commercial, financial and technical terms; approval of variations to project agreements and the monitoring of compliance with terms and conditions of project agreements.
Failure to have in place a county priority list of projects even though it makes provision for a national priority list. Such lists ensure counties carry out projects that align with their policy objectives and goals.
It does not equip the Cabinet Secretary with the powers to make regulations for the better implementation of PPP arrangement by the county government.
Further strengthening our PPP frameworks would be instrumental in setting up fully functional and compliant waste management systems as it would allow the county governments to easily tap into the expertise and capital offered by the private sector. It would promote transparency and accountability in the bidding process and ensure qualified parties are brought on board in the delivery of solid waste management services. In this regard, it would also minimize parallel contracts providing the same service. A case in point would be the lack of coordination between the county government of Nairobi and the residents’ associations. The private sector would also be encouraged to invest in the venture as investors are guaranteed of their contractual rights and obligations as would be stipulated in the legal provisions.

It is in light of the above shortcomings that The Public Private Partnerships (Amendment) Bill, 2016 was drafted to make further provisions to facilitate the way in which county governments may deal with PPP arrangements. However, until this Bill is passed to law, the regime remains in a precarious state as concerns the involvement of the county governments and this situation may hinder progressive development in PPPs.

2.4 LOOPHOLES IN THE CURRENT LEGAL FRAMEWORKThere is cause for concern raised when we consider the gaps prevalent in our legal framework, which hinder the realization of a sustainable solid waste management system in Nairobi while using PPPs;
2.4.1 Lack of County-focused PPP Regulations and PoliciesThe current regime of PPP regulations and policies does not provide for a county-based approach in its respective provisions thereby preventing the adoption of a county-specific inclination in the provision of public services and the involvement of the private sector in like activities. Further, county governments are yet to formulated policies and procedures on the implementation of PPP procurement. While the National Treasury is seemingly responsible for the formulation of PPP policies, it has also not established any specific policy that may guide the counties in the implementation of such PPP procurement in their respective jurisdictions. These frameworks would ensure the structuring of projects to suit the specific needs of the county that seeks to facilitate it and the promotion of accountability and transparency in the conduct of the projects, ensuring maximum gain upon completion.
2.4.2 Lack of Provisions guaranteeing the Promotion of Public-ParticipationThe Constitution lists public participation as one of the country’s national values and principles of governance. Part VIII of the County Government Act provides for citizen participation in counties; giving them the right to petition and challenge any matter under the purview of the county government and further providing for the establishment and modalities for such citizen participation. The Urban Areas and Cities Act provides for citizen fora where the residents of a city or municipality may deliberate and make proposals to the relevant institutions on the relevant national and county policies and legislation and provision of services including the management of solid waste.

Surprisingly, the principal Act regulating PPPs (PPPA) has no provisions for public participation and input in the PPP process and arrangements. It lacks provisions for public sensitization programs on PPPs leading to misconceptions such as the perception that PPPs involve the privatization of public assets. The inclusion of citizens, labour unions, government agencies, civil societies and the media in the preparation and implementation of PPP projects facilitates support for such projects. Although the PPP Unit is mandated to provide civic education to promote the understanding of PPPs amongst the stakeholders, the Act fails to provide for public outreach and communication of the transparency in the decision making process, selection of various bidders and public disclosure of PPP agreements. It also fails to advance local procurement of raw materials and local recruitment as far as is possible by the respective private investors. An example to follow where sufficient public participation has been promoted would be the case in India where at least 70% of the affected population must consent to land acquisition for public private partnership projects. In doing so, they have ensured every stakeholder involved in the process champions for the successful achievement of the project’s goal.

