INSTITUTIONAL DILEMMAS IN TROPICAL RESOURCE MANAGEMENT

A CASE STUDY OF KAKAMEGA FOREST, KENYA

Der Fakultät für Geschichte, Kunst- und Orientwissenschaften

der Universität Leipzig

eingereichte

DISSERTATION

zur Erlangung des akademischen Grades

DOCTOR PHILOSOPHIAE (Dr. phil.)

vorgelegt

von FREDRICK KISEKKA–NTALE geboren am 27. Juli 1976 in Mengo, Uganda

Gutachter: Prof. Dr. Ulf Engel Prof. Dr. Robert Kappel Prof. Dr. Siegmar Schmidt

Tag der Verteidgung: den 22. Januar 2008

Abstract

The study examines the institutional dilemmas in the management of tropical resources. Specifically, this study is interested in forest biodiversity as the resource in question. The main objective of this study is to establish and ascertain whether there are conflicting notions of biodiversity in Kenya and if there are, we are interested in finding out how such conflicting positions are institutionalised. In pursuit of the above objective, the study uses a case study of Kakamega forest.

The study primarily used institutional mapping methods in generating and collecting data at the national and regional and local levels. The findings reveal that forest biodiversity in a tropical country like Kenya is associated with a number of benefits and these are central in the framing and/or shaping of the institutions at both the national, regional and local levels. Because these are structurally different, in most cases they represent the cause of institutional conflict. What is most intriguing however, is that the Kakamega scenario demonstrates that one of the biggest challenges in the management of tropical resources lies in the absence of institutional mediation mechanisms at both national/regional and local levels. The analysis from this study has revealed that this is the central cause of institutional dysfunctioning in tropical resource management. This also illuminates the dilemmas that bedevil many natural resource rich countries especially in the tropics.

In that regard, institutional options especially those targeting forest biodiversity management should be locally adapted and therefore centrally/regionally mediated, because of the role local forest resources play in the lives of local communities around the forest. In the same respect institutionalised participation and mediation in the decision-making/taking is a necessary prerequisite.

II Dedication

This work is dedicated it to my dear Mother. Your advice has been a great inspiration to me.

III Table of Contents

LIST OF ABBREVIATIONS ...... VI ACKNOWLEDGEMENT ...... VIII 1 INTRODUCTION, BACKGROUND AND PROBLEM STATEMENT ...... 1 1.1 INTRODUCTION...... 1 1.2 INTERNATIONAL CONTEXT OF INSTITUTIONALISM, BIODIVERSITY AND RESOURCE CONSERVATION ...... 3 1.3 A BRIEF OVERVIEW ABOUT KENYA ...... 5 1.4 PROBLEM STATEMENT...... 12 1.5 OBJECTIVES OF STUDY...... 13 1.6 DEFINITION OF CENTRAL CONCEPTS ...... 14 1.7 BIODIVERSITY: AN INSIGHT INTO THE CONTEMPORARY DEBATES AND NOTIONS...... 16 1.8 METHODOLOGY...... 25 1.9 ORGANISATION OF THE STUDY...... 29 2 THEORETICAL CONSIDERATIONS...... 31 2.1 INSTITUTIONS AND INSTITUTIONALISM ...... 31 2.2 INSTITUTIONS DEFINED...... 31 2.3 UNPACKING INSTITUTIONALISM ...... 35 3 PERCEIVING BIODIVERSITY AND NATURAL RESOURCE REGIMES IN KENYA ...... 52

3.1 BIODIVERSITY AS NARURAL RESOURCE CAPITAL...... 52 3.2 AN ANALYSIS OF NATIONAL RESOURCES REGIMES IN KENYA ...... 60 3.3 BIODIVERSITY GOVERNANCE: BETWEEN RESTORATION AND PRESERVATION ...... 61 3.4 RESOURCE ACTORS, AND LOCAL PERSPECTIVES ON BIODIVERSITY IN KENYA ...... 68 4 BIODIVERSITY, LOCAL DECENTRALISATION AND THE POLITICS OF NEO- PATRIMONIALISM IN KENYA...... 73 4.1 BIODIVERSITY AND THE POLITICS OF NEO-PATRIMONIALISM IN KENYA...... 73 4.2 INSTITUTIONALISM, LOCAL DECENTRALISATION AND BIODIVERSITY RESOURCE USAGE IN KAKAMEGA .81 4.3 INSTITUTIONALISM AND BIOETHICS IN BIODIVERSITY RESOURCES MANAGEMENT ...... 87 4.4 MAPPING AN INSTITUTIONALIST, SOCIAL COGNITIVE-DIMENSION FOR BIODIVERSITY MANAGEMENT IN KENYA ...... 92 5 NATIONAL AND SUB-NATIONAL LEVEL MAPPING...... 98 5.1 INSTITUTIONAL MAPPING OF THE BIODIVERSITY SECTOR IN KENYA ...... 98 5.2 BIODIVERSITY IN THE KENYAN CONSTITUTION...... 100 5.3 THE OWNERSHIP AND USAGE OF BIODIVERSITY IN THE KENYAN CONTEXT ...... 102 5.4 EVOLUTION OF LEGAL REGIMES AND LEGAL REFORMS RELATING TO BIODIVERSITY...... 106 5.5 CURRENT LEGAL AND POLICY REGIMES IN CONSERVATION OF BIODIVERSITY ...... 110 5.6 FORMAL RULE DESIGN AND MEDIATION: BETWEEN THE NATIONAL AND LOCAL INTERESTS ...... 119 5.7 THE ROLE OF INTERNATIONAL INTERESTS IN BIODIVERSITY RESTORATION IN KENYA ...... 121 5.8 BIODIVERSITY AND INSTITUTIONAL REFORMS IN KENYA: A SHIFT TOWARDS A DEMAND RESPONSIVE APPROACH?...... 124 6 INSTITUTIONAL MAPPING AT THE LOCAL LEVEL...... 126 6.1 SAMPLE SIZE DETERMINATION AND IDENTIFICATION OF CLUSTERS ...... 126 6.2 LOCAL PERCEPTIONS OF BIODIVERSITY IN KAKAMEGA...... 130 6.3 GEOGRAPHY AND CLIMATE OF KAKAMEGA DISTRICT AND WESTERN KENYA ...... 136 6.4 BIODIVERSITY AND RESOURCE USAGE IN KAKAMEGA FOREST ...... 138 6.5 THE PEOPLE OF KAKAMEGA ...... 140 6.6 LOCAL INSTITUTIONS AND FARMING SYSTEMS IN KAKAMEGA DISTRICT ...... 144 6.7 LOCAL KNOWLEDGE AND BIOLOGICAL CONSERVATION: THE INTERFACE...... 150 7 HISTORICAL AND SOCIOLOGICAL INSTITUTIONS IN KAKAMEGA DISTRICT...... 155 7.1 INSTITUTIONALISM AND CUSTOMARY LAW ...... 155 7.2 LOCAL ECOLOGICAL KNOWLEDGE AND LOCAL PERCEPTION OF NATIONAL BIODIVERSITY LAWS ...... 161 7.3 FOREST BIODIVERSITY AND CULTURAL HERITAGE IN KAKAMEGA ...... 164

IV 7.4 COLLECTIVE COMMUNITY ACTION AND BIODIVERSITY IN KAKAMEGA...... 169 7.5 BIODIVERSITY AND PROPERTY RIGHTS IN KAKAMEGA...... 171 8 SUMMARY AND CONCLUSIONS ...... 177 8.1 RECAP OF FINDINGS: LINKING RESEARCH QUESTIONS TO STUDY FINDINGS ...... 177 8.2 TOWARDS INSTITUTIONALISED PARTICIPATION AND LOCAL RESOURCE GOVERNANCE IN KAKAMEGA 182 8.3 RE-VISITING AND RE-CONCEPTUALIZING INSTITUTIONALISM AND PARTICIPATION IN KAKAMEGA ...... 184 8.4 INSTITUTIONALISM AND PARTICIPATION IN KAKAMEGA: AN OUT LOOK TO FUTURE...... 188 8.5 SUMMARY...... 197 REFERENCES ...... 201 LIST OF TABLES ...... 222 LIST OF FIGURES AND MAPS ...... 223 APPENDICES...... 224 CURRICULUM VITAE...... 240 VERSICHERUNG ...... 241

V List of Abbreviations ATC Africa Technology Centre ABSM Access Benefiting and Sharing Mechanism BPC Bio Prospecting Contracts CBD Convention for Biological Biodiversity CBS Central Bureau of Statistics CITES Convention on International Trade in Endangered Species COP Conference of Parties DFID Department For International Development EA East Africa EAC East Africa Community EMCA Environmental Management and Co-ordination Act FAO Food and Agricultural Organisation of the United Nations FD Forest Department FRM Forest Reserve Management FS Forest Services GDP Gross Domestic Product GEF Global Environmental Facility GTZ German Technical Service GOK Government of Kenya G8 Group of Eight IMF International Monetary Fund INRS Integrated Natural Resource Society IUCN World Conservation Union INCRAF International Centre For Research In Agro forestry IPR Intellectual Property Rights KANU Kenya African National Union KENRIK Kenyan Resource Centre for Indigenous Knowledge KI Key Informant Interview KFS Kenya Forestry Society KM Kilometre KWS Kenya Wildlife Services LVEMP Lake Victoria Environmental Management Project LR Licensing Regimes MNC Multi National Corporation MOU Memorandum of Understanding MTA Multilateral Trading Agreement NBI Nile Basin Initiative NEAP National Environmental Action Plan NEMA National Environmental Management Authority NEMP National Environmental Management Policy NES National Environmental Services NASSEP National Sample Survey Evaluation Programme NGO Non Governmental Organization NMK National Museums of Kenya NSAP National Biodiversity Action Plan OAU Organisation of African Unity PSP Principle Sampling Point RCI Rational Choice Institutionalism RSA Republic of South Africa SOP Standard Operation Procedures VI UNDP United Nations Development Programme UNEP United Nations Environmental Programme UNECD United Nations Conference on Climate and Development WAC World Agro Forestry Centre WWF World Wildlife Fund

VII Acknowledgement Accomplishing a task of this magnitude is no mean feat. This work is a product of cooperation, guidance and support of many partners, institutions and individuals. I therefore take the opportunity to thank all those who facilitated the eventual completion of this assignment. To begin with, my work benefited from the wisdom and advice of many distinguished scholars. I am particularly indebted to my immediate advisor, Prof. Dr. Ulf Engel of the Institute of African Studies, University of Leipzig. I drank deep, from his wealth of knowledge. I was also a beneficiary of his unfettering support and advice. His steady supervision enabled me accomplish the task in record time. (You are the kind of supervisor any student should love to have). I am equally glad to have been guided by Prof. Dr. Robert Kappel of the German Institute of Global and Area Studies (GIGA), and Dr. Ute Reitdorf of the SEPT programme, University of Leipzig. In the same regard, I am grateful to the assistance rendered to me by Mr. Abdilatif Abdalla whose interest and insight in this work was such a motivation on my part. Most specifically, I thank him for having accepted to proof read my original manuscript. I am deeply thankful to the spirit of comradeship that I received from other members of the Institute of African Studies, particularly, Ms Monika Große for making my working at the institute comfortable and Prof. Dr. A. Jones, Prof. Dr. E. Wolf, Dr. A. Agwana. All of you in your respective capacities, made my stay at the Institute exciting and memorable. I was able to undertake my PhD studies in Germany because of the financial assistance rendered to me by the Catholic Academic Exchange Service (KAAD). Specifically, I am grateful to Dr.Thomas Scheidtweiler and Ms Simone Saure of the Africa Department, for their varied support. Similarly, I am glad to have taken part in the BIOTA programme funded by the German Ministry of Education and Research (BMBF). My stay in Germany enabled me to make numerous friends. I am grateful and thankful to C. Bruno, S. Khulmann, K. Grabs, K. Guhr, M. Nambula, J. Mullei, C, Muma, J. Kuhlmann, H, Kinya J.Tsuwi, and V, Nanga. The support you rendered to me will forever be treasured. I must also mention this work was a product of field research done in Kenya. While in Kenya, I benefited from the cooperation and assistance of many individuals and institutions such as the Kenya Wildlife Services, National Museums of Kenya, Ministries of Agriculture, Environment and Natural Resources, the Forest Services, National Environmental Management Authority and INCRAF among others. I also visited many other organisations that agreed to take part in field study and I am grateful to all of them. In the same spirit I am also thankful to the Key informants at Kakamega District and the Western Kenya Provincial Administration. To my field Research Assistants M. Barasa, N. Alwodi, G. Anyango and M. Adongo, I am thankful. Lastly, I am also greateful to my family for having been patient for all this time. I am eternally indebted to you for your encouragement and support. To you all, I say; Mwebale nyo mwebalire ddala!

VIII

1 Introduction 1.1 Introduction Kenya is currently facing a biodiversity crisis and the country’s environmental management body, the National Environmental Management Authority (NEMA), has embarked on every effort to arrest the declining levels of biodiversity resources.1 Currently, many forests are under threat, not to mention Kakamega and Mountain Kenya forests. There is a great loss of biodiversity especially in forests where people are using land for settlement and agriculture or other activities. Increased interest in the restoration of national biodiversity in Kenya, is among other factors driven by global calls for linking development to environmental conservation.2 This is based on the fact that the environment plays a significant role in development. It is imperative to note that; biodiversity is the leading resource in most of the tropical and agrarian countries.3 The value of biodiversity to mankind needs no recount. However, there are numerous factors such as the existence of incompatible institutions that curtail the attainment of desired conservation and development goals. Kenya is one of the 170 key parties which ratified the 1992 Rio de Janeiro Treaty. The parties set 2010 as the year in which loss of biodiversity will be significantly reduced. This success however depends on how effective such parties will be in their endeavours to protect biodiversity spots such as forests, where most of the fauna and flora is found. 4 The central proposition of this study is that, the existence of different and parallel forms of institutions as well as different forms of land use practices in Kakamega, clearly impact on the current and future forest/biodiversity conservation efforts. The central research question of this study is; what constitutes locally relevant biodiversity notions in Kakamega vis-à-vis the national regimes and how are such perceptions institutionalised and mediated? This study is grounded in institutional theory because of the significant role institutions play in regulating natural resource usage and control. These institutions act as instruments of control, by regulating and prescribing behaviour patterns in respect to common resources. 5 It is imperative to note that if well examined and analyzed, institutions form a firm foundation for promoting participation and indirectly enhancing sustainable management of forest biodiversity.6 Institutions are analyzed at the national, sub-national and local levels in order

1 NEMA. 2001. Biodiversity for All. Nairobi:Government Printer. 2 Mwenya, A.N. 1993. Redefining Conservation in African Terms. In voices From Africa: Local Perspectives on Conservation, edited by D. Lewis and and N. Carter. Nairobi: World Wildlife Fund. 3 Carswell, G. 2001. Environmental Threats and Opportunities Assessment for Uganda: Biodiversity Report. Washington, D.C: USAID. 4 Kevin .M and G.A, Schreiber. 1991. Revising the Spiral: The Population, Agriculture and Environment Nexus in Sub-Saharan Africa. Washington D.C: The World Bank Publications. 5 Nuitjen. M. 1992. Local Organization as Organising Practices: Rethinking Rural Institutions. In The interlocking of Theory and Practice in Social Research and Development: Battle fields of Knowledge, edited by Long .N and A. Long , 189-207. London: Routledge. 6 Solomon, M. 2003. Traditional Lifestyles and Biodiversity Use Regional Report: Pacific, Composite Report on the Status and Trends Regarding the Knowledge, Innovations and Practices of indigenous and Local Communities. Prepared for the Secretariat of the Convention on Biological Diversity, Montreal. 1 to illustrate the current dilemmas that characterize Kenya’s forestry resources management. It is worth noting that conflicts between traditional norms, behaviours, perceptions, values and state thinking regarding forest biodiversity conservation are very discernible in Kakamega. There is need to mitigate the state-society thinking in order to have a successful forest resource conservation regime. The country is in a process of revising all its legal frameworks relating to biodiversity, as a measure to arrest the situation by 2010. In the interest of this study, we ask; with only three years to 2010, to what extent have such efforts been implemented? Will the revised acts work to undo the existing mismatch in the current legal frameworks governing biodiversity in the country? We ought to mention that any efforts to reverse further degradation of biodiversity in Kenya, should be able to reconcile community social and economic needs through development of holistic and well reaching institutions for ensuring sustainable land use activities. In Kenya, most of the legal rules were formulated on the basis of neo-classical models which sometimes fail to recognize the crucial actors during the framing of rights at different levels. Some times the rights’ holders may not be the best people to protect the resources which they have been entrusted to protect.7 Currently there are efforts geared towards enlisting local community involvement in appreciation of biodiversity in Kenya, but efforts in studying the institutionalisation of community perceptions regarding biodiversity are still limited. There exist complex local institutions which are unsupported by existing formal institutional frameworks. These institutional frameworks sometimes fail to reconcile community attributes related to biodiversity. The transfer of authority over common resources from the realm of communal rules to individuals and states created conditions for overexploitation due to the sweeping aside of traditional structures that regulate use. 8 The 1992 Rio conference established a new agenda regarding the control of biological resources. It has attracted cooperation among different states in an attempt to prevent further destruction. This has become a subject of common concern over the decades. Management of biodiversity can be accomplished through either in-situ or ex -situ measures. Of the two, in- situ conservation remains most common. However, one important component of in-situ management is the biocultural knowledge, comprising of traditional knowledge which resides in traditional groups. This traditional knowledge used by the local and indigenous communities to preserve and conserve biological resources, is less utilized and less documented.9 The purview of biodiversity within a broader context has yielded the need to reformulate institutions and systems that can take into account multiple users and actors. it was in the interest of this study to investigate how such multiple interests and multiple actors

7 Pimbert, M and J. Pretty. 1995. Parks, People and Professionals: Putting Participation into Protected Area Management. UNRISD Discussion Paper No. 57. Geneva: UNRISED. 8 Scott, W. R. 1995. Institutions and Organizations. Thousand Oaks: Sage. 9 GOK. 2001. The East African Cross border Biodiversity. Nairobi: Government Printer. 2 are mediated into the national policy and legal regimes, dealing with the usage of forestry biodiversity as a resource. Generally speaking, resources in Kenyan traditional societies are used according to set communal rules. These emphasize elements of sustainability and preservation for the future generation. Collective arrangement, decision and guiding principles are usually made at the communal level to regulate access and use of such resources. The organization of the community revolves around parties linked to each other by kinship or reciprocation.10 The rights of control over resources are vested in the political authority of the community and derive directly from their sovereignty over a given resource area. This rather traditional notion of resource ownership and conservation depicts a more organized and institutionalized way of natural resource management. However, with the collapse of traditional resource ownership and with the changed land tenure system, resource ownership was put under the state notion of resource management.

1.2 International context of institutionalism, biodiversity and resource conservation One of the most difficult challenges that has continued to dog international resource conservation efforts over the years, has been how best to preserve and protect forest biodiversity, especially in tropical developing countries.11 People manage most of the World’s forests, using them for domestic grazing, tree girdling and tree cutting to provide habitats and agricultural areas. Concerns in the first few centuries rotated around the shortage of wood, erosion and the dangers of forest fires. However, because of the numerous dilemmas emanating from the increased loss of the world’s biological resources, a number of international undertakings aimed at recovering from this loss have been echoed.12 Efforts to arrest continuous depletion of renewable natural resources, particularly forests, wetlands and marine resources in Africa, have been enormous and have taken a centre stage in national and international development agendas. Biodiversity decline in many of these countries is a product of two factors, namely: the pressure of poverty and the institutional inadequacies which fail to guarantee collective learning processes in the governance of biodiversity. 13 In the same rubric, many governments in Tropical Africa are taking up measures to ensure biodiversity recovery in some of the worst cases of deterioration. Whereas there are different definitions of biodiversity, this study will define biodiversity as the summation of genes, individuals, meta and mega populations, species, ecosystems and the

10 Heltberg, R. 2001. Determinants and Impacts of Institutions for Common Resource Management. Journal of Enviroment and Development Economics 6:183-208. 11 Agrawal, A and J.C, Ribot. 1999. Accountability in Decentralisation: Framework with references from Asia and West African Cases. Journal of Developing Areas 33: 47-502. 12 Herman, E and J.B, Cobb. 1989. From the common Good:Redirecting the Economy towards the Community, the Environment and a Sustainable Future. Boston: Beacon Press. 13 Ribot . C, J. 2003. Democratic Decentralisation of Natural Resources: Institutional Choice and Discretionary Power Transfers in Sub-Saharan Africa. Washington: World Resources Institute. 3 interactions between these entities.14 Biological diversity, simply stated, is the diversity of life. Biodiversity sums up the full range of variety and variability within and among living organisms and the ecological complexes in which they occur. It also encompasses community diversity, species diversity, and genetic diversity. In studying biological diversity, we undertake to understand the variety of life and its processes; and it includes the variety of living organisms, the genetic differences among them, and the communities and ecosystems in which they occur.15 More broadly, this entails understanding specie richness and interactions in a particular ecological zone. Bearing in mind that, in principle biodiversity is a biological issue, we ought to note that it overflows beyond the boundaries of the science world. It is increasingly drifting into the social sciences, because of the complex social and demographic factors, making this debate to take another interesting twist. One such factor is the continuing interest in understanding what shapes peoples’ interests, intentions and attributes while using forest biodiversity related resources. Therefore, in this study, it is imperative to point out that there are often diverse and conflicting values regarding resource use priorities rather than conventionally known attributes and interests. As we strive to get a clear understanding of the relationships regarding biodiversity usage in a tropical country like Kenya, it is important to note that, communities cannot be treated as static and rule bound wholes, because they actively monitor, interpret and shape the biodiversity world around them differently. 16 In order to get a clear picture of the complexities involved in the biodiversity debate, it is important to focus our lenses on the multiple categories of actors, with different and often competing interests in the entire spectrum of natural resource management. We can attain this, when we critically look at regimes governing forest biodiversity at the national, sub-national and more importantly at local levels. Through this analysis, we can carefully understand how repeated actions among communities reproduce knowledge and institutions, leading to varied notions and perceptions in understanding biodiversity at these different levels. As a result, limitations regarding the concept of biodiversity do emerge. Biodiversity primarily reflects the values attributed by the scientists. It is used predominantly as a scientific concept and significantly reflects the existence of natural species.17 On the other hand, local communities surrounding protected and unprotected natural resource areas, also assign values to the diversity of species found in a natural resource environment. However, in most cases these are social values and sometimes, such values don’t reflect direct use values since they are usually cultural and spiritual values. In response to such values, communities living around biodiversity hotspots have actively maintained biodiversity knowingly or unknowingly.18

14 Leach, M and R, Mearns. 1996. The Lie of the Land: Challenging Received Wisdom on the African Environment. Oxford: James Curry. 15 Jensen, D.B., M. Torn, and J, Harte. 1990. In Our Own Hands: A Strategy for Conserving Biological Diversity in California. California. 16 Leach, M and R, Mearns. 1996. Opcit. 17 Pandey, S and M, Wells. 1997. Ecodevelopment planning at India’s Himalayan National Park for Biodiversity Consevation and Participatory Rural Development. Biodiversity and Conservation. 6:1277-92. 18 Toner, A and T, Franks. 2006. Putting livelihoods Thinking into Practice:Implications for Development and Mangement. Public Administration and Development. 26: 81-92. 4 Giddens notes that linking agency and structures emphasizes how structures, rules and norms emerge as products of peoples’ practices and interactions with their environments, both intended and unintended.19 However, such interactions and values are rarely articulated to give an insight into the social, and other related processes, underlying the varied manifestations of biodiversity in either the natural or the human influenced environments. These limitations, therefore, demonstrate the need to re-asses the conceptual meaning of biodiversity, focusing on the local peoples’ knowledge, understanding and perceptions. We also wish to investigate how such knowledge shapes informal regimes relating to biodiversity conservation. Such re-assessment is of profound relevance, since it will help us in understanding what happens when local ecological thinking and formal conservation policies meet. The foundation for this assessment lies not only in the social and biological intermarriage, but the likely variations and conflicts that may emerge and as a result warrant mediation. We ought to mention that the desired balance between human activity, national development, and environmental protection requires sharing of responsibilities, which must be equitable and clearly defined. This must be done in reference to consumption and human behaviour towards the environment and natural resources.20 This also implies integration of local peoples’ ecological behaviours and choices into the formulation of sectoral decisions. It also manifests effective dialogue and concerted action among partners who may have differing short-term priorities and perceptions.21 Therefore, it is in the interest of this study to establish broader perceptions of biodiversity, and locate these perceptions in Kenya’s resource management regime. The research will use Kakamega Forest, perceived to be one of the leading biodiversity hotspots in Kenya. The study will be articulated at the backdrop of the escalation of natural resources deconstruction, punctuated by varied ecological interests.

1.3 A Brief overview about Kenya Kenya is one of the five countries that form the East African sub-continent, others being Tanzania and Uganda, Burundi and Rwanda. Bisected by the Equator, the total area of the Republic of Kenya is 587,900 sq km (224,081 sq. miles) of which 576,700 sq km are covered by the land surface while 11,200sq kms are covered by water excluding inland waters mostly Lake Turkana and part of Lake Victoria as well as the great rift valley lakes like Baringo, Naivasha and Magadi. Kenya’s biodiversity is closely linked to the country’s unique topography. The most noticeable physical feature is the East African Rift Valley which runs from the Lake Turkana in the north to Lake Natron at the Tanzania border. These landforms substantially influence

19 Giddens,A. 1999. The constitution of Society :An outline of the theory of Structuration. Cambridge: polity press. 20 Peluso, N.L. 1992. Rich Forest, Poor People: Resorce Control and Resistance in Java. Berkely/California: University Press. 21 WCED. 1987. Our Common Future . Report of the World Commission on Environment and Development. Oxford: University Press.

5 the climatic patterns, with inland rainfall generally relating to changes in altitude.22 High rainfalls are normally associated with the Indian Ocean coastal belt, the central highlands, and the areas near the north and east of Lake Victoria. The physical basis of the country is its extensive erosional plains that cut across ancient crystalline rocks of precambrian age. These physical features are more vivid along the rift valley. The height of the Kenya Highlands has been greatly augmented by outpourings of tertiary lavas, leaving plateaux at 2,500-3,000m and with isolated extinct volcanoes like Mt Kenya (5,199m) and Mt Elgon (4,321m). The Great East African Rift Valley bisects the country from north to south. This rift valley is dotted with lakes and volcanoes which are inactive, but generally associated with steam vents and hot springs. Westwards, the plains incline beneath the waters of Lake Victoria and eastwards they have been down-warped beneath a sediment-filled basin, signifying the impact of warping. Forests are largely located in the rainy upper levels of the Kenyan highlands, where they are supplied with abundant rainfall. East and west of the highlands, forests give way to low trees scattered through an even cover of short grass.23 Semi-desert regions below 3,000 feet, give rise to baobab trees. In drier areas of the north, desert scrub occurs, exposing the bare ground. The vegetation of the coastal region is basically savannah with patches of residual forests. While the northern coast still bears remnants of forests, years of human occupation in the south have virtually destroyed most of the forests in this part of the country.24 In terms of economic and political governance, Kenya, formally a British settlers’colony, attained independence from Britain in 1963 and later became a republic. The Country currently has a total population of 36,987,000 people of which 66% are residing in the countryside.25 This indicates intense competition for arable land and thus creating a lot of land conflicts. Tourism is essential to the economy, and Kenya being one of Africa's major tourist destinations, tourism is essential to the economy.26 After independence, Kenya promoted rapid economic growth through public investment, encouragement of smallholder agricultural production, and incentives for private (often foreign) industrial investment. Gross Domestic Product (GDP) grew at an annual average of 6.6% from 1963 to 1973. Agricultural production grew by 4.7% annually during the same period. This was stimulated by redistributing estates, diffusing new crop strains, and opening new areas to cultivation. Between 1974 and 1990, however, Kenya's economic performance declined. Inappropriate agricultural policies and poor international terms of trade contributed to the decline in agriculture. Kenya's inward-looking policy of import substitution and rising oil prices made Kenya's manufacturing sector uncompetitive. The government began a massive intrusion in the private sector. Lack of export incentives, tight import controls, and

22 Buckle, C. 1992. Physical Geography of East Africa. Nairobi: East African Literature Bureau. 23 Mistu News. Reservation of Permanet Forest Estate in East Africa, September 2004. 24 Katuu, S. 2002. Kenya Resource Database: A Preliminary Review. Sage Publications. 18(2):107-110. 25 GOK.1995. Statistical Abstract. Nairobi: Government Printer. 26 GOK. 1999. Population and Human Development Planning Report. Nairobi: Government Printer. 6 foreign exchange controls made the domestic environment for investment even less attractive.27 From 1991 to 1993, Kenya had its worst economic performance since independence. Growth in GDP stagnated, and agricultural production shrank at an annual rate of 3.9%. Inflation reached a record 100% in August 1993, and the government's budget deficit was over 10% of GDP. As a result of these combined problems, bilateral and multilateral donors suspended aid to Kenya in 1991.28 In 1993, the Government of Kenya began a major program of economic reform and liberalization. A new minister of finance and a new governor of the central bank undertook a series of economic measures with the assistance of the World Bank (WB) and the International Monetary Fund (IMF). As part of this program, the government eliminated price controls and import licensing, removed foreign exchange controls, privatised a range of publicly owned companies, reduced the number of civil servants, and introduced conservative fiscal and monetary policies. From 1994-1996, Kenya's GDP growth rate averaged just over 4% a year.29 In 1997, however, the economy entered a period of slowing or stagnant growth, due in part to adverse weather conditions and reduced economic activity prior to general elections in December 1997. In 2000, GDP growth was negative, but improved slightly in 2001. Economic growth continued to improve slightly in 2002 and reached 1.4% in 2003 and it reached 4.3% in 2004.30 In terms of international standing, Kenya is one of the few reputed African countries, and hosts a number of international organisations and different foreign missions in its capital Nairobi. It is the only African Country which hosts many United Nations Departments, such as the United Nations Environment Department (UNEP) headquarters.

Geographical location of Kakamega Forest Kakamega forest is located in the Western Province of Kenya, lying between latitudes 00°08’30.5’’ N (41 236 in UTM 36 N) and 00°22’12.5’’ N (15 984) and longitudes 34°46’08.0’’ E (696 777) and 34°57’26.5’’ E (717 761) at an altitude of about 1500 to 1700m (Map. 1). From the 150 km remote Rift Valley it is separated by highlands like the Cherangan in the north, and the Mau Escarpment in the south. The distance to Kisumu from Lake Victoria is about 43 km (Map.1). Kakamega town on the western side of the forest is located about 7.5 km to the nearest point of the main forest block.31 Kakamega forest is about 66 km from the border to Uganda and about 94 km to Mt. Elgon. It is one of the few tropical forests remaining in Kenya. It also acts as a habitat to a great number of plant and animal species, yet

27 IMF. 1995. Kenya and the IMF. Washington:International Monetary Fund. 28 GOK. 1997. The Statistical Abstract .Nairobi:Government Printer. 29 GOK. 2005. Background o the Budget. Nairobi:Government Printer. 30 GOK. 2006. Population and Human Development Planning Report. Nairobi: Government Printer. 31 KIFCON. 1994. Kakamega Forest - The official guide, Kenya Indigenous Forest Conservation Programme. Nairobi: Kenya. 7 at the same time ranked as one of Africa’s most densely populated forests.32 The area under forest is 28,199.72 hectares, and is currently gazetted, though still facing biodiversity threats. The forest is located at an altitude of 1,500-1700 meter and receives between 1,500 and 2,300mm of precipitation per year.33 Kakamega district has a total population of 643,457 people which is projected to rise to 730,373 people by the year 2008. 34 However, the total number of those living around and in the forest is not known. Agriculture is the major important activity and accounts for 62% of incomes in the households. The area is also characterized by migrant labourers. The regimes of access to resources such as biodiversity are still not well defined. The forest which is almost the only one of its kind remaining in Kenya plays a critical role in regulating the rainfall regime and is one of the catchment areas of the East African region. The district has varying topography with altitudes ranging from 1250-2000 meters above sea level. The district has two major rivers, Yala and Nzoia. Though there are numerous forest communities, it is not known how many communities they are in number. However, in this study we are interested in investigating the institutional practices and perceptions of communities that have been staying around the forest for a greater part of their life as opposed to those who are simply migrant labourers in the district such as the agrarian workers.

Management of Kakamega Forest Early accounts of colonial administrations in Kenya show that the survey of Kenya was done at the dawn of the 19th Century. This resulted into the current mapping of forest lands. Subsequently, the same survey also saw the expansion of forested belts especially in the countryside, resulting into the current survey of vegetation and forest cover in Kenya. The current map regarding vegetation and forest cover shows that at one time Malava and Kisere forests were separated. The two forests were only drawn in as groups of trees. Betterstill, Isecheno, Ikuywa and Yala regions were connected to each other and to the south Nandi forest system. Up to 1931, Kakamega forest was managed by local people, with authority in the hands of the village elders. It was then brought under the control of the then Forest Department (FD) which gazetted the forest as Trust Forest in 1933.35 First plantations with the exotic tree species like Cypress and Eucalyptus from Australia were established between 1936 and 1938.36 After the forest was declared a Central Government Forest in 1964, three small nature reserves in Isecheno (295 ha), Yala (460 ha) and Kisere were officially created in 1967. The motivation was to protect these areas from exploitation

32 Pender, J, F. Place and S. Ehui. 2006. Sustainable Land Management. Lessons from East African Highlands. Washington D.C: IFPRI Publications. 33 GOK. 2005. Kakamega District Strategic Plan 2002-2005. Nairobi: Government Printer. 34 Ibid. 35 Mitchell, P. 1947. The Kenya Colony and Protectorate of 1947. Report on the Agrarian Problem in Kenya. Nairobi: Government Printer. 36 Graham, R.M. 1945. Notes on the Growing of Cypress timber on Farms. East African Agricultural Journal 1:132-139. 8 and to preserve the different forest types of Kakamega. Kisere forest and part of the northern Kakamega forest, formed part of our study area. A total of 18 forest fragments, were declared as Buyangu National Reserve in 1986 and fell under the management of the Kenya Wildlife Service (KWS). The Buyangu National Reserve covers an area of about 4,270 ha, of which Kisere covers 458 ha and the Buyangu area 3,812 ha. But the main part is still a forest Reserve under the control of the FD with legal use of the forest inventory.37 The areas outside the nature reserves of the FD are reserved for afforestation. Here trees are planted because of their economic values. In areas managed by KWS, strict rules to conserve the forest are enforced. Any use of the forest under the control of KWS is forbidden. The government thinking is that tourism is the long-term source of income for the KWS and the local people. In addition direct benefits for the locals lie in employments as field guides or field assistants for several research projects on the unique wildlife flora and fauna in Kakamega Forest. In a nutshell, Kakamega forest is governed by two different formal management regimes and enforced by two different agencies; the FD and the KWS. These two agencies have different protection priorities. For, instance, the Buyangu National Reserve under the control of KWS, is regularly patrolled by game rangers to enforce the conservation and protection of the wildlife resources, while the nature reserves at Issecheno and Yala are controlled by the FD to prevent local communities from harvesting forest resources.

37 Njuguna, P, M. Mbegera and D. Mbithi. 1999. Reconnaissance Report on Survey of Forest Blocks in the West and East of the Rift Valley. Permanent Presidential Commission on Soil Conservation and Afforestation. Nairobi: Government Printer. 9 Map.1: Map of Kenya

Source: African Studies Centre, University of Pennsylvania.

10 Map 2: Landsat ETM+ (7) satellite image (05 Feb 2001, spectral bands 5/4/3, (contrast enhanced) of Kakamega Forest, its peripheral fragments and the Nandi Forests

Source: BIOTA-E02, G. Schaab, FH Karlsruhe 11 1.4 Problem statement East African rain forests suffer large over- exploitation by humans and belong to the most threatened and least explored ecosystems on earth.38 Only about 0.1 % (about 10,000 km²) of the estimated 10 million km² of tropical rainforest in the world are found in Eastern Africa. Unlike the vast West and Central African forests, the forests of Eastern Africa are highly fragmented-discrete islands surrounded by comparatively arid woodland.39 Tropical rain forests like Kakamega are not only centres for high biodiversity, but are also known to be homes to many people, many of whom though asset poor, are rich in enterprise and extractive skills. Land use systems range from the extensive use of natural forest vegetations, subsistence production, and market intensive peri-urban production systems.40 The use of this forest in Kakamega, shows that there is declining biodiversity, punctuated by continued ecological loss. High biological diversity in this rain forest presents a breadth of potentially useful resources to the people living around Kakamega forest. The forest therefore presents multiple agrarian and social roles and they include; source of subsistence products, medicine, wood resources as well as pasture for grazing animals. 41 Formal institutions dealing with forest resource conservation in Kenya and specifically around Kakamega forest tend to assume that local communities around the forest are homogeneous. This thinking is based on the apparent homogeneity of livelihood strategies of forest user communities.42 This profound assumption often gives rise to broad based and un-integrated formal institutional initiatives regarding sustainable use of forest resources. Often, the policies in this regard are a mere listing of rights without much relationship to enforceable entitlements. This is more so in the case of marginalized and vulnerable communities such as forest-based communities.43 The analysis regarding formal institutional efficiency in the management of natural resource commons indicates that formal institutional regimes must cut across multiple resource users’ rights and attributes.44 This is done in order to evaluate and understand the varied resource users’ knowledge and perceptions.45 The institutional arrangement resulting from such knowledge related attributes can some times be stronger than a country’s formal institutional

38 Köhler, J. 2004. Biodiversity in conversion: The Influence of Fragmentation and Disturbance on the Biodiversity of East African highland rain forests, in: BIOTA East Africa. Final report phase I: 2001 – 2004. 39 Lovett, J.C. and Wasser, S. 1993. Biogeography and Ecology of the Rainforests of Eastern Africa. Cambridge: Cambridge University Press. 40 Mwangi, E. P. Ongugo and J, Njuguna. 2000. Decentralising Institutions for Forest Conservation in Kenya: A Comperative Analysis of Resource Conservation. Nairobi: IFRI. 41 Guthiga, P, J.Mburu and S.Wambu. 2006. Extraction of Direct Forest Products and its driving factors. The Case of Kakamega Forest. A paper presented at that GIGA Workshop; Hamburg, March 2006. 42 Brown, D. 1999. Principles and Practices of Forest Co-Management: Evidence form West-Central Africa. European Union Tropical Forest Paper 2. Overseas Development Institute. 43 Chambers, R. 1998. Forward. In Whose voice: Participatory Research and Policy Change, edited by J. Holland and J. Blackburn, 44-54. London: Intermediate Technology Publications. 44 Swallow, B and D.W.Bromley. 1995. Institutions, Governance and incentives in Common Property Regimes for African Rangelands. Environment and Resources Economics 5: 1-20. 45 Ibid. 12 regimes.46 Yet national regimes governing and regulating biodiversity usage in Kenya and more particularly in Kakamega, are often in conflict with local institutions and practices, a situation which leads to institutional conflict. This situation is borne out of the fact that, the people around Kakamega forest have a myriad of social institutions (cultural attributes) towards the forest. They incorporate these practices/attributes in their livelihood strategies and this influences the way they perceive forest biodiversity and resource use priorities. Persson and Tabellini put it that social institutions evolve as a means of understanding systems that may result from a stream of benefits, derived from a resource regime.47 For instance, society has a distinct way it shapes individual knowledge in a given resource system. This means that individuals in such a society carry with them specific ecological knowledge, values, norms as well as other beliefs that originate from their society.48 Therefore, based on institutional theory, empirical inquiry and investigation, this study wishes to aid our understanding on how local thinking shapes and structures biodiversity perceptions of the people living around Kakamega forest. Similarly, we wanted to find out what happens when such local thinking and state thinking interact.

1.5 Objectives of the study With respect to the above sighted literature, it is expected that the respective thinking regarding biodiversity at different levels is bound to differ. The difference in mindsets regarding the forest resource usage is likely to produce varied ideas. Thus the general objective of this study is to establish and ascertain whether there are conflicting notions of biodiversity in Kenya and if there are, we are interested in finding out how such conflicting positions are institutionalised. The existence of a natural resource like Kakamega forest is associated with a lot of benefits. It provides a high quality habitat for varied kinds of key ecological species, and it provides social and economic opportunities for local communities living around the forest. In that regard we want to investigate what constitutes locally relevant biodiversity notions in Kakamega vis-à-vis the national biodiversity regimes.

Furthermore, we wish to point out that the usage of forest resources by local communities normally produces several perceptions. Such perceptions are sometimes too powerful that they are transformed into teachings, local rules, oral history, norms and beliefs. Therefore in line with the above and more so in respect to Kakamega forest, we are interested in

46 Scott, W. R. 1995. Institutions and Organizations. Thousand Oaks: CA, Sage. 47 Persson, T. and G., Tabellini. 1995. Double Edged Incentives: Institutions and Policy Coordination. In a Handbook of International Economics Vol 3, edited by G. Grossman and K. Rogoff, 1397-1444. Amsterdam: North-Holland. 48 Oliver, C. 1991. Strategic Responses to Institutional Processes, Academy of Management Review 16:145- 179. 13 understanding how such perceptions are framed. Additionally, we are interested in unearthing the actors involved in the framing of such perceptions. Still in relation to the above, we do note that the management of a natural resource common like Kakamega forest would not work without a requisite authority system that makes it certain that, specific rights, duties and entitlements are adhered to. These rights, duties and entitlements are informally postulated and in most cases constitute the local rules governing forest resources. On the other hand we are aware that at the national level there are formally legislated rules that govern national biodiversity. In lieu of that, our third objective is to ascertain how locally designed rules are mediated with formally deigned rules.

Embedding the research questions

In an attempt to meet the above stated objectives, the study will be guided by the following research questions. To begin with, what are the different notions relating to biodiversity? The other question is; are there provisions for local biodiversity notions in the planning for national biodiversity regimes? The third question aims at finding out what institutions are in place to manage the forest biodiversity resources in Kenya. In the fourth research question we are interested in finding out the national and local actors involved in the management of the country’s biodiversity resources. Our quest in the fifth research question is; what is the role of donors and international actors in the current biodiversity restoration in Kenya?

1.6 Definition of central concepts Biodiversity: Biological diversity is the variety and variability among living organisms and the ecological complexes in which they occur. Diversity can be defined as the number of different items and their relative frequency.49 Therefore, biological diversity, seeks to look at items that are organized at many levels, ranging from complete ecosystems to the chemical structures that are the molecular basis of heredity.50 Thus, the term encompasses different ecosystems, species, genes, and their relative abundance. In short, the term biodiversity encompasses all activities related to life in all its forms, all habitants of living species like forests, lakes oceans meadows and lagoons. It also looks at species richness and distribution.51 In this study, we are not interested in the range of genetic variation among individual species within a habitat, nor are we interested in the number of different native species and individuals in a habitat or geographical area; but we are interested in understanding the variety of interactions that occur between people and different species in Kakamega forest and how the people perceive and relate to these species.

49 Gaston, K. J. 1996. Biodiversity: A biology of numbers and difference. Oxford: Blackwell. 50 Ibid. 51 World Resources Institute, World Conservation Union, and United Nations Environment Programme, "Global Biodiversity Strategy," 1992. 14 Institutions and Institutionalism: Institutions refer to the existing rules formally or informally applied within particular environmental settings. Previous theories held that institutions can influence individuals to act in one of two ways: they can cause individuals within institutions to maximize benefits, which we shall call regulative institutions.52 These are derived from rational choice theory, that is, the ability to act out of duty and awareness.53 Other than regulative institutions, we can also define institutions as rules that emanate from history, in what is termed as path dependency. In this we refer to paths designed by an institutional enviroment and that tend to be followed throughout the institutions’ development.54 Institutionalism on the other hand examines the ways in which institutions structure social and political behaviour. Institutionalism recognizes that institutions operate in an environment consisting of other institutions, called the institutional environment.55 Every institution is influenced by the broader environment. In this institutional environment, the main goal of organizations is to survive.56 In this regard, the study will investigate institutions with a view of finding out how institutionalism deals with the pervasive influence of institutions on human behavior through rules, norms, and other frameworks.57 Resource Management: This relates directly to conservation concerns by capturing the amount of critical/scarce resources to the rate at which they are demanded and extracted from the resource area. Resource management also refers to the power centres with in a given resource environment. This can be a forest, shrub, grazing land or a marine environment.58 It also refers to the regulatory frameworks which grant decision-making authority to actors who have little or no ability to guide or control the behaviour of those who are nominally subject to their authority.59 Further, it also locates where management derives its authority regarding regulation of the interrelationships which emerge during the use of given resources in an existing resource environment. Such authority regarding a resource regime may come from international, mostly bilateral agreements, national/sub-national or local agreements.60 Resource Regime: Resource regimes refer to the social institutions that serve to order the actions of those in the use of natural resources.61 A resource regime includes a system of

52 Weingast, B. 2002. Rational Choice Institutionalism. In Political Science: State of the Discipline, edited by I. Katznelson and H. Milner,1-26. New York: Norton. 53 Campbell, L. John. and K. O, Pedersen. 2001. The Rise of Neo-Liberalism and Institutional Analysis. Princeton: Princeton University Press. 54 Pierson, P and T. Skocpol. 2002. Historical Institutionalism in Contemporary Political Science. In Political Science: State of the discipline Katznelson and Milner, 693-721. Newyork: Norton. 55 Ibid. 56 Thelen, K. 2003. How Institutions Evolve: Insights from Comparative Historical Analysis. In Comparative Historical Analysis in the Social Sciences, edited by J. Mahoney and D. Rueschmeyer, 208-240. Cambridge: Cambridge University Press. 57 Greif, A and D. Laitin. 2004. An Endogenous Theory of Institutional Change. American Political Science Review 98(4): 633-52. 58 Gibson, C and F. Lehoucq. 2003. The local politics of decentralized environmental policy. Journal of Environment and Development 12:28-49. 59 March, J. G and J. P, Olsen. 1998. The institutional dynamics of international political orders. International Organization 52:943-969. 60 Young, O. R. 1982. Resource regimes: natural resources and social institutions. Berkeley: University of California. Press. 61 Vitousek, P., H. Mooney, J. Lubchenko, and J. Melillo. 1997. Human domination of Earth's ecosystems. 15 rights and rules defining the range of impacts and opportunities available to actors. It also looks at the procedures for settling disputes and adjusting the system of rights and rules for compliance. Regimes may arise spontaneously as a product of uncoordinated efforts of many individuals.62 Regimes may also be negotiated by some general principles or by some general purpose authority. Hence a resource regime refers to the management and administration structures in place to regulate resources usage for instance a water authority, an environmental management authority or a forestry authority.63

1.7 Biodiversity: An insight into the contemporary debates and notions In the following sub-section, we discuss the contending debates and notions relating to biodiversity management and governance. These shall be discussed in light of the current policies and procedures that obtain in Kenya’s biodiversity resource regimes. The following notions will also be articulated alongside the views and opinions collected from national level respondents through a national level institutional mapping exercise.