2.4.3 No Provision for Joint-Development AgreementsThe framework fails to take into account Joint-Development Agreements which leads to disagreements between parties. A joint-Development Agreement is an agreement between two entities concerning their collaboration on the development of a particular venture and contains provisions including terms setting out the parties’ joint development activity and responsibilities and procedures for project management and dispute resolution. Under the PPPA, only contracting bodies are responsible for the development of projects and as such any agreement between parties to share this responsibility would be contrary to the law. This limits the participation of private entities which invest heavily in the projects and consequently discourages them from participation altogether. A good example for occurrence of such friction between parties would be the Nairobi Commuter Rail project where the Kenya Railway Corporation entered into a Joint Development Agreement with InfraCo Africa to develop the Nairobi Commuter Rail. This Agreement gave InfraCo Company leeway to undertake feasibility studies and commercial structuring; and while they wanted a say in the selection of the operator during the tendering process, the law did not permit the same and the project consequently stalled for a period of time.

2.4.4 Lack of Government Incentives for PPPsThe major incentive to investing in PPPs is the fact that the investor does not make a ‘direct’ risk investment as the risk inherent to the financing investment is backed by the sovereign guarantee of the State. While this promotes the involvement of the private sector in the provision of public services, the legal regime fails to further buffer the potential costs and risks the private investors are exposed to. There exist no special fiscal and other investment incentives for PPPs. Tax incentives such as tax holidays, reduced corporation tax, import duty exemptions, VAT relief and location based incentives are not provided for in the PPPA. Direct financial support in the form of capital and operating subsidies is also not mentioned. Such support primarily facilitates the financing of the project and promotes the effectiveness of public-private partnerships.

The lack of a favourable legal and regulatory framework in any country is bound to stunt the development of PPPs. From the foregoing it is clear that much has been done to facilitate an enabling environment of PPPs in Kenya. However, more still remains to be effected including the facilitation of public participation in PPP processes, provision of incentives to encourage private involvement and improved mechanisms for capacity building for both public and private institutions in facilitating the involvement of county governments in PPPs. Such improvements would go a long way in ensuring these partnerships are able to produce optimum results in the different sectors including that of solid waste management.
It is important to have a framework that provides for judicial enforcement of contractual rights, clear laws and regulations that assign responsibilities and specify the processes for preparing, bidding and approving projects and provide for appropriate pricing and quality of service. Further, this framework needs to ensure a competitive environment during the bidding process and, where possible, service delivery in order to ensure an effective quality of service and allocation of risks. This reduces the risk of opportunist tendencies by acting as a buffer against political interferences from government agencies. Only then will we be able to facilitate effective involvement of the private sector in the provision of solid waste services in our region.

CHAPTER THREECOMPARATIVE STUDY OF SOLID WASTE MANAGEMENT IN THE MUNICIPALITY OF KOZANI, GREECE3.1 INTRODUCTIONIn the present chapter, the participation of the private sector in the Integrated Solid Waste Management System (ISWMS) in the Region of Western Macedonia, and particularly in the Municipality of Kozani, is being examined. Through PPPs the Greece government has been able to promote relatively small to medium budget PPP schemes (of less than 200 million €). This includes a fully operational ISWMS that is coupled with a Mechanical Biological Treatment (MBT) plant, residual sanitary landfill, Waste Water Treatment Plant (WWTP), as well as auxiliary projects such as weigh bridges, a washing facility, a workshop, office buildings, a service station, a fuel station, a laboratory and a new waste transfer station in Kozani; a move that has greatly contributed in the organization and development of municipal public services, local development and environmental protection and social and cultural infrastructure and activities. The project has also promoted a tremendous cut in landfill use and increased recycling which contributes to an ISWMS for both the Municipality of Kozani and the entire region of Western Macedonia; a system which if effectively adopted in Kenya would be instrumental in ensuring a clean and healthy environment.

The ISWMS includes the collection, transportation, transfer and recovery of useful materials through recycling and the landfilling of the residue solid waste. It also includes the management of specific solid waste, taking into account the mechanical treatment and the recovery and utilization of materials included in the Management of Solid Waste (MSW). The operators’ administrators for the whole system are the municipalities and the company “DIADYMA SA”, which is the Association of the sixty one local authorities dealing with the management of MSW in the area of Western Macedonia. This institution was established by the 12 municipalities of the region including the municipalities of Grevena, Kastoria, Florina, Kozani ; Ptolemaida and Local Unions, for a period of 20 years, to manage their waste.