The Globalcentric notion This is the most dominant view arising from the international level perspectives on biodiversity. It emphasizes resources management and is a brainchild of dominant international institutions particularly the World Bank and the major Northern Environmental Conservation Organizations such as the World Conservation Union (ICUN) and the World Wildlife Fund (WWF). These are backed by the weight of the Group of Eight rich nations (G8). The globalcentric notion is based on the particular representation of the threats to biodiversity that emphasize loss of habitats, species reduction and fragmentation due to habitat reduction rather than underlying causes.64 This notion offers a set of prescriptions for the conservation and sustainable use of resources at the international, national and the local levels. As a result, it suggests appropriate mechanisms for biodiversity management, including the in-situ and ex-situ conservation in the national biodiversity planning processes. It calls for the establishment of appropriate mechanisms for compensation and economic use of biodiversity, chiefly through intellectual property rights. However, the dilemmas that surround the entire scheme of property rights and bio-prospecting need no recapitulation. Dedeurwaerder notes with pain that this process has been a reap-off on the side of the local communities.65 He notes that many of the access and benefit sharing agreements have been signed but are largely bilateral contractual arrangements between the rich countries and poor countries and are not based on the principle of informed consent. It is further agonizing to

Science 277:494-499. 62 Berkes, F. 2002. Cross-scale institutional linkages: perspectives from the bottom up. In The drama of the Commons edited by E. Ostrom et al.,293-321. Washington: National Academy Press. 63 Friedheim, R. L. 2001. Toward a sustainable whaling regime. Washington: University of Washington Press. 64 Brush, S. 1998. Prospecting for the Public Domain. Center for Latin America Studies, University of Chicago. 65 Morris, M.L et al. 1999. Genetic Change in Farmer Recycled Maize Seed : A review of Evidence. CMMYT. Economics working Paper No- 99. 16 learn that in practice, the definition of property rights on which the benefit sharing contracts are based, is not well defined.66 Morris et al. make another observation, but in form of an intricate question: How can the contribution of poor communities to biodiversity preservation be assessed if classification of species takes centuries? This submission is strengthened by Laid one of the leading scholars on the subject of bio-prospecting contracts. She notes that Biodiversity Prospecting Contracts (BPCs) are the most common and most frequently used tools in the establishment of formal and legally binding relationships between providers and users of genetic resources at the local level. Such agreements take different forms and shapes. These agreements may be formally concluded in written documents or acknowledged by a shake of hands. These contracts may take varying forms including contracts for the sale of raw materials, Material Transfer Agreements (MTA), Licensing Regimes (LR), and Memorandums of Understanding (MOU).67 Indigenous people may use agreements over traditional knowledge as a means to exercise control over biological resources considered to be of national patrimony. But observers such as Tobin note that, BPCs are merely a tool for bio-piracy, simply providing a cloak of respectability to arrangements viewed as inherently inequitable. This is due to the disappropriate negotiating strength of Multinational Corporations (MNCs). Furthermore, MNCs use these BPCs as a tool for misappropriation and monopolization of common goods through utilization of intellectual property rights regimes. At the national level, BPCs can also act as a disincentive to legislators in developing national Access and Benefit Sharing Measures (ABSM). However, the negotiations of highly visible BPCs have tended to raise public concerns on issues surrounding biodiversity prospecting. For example, research on biodiversity and traditional knowledge is funded by northern partner agencies and channeled through northern partner institutions. This sometimes breeds inequitable relationships with the owners of traditional local knowledge. The inequitable participation of local communities in such agreements has led to renewed discontency towards research in traditional knowledge.68 On the other hand, it has also led to increased activity, public interest and national debate. In Kenya for instance, interest and concerns about the activities of the National Institute of Biodiversity (inBio) helped to format a participatory national debate that culminated into the adoption of a comprehensive National Biodiversity Strategy and Action Plan in 2000. It also helped in enlisting the importance of biodiversity in the current Forest Act. The strategic plan puts it clearly that Kenya has a considerable volume of indigenous systems and knowledge relevant to biodiversity. However, what is disappointing is that little of this knowledge has been documented or integrated within national programs or institutions.

66 Cracraft, J and F.T, Grifo. 1999. The living Planet in a Crisis: Biodiversity and Science and Policy. New York: Colombia University Press. 67 Laird, S. 2002. Biodiversity and Traditional Knowledge: Equitable Partnerships in Practice. London: Earth scan Publishers Limited. 68 Tobin, B. 1997. Biodiversity Prospecting Contracts: The search for Equitable Partnerships. London: Earth scan Publishers Limited. 17 The issue of protection of indigenous and traditional intellectual property rights is of relevance and as a result, local communities must not be exposed to exploitation.69 The same sentiments were echoed during an interview with Dr. Matanga, one of the key informants. He agreed that indigenous and local knowledge on biodiversity is important for biodiversity preservation but such knowledge has been thinly documented by current institutional regimes dealing with biodiversity. He further mentioned that there is continued exploitation of local communities through bio-prospecting contracts. He therefore noted that, there ought to be a balance between the commercial interests of the bio-prospecting companies and the wider social and national economic interets.70

The Sovereignty notion The dominant globalcentric notion is partly challenged by most of the Third World national governments which without questioning, is a fundamental way to re-negotiate the terms of biodiversity treaties and strategies. The issue of genetic resources has rekindled the interest of the third world in the negotiations. Although there is a great variation in the position opted by the Third World governments, they tend to emphasize specific issues of sovereignty, particularly at the national level. Some of these countries have opposed the policies favoured by the industrialized nations. The proponents of this school of thought argue that such policies include unfair international regimes like the intellectual property rights. Others castigate the rich countries particularly the US, for their unwillingness to negotiate key issues such as technology transfer and bio-safety protocols. However, the sovereignty position doesn’t amount to the dominant biodiversity perspective. Mugabe et al. note that while there is a significant debate focusing on the development of legislation to protect traditional knowledge and rights, the Kenyan government has not, for example, highlighted the shortfalls involved. There are legal pitfalls that must be overcome in order to come up with measures that respond to indigenous and local community priorities.71 The first Kenyan National Report to the Conference of Parties (COP) in 1998 indicated that national governments through their policies should send a clear message to international and private sector negotiators regarding what is expected of contractual arrangements for access to benefits and sharing.72 Further to the afore mentioned, it is imperative to point out that in some countries, such as the Andean Pact countries, national authorities take an active role in the preparation, negotiation and implementation of controls and contracts. In others like Cameroon, there is a policy limiting involvement of bio- prospecting companies in drafting of bio-prospecting contracts. 73

69 GOK. 2000. The National Biodiversity strategic Action Plan. Nairobi: Government Printer. 70 Key Informant Interview with Dr. Matanga, Director KENRIK. 20 August 2005. 71 Mugabe, J et. al. 1996. Managing Access to Genetic Resources: Towards Strategies for Benefit Sharing. Nairobi: Acts Press. 72 GOK.2001. The First Kenyan National Report to the Conference of Parties. 73 Caillax, M and K. Ruir. 1998. Benefit Sharing Case Studies. Secretariat for the Convention for Biodiversity. Montreal. 18 The above revelations show the discontencies and suspicions that are contained in the poor nations’ perceptions of bio-prospecting multinational corporations. As a result, the proponents of the sovereignty notion have demanded that, in order to revisit this inequality, bio- prospecting corporations have to strengthen the source-country capacities. This is envisioned as a move to add value to resources extracted in these countries. On the whole, source- countries advocate for improved local capacity through pharmaceutical production, conservation of biological diversity, and enhancing of local community development of diversity.74 On the other hand, countries that subscribe to this notion, have appreciated that part of the problem lies in their national biodiversity management systems.75 There are no laws relating to biodiversity and this makes them vulnerable to the unscrupulous international contractual relationships. The Convention for Biodiversity recognizes the sovereign rights of states to determine and define access to resources.76 As a result many of the countries, especially those from the resource rich south, have undertaken various strategies for managing their biological resources. As far as laws are concerned, different countries have undertaken different interventions. These include; enacting of guiding environmental principles in their constitutions, use of anti- pollution laws and creation of laws, on the use of natural resources and biodiversity.77 Therefore, arising from the view that there ought to be streamlined procedures followed in the usage of biodiversity, especially in the realm of bio-trading and bio-cooperation, many countries have come up with legal frameworks for managing and regulating biodiversity usage. Many countries have developed laws in relation to biodiversity on a sectoral basis. In Kenya for instance, there is a continued debate regarding the sectoral usage of biodiversity and a call for increased legal enforcement. The sectoral framework laws often incorporate general principles of environmental management, inherently providing an institutional framework for the management of biodiversity.78 Arising from the sovereignty notion, states have put in place diverse mechanisms to implement broader objectives of their national policies. Most states have based their management policies on the control of biological resources in the interest of the public. Many countries have undertaken to establish protected areas’ management framework as a method for managing in-situ conservation. They have also set up trade measures such as permits for the usage of ex-situ biodiversity. In other instances

74 Posey, D.A. 1996. Traditional Resource Rights: International Instruments for Protection and Compensation of Indigenous People and Local communities. Gland: IUCN 75 BIOTA. 2004. www.biota-africa.org. 25.10.2006 76 Newman, D.J and S. A Laird. 1999. The Influence of Natural Products on the 1997 Pharmaceutical Sales Figures. In The commercial Use of Biodiversity: cess to Genetic Resources and Benefit Sharing, edited by K. Kate and S. A Laird, 333-335. London: Earth scan. 77 Lal, D. 1998. Unintended Consequences: The Impact of Factor Endowments, Culture and Politics on Economic Performance in the Long run. The Ohlin Lectures. Cambridge Mass: MIT Press. 78 Calestous, J. 1991. Managing Biological Diversity in Kenya. In Gaining Ground: Institutional Innovations in Landuse Management in Kenya, edited by A Kiriro and C. Juma, 27-38 Nairobi: African Centre for Technology Studies. 19 bans have been slammed on those species that are thought to be threatened by the bio- trading.79 Other trade measures used to foster conservation efforts include export restrictions and quarantines to regulate the outflow of species. Penal sanctions have also been devised as measures that can achieve this feat. Such penal sanctions include use of fines for the wasteful use of natural resources, illegal trafficking of banned animal and other biodiversity species.80 In Kenya for instance, the Kenya Wildlife Authority outlawed the trade in a number of biodiversity species. It slapped a ban on the trade in ivory and rhino horns among other items.81 However, the reliance on penal sanctions has proved somewhat an ineffective tool to ensure compliance with standards put in place. Specific sanctions have failed to achieve the desired goals. Paradoxically, the same countries have adopted some of the international instruments that they once denounced. Kenya Wildlife Authority, for instance, adopted the provisions of Convention on International Trade in Endangered Species (CITES), by banning all game hunting and revoking all licenses to trade in wildlife products. 82

The African notion The African notion on biodiversity emanates from the 1968 Convention on Biodiversity. This was after the independence wave that swept across the African continent in the 1960s. Many of the African countries felt the need for new conservation initiatives to provide a basis for national legislations as well as to coordinate conservation across frontiers. The 1968 African convention was negotiated under the auspices of the Organization of African Unity (OAU).83 African Countries under the then OAU referred to the old colonial regimes relating to biodiversity as predatory arrangements for privatization of natural resources. The framers of the African notion grounded their argument in the fact that colonial laws relating to biodiversity conservation were crafted basing on western conservation ethics that did not focus on integrated management principles. The colonial laws failed to recognize the varying needs of the people living in, or near the protected areas.84 The OAU called for the adoption of an African convention harmonizing these actions herein referred to as the African notion for biodiversity. The essence was to develop a model of legislation on community rights and access to biological resources to ensure the continuing control, by local communities, of their natural resources, knowledge, and technologies.85 It was envisioned that local communities keep regenerating natural resources, knowledge and

79 Bourgasser,K.S. 2000. Bio-Prospecting on Public Lands: Should Private companies Compensate Governments for Use of Public Land Resources. Journal of Law and Policy 8: 481-541. 80 RSA. 1997. White Paper on the conservation and sustainable use of South African Biodiversity. Government Gazette 385 No.18163. 81 The Kenya Wildlife Conservation and Management Act, Cap 37 of the Laws of Kenya. 82 Ibid. 83 The OAU 1968 African Convention. Article II. 84 The OAU 1968 African Convention. Article X(I). 85 Kamari-Mbote, P. 2002. Biological Diversity Management in Africa in the Run-up to the WSSD. Oxford: Blackwell Publishers Limited. 20 technologies. This kind of thinking is embedded in the old age traditions relating to natural resource usage that most of African communities treasured. In fact, most of the provisions in the African legal regimes governing biodiversity have important clauses of the African convention. In regard to the above, the convention provided a framework for many environmental laws in African countries. However, although the African notion moved away from the globalcentric notion in an effort to recognize the community and access right in protected areas, many of the African institutions relating to biodiversity continued to work within their old frameworks punctuated by the colonial legacies imbedded in the 1900 and 1933 London Conventions on Biodiversity.86 In summary, the thinking in the African notion is African, while much of the practice is Eurocentric. It is also worth noting that, the international treaties have influenced the development of most of the biodiversity policies and laws in African countries over the decades. Most of these treaties call for setting aside large tracks of land to keep the flora and fauna in one place. This has predicated a move towards conservation ethics that don’t focus primarily on the integrated management of resource commons principles, based on the recognition of the needs and perspectives of the local populations living in or near the resource commons.87 It has also formed a basis for most wildlife policies in Africa. The other important international treaty that has become a hallmark for most of the African policies governing biodiversity is the convention on International Trade in Endangered Species of wild Fauna and Flora (CITES).88 The current Kenya Wildlife Act which was amended in 1989 is a case in point. The act banned the trade and hunting of wild game in an effort to conserve and manage rare species of animals.89 Generally speaking, the African convention on Biodiversity which forms the backbone for the African biodiversity conservation continues to be influenced by the international norms and international biodiversity funding agencies. The African notion was initially rooted in the heart of community and customary tenureship, but was later derailed due to the influence of the 1933 London Convention as well as international actors such as the International Conservation Union.90 This fact is well collaborated with responses from one key informant, Dr.Sam Kasiki. He noted that, “the influence of donor agencies is so immense and they continue to play a significant role in the institutional framing processes in many African countries and Kenya is no isolated case”.91 Further still, in reference to the Kenyan Wildlife Act and the Forest Act, we note that the two acts restrict access to natural resource regimes, such as forests and national parks. Accordingly, free access to the natural domains under these legal regimes, is

86 Marroquin, M. 1995. Wildlife Utilization: A New International Mechanism for the protection of Biological Diversity. Law and Policy International Bussiness 26:318-363. 87 The OAU 1968 African Convention Article X (1). 88 Convention on International Trade in Endangered Species of Wild Fauna and Flora. Washington, March 1973. 89 The Kenya Wildlife and Conservation Act, amendment 1989. 90 The Kenyan Gazette, 1977/1978. 91 Key Informant Interview with Dr. Kasiki, Kenya Wildlife Services. 27 Aug 2006. 21 considered illegal. Those found contravening the laws, are charged with intent to exploit forest and wildlife resources. Individuals and organizations have no right to extract wildlife and any other forest products without seeking authority from the national agency. The two acts require that any person or organization seeking to access wildlife or parts thereof, must seek permission and authority from the relevant authorities. The national agency in this case, is the Minister of Natural Resources or the Chief Conservator of Forests.92 The African notion admittedly and extendedly provided for common resource benefit sharing aimed at community resource utilization and that is why it was rooted in the customary system of policing. However, a critical look at the current Kenya Wildlife and Forest Acts indicates that the two legal regimes are elusive and have no provisions related to the economic and other instruments of benefits sharing. The question that arises is, can this in anyway explain the negative attitude that the local communities have towards wildlife and other protected natural resources? Partly yes, since they do view these as products of the state thinking rather than their own.93 This kind of phenomenon is not linked to Kenya alone. It cuts across all the Afro-Tropical legal regimes, given that as many as 47 African countries have been parties and signatories to these different treaties. The Zimbabwe, Uganda, Ghana, South Africa and the Ethiopian Wildlife and Environmental Acts, afford glowing examples.94

The Social movements notion This notion holds that, the real power to undo the existing inadequacies and inequities to biodiversity management lies in the growing number of social movements and Non- Governmental organizations. The NGOs in this category constitute sub-networks at national and transnational levels. They are a prime example of the emerging set of transactional practices and identities that link place based modes of activism. The proponents of this notion argue that, they are advocating against the dominant globalcentric biodiversity notion, which they maintain is a form of bio-imperialism.95 Furthermore, they mention that this form of bio-imperialism has its long-term roots in the colonial legacy which involved removal of large tracts of land from peoples’ control without taking into account the fact that commonly owned land was part of an integrated effective form of resource management. Such a legacy transpired into the present day national resource management regimes, which led to the closure of common resource areas, previously managed by communities. They argue that, removing such areas from community control, led to privatization of natural resources rights which resulted into reduced access and conservation.96

92 The Kenya Forest Act 1982. 93 Key informant Interview with Joseph Masinde, NEMA 22 Aug 2006. 94 Harland, D. 1994. Killing Game: International Law and the African Elephant. London: Praeger. 95 Powell., E and F. DiMaggio. 1991. The Social Construction of Cultural Models. Oxford: Blackwell. 96 Nazarea,V. 1998. Cultural Memory and Biodiversity. Tucson: University of Arizona Press. 22 The social movement’s notion articulates a rare view relating to biodiversity in form of bio- democracy. They begin by enumerating the threats to bio-democracy and putting emphasis on habitat destruction. They argue that habitat destruction is a product of grandiose development projects, monocultures of minds, and agriculture promoted by the capitalistic and reductionist science of the North. These bio–democracy advocates shift attention from South to North as the source of the contemporary biodiversity crisis.97 At the same time, they suggest a radical re-definition of production away from the logic of uniformity towards the logic of diversity. Their proposal for bio-diplomacy and bio-democracy is articulated based on a series of requirements regarding local control of natural resources. 98 They are in support of practices relying on the logic of diversity, including recognition of the cultural basis of biological diversity. In addition, these critics of western capitalism are opposed to bio-technology as a main tool of maintaining biodiversity, but call for the adoption of intellectual property rights as the mechanism for the protection of local knowledge and resources.99 They further advocate for all forms of collective rights and shared character of knowledge and resources. These movements explicitly construct a political strategy for the defence of territory, culture and identity. While having many points in common with the African notion, this perspective is conceptually distinct, and politically occupies a different role in the biodiversity enterprise. Aware that biodiversity is a hegemonic construct; the activists acknowledge that, this discourse opens up a space for defence of their project in the realm of biotic resources. On many accounts, concerns regarding biodiversity have followed from broader struggles for territorial control. This view contests the most cherished views and constructs of modernity such as positivist science, the market, and individual property.100 Social movementists, however, don’t develop their premises in isolation, but in consonant with two important factors. One is the dominant vision of biodiversity conservation, while the other is in defence of local cultures, ecologies and territories. The social movements’ political strategy which began to emerge in the 1990s, has increasingly taken a leading position at both the national and international arenas. This notion’s movers have created a political ecology framework through their interactions with the community, state, NGOs and academic sectors. Within this framework, the territory is seen to be the most fundamental and most multi- dimensional space for the creation of ecological, economic and cultural practices of the community.101 The territory is perceived in terms of patterns of settlement, use of spaces, and use of resources. These systems are geared mostly to local consumption than the market, capital or wealth accumulation. It is for this reason that traditional practices have been sustained for this long. Among the practices to highlight are; low intensity exploitation, shifting use of

97 Escobar, A. 1999. Gender, Place and Networks. A political Economy of Cyber culture. In Creating New Cultures in Cyberspace, edited by W.Harcourt, 31-54. London: Zed Books. 98 Ibid. 99 Restrepo, E and D. Del Valle. 1996. Renacientes del Guandal.Bogota: Universidad Nacional. 100 Escobar, A. 1996. Cultural Politics and Biological Diversity: State, Capital and Social Movements in the Pacific Coast of Colombia. New Brunswick: Rutgers University Press. 101 Brush, E et al. 1998. Valuing Local Knowledge. Washington: Washington Island Press. 23 productive space and different ecological areas, manifold and diverse agricultural and extractive activities, family and kinships based labour practices and horticulture.102 This notion seems to do away with modern tenets preached by contemporary conservation models. It denounces capital accumulation and the pressure of market forces. It is rather located more into the traditional and egalitarian production systems, closely related to territory and culture. The struggle for territory is above all a cultural struggle for autonomy and self determination. Hence, ecological and cultural units are laboriously constructed through the daily practices of the community.103 The social movements’ notion also validates recent debates in social anthropology that analyse the hegemony of western views of intellectual property based on notions of possessive individualism, fully commercialised and commodatised social relations as well as market transactions. Like Strathern points out, biodiversity discussions need to be reconstituted in order to harmonise the divisions between Europe, North America, Asia with other cultures especially in Latin America and Africa. 104 In reference to the above contemporary debates, we have examined four different notions relating to biodiversity. However, it is imperative to point out that there is no single notion that can be used to define Kenya’s biodiversity regimes. In Kenya, there obtains a multiplicity of notions. The globalcentric, the African notion as well as the sovereignity orientations are some of the varied and variegated facets that suffuse the biodiversity management regimes in Kenya. The preponderance of these varied notions is replicated in the various formal regimes relating to biodiversity management in the country. For instance, we note that the first three notions are spread in the formal national regimes. While the last notion, (the social movements), contains some features which relate to some aspects of the local communities. These variations will aid our understanding of the different view points that obtain in Kenya’s biodiversity enterprise. In a large measure, the variegated notions replicated in the national institutional processes, form part of the building blocks that explain institutional dilemmas in the management of the country’s natural resources. These shall be highlight in the subsequent chapters of this work.

102 Seidman, A and F. Anang. 1992. 21st Century Africa: Towards a New Vision of Self-Sustainable Development. Antalanta: Africa. In 21st century Africa: Towards a New Vision of Self-Sustainable Development, edited by A. Seidman & F. Anang , 1-21. Trenton, NJ: Africa World Press. 103 Blackwell, J. 1991. Environment and Development in Africa: Selected Case studies. Washington: World Bank Publications. 104 Strathern, M. 2000. Environments within: An Ethnographic Commentary on Scale'. In Culture, Landscape and the Environment: The 1997 Linacre Lectures, edited by K, Flint and H, Morphy, 72-110. Oxford: Oxford University Press.

24 1.8 Methodology The choice of research method The research method used in this study consists of questionnaire and interview techniques of data collection. Key informant interviews were used as a technique for gathering data from the different key informants in the realm of national level institutions. The different national level stake holders involved in this exercise included: the Forest Department, the National Museums of Kenya (NMK), the Kenya Wildlife Services (KWS), the Kenya Resource Centre for Indigenous Knowledge (KENRIK), Ministry of Environment and Natural Resources,(MENR), the National Environmental Management Authority (NEMA) and Non Governmental Organisations (NGOs) such as the Kenya Forestry Association (KFS), the Integrated Natural Resources Society (INRS) and the World Agro Forestry Centre (WAC). These organisations were chosen purposively, based on the nature of their work that deeply involves them in the area of biodiversity. Key informant interviews were held with the identified respondents’ central to issues regarding biodiversity and the institutional frameworks within the respective organisations or agencies. The key informant interviews were based on a standardized questionnaire that was used in the process of data collection. This choice was found very relevant because officials and individuals with detailed knowledge regarding this subject matter are usually found within specialised institutions dealing with the broader area of biodiversity. Personal interviews made it possible to get further contacts of individuals known to have extensive knowledge in this area. This also made it easy for the researcher to access some of the drafted periodicals, bills, policies and information construed to be confidential in terms of reports and discussion on mission statements. All these had the effect of increasing reliability of the provided data. At the sub-national level the key informant interviews were found at the district and provincial levels. A total of 18 key informant interviews were administered for this survey. Overall, the research was done at two levels; at the national /sub-national mapping, and at the local level.

The local level mapping survey A local mapping survey based on individual households was carried out between the months of July and September 2006. The total number of households studied was 220. These were located in Kakamega District, Western Kenya. Specifically, the study included all administrative divisions that make up Kakamega, apart from the Municipality division. These included: Shinyalu, Ikolomani, Ileho, and Lurambi. The principal sampling point was the location which is the lowest administrative unit of the decentralization structure in Kenya. Households visited were arranged into clusters. A total of 11 clusters, were sampled from the 26 district clusters. These clusters also fall under the sampling frame used by Kenya Central Bureau of Statistics (CBS). Out of the 26 clusters obtained from the District Statistical Office (DSO) in Kakamega, the researcher was able to identify eligible enumeration areas. It is important to point out that each cluster contained 168 households. The above clusters are

25 known to represent the different geographical areas of the district. However, these same clusters also take into consideration different other aspects such as semi-urban/rural stratifications, economic and social differentiations, as well as livelihood zonations. From these, 11 clusters were identified for the survey. These clusters eventually provided the principle sampling points, the locations, also know as a village. In total 220 households were sampled. The sample size for the house holds to be covered in the local mapping survey was statistically determined based on a precision of 5% and a confidence level of 95%.105 On top of data collected from the individual household respondents, 11 focus group discussions were held to augment the quantitative data. A local institutional mapping questionnaire (see appendix A) was used to administer the household interviews. This was augmented by eleven focus group discussions which were held in each of the clusters. The focus group discussions brought together opinion leaders known to have lived in these places for a relatively longer period of time. These were in most cases clan leaders, village elders, and tribal chiefs among others. To avoid misinterpretation of the required data, four assistant local researchers were recruited and trained in detail regarding the meaning and intentions of the research. To enhance consistency and reduce misunderstandings, the interviews were conducted in the local language. To minimise the bias that can be caused by working with different assistants, the questionnaire was maintained in English but conducted in Swahili, the national language ably understood by all nationals. This version was further discussed and internalised by the assistant researchers. This made it possible to stimulate answers to the questions and generate more details for the study. It also helped to ensure that questions were asked and answered as perceived and intended. As part of the research protocol and procedure, the questionnaire was tested by conducting 22 pre-test interviews in the different, but carefully selected, areas of Kakamega. This provided an opportunity for rephrasing the unclear questions and rearrangement of questions so as to achieve consistency and a chronological flow of the interviews. It is believed that the validity of the research was enhanced at this level. The first 22 filled pre-tested questionnaires were examined to identify discrepancies from the expected results and to ensure further understanding and reliability of data to be collected. On the whole the questionnaire had five sections. These included a section on household demographics, biodiversity perceptions, usage or management of biodiversity species, community usage of forest environment, management of local knowledge and land for biodiversity as well as knowledge of formal rules governing biodiversity.

105 Bartllett, J. E, J. W, Kotrlik and C. Higgins. 2001. Organizational Research: Determining Appropriate Sample Size in Survey Research. Information Technology Leraning Journal 19(1): 43-50.

26 Sources of data Data for this study was obtained using two sources. Primary data on specific NGOs dealing with biodiversity as a natural resource was obtained by using key informant interviews. Key informant interviews were conducted with the principal actors in various organizations. Information on NGOs working in the area of biological diversity resources was obtained using questionnaire and discussions with several persons in these organizations. Such people were designated to have adequate data relating to the subject of biodiversity and institutions. Other data was obtained during discussions with officials attending a one day biodiversity workshop in Nairobi and another one in Kakamega. Secondary data was collected from several sources. These included the various national Acts, Bills and Policies relating to natural resources and biodiversity. The following table shows the list of key legal documents and policy papers reviewed during the course of the study.

Table 1.1 Summary of legal documents and policy papers reviewed

Number Document Title Category of Document 1 The Forestry Policy. Policy Document 2 Kakamega District Strategic Plan on Environment Development Plan 3 NEMA Annual reports for The year 2002, 2003, 2004 and 2005 Annual Reports 4 The Forest Act, Cap 385 1982 Laws of Kenya 5 The District Working Paper on Environment and Development Working Paper/Debated 6 The Wildlife Conservation and Management Act Cap 376 Laws of Kenya/legal act 7 The Agricultural Act Cap 318 Laws of Kenya/Legal act 8 The Timber Act Cap 386 Laws of Kenya/Legal Act 9 The Wildlife Conservation and Management Act Cap 37 (Amm) Laws of Kenya/Legal Act/ Amendments 10 The New Forest Bill Bill The Forest Act , 2005 (Amm) Laws of Kenya 12 The Environment Coordination and Management Act Laws of Kenya 13 Sessional Paper No 6 on Environment and Development Sessional Paper under debate 14 The Constitution of the Republic of Kenya National Constitution 15 The local Government Act Laws of Kenya/Legal act 16 The Antiquities & Monuments Act, Cap. 215 of 1984 Laws of Kenya/Legal act 17 The Registered Land Act, Cap. 300 of 1985 (revised 1989) Laws of Kenya/Legal act 18 The Trespass Act, Cap 294 of 1963 (revised 1982) Laws of Kenya/Legal act 19 The Water Resources Act Laws of Kenya/ Legal Act 20 The Land (Group Representatives) Act (Cap. 287) of 1968 (revised Laws of Kenya/Legal act 1970) 21 The Land Adjudication Act Cap. 284 of 1968 (revised 1977), Laws of Kenya/Legal act

22 The Land Planning Act, Cap. 303 Laws of Kenya/Legal act

23 The Land Act Laws of Kenya/Legal Act Source: Author’s compilation

Other useful sources of secondary data included annual reports of the key national agencies such as NEMA, The Forest Department. Centre for Biodiversity, Kenya Wildlife Services, Resource Surveys and Sensing Department among others. Various national reports and

27 parliamentary session papers presented within the realm of biodiversity and natural resources were reviewed. The research also reviewed different publications that were produced by several environmental NGOs and other papers, reports and policy briefs published by various environmental journals in Nairobi.

Primary data (national and sub-national level) Data at the national level was gathered in Nairobi, while that at the sub-national level was gathered in Kakamega district. The justification for using Nairobi arises out of the fact that Nairobi is the national capital of Kenya and therefore houses most of the national key ministries that were important for this mapping. These include the ministries of Agriculture, Environment and Natural Resources, Lands, Water among others. Nairobi is also home to most of the major agencies dealing with natural resources and environment. These include; NEMA, Resource Surveys, Biodiversity Centre, National Museums of Kenya, the Forest Department, and Kenya Wildlife Services among others. It is also imperative to mention that Nairobi is the central operating point for most of the NGOs working in the realm of biodiversity conservation and implementation of the numerous biodiversity protocols to which Kenya as a nation has accented. In terms of co-ordination mechanisms, it is instructive to point out that most of the actors dealing with co-ordination of national and international biodiversity regimes are stationed there. Besides, a lot of other opinion and informed leaders in this subject area are located and based there. The other issue that is worth mentioning is that the national formal institutional development process in terms of policy and legal framing processes begins and reaches its zenith in the city, so issues to deal with national norm emergency and national norm framing begin and ends in Nairobi. Lastly, Nairobi harbours the greatest bulk of the national population. More than 10% of the country’s urban population resides there. With the high population growth of rate of 7%, Nairobi is the commercial, industrial and trading capital.106 The city is inhabited by people of diverse cultures and diverse communities. The sub-national mapping was obtained in Kakamega. It is of significant importance to discern that Kakamega serves as a home for both Western provincial administration and the district local government. It lies in the western part of Kenya. This region has a severe shortage of land and most of the indigenous inhabitants are the predominantly agricultural Luhya community. Agriculture accounts for 62% of the household income in this province and the province has relatively low literacy rates and low infrastructure.107 Data for the national and sub-national level mapping covered different attributes such as standards applied during institutional design at various levels, prioritisation of communities or household

106 GOK. 2004. Statistical Abstract. Nairobi: Government Printer. 107 GOK. 2006. Statistical Abstract. Nairobi: Government Printer. 28 knowledge, opinions, notions in relation to biodiversity, institutions responsible for policy implementation. Other issues ivestigated were; institutional frameworks regarding natural resource ownership, existence of conflicts in natural resource use and the scale of such conflicts, the key national institutions involved in biodiversity management and preservation, whether varied notions of biodiversity existed, institutional co-ordination, existence of informal networks, governance techniques and decision making among others.

Primary data (local level mapping) The local level mapping was carried out in Kakamega District. It was carried out in 11 clusters that are spread in the four different divisions of the district, that is; Ikolomani, illeho, shinyalu, kabras and Navaholo. The primary data from the local mapping was gathered from households in these divisions. The location which is the lowest administrative unit of the district was the principle Pampling Point (PSP). The local level mapping aimed at gathering data on household demographics, education, biodiversity values, perceptions and knowledge. Similarly, the study made investigations on resource ownership patterns, forest resource user groups, informal structures of control in society and household links to informal structures of control. Lastly, data was gathered on human and environmental values, integration of biodiversity into land use systems and livelihood interests, community rules of access to resource commons as well as community perceptions of formal institutions relating to biodiversity.

Secondary data In order to make a full and meaningful use of the data collected from the local and national/sub-national mapping, more literature related to this subject matter was reviewed. The subsequent chapter(s) will discuss and present those results, assumptions and theories which are thought to have relevance and are taken to be significant to the current study.

1.9 Organisation of the Study This study is presented in eight chapters. In the first chapter, a detailed background to study is given. Subsequently, the central research proposition, the central research question and the study’s problem statement as well as its objectives, are presented. This is followed by a concise treatment of the contemporary debates and notions relating to biodiversity. The last part of this chapter, delves into the research methodology. The second chapter presents the theoretical concepts and aspects related to this study. In here, a detailed and incisive look at institutions, institutionalism and the different interpretations is made. Part two of this chapter addresses the different branches of institutionalism, while the last part of this chapter makes an effort to establish a link between theory and actual research. The discussions in the third chapter dwells on national biodiversity perceptions and natural resources regimes. It discusses issues related to politics and the actors involved in the

29 restoration of biodiversity in Kenya. The last part of this chapter provides an insight into the governance aspect of biodiversity in Kenya. The fourth chapter details our understanding of biodiversity, local decentralisation and neo- patrimonial politics in Kenya. The chapter begins with a look at the history of neo-patrimonial politics and how it led to the degeneration of national biodiversity. The second part makes a detailed presentation on biodiversity and local decentralisation in Kakamega district, highlighting issues of bioethics and ends with a discussion on the role of cognitive institutionalism in appreciating biodiversity conservation. The fifth chapter looks at institutional mapping at the national and the sub-national levels. It begins by introducing the national resource management and institutional regimes in Kenya, institutional roles and responsibilities, evolution of current institutions from the pre- independence times up to the immediate years after independence. The second part of this chapter makes an analysis of the current policies and legal frameworks. This in a large measure deals with the current policy approaches to biodiversity conservations. The third part addresses the processes of institutional design and mediation and the general institutional legislation. Similarly it investigates the role of international interest as well as showing why the policy framing process later undertook demand driven approaches. The sixth chapter makes a presention of results from the local mapping household survey exercise. The first part deals with the study sample, choice of clusters, and an analysis of the demographic details of the survey in Kakamega. In the second part we make a detailed look at biodiversity perceptions, human and environmental values, information on biodiversity, integration of biodiversity into land use systems and livelihood interests, gender and cultural practices linked to biodiversity conservation. The seventh chapter looks at historical and sociological perspectives in Kakamega. The researcher examines the role of the two institutionalisms in explaining specific cultural and customary law practices in understanding local ecological thinking and other formal institutions relating to biodiversity in Kakamega. Furthermore, we analyse perceptions towards biodiversity formal rules, rules governing access to resources in Kakamega, as well as community user groups and property rights. The last chapter makes a final evaluation of the study. In doing so, it re-examines and re- focuses on critical issues regarding biodiversity and resource protection in Kakamega and Kenya at large. In this chapter, an effort is made to re-contextualise the two important themes that have been central to this study. These are: institutionalism and local participation in natural resource management in Kakamega, hence making an outlook on the future of institutions regarding forest biodiversity conservation in Kenya. In doing so, the study makes an insight into policy areas that will warrant improvement in the future.

30 2 Theoretical Considerations 2.1 Institutions and institutionalism Institutions and institutionalism are central to contemporary debates across the social sciences. So too are concepts such as actors, action and agency. In order to understand how local perceptions shape peoples’ thinking regarding their local environment, or more precisely local understanding of biodiversity, entails the use of institutional theory in unraveling this interplay. There is widespread agreement that understanding institutional interplay constitutes a key challenge for institutionalists and action theories of all types. This chapter is intended to guide our study through the key debates and contemporary interpretations regarding the relationship between institutions, resource actors, and the role of institutions and institutionalism in addressing the governance of resource users, especially in instances where resources are held in common. The first section of the chapter will compare the major contending schools of thought in the realm of “new” institutionalism which has emerged in recent years. Specifically, we shall deal with the rational choice institutionalism, sociological institutionalism as well as historical institutionalism. In this evaluation we shall look at their methodological orientations and empirical weaknesses. The second part of the section shifts the focus from institutions to actors in resource regimes to find out which branches of institutionalism will be of utmost importance in helping us to understand the existing perceptions and perspectives in the realm of notion construction in Kakamega district. The aim here is to explore the theoretical basis for understanding reflexive practices, of varied actors in society (including individuals, organizations, or groups) in the use of a natural resource common like Kakamega forest. The analysis will aid our appreciation of the historical and sociological foundations of their habits, routines, and strategies in the light of the social and biological interaction.

2.2 Institutions defined Institutions are simply rules, and as such make the foundation of politics, organization and ultimately society. Institutions can be divided into formal and informal. Formal institutions take the form of the national constitutions, statutes, laws, policies, regulations, zoning ordinances, and permit decisions. Informal institutions are those relating to the cultural, traditional and other societal norms.108 Institutions form the basis of contemporary world order and without them; there would be no organization at all. This study will look at institutions as mediators of people-environmental relations, hence seeing institutions as regularized patterns of behaviour between individuals and groups in society, rather than as community level organizations.109

108 Norgard, R. B. 1981. Social Systems and Ecosystem Evolution in the Amazon, Journal of Environmental Economics and Management 3: 238-254. 109 Ostrom, V, D. Feeny and H. Picht. eds. 1988. Rethinking Institutional Analysis and Development: Issues , Alternatives and Choice.Sani Francisco, C.A: The Institute for contemporary Studies. 31 Institutional theory suggests that, in a country’s formal protected and unprotected areas, institutions should be well defined, appropriate and enforceable at all times.110 This means comprehensive legislation regarding conservation, transparent government policies and highly specified property right arrangements and contracts. Achieving this involves an evaluation, appreciation and understanding of relevant paradigms existing within the local environment and in particular, the relevant institutions to benefit and aid proper design of development policy. This should be augmented by a clear identification and description of some statistical correlations between the level of development and various social, political and institutional indicators.111 In addition to formal structures of laws, government policies and property rights, every country and society has an equally important parallel system of unwritten rules that govern everyday human behavior. These are unwritten rules or informal institutions. These can be cultural and behavioral norms, mores, beliefs, traditions and other rules governing organizational relationships and co-ordination processes.112 Such institutions can be more influential. A society’s informal rules can for instance be more influential than a country’s formal rules. This is because, such informal rules are deeply embedded in individual practices and they represent an accumulation of social convention and conviction.113 However, it is imperative to note that, the process of institutional building or more precisely institutional development is a more elaborate one in which institutions change. Institutions cannot be safely assumed to remain constant as in some other areas of social and economic life.114 Therefore, this makes the application and analysis of new institutions in relation to biodiversity not only interesting, but also disturbing and challenging. Like Bromley and Cernia noted, this is borne out of the fact that, intersecting formal and informal institution in the realm of development and more prominently in the link to biological diversity maintenance can be a great hurdle to overcome.115 Overcoming this hurdle takes into account zeroing on the different characteristics and aspects of embedding the nature of institutional make up. Some of the aspects requiring greater attention include: (i) organizational, that is to say; the extent to which organizations and institutions coincide, (ii) formal (iii) created at a specific time and place by a specific means as opposed to having evolved from more diffuse sources (iv) embedded in as opposed to differentiated from other institutions (v) universal as

110 North, D. 1986. Institutions and Economic Growth: A historical Introduction. Paper prepared for conference on the role of institutions in Economic Development. Ithaca, New York: Cornwell University. 111 Scully, G. W. 1988. The institutional Framework and economic development: Journal of Political Economy. 96 (3): 652-662. 112 Pyhala, A. 2002. Institutions, Participation and protected Area Management in the Amazonia. A paper presented at the biennial Conference of IASCP; Victoria Falls, Zimbabwe. 113 Greif, Aand D. Laitin. 2004. An Endogenous Theory of Institutional Change. American Political Science Review 98(4): 633-52. 114 Sabel, C. F. 2005. A Real Time Revolution in Routines. In The Firm as a Collaborative Community, edited by C. Heckscher and P. Adler. Oxford: Oxford University Press. 115 Bromley,D.W and M.M,Cernea. 1989. The management of common Property natural Resources :Some Operational Fallacies. Washington DC: The World Bank.

32 opposed to particularistic in the interests they do serve (vi) creating as opposed to simply maintaining a certain public good.116 It is however significant to note that, the biggest challenge is in establishing agreement on whether institutions can be understood from a behaviour perspective, in which institutions are viewed as complexes of norms and behaviours that persist over time by serving collectively valued purposes. Or from a rules perspective wherein, institutions are viewed as rules of society or of organizations that facilitate coordination among people, by helping them form expectations where each person can reasonably hold in dealing with others.117 This however, brings us to institutional levels of analysis as well as sequence of analysis. In specific terms this means that, at the “modest” level, one would have the contractual arrangements, where the rules characteristics may dominate, but in the relatively “high” level of analysis, the cultural values, mores, beliefs and traditional behaviours may seem more relevant.118 Similarly, as regards sequence, while at a given point in time, the rules and norms that characterize the institutions may be considered as given and independent of individual or group behaviour, over time they may evolve. We may observe dynamic claims going from rules to behavioral regularities to rules. 119 Management of a natural resource common requires a commonly accepted criterion for successful institutional development, formal or informal. Biodiversity being a common public good means that in order to enhance control and discipline, and to avoid Hardin’s tragedy of commons, strong institutions must be built and instituted.120 It is however significant to note that under conditions of collective or multiple resource usage, resource users can design and enforce resource control rules that govern their individual and collective choices so as to facilitate the sustainable management of resource commons. Edwards and Steins put it that social institutions have evolved as a means establishing to a stream of benefits that may be derived from a resource system.121 A resource system with property rights attached to it indicates the intention for some party to ensure that potential users observe predetermined restrictions or prohibitions concerning access to land and other natural resources embedded therein. In pure common resources or common property situations, the rights to resources are shared equally and are exclusive to a well defined set of people.122 In this regard, Singh and his collaborates don’t point out clearly what happens to a natural resource regime when it is invaded by other groups of people who

116 Uphoff, N. 1992. Local Institutions and Participation: An Example of protected Area Planning. Public Administration and Development 17:413-423. 117 James, S.P. 2001. An Institutional Approach to Protected Area Management performance. In The politics of Park Management edited by S.P, James. Oxford: Rowmm and little field Publishers. 118 Nee, V. 2005. The New Institutionalisms in Economics and Sociology. In the Handbook of Economic Sociology, edited by J. Smelser and R. Swedberg, 44-74. NewYork: Sage/Princeton University Press. 119 Ruttan,V. M and K.Yahami. 1984. Towards a Theory of Induced Institutional Innovation. Journal of Development Studies 20:203-23. 120 Hardin, G. 1968. The Tragedy of Commons. Science 162:1243-1248. 121 Edwards, V.M and N. A, Steins. 1999. A framework for Analysing Contextual Factors in Common Pool Resources Research. Journal of Environmental Policy Planning 1:205-221. 122 Singh, S., et al. 1997. Harvesting Wild Species : Implications for Biodiversity Conservation. Baltimore: John Hopkins: University Press. 33 are not originally part of the well defined group. What happens when such a group fails to adhere to existing institutions within that resource common? What happens to free riders, and how are they regulated and mediated? A more distinct and precise scenario would have been, relating this argument specifically to the kind of resource regime in question, clearly indicating whether it applies to a closed or open access resource regime. The questions highlighted in this scenario, will be of particular relevance to us, as we evaluate the particular behavioural responses particular of people thought to be different from the original tribal groups in the areas around Kakamega forest. Specifically this inference will be highlighted in chapter seven. In linking this Hardin’s tragedy of commons, it would be proper to point out that Hardin premised his postulation on the logic of individual rationality or lack of it, which according to him, led to the tragedy of commons. Theorists in the realm of institutions and common resource regimes have since identified the differences between open and closed access resource regimes, where internally enforced or social institutions harness individual rationality to the collective good.123 It is no secret, social institutions have emerged and evolved as a means of establishing claims to a stream of benefits that might be derived from a resource system. A resource regime which lacks instituted property rights, conflicting rules, insecurity of tenure can lead to more degradation and over exploitation of resources.124 However, for successful institutions to work in a common resources arena, such institutions must obtain to certain aspects. One such aspects as Ostrom puts it, is the rules and constraint nature of institutions.125 Ostrom has defined these rules and constraints as prescriptions commonly known and used by a set of participants to order repetitive, interdependent relationships. She uses the term prescriptions to refer to the actions that are required, prohibited or permitted.126 However, it is important to consider configurations of rules in terms of institutional analysis rather than single rules separately. This is based on the understanding that; rules are considered to reflect basic characteristics or norms of a particular society.127 The other aspect considered more peculiar to institutions is the inability of institutions to govern the relations among individuals and existing groups. Whether they are voluntarily accepted through custom or tradition, or they are enforced and policed through an external authority or by a coercive incentive system.128 To serve an institutional role, these rules and

123 Ciriacy-Wantrup, S.V and R.C, Bishop. 1975. Common property as Concept in Natural Resource Policy. Natural Ressources Journal 15: 713-727. 124 Fortmann, L and J. W, Bruce. 1988. Whose Trees? Priprietary Dimensions of Forestry. Boulder: Westview Press. 125 Ostrom, E.l. 1986. An Agenda for the study of Institutional. Public Choice 48(1): 3-25 126 Ibid. 127 March, J. G. and J. P, Olsen.1989. Rediscovering institutions: The organizational basis of politics. NewYork: Free Press. 128 Holling, C.S. 1995. What Barriers? What Bridges. In Barriers and Bridges in Renewal of Ecosystems and Institutions. Edited by C.S, Holling, 14-16. New York: Columbia University Press. 34 constraints have to be applicable to social relations because institutions are a product of social constructions.129 The third important aspect about institutions is that, they should be predictable. Rules and constraints should be understood as cardinal principles. They should be applicable in repeated and future situations. Agents should expect these rules and constraints to have some degree of stability.130 Therefore, as discussed above, institutions can be characterized along a number of dimensions. These include: formal or informal rules, number of actors, membership, and heterogeneity of interests, leadership, incentive structures, societal level, centralized or decentralized, institutional dynamics, purposes, functions and outcomes as well as the way in which they are formed. Institutions may be embedded or nested within other institutions or overlap them.131 Therefore, understanding perceptions about biodiversity in Kakamega can be well understood when we look at the variations in the political and social institutions at both the local the national and international level. Furthermore, it will entail appreciating the fact that the biotic and social communities are co-evolutionary and interdependent.

2.3 Unpacking Institutionalism Institutionalism specifically examines the ways in which institutions structure other social and political behavior. Institutions play a crucial role through influencing the relationships between individuals and how they interact. The method of inquiry is evolutionary; the object of inquiry is the social process; the search is for factual explanations and causal understandings.132 When dealing with institutionalism as a method of inquiry, social value judgments are a part of the process and must themselves be objects of analysis; the normative-positive dichotomy is rejected. More attention is given to uniformities of customs, habits, and laws as modes of organizing economic life. Individuals are influenced by motives that cannot be quantitatively measured.133 However, it is imperative to note that, variations regarding the understanding of the concept of institutionalism continue to occur. These variations stem from the varied traditions of institutionalism and institutional thought. Therefore, understanding of the concept of institutionalism calls for our attention regarding the existing variations between these different traditions. Here, we need to divide institutionalism into two: between ‘classical’ and ‘new’ institutionalism.

129 Kraatz, M.S. and E. J, Zajac. 1996. Exploring the Limits of the New Institutionalism: The Causes and Consequences of illegitimate Organizational change. American Sociological Review 61(5): 812-836. 130 King, A. L. 1997. Instituttonal Interplay: A Report for Institutional Dimensions of Global Change. International Human Dimension Programme on Global Enviromental Change, University of Vermont. 131 Giddens, A. 1984. The Constitution of Society. Berkeley: University of California Press. 132 North, D.C.1990. Institutions, Institutional Change and Economic Performance. Cambridge: Cambridge. University Press. 133 Clerkin, R M. 2006. Equifinality in nonprofit advocacy: A neoinstitutional exploration of nonprofit advocacy. Doctoral dissertation. Bloomington:.Indiana University.