The municipality of Kozani is responsible for the collection and the transportation of MSW to the Waste Transfer Station (WTS) of Kozani, which is a supra WTS, while “DIADYMA SA” implements the transshipment and the final disposal (landfilling) of the MSW. The annual average generation of MSW for the period 2006 – 2010 is estimated to stand at 24.396 tons while the annual output per person is 514 kg while the daily output per capita is 1.4 Kg/person/day.

3.2 THE LEGAL FRAMEWORK GOVERNING SWM IN GREECEAs is the case in most countries waste management in Greece is covered by a wide range of enactments for all waste types. Moreover, all means and options for waste management are also covered by corresponding technical specifications, from collection, transportation and transfer, to processing, utilization, incineration and final disposal/landfilling. The existing legislation sets obligations for the producers and owners of waste, for institutional bodies like Municipalities and Management Bodies of Solid Waste within each Administrative Unit, for the supervisors of management sites and, overall, of all the involved parties in waste management.

Law 4042/2012 (GG A’ 24/2012) on waste management establishes measures to protect the environment and human health by preventing or reducing the adverse impacts of waste production and waste management and reducing the overall impact of the use of resources.

The National Waste Management Plan 2015 covers policies, objectives, targets, actions and priorities for its implementation, aiming to ensure environmental protection and safeguard public health. Of its pertinent objectives is the design of integrated waste management policy that has the following prioritized aims: Establishing an integrated waste management planning framework; ensuring a high protection of environment and human health; implementation of Separation at Source, as the most appropriate means of collection, with the aim to achieve high quality recycling; rationalization of waste management utility costs and promotion of economically and environmentally viable investments in order to provide contributory benefits to local communities from recycling; and energy recovery.

It is specifically adapted to the requirements of each one of the 13 administrative Regions of the country, through their respective “Regional Plans for Solid Waste Management”. As each Region is responsible for its own planning and target setting, there is the key objective to promote integrated management plans and the cluster similar projects within its jurisdiction. The responsibility for the implementation of the Regional Plans falls under each Region and the respective Management Bodies of Solid Waste of each Administrative Unit.

There is also in operation the Hellenic Environmental Inspectorate (EYEP), established by Law 2947/2001, which contributes considerably to the enforcement of environmental legislation in Greece, with particular focus on sound waste management. EYEP’s main responsibilities include: control and monitoring of implementation of environmental terms and conditions laid down for projects and activities in the public and private sectors, and recommendation of penalties in case of non-compliance; collection and evaluation of environmental enforcement data; as well as national representation at European and international levels on environmental compliance . Through on-site visits and examinations of all relevant factors and effluents, violations of environmental legislation is detected; in case the violation persists, an official certification of environmental law violation can be issued, proposing an administrative sanction, usually a fine.
Despite the legal acts and directives issued, inappropriate waste disposal and management practices still persisted leading to the degradation of surface and groundwater, air pollution and forest fires. Further, the necessity for waste treatment and the experiences from the poor operation of the actual waste management facilities greatly contributed to the adoption of PPPs in the field of waste management. In an effort to give priority to the areas of environmental engineering, waste management systems analysis ; evaluation and environmental impacts minimization, DIADYMA SA considered it necessary to adopt a mechanism that would fully support its objective; which led to the adoption of PPPs in the management of its solid waste.

Greece has experienced a rapid development of its PPP market since it adopted a PPP law in 2005. Being traditionally a socialist country, it was initially wary of allowing the private sector in what it considered the public sector domain. However the replacement of the socialist government by a more conservative New Democracy government in 2004 led to a strong movement to tackle the country’s considerable infrastructure needs with the assistance of the private sector.

The main law governing PPPs in Greece is the PPP Law 3389/2005. Its intent is to create a market-friendly legal framework, to abolish the approval of all concession agreements by Parliament which had been a requirement under the ruling regime and to set a standardized procedure for the tendering of concession agreements. In general it is meant to implement the intention to expand the concession concept in Greece.