35 While the positions taken in the field of institutional theory are plentiful, these broad groupings have meaning and it allows us to stress a core distinction and divide in social theory, which is; between a social constructivist and an individualist perspective on behaviour and choice.134 Understanding this divide is a crucial component of this study. In the foregoing treatment, it is logical to stress that, the rule values and rule frameworks governing a particular natural resource regime, reflect the functions such rule values play. They also depict the behaviours of the users. This is seen in the context of institutions at play, which is consequently the role of institutionalism.135

Traditional Institutionalism Traditional classical institutionalism has a complex history. This branch of institutionalism has remained shelved for a time. It is a brain child of theorists working in two different fields of study. Thorsten Veblen,136 largely from an economists´ perspective and Emile Durkheim,137 from the sociological areas of study. The two proponents have in most scholarly literature on institutions and institutionalism been referred to as the two traditionalists. The duo appeared at the close of 19th and dawn of 20th Century. They provided the foundations for building this arm of institutionalism. Its characteristics reflect a distinct way of understanding behaviours and social interactions and interplays.138 Over time, institutional thinking has developed, implying refinement and the establishment of sub-positions. But still, there are some core ideas that are common to these various stances. According to the classical stand, the individual is looked at as socially constructed, meaning that he carries norms, values and expectations that have its origin in the institutions of a society. The social make up is an objective reality, meaning that it can be observed as something independent of the subjects who are the specific individuals. The society has distinct effects on the shaping of the individual. Institutions are thus constitutive of individuals and the communication between them. This has been emphasised by Veblen who defined institutions as “settled habits of thought common to the generality of man”.139 Another scholar, Scott, looks at institutionalism as “cognitive, normative, and regulative structures and activities that provide stability and meaning to social behavior”.140 Thus, both these authorities being active at the front end of the 20th century emphasized that institutions have a formative influence on individuals. Scott is more explicit when it comes to pointing out the underlining tenets that lead to the process of institutionalism. He mentions that the

134 Spash, C.L. 1999. The development of Environmental thinking in Economics.Enviromental Values 8: 413- 435. 135 Hall, P. 1986. Governing the Economy. New York: Oxford University Press. 136 Veblen, T. 1919. The Place of Science in Modern Civilization and Other Essays. New York: Huebsch. 137 Clark, J. 2002. Structuring Deliberation in Environmental Decision-making Using a Multicriteria Approach. Paper presented at ESF/SCSS Exploratory workshop on new strategies for solving environmental conflicts. Leipzig, 26-28 June. 138 DiMaggio, P.J. 1991. The New Institutionalism in Organizational Analysis. Chicago: University of Chicago Press. 139 Veblen, T . Opcit. 140 Scott,W.R. 1995. Institutions and Organizations..California: Sage Publications. 36 process is a product of both external rules which form the regulative structures and constructs that shape the individual.141 They become synthesised and internalised through the process of social construction. This concerns both what the individuals have learned to observe and what they have learned to respect.142 In terms of natural resource regimes, what has been going on as a norm in a given resource environment is more likely to continue unabated over time unless a strong external force, usually by a coercive authority, changes the norms and customs.143 Therefore, this branch of institutionalism helps us understand what the cognitive aspects are and what should be the normative aspects. These are important social dimensions to both the cognitive and the normative issues in life.144 While different languages may be used to explain different existing phenomena, a quite coherent basic perspective has evolved across such broad fields as classical institutional economics. That is to say: the traditionalists from Veblen and his disciples, to sociology, organizational theory and parts of political science.145 Scott’s works are distinctively in a sociological and ultimately within the theory of organizations realm. His position is quite representative when viewed from a modern approach and analysis of the so called classic institutional economists.146 These tend to support the individual in his capacity to act through delivering structure and meaning to both cognitively and normatively intractable problems.147 Situations of the sort as described in the preceding paragraph can create opportunities to promote cognitive transitions aimed at devising new and improved systems for managing human uses of living resources in situations characterized by cross-level interactions. This cognitive framework also postulates that, mental models are not only important in situations of radical uncertainty. If it is recognized that information is generally imperfect, then it becomes clear that individual perceptions of the resource choice set generally varies and the cognitive dimension comes to the forefront of the analysis.148 Simon has made pioneering contributions in this respect. He explains sub-optimal decision- making by cognitive limitations. However, such limitations are seen as something, which in practice cannot be overcome.149 This has generated criticism from classical institutional economists such Hodgson, for ignoring the social influences on the process of decision- making and the institutional aspects of the complex transformation of sense data via bits of

141 Berger, P. and T. Luckmann. 1967. The Social Construction of Reality. A Treatise in the Sociology of Knowledge. London:Penguin Books. 142 Meyer, J.W and R.Scott. 1983. Organisational Environments:Ritual andRationality. Bevery Hills: Sage Publications. 143 Brinton, M. C and V. Nee. 1998. The new institutionalism in sociology. Stanford: Stanford University Press. 144 Weick, K. E. 1995. Sensemaking in organizations. Thousand Oaks, CA: Sage Publications. 145 Pierson, P. 2000. Increasing returns, path dependence, and the study of politics. American Political Science Review, 94 (2):251-267. 146 Mizruchi, M. S and L. C, Fein. 1999. The social construction of organizational knowledge: A study of the uses of coercive, mimetic, and normative isomorphism. Administrative Science Quarterly, 44 (4): 653-683. 147 Scott, W.R. 1995. Institutions and Organizations. California: Sage Publications. 148 Simon, H. 1991. Oraganisations and Markets. Journal of Economic Perspectives 5: 25-44. 149 Ibid. 37 information to knowledge.150 Hodgson together with other economists and sociologists stress the importance of cultural specificity in the generation of information through pre-established interpretative schemes. North has illustrated that rationality is not necessarily imperfect, but procedural ideas and ideologies matter, and therefore institutions play a major role in determining how much they matter. Ideas and ideologies are seen to shape the mental constructs that individuals use to interpret the world around them and make choices.151 Institutions deliberately or accidentally increase or decrease the price on acting upon one’s ideas and thereby influence the role of mental constructs and ideological stereotypes.152 In summary, North recognizes the central role of ideologies and its insufficient attention in economics as well as the incapability of analyzing this role by means of economic theory alone. Other contributions do stress similar mechanisms by using the concept of values. Cognitive processes at both the individual and the organizational level are seen as fundamentally shaped by values.

New Institutionalism New institutionalism is here used to mean or label a rather “newer” arm of thinking in the study of institutionalism. It has its roots in institutional economics, originating in the 1960s and carried forward by proponents like North,153 Eggertsson,154 and Coase.155 This school of thought is largely grounded in the individualist model of rational choice as it appears more rooted in neo-institutional economics. Proponents of this branch of institutionalism apply these tenets to the development of institutions. This branch of institutionalism views institutions as external restrictions. North plainly defines institutionalism as the “the rules of the game”.156 New institutionalists thus define institutionalism within the context in which individuals’ acts, interests and interactions. To them rules frame transactions for individuals by establishing formalized rights and duties as well as measurement scales among others. To some scholars, such as Shepsle, this means an effort to apply economic reasoning and rational choice models to the analysis of institutions.157 Central to the tenet of new Institutionalism is that institutions are not immune or neutral to policy outcomes. The organization of policy making outcomes affects the degree of power and anyone set of actors has over policy outcomes.158 On the other hand organizational

150 Hodgson, G .M. 1998. The Approach of Institutional Economics. Journal of Economic Literature 36:166-92. 151 North,D.C. 1990. Institutions, Institutional Change and Economic Performance. Cambridge:Cambridge University Press. 152 Ibid. 153 North,D.C.1990. Opcit. 154 Eggertsson, T. 1990. Economic Behavior and Institutions.Cambridge:Cambridge UniversityPress 155 Coase, R.H. 1984. The New Institutional Economics. Journal of Theoretical and Institutional Economics 140(1):229-231. 156 North, D.C. 1990. Opcit. 157 Hodgson, G. 2002.The Evolution of Institutions:An Agenda for Future Theoretical Research,” Constitutional Political Economy 13:111-128. 158 Shepsle, K. 2006. Old Questions and New Answers about Institutions: In The Riker Objection Revisited, 38 position also influences actors’ definition of their own interests. In this respect Young points out that, institutions are organizational artefacts created by human beings to cope with the problems associated with of coordination and cooperation that arise as a result of interdependencies among activities of individuals or social groups.159 Therefore, in a way organizational factors affect the degree of pressure that an actor can bring on policy, and the likely direction of that pressure. Hence new institutionalism defines the rules of the political and economic games and as well as the actors at play.160 Thus, this branch of institutionalism can inform and shape who wins and who loses, since it is all about shared strategies, inherently defining who can play and how they can play.161

Rational Choice Institutionalism (RCI) This branch of new institutionalism buds out of new institutional economics. Rational choice proponents attempt to apply formal logic and methods to study politics and history, carefully avoiding mushy or less precise variables such as norms and beliefs. They instead use basic assumptions to understand human behavior.162 This type of methodological inquiry helps the rational choice institutionalists to unmask and examine the basic laws governing political behaviours and actions. Scholars in this tradition argue that, once laws are discovered, models which will help us to understand and predict political behavior can be constructed.163 Rational choice scholars look at the real world to see if their model is right. For these scholars’ understanding of the real outcomes is not the first issue, but creating and elaborating or refining a theory of politics.164 To this Key adds that, the most peculiar item about the rational choice institutionalism is the ability to make policy decisions normally arrived at in a rational manner.165 Policy making, according to this approach, involves the identification of a problem, examination of the various alternatives for dealing with the problem and selecting the best policy package, based on costs and benefits. Although institutions are developed as economic and social norms, these restrictive and regulative rules are important not only in establishing necessary order, but also simplify transactions between given individuals and firms.166 Most authors within this school of thought such as Williamson adhere to the idea of individual rationality as in neo-classical

edited by B, Weingast and D, Wittman, 57-58. Oxford Handbook of Political Economy. Oxford: Oxford University Press. 159 Young,O. 1982. Resource Regimes in Natural Resources and Social Institutions. Berkeley: University of California Press. 160 Williamson, O. 1979. Transactions Cost Economics: The Governance of Contractual Relations. Journal of Law and Economics. 161 Imperial ,M.T. 1999. Institutional Analysis and Ecosystem-Based Management: The Institutional Analysis and Development Framework. Environmental Management 24:449-465. 162 Fiorina, M.1995. A Rational Choice and the New Institutionalism.Polity 38:107-115. 163 Levi, M. 1988. Of Rule and Revenue. Berkeley: University of California Press. 164 Weingast, B. 1996. Political Institutions, Rational Choice Perspectives. A New Hand Book of Political Science. Oxford: Oxford University Press. 165 Key,V.O. 1947. Politics, Parties and Pressure Groups. New York:Thomas and Crowell Company. 166 Sartorius,C. 2002. The Relevance of the Group for the Evolution of Social Norms and Values,” Constitutional Political Economy,13: 149-172. 39 economics, that is; rationality as maximizing individual gain. For the individual is understood as self-contained; implying that preferences are stable and thus independent of the institutions of a society.167 This is further galvanised by Milgrom and Roberts who mention that institutional mechanisms where by principles can monitor and enforce compliance on their argents have to be instituted.168 The major underlying point of contention here is; how does received knowledge and wisdom find its way into policy and manage to stay with tenacity? To appreciate this, the study undertakes to investigate the local perceptions of biodiversity, and how they are mediated into policy. Implicit in the above, we observe two distinct views on what rationality is. The ‘new’ rationalists base their model on rational choice as maximization of individual utility. This we shall term individual rationality.169 Choices are here understood as rational if preferences are rational and choices are made in accordance with what is preferred to as the most satisfying by the individual. Preferences are rational if they are complete, transitive and continuous. This links rationality directly with maximization of individual utility. Concerning completeness, it is demanded that the agent knows all about him or herself and the goods. Concerning transitivity, it is demanded that all rankings are consistent.170 Concerning continuity, it is demanded that choices, values, norms and prevailing rules regime are commensurable. Individuals are therefore assumed to be fully rational and don’t exhibit non rational behaviour.171 But the issue of individual rationality is a very contentious and rather subjective one especially when it comes to measurability and judgement. For example, how can we measure substantive rationality, since rational behaviour is seen in terms of choices it produces? How can these choices be evaluated in the interest of preserving and maintaining biodiversity in commonly owned resources especially under open access regimes? 172 The classical view on rationality is however quite different. For, it embodies two distinct ideas. First, it is emphasizes that institutions are crucial for supporting individual human choices. It is found impossible for the individual to act rationally without the support of social institutions.173 This has a lot to do with the fact that institutions simplify life, reduce complexity through defining what is at stake, which actions are relevant, legitimate and enforced.174 The other issue is that internalised norms are socially defined solutions to the conflicts involved when individual acts are competing.175 In relating this to choices made for or against biodiversity maintenance, it is important to acknowledge that norms are an expected solution

167 Williamson, O. 1985. Economic Institutions of Capitalism. New York: Free Press. 168 Milgrom, P and J. Roberts. 1992. Economics, Management and Organisation. New York: Prentice Hall. 169 Denzau, A. and D. North. 1994. Shared Mental Models: Ideologies and Institutions 47(1):3-31. 170 Hausman, D.M. 1992. The Inexact and Separate Science of Economics. Cambridge: Cambridge University Press. 171 Simon, H.A. 1986. Rationality in Psychology and Economics. Journal of Business 55(4): 209-224. 172 Rothstein, B. 1998. Just Institutions Matter: The Moral and Political Logic of the Universal Welfare State. New York:Cambridge University Press. 173 Etzioni, A. 1988. The Moral Dimension: Towards a new Economics New York: The Free Press. 174 Ibid. 175 Hayek, F. 1945. The Use of Knowledge in Society. American Economic Review. 40 to a specific choice problem, which further supports a certain underlying value cause. The norms resolve the conflict, typically a conflict between the ‘I’ and the ‘We’, the individual and the group interest. This can be seen as a preferred solution to a coordination problem where the group or the society has developed rules and values concerning how the needs of the ‘I’ and the ‘We’ should be balanced.176 There is not only calculation, but there is also involvement, and discussion, with consideration given to the inner working and decision- making process that occurs at aggregation levels, rather than the individual level alone.177 There are behaviours motivated both by individual utility and there are behaviours founded on norms. Basing ourselves on the behaviours motivated or founded on norms, it is imperative to note that, underlying choices and goals are made according to existing institutions. Etzioni proposes a broader behavioural mode that obtains in the neo-classical model-that is to say; the global rationality in choosing means.178 He asserts that the normative and effective values are a category that includes both moral values and social values. Taking into account the fact that moral reasoning is about what is the right thing to do.179 What is rational is, according to this view, is not a result of isolated individual calculation, given external institutional constraints. First, institutions influence what we observe. When assigning values to the environment, the individual decision making process has to be taken into consideration. This is because there is no legitimate source of values apart from individuals.180 Many neo- classical economists regard the “homo economi-cus” constructs as a fiction. Usually, it’s not thought that this model reflects actual behaviour and is useful in predicting economic behaviour and usually its not adopted. It is therefore imperative to note that, this model of the individual can tell what human economic behaviour towards the environment can be. The other issue to consider is that institutions influence which preferences we hold and find right to defend. Choices, more precisely rational choices, are thus not simply about what is “optimal” for the individual. Individual preferences are hard to change. The assumption of stable, unchanging preferences with the assumption of maximizing behaviour form the heart of this arm of institutionalism.181 Preferences are also about what is “right” to do in a certain situation or institutional context. It is about which acts are defensible in specific situations.182 What can be defended depends on the institutional or social frame of reference. That may be family, a certain social class, the local community, or a larger social grouping like a state.183 This emphasis is crucial, especially when making the distinction between individual and

176 Katzenstein, P.1976. Between Power and Plenty. Madison: University of Wisconsin Press. 177 Tacconi, L. 2001. Biodiversity and Ecological Economics: Participation, Values and Resource Management. London: Earth Scan Publications Limited. 178 Etzioni, A. 1988. Opcit. 179 Ibid. 180 Orren, K and S. Skowronek. 1994. Beyond the Iconography of Order: Notes for a 'new'Institutionalism. In Dynamics of American Politics edited by L. Dodd and C. Jillson, 311-332. Boulder: Westview Press. 181 Levi, M. 1997. Consent, Dissent and Patriortism. New York: Cambridge University Press. 182 Jepperson, R.L.1991.Institutions, Institutional Effects and Institutionalism. In The New Institutionalism in Organisational Analysis edited by W.W Powell and P. Di Maggio, 143-163. Chicago: Chicago University Press. 183 Ibid . 41 social rationality.184 The social grouping may be very different based on very different internal motivational structures.185 Hence, like what Hall and Taylor noted, rational choice institutionalists employ a characteristic set of behavioural assumptions positing that the relevant actors have fixed set of preferences. In this regard there are many ‘WEs’, a fact that should be upheld.186 Furthermore, in each social setting every one is designated a specific role that carries a set of expectations, be it the village elder, the teacher, the citizen, the mediator or the local knowledge expert.187 From the above analysis we observe that there is a clear link between the definition of what rational choice is and the perspective of what institutions are and do. This should not be a surprise. Instead, by discussing these matters over and over, one can appreciate the fact that, there must be a strong connection.188 This observation is not relevant only as a characteristic of the two involved main models. It has great impact on how we understand and institutionalise social choices.189 While there is an understanding of what institutions are and can do, it is still riddled with variations.190 One such variation is the ability to acknowledge that, to reason, to communicate or calculate, and to do the choosing is not cost free.191 It is this cost that we weigh to find out what benefits come with the choices in respect to particular facets of the natural resource at a given time.192 In relation to the above, Simon cautions us; he informs that, this is demanding, irrespective of the way choices are made. Whether choices are made on the basis of calculative rationality or they are normatively based. The idea of ‘bounded rationality’ is a response to this problem.I93 The basic idea here is that the decision maker transforms complex or intractable decision problems into tractable ones.194 One procedure is to look for satisfactory choices instead of optimal ones. Another is to replace abstract global goals with tangible sub-goals, whose achievement can be observed and measured.195 The third issue is to divide up the decision- making tasks among many specialists, coordinating their work by means of a structure of

184 Shepsle, K. A. 1986. Institutional Equilibrium and Equilibrium institutions. Political Science 23:27.59 185 Ibid. 186 Hall, A.P and C.R, Taylor. 1996. Political Science and The Three New Institutionalisms: Political Studies 27:936-957. 187 Ibid. 188 Synyder, R and J.Mahoney. 1999. The Missing Variable: Institutionalism and the Study of Regime Change. Comparative Politics 3:103-122. 189 Immergut, E. 1998. The Theoretical Core of the New Institutionalism. Politics and Society 26 (1):5-34. 190 Ibid. 191 Green, D and I. Shapiro. 1994. Pathologies of Rational Choice Institutionalism. New Haven :Yale University Press. 192 Fearson, J and D, Latin. 1996. Explaining Interethnic Cooperation. American Political Science Review 90:715-735. I93 Simon, H.A. 1979. Rational Decision Making in Business organisations. The American Economic Review 69: 493-513. 194 Jupille, J and J. A Caporaso. 1999. Institutionalism and the European Union: Beyond Comparative and International Relations. International Review of Political Science 2:429-444. 195 Hall, P.A. 1993. Policy Paradigms, Social Learning, and the State: The Case of Economic Policymaking in Britain. Comparative Politics 25 (3): 275-296 42 communications and authority relations”.196 Boundedness is relevant for both kinds of rationality as defined above. In the case of individual rationality as maximization, it implies that since maximizing is costly and indeed very costly as defined– satisfying would be the only realistic option.197 More still, one could retain the focus on individual utility. While one would like to build social choices on aggregating such individual satisfying behaviour is another issue.198 Material welfare economists attempted to compare the well-being of social groups but refrained from comparing the utility of individual persons.199 This presents us with a dilemma, since we tend to gang up individual interests as if they happen in the same place and time!

Concerning the social forms of rationality, one could make similar claims.200 Individuals may not always be able to follow norms, or act reciprocally because they misinterpret the situation or do not take the time necessary to figure out what it demands.201 While boundedness applies to both models of rationality, it should be emphasized that conventions and norms may both be viewed also as responses to problems appearing when solving complex choice problems.202 Thus boundedness is in a way already captured by the classical view. Conventions and norms are a solution to individually intractable or very difficult choice problems. 203 Katznelson and Weingast in a comparative analysis of rational choice and historical institutionalisms, explain that the breakdown of institutions can lead to institutional conflict and thus impose costs on all parties involved.204 In the first application, the duo asks why we have ethnic conflict in resource management when it is too costly for those using natural resources. The simple answer is; ethnic conflict is irrational but this answer does not resolve the fundamental institutional puzzle.205 Therefore we note that this sub-set of institutionalism has come under criticism by analysts like Bell. He argues that the rational choice approach borrows heavily from economics and adopts a ‘deductive’methodology. This, he explains, results from the fact that explanations and working hypotheses are‘deduced’ from abstracted first principle assumptions about the motives and preferences of actors.206 As Fiorina points out, the rational choice approach as the

196 Ibid. 197 Weingast, B. 2002. Rational-Choice Institutionalism. in Political Science: The State of the Discipline, edited by I. Katznelson and H. Milner, 660-692. New York: W.W. Norton. 198 Simon, H.A. 1979. Opcit. 199 Fearson, J and D, Latin. 1996. Opcit. 200 Vatn, A. 2004. Valuation and Rationality. Land Economics 8:1-18. 201 Ibid. 202 Knight, J. 1995. Models, Interpretations, and Theories, Constructing Explanations of Institutional Emergence and Change. In Explaining Institutions edited by J. Knight and I. Sened, 95-119. Ann Arbor: University of Michigan Press. 203 March,J.G. 1994. A Primer on Decision-Making. How Decisions Happen. New York: Free Press. 204 Katznelson, I and B. R, Weingast. 2005. Intersections Between Historical and Rational Choice Institutionalism. In Preferences and Situations:Intersections Between Historical and Rational Choice Institutionalism,edited by I.Katznelson and B, R. Weingast, 1-27. Newyork: Russell Sage Foundation. 205 Ibid. 206 Bell, S. 2002. The Limits of Rational Choice: New Institutionalism in the testbed of Central Banking Polics in Australia. Political Studies 50:477-496. 43 name stipulates, assumes that individuals and actors are rational.207 Actors are also assumed to have motives dominated by preferences, selfish maximising motive, and utility maximisation. We must also make mention of the conventional view that the rational choice approach is one that takes preferences as given”.208 While the pre-supposition that actors are essentially pre- informed and economically rational individuals is justifiable, it can sometimes be misleading. As a result, Shepsle informs that a sort of behavioural box which is understood as a structured field of behavioural incentives and disincentives is necessary. The author maintains that this behavioural box contains the formal and informal rules, practices, routines or norms of the institutional setting in question. In this context, actors’ pre-given motives and preferences are regulated. The institutions thus, are some kind of force field of incentives and disincentives are said to shape the maximising behaviours of actors.209 Hence, the rational choice approach features the use of exogenous assumptions about motives and preferences and a deductive methodology.

Rational choice institutionalism and biodiversity interaction Given the different perspectives on rationality, distinct views on human interaction with the environment or particularly biodiversity also follow. The perspective of individual rationality implies an instrumental perception of action. Acting is to pursue strategies that secure maximum individual utility while on the other hand protecting the biological diversity. Other actors are either irrelevant to that process, appear as competitors, or they are mere instruments in terms of rule enforcement of resource regime maintenance. The natural consequence of this view is the development of non-cooperative game theory.210 People act to maximize their returns given the structure of the game. They do not communicate, or if they do it, they do so strategically. They do this through diplomatic or persuasive talk, meaning that they say one thing but still do the contrary.211 For instance, community members may agree to conserve a given plant and animal species because of their social and biological importance, but on the contrary the same members of the community hunt down the same species. The idea of social rationality brings in communication, cooperation, dialogue and trust. It is about developing appropriate norms in a dialogical way, about which solutions are the best for the group involved.212 As defined here, this is what we call communicative action which builds on social rationality. Acting or arguing selfishly in such a situation is counteracted by

207 Fiorina, M. P. 1995. ‘Rational choice and the new institutionalism. Polity, 28: 107–15. 208 Bates, R. H., de Figueiredo, P. R. and Weingast, B. R. 1998. ‘The politics of interpretation: rationality,culture and transition’, Politics and Society 26: 603–38. 209 Shepsle, K. A. 1989 ‘Studying institutions: some lessons from the rational choice approach’, Journal Theoretical Politics, (1): 1-34. 210 Austen–Smith, D and W.H, Riker. 1987. Asymmetric Information and coherence of Legislation. American Political Science Review 81: 879-918. 211 Habermas,J. 1984. The theory of communicative Action. Volume one: Reason and the rationalisation of Society. Boston: Beacon Press. 212 Elster, J. 1986. The Market and the Forum: Three Varieties of Political Theory. In Foundations fo Social Choice Theory, edited by J.Elster and A.Hylland, 103-132. Cambridge:Cambridge University Press. 44 the subsequent lack of general or socially acceptable validity in the claim.213 It is about reasoning together over which solution should be sought and about developing and testing arguments concerning which preferences, norms or behavioural rules should be supported in the defined social setting among others. People seem to exhibit interest in both, using their environment as well as conserving it. Conservation initiatives may benefit from people who exhibit conservation interests. Thus, utility or willingness to pay forms the basis for individual rationality. On the other hand the ability of communities to follow existing institutions forms the core of social rationality.214 From the above analysis we observe that cooperation, trust and communicative action are paramount to institutional success. In short, we are talking about individuals as paramount institutional structures. Therefore, understanding individual behaviour is of essence, since it informs the wider set of individual motivations as implied by the classical institutional position. Such behaviour is favoured by the establishment of markets or market surrogates.215 We must also mention that individual choice in the neo-classical sense has to be supported by structures such as private property rights, accounting devices, corporate business forms, markets, land access rights etc.216 This raises a crucial question; which institutional structure is best suited for treating the issue at hand? Is it the market or is it the forum? One can quickly answer; it is the market not the forum. The answer to this question though simple, is also a confusing one. While the idea of individual rationality is best fostered by the establishment of markets – by creating non-communicative exchange processes – the idea of social rationality is in itself plural. Its institutional counterparts can take a variety of forms.217 This is actually the challenge faced when formulating communicative or deliberative institutions for making environmental choices. 218 There are two crucial aspects to the choice of proper value articulating institutions. First, one has to ask which issues are at stake. Are they individual? Is calculation and exchange the proper solution implying that the goods at stake can be interpreted as commodities? Or are more societal issues involved moving us to consider a forum type value articulating institution? If the latter is chosen, the issue of which type of forum to choose involves an evaluation of the type of the problem at hand. It does however, also involve a second issue: that of evaluating the overall institutional setting in which the specific problem appears. Furthermore, we note that no institutional structure can be set up independent of the historical context in which an issue is to be treated. Existing resource rights, property rights or others

213 Dryzek J.S. 2002. Deliberative Democracy and Beyond. Liberals, Critics, Contestations. 214 Elster, J.1998. Deliberative Democracy. Cambridge: Cambridge University. 215 Dryzek J.S. 2002. Opcit 216 Lucas, R. E. 2000. Some Macroeconomics for the 21st Century’, Journal of Economic Perspectives 14 (1):159–78. 217 Hall, P. and R. Taylor. 1996. Political science and the Three New Institutionalisms. PoliticalStudies 44: 936- 957. 218 Bates, R et al. 1998. The Politics of Interpretation: Rationality, Culture,and Transition. Politics and Society 26(4): 603-638. 45 will play important roles. This evaluation would necessitate directing our attention to discussions concerning another branch of institutionalism, historical instituionalism.

Historical Institutionalism The historical institutionalists are interested in understanding and explaining events and outcomes. Scholars working in this tradition argue that one can explain particular historical outcomes by examining the way in which political institutions had shaped or structured the political process.219 One key concept is through upholding the path dependency concept. The path dependency concept postulates that the historical track of a given institution will result in almost inevitable occurrences. In some institutions this may be a self-perpetuating cycle: actions of one type beget further actions of this type of institutions.220 It is also imperative to make mention of the fact that the phrase path dependence is used in both fields, the economics as well as in the historical traditions of institutionalsim to mean one or two things depending on the specific circumstances. Some authors use path- dependence to mean simply "history matters" - a broad conception - whilst others use it to mean that institutions are self reinforcing.221 It is this self-reinforcing conception, which has the most explanatory force and which the subsequent discussions in this sub-section will benefit from. The claim that "history matters" is central to understanding institutions from both a formal and informal perspective.222 This dynamic vision of historical institutional evolution is very different from the neo-classical economics tradition, which in its simplest form assumed that only a single outcome could possibly be reached, regardless of initial conditions or transitory events. With path dependence, both the starting point and 'accidental' events can have significant effects on the ultimate outcome. Deeply embedded in the historical institutionalist literature, path dependence roots in the assumption that institutional making systems tend to be conservative, and find ways of defending existing patterns of institutions, as well as the organizations that make and deliver those institutions.223 In Pierson’s terms there are self-reinforcing processes in institutions that make institutional configurations, and hence their policies difficult to change, once a pattern has been established.224 During the past several decades, historical institutionalism has emerged as a leading approach to institutional analysis and indeed a prominent approach within political science more

219 Steinmo, S and K. Thelen. 1992. Structuring Politics: Historical Institutionalism in Comparative Analysis. New York:Cambridge University Press. 220 Pierson, P. 2000. Increasing Returns, Path Dependence, and the Study of Politics. American Political Science Review 2:251-267. 221 Pierson, P. 2004. Politics in Time. American Political Science Review 87: 845-855 222 Weingast, B. 1996. Political Institutions: Rational Choice Perspectives. In A New Handbook of Political Science edited by H.D,Goodin, 167-190. Oxford: Oxford University Press. 223 Bovens, M. A, P P. Hart, and B. G. Peters. 2001. Success and Failure in Public Governance.Cheltenham: Edward Elgar. 224 Pierson, P. 2000. Increasing Returns, Path Dependence, and the Study of Politics.” American PoliticalScience Review 94(1): 251–66. 46 generally. Historical institutionalism deals with institutional making and political change as a discrete process, characterized by extended time periods of considerable stability, interrupted by turbulent, “formative moments.”225 During those formative periods institutions are assigned new objectives. New priorities are established and new political and administrative coalitions evolve to sustain those new policies. 226 There are three important features that characterize historical institutionalism in the contemporary political science. Historical institutionalism addresses big substantive questions that are inherently of interest to the study of institutions. As already mentioned, the scholars in this area of institutionalism are also interested in tracing transformations of varying scales. Such scholars work best by delineating the origins and development of institutional structures and processes over time. They tend to emphasize sequences in the development and timing of events and phases of political change.227 This branch of institutionalism seems not to be too interested in understanding the critical roles of major actors and agents shaping structures and moments but rather in the major factors framing the moments. To them, unlike the rational institutionalists, there are no individual actors as such, whose actions and interests spurn off events.228 They base their argument on the unintended consequences and the unpredictability of intervening events. This is well collaborated by Thelen who noted that, rationality in the strict rational choice sense is present only in so far as the intended consequences of actors are foreseen/predicted.229 In line with the above, fellow historical institutionalist Hall defines institutions as formal rules, compliance procedures and standard operating practices between individuals in the various units of the economy, puts across one strong point of distinction. He notes that the fundamental difference between the historical institutionalists and the rational choice institutionalists is on the questions of how institutions shape political behavior and where institutions come from.230 This point of distinction therefore, places historical institutionalists at the center of societal institutions, not only looking at the individual for continuity of the societal values, but looking at social relations that shape the continuity of an entire society or polity for that matter. Historical institutionalists therefore analyze macro contexts and hypothesize about combined effects of institutions and processes. Rather than just examining only one institution, they examine the entire process over time.231 Hence taken altogether, these three features-

225 Thelen, K. 1999. Historical Institutionalism in Comparative Politics. Annual Review of PoliticalScience 2: 369–404. 226 Jones, B.D. 2001. Politics and the Architecture of Choice. Chicago: University of Chicago Press. 227 Zysman, J. 1994. How institutions create Historically Rooted Trajectories. Industrial and Corporate Change 31: 243-383. 228 Grafstein, R. 1992. Institutional Realism. New Haven: Yale University Press. 229 Thelen; K. 1998. Historical Institutionalism in comparative Politics. A paper presented at the APSA,Boston, Sept 3-6. 230 Hall, P. 1986. Governing the Economy: The Politics of State Intervention in Britain and France: New York: Oxford University Press. 231 Campbell, J. L. 2001. Institutional Analysis and the Role of Ideas in Political Economy. In Neoliberalism and 47 substantive agenda, temporal arguments and attention to contexts and configurations add up to a recognizable historical institutional approach that makes powerful understanding of politics and public choices.232 Furtherstill, historical institutionalists have always focused on how institutional factors, such as the relative insulation and centralization of political elites or relationships between branches of government, constrain policy making.233 Some researchers recognized that policy makers use policy ideas as the basis for creating new policy tools, government agencies and other formal institutions that limit policy options later.234 This argument however, remained closed to the traditional notion that institutions rather than ideas are the critical ingredients to policy making constraints. More scholars have argued that for policies to be adopted, they must fit within the underlying norms of society.235 In their study, Severio and Jeremy exemplify an historical institutionalism approach in the current management of conflict and declining biodiversity in Kenya. The study indicates that the origins of the many conflicts in developing countries can be traced over land tenure. The two authors for instance, note that: in the Narok District in Kenya, has been a source of prolonged unrest due to contradicting institutions regarding land resources. Results show that lack of understanding by the new institutions for land tenure; land use and market change by some groups in the area, has often led to exploitation and magnetization by the rational choice of some groups who are more informed than others.236 This same contention is held and further explained by the duo contends that, under the goal guile of indigenisation, it was easy for the emerging ruling elite to manipulate the land tenure system within the permissible boundaries of the law, for purposes of enriching some groups and disenfranchising others. Several scholars emphasize how policy legacies —the effects of earlier decisions— constrain subsequent policy choices. This notion of constraint is not a new claim, and indeed Heclo singled it out in his comparative study of British and Swedish social policy: “The context of modern social policy begins, to flesh out one major theme: the considerable impact of policy inheritances upon the substance of policy making.”237 The same argument is expounded by path dependency theorists, who seek to argue more that history matters, to some extent a self- evident truth.238 Rather, they claim that apparently small choices in institutional arrangements

Institutional Analysis, edited by J. Campbell and O. K. Petersen,148-191. Chicago: University of Chicago Press. 232 Pierson,T and K. Skocpol. 2000. The limits of design: Explaining Institutional Origins and Change Governance 13(4):475-99. 233 Ibid. 234 Goldstein, J and R. Keohane. 1994. Ideas and Foreign Policy: Beliefs, Institutions and political Change. New York: Cambridge University Press. 235 DiMaggio, P and W.W, Powell. 1995. The new Institutionalism in organizational Analysis. Thousand Oaks: Sage. 236 Saverio, K and J. Swift. 2000. Understanding and Managing Pastrol Conflicts in Kenya. Institutite of Development Studies University of Sussex. 237 Heclo, H. 1974. Modern Social Politics in Britain and Sweden. New Haven: Yale University Press. 238 Berman, S. 1998. The Social Democratic Moment: Ideas and Politics in the Making of InterwarEurope. Cambridge: Harvard University Press. 48 can have remarkable consequences at a later date, regardless of whether they were adopted purposefully or unthinkingly and that some policy choices may prove almost irreversible. Overall, we ought to note that there are a number of important theoretical and analytical problems in the use of the historical institutional approach. The very factors that make the approach so appealing at the onset such as a description of reality tend to diminish its ability to function as an explanation of those same phenomena.239 That is to say, the notion that institutions persist along well-worn paths when they make policy and when they manage their internal affairs, is a common observation about organizations, whether public or private. That observation borders on banality, especially when considered in the context of constructing institutional theory.240 Furthermore, the ability to predict persistence does not help in understanding institutional change. If, as in the historical institutionalist account, change tends to be defined in primarily terms of major shifts away from the status quo, then somewhat paradoxically we are left with little possibility of institutional explanations for change.

Sociological Institutionalism Sociological institutionalism buds out of sociology, the sub-field of organizational theory. It attempts to look at cultures and the study of organization.241 According to Hall and Taylor, sociological institutionalism was developed by the Stanford sociologists Meyer, Rowan, Scott, DiMaggio and Powell from the late 1970s.242 The intellectual root of this school of thought illustrates the distinction between those parts of the social world said to reflect a formal means-ends to rationality and those parts said to reflect culture. Sociological institutionalists build on this to argue that, the reason why many of the institutional forms and procedures used by modern organisations have been adopted, is not necessarily that they are most efficient for the task at hand. Instead they argue that many of these forms and procedures should be seen as culturally-specific practices.243 This is opposed to views that see certain institutional forms as inherently and transcendently rational. Examples are ‘weberian’ portraits of bureaucracy. Hall and Taylor argue that one distinctive feature of sociological institutionalism relates to the relationship between institutions and individual action.244 We have seen that this branch of new institutionalism typically has a ‘cultural’ approach to this relationship. This implies that

239 Weir, M. 1992. Ideas and the Politics of Bounded Innovation. In Structuring Politics: Historical Institutionalism in Comparative Perspective, edited by S. Steinmo, K. Thelen and F. Longstreth. Cambridge: Cambridge University Press. 240 Hedstrom, P., and R. Swedborg. 1998. “Social Mechanisms: An Introductory Essay.” In Social Mechanisms:An Analytic Approach to Social Theory, edited by P. Hedstrom and R. Swedborg. Cambridge:Cambridge University. 241 Selznick, P. 1949. TVA and the Grassroots: Study in Sociology of formal Organization. Barkley: University of California Press. 242 Hall, P and R. Taylor. 1996. Political Science and the Three New Institutionalisms. Political Studies 44: 936- 958. 243 March, J. 1999. The pursuit of organizational intelligence. Malden MA: Blackwell. 244 Karen, L. R. 1997. Theoretical Decay and Theoretical Development: The Resurgence of Institutional Analysis,’ World Politics, 50:34-61. 49 institutions are assumed to influence preference formation. The second distinctive feature relates to the definition of institutions. Sociological institutionalism tends to define institutions broadly to include “not just formal rules, procedures or norms, but also the symbol systems, cognitive scripts and moral templates that provide the ‘frames of meaning’ guiding human action.245 Taking into account its intellectual roots and distinctive features, it is not surprising that the substantive questions about organisational change sociological institutionalists tend to raise, are about why institutional practices originate or change. Brunsson, Czarniawska, Sahlin-Andersson, Christensen, Laegreid and Roevik are all proponents of this approach.246 The above scholars and their collaborators have produced a range of studies that seek to account for why and how institutional forms, procedures or symbols are diffused through organisational fields or across nations. This is what Hall and Taylor claim is typical for this branch of new institutionalism. Their explanations tend to emphasise that “organisations often adopt a new institutional practice not because it advances the means-ends efficiency of the organisation, but because it enhances the social legitimacy of the organisations or its participants.247 March describes this as the logic of appropriateness in contrast to logic of consequence.248 However, sociological institutionalists have developed a set of theories that are of growing interest to political scientists. These scholars are also interested in the study of cultures and norms as institutions. They emphasize the use of folkways in understanding patterns of behaviour and cognitive maps. They argue that, using these social institutional tools is critical in understanding of social structures as well as political and economic interactions.249 Building upon their analyses of complex organizations, these scholars show the relationship between formal institutions, their structures, patterns of behaviour and beliefs. But to differentiate themselves from pure organizational theorists who stressed how behaviour was normatively based, sociological institutionalists stress that routines and habits are important aspects of actors underlying cognitive framework.250 Furthermore, scholars in this tradition argue that the informal institutions are fundamental when labouring to understand the non rational aspects of human communication and exchanges. Putting it clearly, this means that many of the institutional forms and procedures used by modern organizations were not adopted simply because they were the most efficient for the tasks at hand, but were in line with the transcendent rationality.251 They argue that many of these forms and procedures should be seen as culturally specific practices, akin to the

245 Pierson, P. 2000. Path Dependence, Increasing Returns, and the Study of Politics. American Political Science Review 94:251-67. 246 Czarniawska, B. 1998. Narrating the Organization: Dramas of Institutional Identity. Chicago: University of Chicago Press. 247 Hall, P and R. Taylor, Opcit. 248 March, J. Opcit. 249 March , J and P. Olsen. 1989. Rediscovering Institutions. New York: Free Press. 250 George, T et al. 1987. Institutional Structure: Constituting State , Society and Individual, Beverly Hill: Sage. 251 Hall, P and Taylor,R. 1996. Political Science and the Three New Institutionalisms. Political Studies. 50 myths and ceremonies devised by many societies and assimilated into various organizations. However, critics have argued that by relying on the above metaphors, sociological institutionalists fail to specify the casual processes through which structures enable and empower actors and the constituted actions. As a result they neglect the important role of agency in policy making and their theory of action leaves the impression that actors blindly follow institutional adopts and cues around them.252 The sociological institutionalists are also accused of being too specific and supportive of local/cultural knowledge. This is based on the fact that sociological institutional explanations are arrived at inductively rather than deductively and hence can lend insight into individuals’ reasons for actions.253 However, Katzenstein notes that there is a big danger for generalizations because sociological institutionalism can appear culturally deterministic where it emphasizes the cultural routines and rituals to the exclusion of individual action which breaks out cultural norm, that is to say rule making and rule creation as opposed to rule following action.254 In summary, the most intriguing question that motivated this exposition is; what exactly are institutions and what is institutionalism? The examination in this chapter made an exploration of the theoretical underpinning regarding the concepts of institutions and institutionalism. In the process, we have seen the role of institutions in mediating political and economic as well as social order. However, it is striking to note that although no single branch of institutionalism can be used in total isolation of the other, it is also an uphill task to combine the three approaches. In the subsequent chapters, we shall examine the institutional process that shape natural resource regimes in Kenya. Specifically, our study shall benefit from the tenets of historical and sociological institutionalism in making this evaluation.

252 Meyer, J. W. and W.R, Scott. 1983. Organizational Environments: Ritual and Rationality. California: Sage Publications. 253 Pettigrew, A.M. 1997. What is processual analysis? In Scandinavian Journal of Management 13 (4):337-348. 254 Katzenstein, P. J. 1986. Cultural Norms and National Security: Policy and Military in Post war Japan. Ithaca/New York: Cornell University Press.

51 3 Perceiving Biodiversity and Natural Resource Regimes in Kenya 3.1 Biodiverdity as natural resource capital. Literature on biodiversity provides a variety of explanations for its importance and grounds for its conservation. In that respect Malcom makes an important observation when he mentions that:

Apparently biodiversity is here to stay and holds an important vocabulary in the natural resource management. Despite its importance, it still confuses a lot of people simply because of its association with quantifications. 255

Put clearly, biodiversity can simply be defined as, diversity of life in all its forms and at all levels of organization. We can further appreciate biodiversity when we look at it in terms of the millions of species that share the earth. We can also look at it in terms of genetic diversity, diversity of ecosystems, forests, meadows, lagoons, lakes among others. Genetic resources that are distributed through out the world’s regions make a substantial contribution to development efforts in both the developed and the developing world. These contributions range from economic, scientific, cultural strategic values among others.256 However, some countries including many in the developing world have greater concentrations of these resources and commensurately greater burden to bear in conservation and sustainable use. Most of these countries are located within the tropics and more specifically Tropical Africa, largely depending on clearing large tracts of forested and high biologically resourceful areas for both extensive and subsistence agriculture. In Uganda for instance, large tracts of land consisting of natural forest cover the Lake Victoria islands, are currently being cleared in order to establish large plantations of palm oil production. In Kenya, the areas around Kakamega forest belt are equally threatened by cash crop production in terms of sugar cane and tea growing.257 Conway and his collaborators note that; making agricultural systems sustainable in Africa demands a double green revolution with a special focus put on accelerated re-capitalization of soils to reverse the downward spiral of land degradation. The Conway group further notes that; this revolution will be achieved through putting in place policy measures which should be associated with continued development of environmentally sound and economically viable technologies that enable small holders to meet increasing demand for food and other agricultural commodities. The other strategy is to improve individual and group security of tenure, deregulate agricultural prices to allow private entrepreneurs function more efficiently in both inputs and output markets. A combination of these two, constitute the re-capitalization strategy.258

255 Malcolm, L. H. 2001. Forest Ecosystems. Cambridge: Cambridge University Press. 256 Perkoff, S. 2000. Protecting Biodiversity: National Laws Regulating Access to Genetic Resources in the Americas. Ottawa: IDRC Publications. 257 Norton-Griffith, M and C. Southey. 1995. The opportunity cost of Biodiversity conservation in Kenya. Elsevier Ecological Economics 12:125-139. 258 Conway, G et a l. 1999. Sustainable Agriculture for a food Secure World. A vision for International Agricultural Research. Washington D.C. World Bank Pbulications. 52 In light of the above postulation, it is imperative to note that Conway and his co-authors have strength in their double strategy for the green revolution, especially if one looks at it from the price and land tenure component. However, some shortfalls obtain in their strategy. True, it goes without saying; small holders have had an upper hand in the degradation of high biodiversity areas especially in Sub-Saharan African, but in the same regard, the state in most of these countries is not innocent. The state has equally played an insurmountable role in the degradation of biodiversity. 259 As we shall later come to learn, the apparent rush for industrialization, extensive market gardening policies and political patronage have largely been responsible for this environmental crisis.260 Kenya which is our center of focus, affords us a glowing example. Forests and other areas of great biological diversity are treated as political pawns in exchange for political support.261 High biodiversity areas are not seen in terms of their environment and high capital value.262 To this Cleaver and Schreiber add that; such a situation puts this natural capital at risk. Some areas for example those in Meru and Embu districts in Kenya have taken to agriculture intensification as a result of the high population increases and food deficits. Permanent intensive cropping is the current pattern in the favourable highlands, but degradation is high especially under low technological inputs and without enough control measures in the sub-region.263 The threats resulting from farming in many developing countries like Kenya are innumerable, yet food needs are more acute and the population is growing rapidly. Needless to mention is that the large area of woodland along the forested belt is of vital importance for limiting runoff and erosion. 264 Due to scarcity of land in Kenya, the remaining pockets of the mountain rain forests with their unique biodiversity are at risk. Since 1986, The Food and Agricultural Organization (FAO) has estimated the annual deforestation rate at 5%.265 There is also more land required by the pastoral communities for their animals; hence the continued ethnic clashes in Kenya. There were trials with artificial boundaries aimed at reducing human and livestock degradation of soils, as well as averting the risk of serious drought. However, this scheme failed due to resistance from pastoralists.266 The proceeding sub-section delves into the issues of land use variation and concomitant conflicts which in a way affect biodiversity regeneration.