As is the case currently in Kenya, Greece has opted for a centralized process to ensure efficient and transparent procedures, involvement of expertise from the beginning of a project and proximity to the political decision-makers as well as governmental planning. This position has however been criticized in Kenya as being burdened by too much bureaucracy that results in unnecessary delays in project implementation and consequently resulted in the recommendation for the adoption of a more county-based approach so as to meet the county-specific needs that tend to vary across the country.

PPP Law 3389/2005 introduces two new specialized bodies within the public administration which is unlike the case in the PPPA where three bodies are established: The PPP Committee, The PPP Unit and the PPP Nodes. The bodies under PPP Law 3389/2005 are:
The Special Secretariat for PPPs
This body is established at the Ministry of Economics and Finance. It promotes the use of partnership contracts, assists public entities in developing and implementing PPP projects, monitors the implementation of partnership contracts and co-ordinates the contract award procedures.
Its functions greatly compare to those set out for the PPP Unit in Kenya; the specialized unit under the National Treasury serving as the secretariat and technical arm of the PPP Committee. Further likened to the PPP Unit is the fact that it serves as a center of knowledge and expertise on PPPs in Greece.

Inter-Ministerial PPP Committee (IMC)
An inter-ministerial PPP Committee is the concessions decisive and awarding body, consisting exclusively of Ministers and is chaired by the Minister of Economics and Finance. It is set up to approve PPP projects and contractual payments to private entities and makes its decisions based on the proposals by the Special Secretariat.
This body is likened to Kenya’s PPP Committee which is also in-charge of projects approval and the monitoring and evaluation oversight of the PPP Program in the country. On the contrary, it is chaired by the Principal Secretary at the National Treasury.

PPP Law 3389/2005 specifically sets out various general principles that are to govern the contract award procedures and the relations of the Contracting Authority with the candidates or tenderers or any third party involved. These include; principles of equal treatment, transparency, proportionality, mutual recognition, protection of the public interest, protection of the rights of private individuals, freedom of competition, protection of the environment and sustainable environment. While PPPA calls for the contracting authority to be guided by the principles of disclosure, transparency, free and fair competition and equal opportunity the Act is not keen to describe in detail how the principles are to be applied and implemented. It is of paramount importance to integrate all relevant principles in our law so as to safeguard the interests of all stakeholders and ensure there is sufficient room for recourse in the case of breach of contract.

Further, PPP Law 3389/2005 contains certain tax provisions applicable to the project companies as is consistent with the practice that has been followed in the existing concession agreements. There is no income tax on accrued interest until commencement of operation period, any state contribution is treated as capital subsidy and relieved from VAT, income tax and other levies, losses can be carried forward and deducted from taxable earning for 10 years, and refundable VAT is refunded within 90 days from the relevant application. As was discussed in the previous chapter, Kenya’s PPP Act makes no provision for tax exemptions or for incentives which would attract private investors to participate in the public sector. This is one area to borrow from and consider modifying in the Kenyan law if we are to promote a robust PPP environment.

Lastly, PPP Law 3389/2005 governs concessions whose cumulative criteria include; the relation to services or projects that belong to the competence of public authorities, allocation – for a consideration – an essential part of the risks related to the financing, construction, availability or demand of the project to the private sector, stipulation that the financing is arranged by the private sector and does not have a contractually budgeted cost over €200,000,000.

In sum total, this law has; simplified and clarified the rules and procedures that are applicable to PPPs, streamlined the procurement process by implementing EU legislation on procurement of public works contracts, addressed risk allocation issues that typically cause concerns in Greek project finance deals as regards international market standards, defined a minimum content for a partnership contract, and resolved various special legal issues that in the past would have required special regulation such as matters concerning protection of the environment, granting of permits and archaeological findings.