259 Krugman, H. 2001. Impact of land use changes on Biodiversity and Land degradation in Kenya. Ottawa:IDRC Publications. 260 Ross, M. 1996. Timber Booms and Institutional Break down in South East Asia. Cambridge: Cambridge University Press. 261 Deacon, R. T. 1994. Deforestation and the rule of law in a cross-section of countries. Land Economics 70(4): 414-430. 262 Key Informant Interview with Dr. Matanga, KENRIK 27thJune 2006. 263 Cleaver, M and G. Schreiber.1994. Reversing the Spiral: The population , Agriculture and Environmental Nexus in Sub-Saharan Africa. Directions in Development Series. Washington D.C: World Bank. 264 Bohn, H., and R.T. Deacon. 2000. Ownership Risk, Investment, and the Use of Natural Resources. American Economic Review 90(3): 526-549. 265 Ashby, J., et al. 2000. Investing in farmers as researchers: Experience with local Agricultural Research Committees in Latin America, Cali, Colombia: CIAT. 266 Little,M.A. 1985. Multi-displinary and Ecological Studies of Nomadic Turkana Pastoralists. Paris: Biology International 11: 11-16. 53 Land use variability and concomitant land use conflicts Land use variability represents the different human uses of the land. For example smallholder agriculture, grazing and wildlife reserves among others.267 Discussing biodiversity perceptions and national resource regimes in Kenya inevitably leads us into discussing the issues of land use. Land use variations wittingly or unwittingly leads to escalation of land use conflicts, one of the important factors helping us to understand biodiversity dynamics in Kenya. Like any other African societal setting, ethnic arrangements form the social fabric of Kenya. As a result, land use is defined basing on the ethnic tents. 268 Land use in Kenya is divided into two major types: pastoral and agricultural land use systems. Rainfall irregularity is a characteristic feature from year to year and more severe within particular years. In the east and northern parts of Kenya, rainfall is expected between March and May, while in the south and western parts of Kenya, rain falls during March and June.269 The lowest rainfall is registered along the shores of Lake Turkana and the central plains which receive 150mm of rain fall per year. The seasonality and distribution of rainfall has an important bearing in determining land use patterns. Poor rainfall distribution creates patch vegetation, and during each interval of the rainfall, the ephemeral vegetation continues to degenerate. If the season is prolonged, the cycle continues.270 It is imperative to note that, rainfall distribution and variability is extreme in both time and space. When one part of the country receives rainfall, the other half experiences a drought and its attendant problems. This kind of phenomena causes variations in land use strategies and calls for copping mechanisms. These different copping mechanisms, with regard to variable environment and land rights insecurity, were studied by Ellis and Swift.271 They noted that, when relations between pastoral groups are good, there is reciprocity in access to grazing and water resources during periods of stress. As one group crosses into another’s territory, access to key resources is governed by the host group’s institutions and regulations.272 The hosts by agreeing to host their troubled brothers in the trade expect reciprocal rights in future when similar catastrophes befall them too. During such friendly contacts, raids, killings and land conflicts are few or even rare. However, when there are sour relations and more so when reciprocity is not met, the status quo is challenged and there are concomitant clashes between rival groups competing among themselves, over access to water and land resources. Here, raiding rather than reciprocity becomes the major facet

267 Lee, D.R and C.B, Barret. 2000. Trade offs or Synergies? Agricultural Intesfication, Economic Development in Developing Countries. Wallingford: CAB International. 268 Scoper,R.C. 1985. Social Cultural Profile of the Turkana District. Nairobi: University of Nairobi. 269 Ngecu, W. M and E.M, Mathu. 2004. The El-Nino-triggered Landslides and their social economic Impact on Kenya. Environmental Geology 38:277-284. 270 Murton, J .1999. Population Growth and Poverty in Machakos District, Kenya.The Geographical Journal 165. 271 Ellis, J.E and D,M. Swift. 1988. Stability of African Eco systems. Alternative Paradigms and Implications for Development. Journal of Range Management 41(6):450-459. 272 Kamau-Kimani, J. 1998. Recent Trends and Implications of Group Ranch Sub-Division and Fragmentation in Kajiado District,Kenya .The Geographical Journal 164(1):202-213. 54 among inter ethnic relations.273 During times of severe drought, pastoralists travel greater distances following biodiversity trends to feed their livestock hence; the land use changes and ensuing land clashes with other land users. 274 This kind of situation also extends to agro-based communities. These, as noted earlier, convert land cover from vegetation to cultivable lands. Farmlands comprise of agro- ecosystems that are modified by such communities through removal of native species and replacing them with food and cash crops that are fast growing and commercially valuable. These conversions result into destruction of native species, destruction of habitats for animals, exposing of soils to water and wind erosion because of reduction in the soil shade. 275 Cultural preferences for different types of biodiversity lead to different land use systems in the same environments across different cultures and countries for instance, matooke growing in Uganda as well as potato cultivation in Kenya. Cultural adaptations to food productions evolve within communities over time, stemming from generations. This may not be limited to food crops but income crops as well. These crops may also be adaptive to particular kinds of habitats where they best grow.276 Such communities will always migrate in search for similar habitats, inevitably clashing with others ethnic groups as well as destroying the biodiversity of the new found lands. In a broader perspective, cultivators tend to focus on areas with thick vegetation where soils are richer, with more organic matter and more reliable rainfall, while agro-pastoralists or livestock keepers tend to select open grasslands where their herds will get more pasture.277 These selections are based on biodiversity assessments as an indicator for potential productivity. This however, does not come without trouble; it comes with a lot of ethnic clashes and inadvertently affects the biodiversity of the areas involved. It’s however, pertinent to mention that some traditions have cultural restrictions preventing people from using places of high value biodiversity places for instance the Khaya forests and related sacred forests. 278 Better still, in many cases it is due to the uniqueness of the forest biodiversity and the physical features such as the waterfalls, which make the surrounding communities develop cultural and religious values towards the same forest hence; the need for their protection. Such communities will prevent external migrants from tampering with such treasured environments and in a way this will ultimately work to protect such biodiversity spots.279 It is therefore the interest of this research to further reveal institutional perceptions regarding biodiversity in

273 Ellis, J.E et al. 1985. Pastoralism and Drought in Turkana District. Nairobi: NORAD. 274 Kamau-Kimani, J. 1988. Opcit. 275 Maitima, J et al. 2004. A Methodological Guide on How to identify Trends and Linkages Between changes in Land use, Biodiversity and Land Degradation. LUCID Working Paper series No.43. 276 Obote-Ochieng, C.M. 2002. Sustainable Agriculture in Africa: Towards A New Paradigm – The Embeddedness Approach. Oxford: International Development Centre. 277 FAO.1983. Guideline: Evaluation for Rainfed Agriculture. Soil Bulletin 52. Rome: FAO 278 Wuyts-Fivaro, A. 1996. ‘Linkages between research, farmers and farmer organisations in Kenya: A summary of findings’, ISNAR Briefing Paper, No. 32. 279 Mackenzie, F. 1998. Land Ecology and Resistance in Kenya. Edinburgh:Edinburgh University Press. 55 areas around Kakamega forest and how this interplay is finally mediated in the broader framework of national resource regimes.

Perceiving biodiversity in the context of ecosystems Before delving into the intricacies of local biodiversity perceptions in Kenya and Kakamega district in particular, it is imperative for us to understand biodiversity as a system good. When looking at the systems view on biodiversity, structural and functional relationships between species are emphasized and form the core of the biodiversity status in an area. Species are understood as integrated webs of matter and energy cycles that reproduce or maintain the systems. In this case the systems also involve some disease vectors such as mosquitoes, and tsetse flies which are responsible for transmission of trypanosomiasis and sleeping sickness diseases respectively. As a result, these animal vectors become the guardians of the wild, since they prevent human occupation in affected areas.280 In the process this integration leads to the development of strong ecosystems over long periods of time. These shape the internal relationships of matter and energy transformation. Jacobs notes that species are greatly influenced by the physical environments in which they live as well as the composition of the atmosphere.281 The above perspective does not deny the fact that species composition changes due to natural forces. As Wilson emphasizes, species get extinct all the time as part of the process of evolution. In this process those species that are more fit take over the resource niches, while displacing those that are weak. He argues that an average lifetime of a species of about one million years.282 In some periods more abrupt developments like mass extinctions have been observed. Altogether there have been five such periods over the last 450 million years. He concludes that, on average it takes approximately 10 million years for species to recover.283 Pimm et al. noted that we are now in such a period of mass extinction, may be with levels far beyond those previously observed. In their study; the future of biodiversity, they observed that from a systems point of view, there is a certain redundancy in ecosystems. 284 In most situations ecosystem functioning is maintained by a smaller number of processes and a reduced number of species. Some species can be termed cornerstone process species.285 In evaluating this, Holling observes that although keystone process species are necessary for ecosystem functioning, they may not be sufficient for ecosystem sustainability. They argue that the remaining species that depend on the niches formed by keystone process species are

280 Vatn, A. and D. Bromley. 1994. Choices Without Prices Without Apologies. Journal of Environmental Economics and Management, 26:129-148. 281 Jacobs, M. 1997. Environmental Valuation, Deliberative Democracy and Public Decision Making. In Valuing Nature? Economics, Ethics and Environment edited by J. Foster, 232-246. London: Routledge. 282 Wilson, E.O. 2001. The Diversity of Life. London: Penguin Books. 283 Ibid. 284 Pimm, S., G. Russell, J. Gittleman and T. Brooks. 1995. The Future of Biodiversity. Science 269:247-350. 285 Schindler, D.W. 1990. Experimental Perturbation of Whole Lakes as Tests of Hypotheses Concerning Ecosystem Structure and Function. Oikos 57:25-41. 56 also important for maintaining the resilience of the ecosystem. In this context resilience is used to mean the system's ability to counteract perturbations from external shocks.286 Analyzing this from a systems perspective, we understand that system maintenance and resilience are two core issues in appreciating ecosystems survival and ecosystem functioning. Ecosystems are viewed as complex systems, characterized by different and competing organisms including man, yet made up of self organized, self regulating and adaptive structures. Actually the biggest factor in the successful existence of every system is the ability of its component species to live together in a state of compatibility.287 The capacity of constituent species to exist in a harmonious, agreeable, or congenial relationship determines a systems cohesion and durability. The complexity of the systems tends to make them fairly robust in the face of historically repeated disturbances of state variables. This is a basic characteristic of self-organization. In elucidating this further we note that, to be able to develop this kind of complex resilience, the system has to produce some randomness, which serves to constantly develop and test better ways of adaptation. It creates ‘searches’ within the available state space through processes like genetic mutations. Variation increases and the systems become better and able to handle shifts in environmental conditions.288 The challenge here it is impossible to predict what changes will occur and the impact such changes may have on the entire system. For instance what happens when the changes are too diverse or too frequent and beyond levels not earlier observed? These changes may affect the system performance in an essential way, hence attracting a shift in a negative direction. However, it is imperative to note that we are unable to predict where, when and how such a shift will happen. This makes it hard for us to ascertain the resultant consequences of such a shift. On the contrary, Lemons informs that it is this radical uncertainty rather than ordinary risk that characterize most systems. He further notes that it is the important task of those observing the system to develop tools of analysis to watch and predict any upcoming or pending shifts in the system.289 This is well appreciated by Vatn and Bromley who are quick to mention that looking at systems through this kind of lens leads us to one conclusion. They mention that in this sense, ecosystems are functionally opaque. The exact contribution of species in an ecosystem is not known.290

286 Holling, C.S, D.W. Schindler, B.W. Walker and J. Roughgarden. 1995. Biodiversity in the Functioning of Ecosystems: An Ecological Synthesis. In Biodiversity Loss. Economic and Ecological Issues, edited by Perrings, K.G. Mäler, C. Folke,C.S. Holling and B.O. Jansson, 44-83. Cambridge: Cambridge University Press. 287 Perrings, C. 1996. Ecological Resilience in the Sustainabilityof Economic Development. In Models of sustainable development, edited by S. Faucheux, D. Pearce and J. Proops, 231-252. Cheltenham: Edward Elgar. 288 Graves, J., and D. Reavy. 1996. Global Environmental Change. London: Longman. 289 Lemons, J. 1998. Burden of proof requirements and environmental sustainability: Science, Public policy, and Ethics. In Ecological Sustainability and Integrity:Concepts and Approaches, edited by J.Lemons, L. Westra and R.Goodland, 11-38. Dordrecht/Boston/ London: Kluwer Acdemic Publishers. 290 Vatn, A. and D. Bromley. 1994.Opcit. 57 While their assessment is valid, it makes the entire essence of studying ecosystem functioning is a little blurred. True, it has been observed that ecosystem functioning probably remains unknowable, until it breaks down or completely ceases to function. If the system has essentially stayed within the same negative shift for a considerably long period of time, then we can expect that it is able to retreat from such a change in stated variables. It is sometimes difficult to establish what could have really happened in such a state. But that is the very essence of studying of biodiversity and the systems that obtain. However, the biggest challenge here is mastering system functioning and its critical fundamentals. It also entails understanding these issues relating to valuation and bio-ethics, to which we now turn our attention.

Perceiving biodiversity as a common good: The essence of valuation and bio-ethics The above perspective embodies another message: one which brings human beings and biodiversity together. Since human beings are species developed as part of the complex ecological webs discussed earlier, their livelihoods and future is closely linked to the functioning of the whole ecosystem. In this respect humans are just as other species. The way humans utilize their niches depends on their capacity to produce goods and restructures to the benefit of the environment and other species.291 The health of human beings greatly depends on the health of other ecological species. The immune system of humans is integrated with the various capacities within the ecological environment. What distinguishes humans from other species is their capacity to appreciate and to shape their ecological niches. As a result of the above interlink, human beings are linked to each other in a very integrated sense through the ecosystems processes.292 When one reclaims a lagoon, wetland, swamp, marsh, and cuts down a forest to construct an industry, a house, set up a plantation or builds a road, through that, we can never realize and ultimately enjoy its cleaning capacities, its species richness and a host of other benefits as it originally was. Biological diversity in terms of the ecosystems and their species is a common good in all its total scope and time.293 The above synthesis holds strong connotations regarding the choices and decisions made in the realm of the biodiversity. In a large measure these are fundamentally connected with issues of ethics and rationality in the sense that, preferences and perceptions each individual makes or holds, constitute the resultant actions concerning the valuation and usage of biodiversity as a common good.294 The decisions taken by individuals wholesomely influence

291 Gowdy, J.M. 1997. The Value of Biodiversity: Markets, Society, and Ecosystems Land Economics 73(1): 25- 41 292 Hunter, M.L. 2000. Fundamentals of Conservation Biology. Massachusetts: Blackwell Science. 293 Primack, R.B. 2002. Valuing Biodiversity. In Essentials of Conservation Biology, edited by R.B. Primack, 85-158. Massachusetts: Sinauer Associates. 294 Van Dyke, F. 2003. Values and Ethics. In Conservation Biology Foundations, Concepts, Applications, edited by Van Dyke, F, 56-76. Newyork: McGraw Hill. 58 what sort of environment is left for others to enjoy, which future risks, (both ordinary and extreme) they might be exposed to. Therefore through examining the existing linkages within nature, a social interconnectedness arises and is inadvertently forced upon human beings to give value to the existing biological diversity as a common good for all.295 More specifically, ideas about the rights of other species to live are typically an issue of bio-ethics which the next chapter will explicitly highlight. Human interaction with biodiversity is aided by laws relating to nature and associated values regarding rationalism.296 Such values sometimes tend to have strong relations with culture, or society to which individuals subscribe. Moving to this level involves enumerating another problem, that of summing up individual values. If biodiversity exists as a common good, the issues of constraints in relation to usage confront humans as users. If humans, for certain reasons accept that the value existing dimensions of biodiversity as a good are commensurable can be collapsed into one dimension at the individual level, then there is a problem of summing up all these values for the group as a whole. If all individuals gain, this may be thought to be unproblematic.297 More importantly we need to note that the distribution and measurement of gain is one of those hurdles that the community interest principle faces. Even at this level, we encounter problems regarding accepting the rule of one dimension and simple summation.298 There are two dimensions involved; the total distribution and total gain. We ought to mention that these two dimensions are common practices relating to common goods. These practices also pertain to issues concerning biodiversity protection and conservation. While some individuals will find it gainful, others will look at it as a loss.299 This accentuates the distributional effect even further. When someone loses as a result of an effect of the acts of others, it is very problematic. This sometimes makes summation or aggregation irrelevant and provoking. Therefore based on the understanding that biodiversity can hardly be treated unidimensionally and therefore unilaterally, we are left in a situation where there is only one way for all of us to walk. This entails assessing, reasoning and agreeing over which principles and values should govern the allocation of the available common good. We hence move away from summing up of individual interests or bids to assessing and reasoning over, and potentially agreeing on a common set of priorities that benefit all of us as potential users. The implication here is that people are able to change their views as a result of trying out various arguments and reaching certain compromises. 300 It implies that they are brought into an institutional setting where a process of individual trade-off is obtained .This synthesis will logically enable us to build

295 Ibid. 296 Rolston, H. 1988. Environmental Ethics: Duties to and Values in the Natural World. Philadelphia: Temple University Press. 297 Jacobs, M. 1997. Environmental Valuation, Deliberative Democracy and Public Decision-Making Institutions. In Valuing Nature: Economics, Ethics and the Environment, edited by J. Foster, 211-231. London: Routledge. 298 Bryan G. N. 1984. Environmental Ethics and Weak Anthropocentrism. Environmental Ethics. 6: 131-48 299 Moran, D. and D. Pearce. 1994. The Value of Biodiversity. London :Earthscan Publications. 300 Schindler, D.W. 1990. Experimental Perturbation of Whole Lakes as Tests of HypothesesConcerning Ecosystem Structure and Function. Oikos: 57:25-41. 59 answers to our lead questions of how biodiversity is synthesized and what is its place in the entire national resource management regime in Kenya.

3.2 An analysis of national resources regimes in Kenya As we noted earlier, regimes are social institutions composed of agreed upon rules, norms, principles and decision making procedures that govern interactions for actors in specific areas. Krasner makes this observation at an international level. He suggests that the definition of international regimes has been used to explicitly refer to principles, norms, rules and decision- making procedures in the area of international relations.301 Resource regimes evolve over time and space. They are nurtured, grown and changed. They persist and occasionally die but this doesn’t translate to mean that all regimes have an indefinite life cycle. In order for us to make a meaningful analysis of the national resources management regime in Kenya, we shall still use the institutional perspective on natural resources as opposed to the micro economic or the ecological perspective. This will enable us to differentiate resource regimes from the broader domain of human behavior and empirically identify regimes through analysis of social conventions. Young identifies three different approaches to use in doing a resource regime analysis. In one such approach Young analyses the regime as a pervasive characteristic of the international system. He advances his argument based on the economic and power relations that shape nations.302 Through his submission, Young seems to point out that: natural resource regimes whether in Africa, Latin America or even Asia are in a way structurally linked to international regimes under certain circumstances. In short, Young as a great proponent of structural realism reasons and gives due recognition to the influence of international regimes in many defined situations.303 Young’s analysis is useful in helping us to synthesize the nature of resource regimes in Kenya. A critical look at the current resource management regime in Kenya inevitably displays these traits. Kenya is a member to the conference of parties, a signatory to most of the international environmental regimes and above all a signatory to the Convention to Biological Diversity (CBD). Not forgetting to mention that Kenya hosts the headquarters of the United Nations Environmental Protection and a hive for other environmental actors. In fact any efforts to de- link Kenya from this analysis would be self-defeating. But this should not be interpreted to mean that Kenya employs the “best practices model” in her biodiversity behaviours. It only helps us to make an assessment as to whether the globalcentric notion of biodiversity has played a significant role in the biodiversity restoration efforts. The globalcentric notion of biodiversity is strategically positioned in Kenya’s national resource management regime.

301 Krasner, Stephen.D .1983. International Regimes. New York:Cornell University Press. 302 Young, Oran .1996. Institutional Linkages in International Society: Polar Perspectives. Global Governace.21: 1-23. 303 Ibid. 60 Rittberger called it “institutionalized cooperation” of states in the management of resource conflicts and interdependence problems.304 Still in relation to the above, Young makes further elucidation regarding the concept of regime governance. He labours to do so through postulation of his notion of “governance without government", in the managing of international environmental regimes. He postulates that such governance involves the establishment and operation of social institutions capable of resolving conflicts, facilitating cooperation or more generally alleviating collective action in a world of interdependent actors.305 In taking the above observation further, we can simulate it to another one made by Keohane and Ostrum. The two scholars analyze international resource regimes and local common property regimes while investigating concepts of heterogeneity and cooperation in resource regimes at different levels. In their observation they conclude that this work illuminates the value of comparing collective action problems at varyingly different scales and such comparisons across different scales can be so daunting.306 However, in this regard, there is a danger of making conclusions which may somewhat be misleading. For instance, when one takes to comparing regimes at different levels of development, there is a danger of under measuring which may definitely lead us into making invalid conclusions.

3.3 Biodiversity governance : Between restoration and Preservation In order to locate biodiversity‘s place in the national resource management regime, it is imperative that we further explore the institutional policies and practices regarding use and regulation of biodiversity resources in Kenya’s broader resources management framework. It is important to redefine a resource management regime as a structure of legal and social relations with respect to particular natural resources. However, it is also noteworthy to point out that this kind of understanding has to take place within the desired frameworks of the national regulating regime. Ostrum defines governance as the conscious management of regime structures with a view of enhancing legitimacy of public realm by focusing on the rules as reflected in the public structures and how they are managed.307 This definition paints a picture of an institutional framework within which public decisions and choices are made and at the same time presupposing a framework in which values and interests of the citizens are met. Thus we are talking about a product of human agency that helps to define the relations and interactions between state and society. The author adds that this process involves the conscious management of regime structures with a view of enhancing legitimacy of public realm, by focusing on the rules as reflected in the regime structures and how they are

304 Rittberger,V. 1993. Regime Theory and International Relations. Oxford: Oxford University Press. 305 Young, O. 1994. International Governance: Protecting the Enviroment in a Stateless Society. New York: Cornell University Press. 306 Keohane, R and E.Ostrum. 1995. Local Commons and Global Interdependence: Heteroginity and Cooperation in Two Domains. London: Sage. 307 Ostrum, E. 1990. Governing the commons: The Evolution of Institutions for Collective Action. New York: Cambridge University Press. 61 managed. Barrett, further emphasizes the combination of ethical standard setting, formal rule- making and institutional framing by which organizations attempt to ensure that they live up to the values by which they justify themselves to the community in which they belong.308 Issues of resource governance arose out of the fact that there is a need to deal with divergent interests and collective action problems confronting both the state and its agencies in the realm of environment. The situation therefore requires a combination of different elements which include a variety of formal rules, market incentives, organizations and a host of related actors.309 Ribot notes that with decentralization reforms taking shape across Africa, it is imperative to align local institutions that manage local resources, with national legal framework in order to increase participation in ways that will profoundly reflect who manages and benefits from these resources.310 But he is quick to add that local institutions chosen to transfer powers don’t establish conditions for more efficient or equitable use and management.311 Therefore a combination of locally accountable representation and discretionary powers is needed. Ribot’s suggestions indicate absence of democratic governance in the choice of institutions used in the management of local resources in most of African decentralization reforms relating to natural resource governance. Anderson points out factors that explain why some local governments are more successful than others in governing their natural resources. He mentions that there is growing interest in finding empirical evidence regarding this divergence. One of the empirical findings in recent decentralization literature indicates that effectiveness of local governments in the management of natural resource sectors depends on the degree to which local governments involve local resource users in political decision making and how they are down-worldly accountable to these users.312 A review of the above treatment reveals that although participation in political decision- making is increasingly taking shape, it is important to investigate the contents, outcomes and impact of such decisions on local area resource management, since such decision-making may face high chances of elite capture, neglecting the evolution and continuation of locally cherished institutions such as indigenous laws which in many cases forms the backbone for local resource utilization.313 Singleton outlines the importance of vertical communication in management of biodiversity. First he defines vertical communication as the inter-actions between actors at different levels

308 Barrett, C et al. 2001. Conserving tropical biodiversity amidst weak institutions. BioScience 51(6): 497-502. 309 List , M and V.Rittberger. 1992. Regime Theory and International Environment Management. In The International Politics of the Enviroment: Actors, Interests and Institutions edited by A. Hurrel and B.Kingsbury, 166-179. Oxford: Clarendon Press. 310 Ribot,C.J. 2000. Choosing Representation: Institutions and Powers for Decentralised Natural Resource Mnagement. Washington.D.C. World Resources Institute. 311 Ibid. 312 Anderson, K. 2002. Can Decentralization Save Bolivia’s Forests? An Institutional Analysis of Municipal Governance of Forest Resources .CIPE Dissertation Series. No.9. 313 DiMaggio, P.J and W.W, Powell. 1983. The Iron Cage Revisited: Institutional Isomorphism and Collective Rationality in Organizational Fields. American Sociological Review 48(2):147-160. 62 of governance.314 For instance, forest users engage in vertical communication when they talk to municipal government or with central government officials. Vertical communication is important for both accountability and for devising different policy responses. Further more, it is through vertical communication that forest principals find out what their agents have, or have not done. The proper functioning of both upward accountability from municipal officials to central government and downward accountability from municipal government to citizens relies on the frequent use of these vertical channels of communication. Cohen and Peterson add that Vertical communication is necessary for policy makers to acquire information about local institutions, time and place in which they are framed. They emphasize that this is one of the cardinal justifications for decentralization.315 While decentralization can help to boost local resource governance as well as building horizontal communication between a variety of area actors such as tribal chieftains, community resource user groups other existing informal systems involving both forest and non forestry actors operating in the local area, local authorities don’t have the capacity to effectively manage the local forests. 316 There is lack of information on the sustainable management of forest resources.317 This kind of scenario puts decentralized forest management in Kenya in a situation of jeopardy. However, the recently adopted Forest Act 2005 stipulates that a local authority shall be responsible for the preparation of a management plan with respect to each local authority forest within its jurisdiction.318 This is widely seen as a move that gives more powers to the decentralized forest governance. It is also construed as a move in the direction of biodiversity restoration. Section 35(5) of the same act points out that the service of a local authority may discharge its responsibilities under this section by preparing any requisite plans and adopting a plan prepared by another person or body.319 While this section further points out that in preparing and adopting a management plan the local authority shall consult with the local conservation committee.320 As Johnson and Minis noted, information flow is the currency of all linkages between local authorities and the governed. Efforts to strengthen the performance of local governments need to enforce the communication between local government and local communites.321 It is worth noting that the planning processes for effective management of forest resource commons entails vertical communication channels. These channels are important for learning about opportunities regarding how to combine local experiences regarding resources management, through joint sharing of varied actors’ common experience and interests in solving common