The improvements that have been made during the last twenty years make solid waste management in Greece a well-structured, organized and environmentally responsible activity with specific goals, mostly in the urban areas. It is evident that the PPP project in the Municipality of Kozani is regarded as operating in full performance, with fewer costs while utilizing the best available technology which opens up the avenue for other States to take up the challenge pose by Greece in aspects such as:
3.5.1 Strengthening Local AuthoritiesInefficient bureaucratic mechanisms are a main characteristic of municipalities, as are inadequate infrastructure and unskilled staff. This contributes largely to their inability to efficiently support some of their basic functions and to their lack of flexibility in financing more ambitious local schemes. In joining the PPP path, Kenya will be able to make use of private capital, thus relieving its county governments of the immediate financial burden of the project. It will also be able to take advantage of its partner’s technical and managerial “know-how.” In this sense, partnerships will offer the authorities a new financial tool for solid waste management and hence overcome their increased dependency on public funds. More specifically, cooperation with private institutions will help them identify their weaknesses and adopt basic principles of private sector management and efficiency, in local administration.

3.5.2 Promoting Regional Waste Management PlansThis action reinforces accountability and the sustainability of actions of individual municipal authorities while promoting a more open form of governance. Kenya’s devolved system of governance gives the country head way in this regard as it only needs to ensure maximum compliance and support in the sharing of relevant experiences and best practices between county governments, prospectively, improving the implementation of partnerships for the delivery of local goods and provide the “know-how” for “self-governing” local needs.

It is without a doubt that the participation of the private sector in the delivery of SWM services results in maximizing recovery rates and ensured a cleaner environment for the citizens. Though previously not readily accepted, PPPs have definitely gone a long way in promoting the efficiency and quality of solid waste management.

PPPs have been developing, in their contemporary forms, since the 1980’s, as an answer to poor public sector performance, state budgetary constraints as well as increased international competition demanding for means to promote new opportunities for private capital. To this end, these partnerships have been deemed instrumental in the establishing of various State projects and more specifically, they have been considered an alternative to publicly provided waste management as explored in various countries. It has been concluded that the private sector can operate more efficiently than the public sector in providing municipal solid waste services and that it is a possible opportunity, not a panacea, for improving solid waste management in developing countries.
The present paper has attempted to overview the basic features of PPPs which seem to offer important advantages on the economic as well as social level. Such advantages include: generation of sustainable employment; improved technologies and technical competencies as the private sector is able to offer a wide range of alternative technologies due to its potential to attract and create partnerships with other private businesses; reduction in the gap created by insufficient funding attributable to the private sector’s ability to access capital that allows for improvements in coverage, efficiency and planning; and reduction in government’s sovereign borrowings and associated risks which consequently trickles down to minimize the risk to the tax-payer.

It has considered the legal framework governing both PPPs and SWM in Kenya and Greece so as to highlight the importance of harmony in the two instruments in the promotion of an ISWM system. SWM legislation should be able to adequately cover the involvement of the private sector in the management of waste; while PPP legislation should have provisions for contractual frameworks that enable the public sector to interact comfortably with their private counterparts; in the quest to secure a clean and healthy environment as envisaged in our Constitution.

The theoretical considerations used suggest that public-private partnerships are a useful tool in the promotion of local development, instigation of a form of bottom-up approach and the strengthening of local authorities in the delivery of public services; including solid waste management. As such this paper attempted to demonstrate how PPPs have been useful in the administration of SWM services in the municipality of Kozani, Greece and how the same can be indoctrinated in Kenya. Its implementation followed a European pattern of planning and procurement of projects which secured and promoted competition, legitimacy of procedures and the implementation of operationally sound schemes; which if adopted in Kenya would be able to cure some of the challenges facing SWM.

4.2 RECOMMENDATIONSThis study outlines the following proposals:
4.2.1 De-centralization of County functions
While the devolution system in the country empowers each county to manage its own affairs, including those relating to the provision of public services, these functions should be further devolved to adequately cater for the direct involvement of the sub-counties. A case in point is The Nairobi City County Solid Waste Management Act which makes provision for the county government’s involvement in the management of Solid Waste. This position should be reviewed so as to unbundle the functions and retain only those of a policy and legislative nature at the county level whilst the administrative functions including procurement, regulation and enforcement be implemented at the sub-county level. This would promote coordinative administration and ensure a sustainable SWM system. It would also promote accountability and public participation in the delivery of services.

4.2.2 Civic education on PPPsIt is seemingly difficult to secure local public opinion acceptance for the involvement of private, profit-driven organizations to the provision of public goods and services. The dominating political culture and the weak civil society seem to render citizens suspicious of private – public co-operations which may pose significant obstacles in promoting partnerships, by fear of “selling-out” public property. In the eyes of the wider public, private management and charging users is not far from privatization and this may not be acceptable in the realm of public goods and social services and as such most remain suspicious of its effectiveness. Ensuring the citizens are informed of its benefits and efficiency will encourage the establishment of a positive environment for the proper operation of such partnerships and consequently the reaping of maximum gains.

4.2.3 Promotion of Public Participation
The state is mandated to encourage public participation in the management, protection and conservation of the environment under Article 69 (d) of the Constitution . However, the community structures for engaging on these issues is lacking, and where it exists, it is ad hoc.

There is therefore urgent need for structured engagement on environmental issues and the use of public-private partnerships in steering relevant proposed projects in the sector. This can be achieved by the establishment of County Environment Committees at the ward and sub-county community levels under the Nairobi City County Solid Waste Management Act whose duties would include; Sensitizing citizens on their rights and responsibilities with regard to the sector, selecting contractors and development partners in line with the provided thresholds and accountability requirements, channeling bottom-up feedback on the status and delivery of environmental service and serving as an engagement partner for County Government in following up unresolved complaints and facilitating conflict resolution.
4.2.4 Promotion of Transparency and Accountability
The Act and Regulations should provide details of access to information and transparency. They should incorporate provisions for disclosure of information that includes matters concerning; the list of all licensed garbage collection contractors in the county and their areas of designation, days of collection, name of company, year of registration, name of directors, requirements of the contractors and details on the application procedure, report of selection and appointment of the contractors (Tender report) made publically available, copies of contracts for the contractors made publically available, work allocations for the contractors including the vehicle registration, area assigned and days of responsibility, and detailed report of revenue generated from the solid waste management sector on monthly, quarterly and annual basis to be made publically amiable. Such provisions will secure a structured and detailed framework that cater adequately and efficiently for the involvement of the private sector in the provision of solid waste management services.

4.2.5 Review of the current legal regime governing PPPs and SWMAs has been previously discussed, it is impossible to cater for and ensure development in whatever regard without there being an efficient framework that adequately caters for such development. In this regard, it is imperative that the necessary changes are made to the legal framework in the quest to bring harmony to the two sets of laws.

The Nairobi City County Solid Waste Management Act 2015: This Act does not provide for Environment Committees as is the case in EMCA (Amendment) Act 2015; which establishes County Environment Committees. Amending the Act to include these committees in each sub-county and ward (to be named Sub-County and Ward Environment Committees respectively) whose functions would be the management of environment forums at the community level so as to bring together various stakeholders in deliberations involved in the protection of the environment and more specifically SWM. This would ensure a more decentralized system of governance and therefore promote better service delivery to the people in the various sub-counties and wards as well as promote proper representation of the respective residents.

PPPA: This law should be reviewed to introduce provisions that give fiscal and other investment incentives including tax incentives such as tax holidays, reduced corporation tax, import duty exemptions, and VAT relief to private sector investors who opt to participate in the delivery of public services. This ensures more investors are encouraged to participate in the delivery of public services and as such creating a pool for capital and technical expertise in the various public sectors including SWM.

It should further be reviewed to adopt a county-sensitive approach to these partnerships. This way, each county is empowered to set up necessary structures for PPPs including rules and regulations that will ensure its maximum potential is reached and the residents receive the best public services.

Lastly the Act should have provisions for public participation and input in PPP processes and arrangements. This ensures there is proactive disclosure of information and inclusion of the various proposals from the public that would be instrumental in the ensuring a vibrant PPP environment especially as concerns the delivery of public services.

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