314 Singleton,S. 1998. Constructing Cooperation:The evolution of Institutions of Co-Management. Ann Arbor: University of Michigan Press. 315 Cohen,J.M and S.B,Peterson. 1999. Administrative Decentralsation: Strategiesfor Developing Countries. Bloomfield: Kumarian Press Inc. 316 GOK. 2005. Sessional Paper No.9 on the Forestry Policy, Ministry of Environment and Natural Resources. 317 Ibid. 318 The Kenya Forest Act Caps 2005. 35(3). 319 The Kenya Forest Act Caps 2005. 35(5). 320 The Kenya Forest Act Caps 2005. 35(6). 321 Johnson, R.W and H.P, Minis. 1996. Towards Democratic Decentralisation: Approaches to Promoting Good Governance. Research Triangle Park. N.C: RTI International. 63 resource problems. The horizontal information exchange is linked to governance performance in two ways: one, the ease with which information passes between the various actors involved in both provision and production of services helps determine the eventual effectiveness of services delivered. The Second aspect is that, both vertical and horizontal communication when upheld over a long period of time, and when group members value the potential future benefits arising from such cooperation will lead to greater trust between participating actors.322 This is borne out of the fact that increased trust between actors would facilitate their cooperation, and such cooperation is deemed necessary for effective outcomes. It also brings a durable relationship between local communication patterns and the effectiveness local area forest governance. This will help in overcoming collective dilemmas.323 Lyon on the other hand seems to disagree. He argues that trust across nations depends on a long term culture specifically religious tradition and economic equality. He mentions that trust has cultural roots that are resistant to change. Trust leads to better institutions and not the other way around.324 He concludes by remarking that all this depends on the level of economic equalities. Therefore, this implies that societies with economic inequities may take long to develop trust in prevailing institutions and this will endanger the execution of and implementation of existing institutions. In line with the above observation, Gibson and his collaborators inform that institutional arrangements are continually established and redefined to modify existing natural resource regimes. They re-affirm the fact that resource relations between two or more people can thrive if there is institutional cohesion. They argue that this is attained by resource users accepting the principle that one may have a right only when all the others have a duty.325 However, it is imperative to appreciate that while natural resources are commonly endowed regimes and commonly owned, need to be conserved. The question of concern here is do communities appreciate the essence of commonality and the need for conservation? How do communities perceive local biodiversity? Enumerating these questions lies in the interest of this study to establish the link and gap between the universal norms and community local biodiversity perceptions. This research endeavors to understand whether the policy formulation process takes this into account. This same scenario is highlighted by Ciriacy-Wantrup and Bishop. The duo noted that, it is a right to benefit from a common stream and that right is only as secure as the duty of others to respect the conditions that protect that stream.326 True, it goes without saying, if one has a right; he expects that those with a duty will respect both the law

322 Truman, F. 1971. Towards a Rational Policy of Decentralisation: Another View. The American Political Science Review 65(1): 172-179. 323 Truman, F. 1971. Opcit. 324 Lyon, F. 2000. Trust Networks and Norms: The creation of Social Capital in Agricultural Economies in Ghana. World Development 28(4): 663-681. 325 Gibson, C.C, et al. 2000. Explaining deforestation : The role of local Institutions. In People, and Forests: Communities, Institutions and Governance, edited by C.Gibson, , M.A Mackean and E. Ostum, 135-161. Cambridge: MITT Press. 326 Ciriacy –Wantrup, S.V and R.C, Bishop. 1975. Common Property as a Concept in Natural Resource Policy. Natural Ressources Journal. 15: 713-727. 64 and his claims. Hence it is the function of the state to restrain those with duty. The puzzle here is: what happens when the state is unable ensure compliance to duties? What happens in an instance where a community’s local laws are more self enforcing than formal state laws relating to the environment? Bromley argues that much of the confusion in environmental policy stems from a fundamental misunderstanding of possible resource regimes. The “tragedy of the commons" idea has helped confuse scholars and prevents meaningful understanding of resource management regimes.327 Among these possible regimes, common property carries the misplaced blame for "inevitable" resource degradation that really lies with both open access and closed regimes. Freeny et al. added that Garrett Hardin's tragedy of the commons has been remarkably durable. Many users confuse an open access regime with a free-for-all common property regime which specifies behavioral rules.328 This observation however, ignored the possibility that resource users can act together and institute checks and balances, rules and sanctions for their own interaction within a given resource environment. This actually presents us with yet another point of concern. At issue is the need to find out whether communities particularly in Kakamega have had any specific behavioral rules governing the use of their common resources? And if they exist, we endeavor to understand how the current institutional framework encompasses these communally built regulations. We also wish to establish the place for community regulations regarding biodiversity within the national resource management regimes. Bromley further recounts that at the most fundamental level, biodiversity as a public good is similar to private good in the sense that non-owners are excluded from use and decision- making. Along with this exclusionary similarity, we also find that each of the co-owners in a common-property regime has rights and duties inside the regime.329 A true common resource regime requires the same thing as private property; exclusion of non-owners. While we know that property-owning groups vary in nature, size, and internal structure across a broad spectrum, they are all social units with definite membership and boundaries, with certain common interests, with at least some interaction among members, with some common cultural norms, and with their own endogenous authority systems.330 For instance, ethnic groupings, sub villages, neighborhoods, small transhumant groups, kin systems, or extended families are possible examples of meaningful authority systems. In many societies, these groupings hold customary ownership of certain natural resources such as farm land, grazing

327 Bromley, D.W and M.M, Cernea. 1989. The management of common Property Natural Resources : Some Conceptual and operational Fallacies. Washington D.C: The World Bank. 328 Freeny, D. Berkes, F . McCay, B.J and J. Acheson. 1990. The tragedy of Commons: Twenty years Later. Human Ecology 18:1-19 329 Bromley,D.W. 1989. Property Relations and Economic Development.The Other Land Reform. World Development 17(6): 867-877. 330 Agrawal, A. 2001. Common property, forest management and the Indian Himalaya Contributions to India. Sociology 35(2):181–212. 65 land, and water sources.331 Compliance, reinforced by an authority system, is a necessary pre-condition for the viability of any resource regime. A common resource regime would not work without the requisite authority system that makes it certain that rights and duties are adhered to.332 The same requirements exist for state or public goods such as biodiversity. Without authority there can be no property! When the authority system breaks down, the coherent management of natural resource use collapse. Under these circumstances, any resource regime, whether private, common, or state, degenerates into open access.333 Therefore putting all this together we understand that a reasonable degree of authority and organization among resource using communities is not an option, it is a must. The big question that arises is: with this kind of structure put in place and supported by revamped institutions, can we see a move to restoration rather than continued degeneration of natural resource regimes in Kenya? Mearns points out that the central role of institutions is in regulating patterns of governance. He makes the evaluation in specific regard to the behaviour between individual groups in society in mediating environment-society relationships.334 He grounds his argument in the extended form of entitlements analysis, looking at how differently positioned social actors command environmental goods and services.335 But our concerns here are; how do different social actors view natural resource regime changes at different times? How does control of access by these actors transform the natural resource governance?

Sen uses the term entitlements not to mean what people should have but the range of possibilities that people can have. In other words to him entitlements represent the set of alternative commodity bundles that a person can command in society using the totality of rights and opportunities he or she faces.336 Sen’s analysis seems to look at how individuals gain from different resource endowments to improve their well being and social standing. However, Melissa reacts differently to Sen’s analysis. He informs that this is a rather descriptive approach and cannot easily show us how such people can or cannot survive under a given institutional setting.337 But then Sen goes ahead to mention that entitlements can enhance people’s capabilities, which explains what people, can do with their entitlements. He illustrates this through examples like, command over fuel resources derived from rights over

331 Behnke, R H. 1984. Fenced and Open-Range Ranching: The Commercialization of Pastoral Land and Livestock in Africa', In Livestock Development in Sub-Saharan Africa, edited by Simpson, J.R. and P. Evangelou, 261-284. Boulder: Westview Press. 332 Baden, J. 1977. A Primer for the Management of Common Pool Resources', In Managing the Commons, edited by H.Garrett and J, Baden, 137-146. San Francisco: W.H. Freeman. 333 Andelson, R. V. 1991. Commons Without Tragedy: The Congruence of Garrett Hardin and Henry George', In Commons Without Tragedy: The Social Ecology of Land Tenure and Democracy, edited by R.V, Andelson, 613-615. London: Centre for Incentive Taxation. 334 Mearns, R. 1995. Environmental Entitlements towards empowerment for sustainable development. In Towards Sustainable development edited by Singh, N and V.Titi, 37-53. London: Zed Books 335 Sen, A. 1984. Rights and Capabilities. In Sen, A. Resources, Values and Development. Oxford: Blackwell. 336 Sen, A. 1999. Development as Freedom. New York: Anchor Books. 337 Melissa, L, R. Mearns, and I. Scoons. 1999. Environmental Entitlements: Dynamics in Community Based Natural Resource Management. Brighton: World Development 27:225-347. 66 trees, food resources, warmth or ability to cook and so on. These, he says contribute to their well being.338 But it is also important to ask whether under such circumstances individuals can make rational choices versus the maintaining of the natural resource regime healthy. In their analysis, Guyer and Richards argue that natural resource regimes entail exchange rights, entitlements over the distribution of net economic surplus accruing to the communities, a management subsystem, and authority mechanisms as necessary components of the enforcement system. When any part of this complex system is undermined, they caution, the entire system malfunctions and ceases to operate as a resource regime.339 It is indeed the management subsystem with its authority mechanisms and ability to enforce operating rules and system-maintenance provisions, which ensures that the rules relating to a particular property regime are adhered to. This, in principle, is not different from the ways in which the other property regimes operate as authority systems.340 For instance, as earlier noted, under private-resource regimes the owner relies on the authority of the state and its coercive power to assure compliance and to prevent intrusion by non-owners. In absence of this regulative and coercive authority, even private resources would collapse and become open-access resource regimes.341 Therefore, in light of the above treatment some issues arise. One such issue is the fact that a resource regime entails the distribution and sharing the economic surplus as well as other entitlements. In respect to Kakamega which is a habitat for different sub-tribes, we ask ourselves; what are the entitlements involved and what are the institutions governing the distribution and sharing the economic surplus? Swallow notes that resource degradation in common resource areas will usually occur if the government holds local communities using such resources in low esteem.342 This is exemplified by instances of state disregard to the interests of those segments of the population occupying a particular communal resource regime. For instance, when external threats to such a common resource occurs, such populations will not receive the same state response as would a threat to private property or that common property regime which has high state consideration. The willingness of the modern state to legitimize and protect different property regimes is partly explained by the state's perception of the importance of the citizens holding different types of resource rights. This situation is well illustrated by Elbow. He elucidates that if pastoralists for instance are regarded as politically marginal, then the resource regimes central to pastoralism will be indifferently protected against external threats. On the contrary if those threatening pastoralist property regimes, for example sedentary agriculturists, enjoy more

338 Sen, A. 1999. Opcit. 339 Guyer, J and P.Richards. 1996. The Invention of Biodiversity: Social Perspectives on the Management of Biological Variety in Africa.66(1): 1-13. 340 Hess, C and E, Ostrom. 2003. Ideas, Artifacts, and Facilities: Information as a Common-Pool Resource", Law and Contemporary Problems 66:111-146. 341 Espen, S and D,W.Bromley. 1997. Indigenous land rights in Sub-Saharan Africa: Appropriation,Security and Investment Demand. World Development 25(4):549-562. 342 Swallow,B.M. 1990. Strategies and Tenure in African Livestock Development. LTC Paper 140. Madison: University of Wisconsin. 67 favour from the state, then the protection of rangelands under common property against encroachments for cultivation will be indifferent at best.343 This represents the external political and economic legitimacy of the property regime. The above argument and elucidation translates to mean that there are political and economical inclinations embedded in the governance and management of common resource enterprises. This helps our appreciation of political games involved. Governments will protect and conserve resource regimes whose populations are considered to be of importance to the state. This same argument also raises some points of worthy concern to this study. For example we need to ask; of what political or economic importance are the people residing in and around Kakamega forest to the government? This is grounded in the fact that politics is defined in terms of power relations, that determine who gets what when and where. What is the contribution of these communities in terms of national economic importance? Are they in any way marginalized and not perceived as important to the state? Are they in a way opposed to the state and opposed to the governmental policies including conservation? Or they are victims of external encroachment and if they are; can these threats in any way be state inspired?

3.4 Resource actors, and local perspectives on biodiversity in Kenya Edwards and Steiner define resource actors as individuals and agents with bargaining power and are able to change the “collective-choice rules” that comprise of the institutional framework in which resource users operate and operational rules are established.344 Resource actors may also be defined by their preferences. Perhaps most obvious are differences between people who are concerned about different products of multiple-product natural resource system. One of the most challenging issues especially in the developing countries is that different individuals and groups have different preferences and perceptions about different natural resource endowments such as grazing lands, woodlands and wetlands.345 For example, in the Kakamega district of western Kenya, resource users include urban-based cattle owners, sellers of wood fuel and charcoal, and pastoralists, and local agro-pastoralists. Resource actors can also be defined on the basis of their preferences toward the different functions of the resource management institutions. For example, preferences toward the risk management function will depend upon people’s attitudes toward variation in the supply of products from the natural resource system, which in turn depends upon their capacity to generate income from alternative sources and access to markets. Preferences toward the

343 Elbow, K. 1996. Legislative Reform, Tenure and Natural Resource Management in the Niger: The New Rural Code. A Paper Presented for the Comite Permanent Inter-Estats-des lutte Countre la sécheresse dans le Sahel. Land Tenure Centre, University of Madison. 344 Edwards, Victoria.M and Steiner; Nathalie. A. 1997. Developing an Analytical Frame work for Multi-Use Commons. Department of Land and Construction Management, University of Portsmouth. Portsmouth: Mimeo. 345 Oloson, M. 1965. The logic of Collective Action. Public Goods and the theory of groups. Cambridge: Harvard University Press. 68 environmental externality function will depend upon whether people are the generators or recipients of external benefits or costs. 346 Namara and Nsabagasane mention that tensions between national and local objectives concerning issues like foreign exchange, watershed management, conservation and commercial production and local livelihoods interfere with the individual powers over natural resource conservation and environment. Within this theatre of local tensions, there is a common tension between technocratic practices of development managers and the newly pluralistic political practices of development managers.347 Therefore, this illuminates what usually happens when unmitigated efforts to manage a natural resource common meets with varied individual preferences. There emerges a shift in perceptions and preferences among the different actors at both the state and local levels. Although the two authors don’t delve in the intricacies of the political and social tensions, this study is further interested in appreciating the existing relationship between the different actors in the management of the nation’s biodiversity. Analysts of common resource regimes for grazing and forestry resources often note the importance of political institutions for managing the common resources, particularly during times of stress and more specifically for the rural poor. Jodha analyzed the contribution of such political institutions to the welfare of rich and poor households in 82 villages in seven of India's dry states. He found out that the poor derived much larger proportions of their fuel supplies, animal grazing, employment and total income from common forest resources than did the wealthy. For example, both the wealthy and poor derived an average of 80% and 20% of their household needs, respectively, from common natural resources. Common natural resources contributed 14-23% of the income of the poor but only 1-3% to the income of the wealthy. The contribution to the income of the poor increased to between 42% and 57% during times of drought.348 However, evidence is less clear for Africa. Migot- Adhola et al. found out that the rural poor in Kenya relied on foods harvested from common resource regimes more than the wealthy and that those foods were particularly important in drought years.349 Alila in his research on formal and informal credit in rural Kenya found that the poorest households in rural particularly those in Vihinga, generated a high proportion of their money income from common natural resource regimes under communal and customary arrangements than did the relatively wealthy households, who live on land purchased from their incomes.350 He notes that these also have a different perspective

346 Meyers, R et al. 1994. Institutions, Enviroment and Organisations.Thousand Oaks: CA Sage. 347 Namara, A and X. Nsabagasane. 2001. Decentralised Governance and Wildlife Management: Devolving Rights or Shedding off Responsibility? The case of Bwindi Impenetrable National Park, Uganda. Environmental Governance working Paper. Washington D.C: World Resources Institute. 348 Jodha, N.S. 1992. Common Property Resources: A missing Dimension of Development Strategies. World Bank Discussion Paper No.169. Washington D.C: World Bank. 349 Migot- Adhola, S.E et al. 1994. Security of Tenure: Land and Productivity in Kenya. In searching for land Tenure Security in Africa, edited by J.Bruce and ,S.E Migot- Adhola, 251-265. Dubuque: Kendau/ Hunt Publishing House. 350 Alila, P. 2000. Formal and Informal Credit in Rural Kenya. IDS occasional paper, University of Nairobi. 69 as regards resource management as compared to their counterparts above. This same view is noted and approved of by Migot-Adhola who notes in agreement when he mentions that the individuals who benefit from products of a natural resource system are likely to differ in a number of important respects. In terms of power and decision-making those differences will affect their individual strategies toward resource use and the benefits they expect to obtain from property rights and collective action institutions.351 Ascher enumerates three types of criteria that are used to distinguish resource actors and perceptions. These include: the complexity of the intra-organizational procedures which stipulate the rights, entitlements and reward structures of the system, second is; learning patterns and the third is time horizons.352 The following treatment describes these criteria in more detail. Resources actors have different rights and perceptions depending on their position in the resource regime. Taking it from Swallow and Bromley, who define a right as a guarantee given by a collective authority system to those who subscribe to the total entity and a property right as a right to a potential future benefit.353 Rights to the products of a natural resource system may be the same for all those who benefit from those products. Often, however, such rights held by an individual are conditioned upon their ethnicity, location of settlement, length of time settled in a particular area and gender. Property rights can differ by the types of rights held by the different subscribers or by the products to which they apply. For example, Moorhead uses an analogy in the Niger Delta in Mali, to elucidate this case further. He mentions that in many settings, different ethnic groups have primary rights to different resources available. For example, rangelands for animal grazing, rivers and streams for fishing, wetlands for producing paddy rice, and plateaux for producing millet.354 He also points outs that secondary rights include gathering products such as fonio, forest fruits, water-lily seeds, tubers, young wild birds, and wood for smoking fish or domestic use.355 Therefore, from Moorhead’s discussion, we note that resource usage, ownership and rights especially in the tropics, have a substantial relationship with ethnic group. However, the big question is whether degradation or preservation resource in particular natural resource areas can be linked to a particular ethnic group? It is however important to avoid the temptation of using this same analysis to explain resource degradation in Kakamega forest, based on a conglomeration of other inputs fuelling the problem. It will nevertheless help us in making future linkages to make a logical ending.

351 Migot- Adhola, S.E et al. 1991. Indigenous Land Rights Systems in Sub Saharan Africa : A Constraint on Productivity. World Bank Review 155. 352 Ascher, W. 2000. Applying Classic Organization Theory toSustainable Resource & Environmental Management. A Paper presented at 5th Annual Colloquium on Environmental Law & Institutions Duke University. 353 Swallow, B.M and W, Bromley. 1995. Institutions, Governance and Incentives in Common Property Regimes for African Rangelands. Jouranal of Environment and Resource Economics 5:1-20. 354 Moorehead, R. 1989. Changes taking place in Common property Resource Management in Inland Niger Delter of Mali, In common Property Resources: Ecology and Community Development, edited by F. Berkes, 256-272. London,: Belhaven Press. 355 Ibid. 70 Wear observes that the enhancement or establishment of forest resources whether privately, communally or publicly, that is through national legal regimes, represents an increase in natural capital, and the transfer of forest ownership rights to intended beneficiaries, who can be local households or communities.356 The observation to make here is that the above investment constitutes the transfer of capital assets. As natural capital, forests can be put to sustainable use or harvested, or converted to produce other types of capital. Forest harvesting and conversion to agricultural land are both means of converting natural capital to financial, physical, human or more valuable natural capital. These strategies may make sense for local people, as long as they can also protect ecosystem stability and opportunities for future forest resource use by retaining critical forest elements in the landscape.357 However, we need not delve into the resultant nested benefits but rather we should note that the above authors seem to argue that changing ownership and guarantee of ownership rights can increase natural capital accumulation. Apparently the dilemma is that of linking capital accumulation to conservation. The authors also don’t point out how this can be sustainably done in face of increasing flow of masses to most of the forested areas. This is one of the reasons explaining the continued degradation of biodiversity resources in Kenya. The authors also fail to point out how such people perceive resources established under communal and public legal arrangements. Do they view them as communally or publicly owned resources or part of their own? More so the authors don’t illustrate how central authorities can control movement of masses into the areas held in common esteem such as a forest? Gottfried et al. discussed the advantages of local cooperative institutions otherwise known as local user groups for managing heterogeneous resources. The need for some form of public regulation or cooperation among the users of such natural resource systems arises from at least two sources. One, the spatial pattern of resource use within a natural resource system affects the mix of goods and services supplied by the ecosystem or landscape; and two ecosystems are inter-related so that the way in which one ecosystem is used has spillover effects on contiguous ecosystems.358 Ostrom refers to the effect of this spatial pattern on landscape output mix as the economies of configuration.359 The use of common property regimes as mechanisms for capturing economies of configuration is now being tested by the Communal Areas Management Programme for Indigenous Resources (CAMPFIRE) in Zimbabwe. Metcalfe mentions that this holistic rural development program aims to improve people’s livelihoods by developing their capacity to manage their indigenous resources like grazing, forestry, water and wildlife better. For over fifteen years that this program has been

356 Wear, D.N. 1992. Forest Management, Institutions and Ecological Sustainability. A paper presented at the Appalachian society of American Foresters meeting, Asheville, North Carolina. 357 Gorttfried, R, D. Wear and R.Lee. 1996. Institutional Solutions to Market failures on the Landscape Level. Ecological Economics 18:133-140. 358 Meinzen, D., Ruth, E. Mwangi and S. Dohrn. 2006. Securing the Commons. CAPRi Policy Brief 4. Washington DC: IFPRI. 359 Ibid. 71 in existence, it has focused almost exclusively on the management and commercial exploitation of wildlife.360 Bhenke informs that the configuration of land use is very important for maintaining the habitat of the wildlife that generates the greatest revenues.361 The above scholars’ discussion though present a big case on the role of communities or more precisely community involvement in the management of natural resources, does not spell out who does what at what levels. The discussion though offers a place for equity, does not inform us whether small-scale cooperatives or small scale resource users in this case have completely taken over the role of the central authorities as actors in the use and management of natural resources. While looking at the economies of configuration, it is also important to ask: Under which mechanism and regime do the small cooperative institutions work? Is it under the norms established by the communities or under the policies and guidelines stipulated by the central and local government legal regimes? Answers to these and other questions raised in this chapter will be of profound importance in debating biodiversity and the local of decentralization in the subsequent chapter.

360 Metcalfe, S. 1994. Zimbabwe's Communal Areas Management Programme For Indigenous Resources in Natural Connections: Perspectives in Community-based Conservation Washington D.C: Island Press. 361 Bhenke, R.H and I. Scoones. 1992. Rethinking Rangeland Ecology: Implications For Rangeland Management in Africa. Working Paper No. 53. Washington D.C. The World Bank.

72 4 Biodiversity, local decentralisation and the politics of neo- patrimonialism in Kenya This chapter examines how sub-nationalist politics that emerged within the post independence ruling party, the Kenya African National Union (KANU), government marked by high levels of ethnic heterogeneity and a history of political and economically privileged presidential cronies, benefited from the large tracks of national biodiversity resources, particularly forest belts, considerably led to degeneration of the national biodiversity. We also mention how overgeneralization and over concentration of power in the hands of the ruling president and his cohorts contributed to this quagmire, characterized by interpersonal interchanges, social and political relations. In almost all the provinces of this country, a large number of ethnic minorities carved out a considerable degree of autonomy within each region and at the community level, while consolidating long-standing practices of inter and ethnic cooperation. We use the term political patrimonialism to capture the imagery of glaring facets social, economic and political bootstrap-relations that historically defined a shared political preference to the plurality of conventional politics and service delivery. Political patrimonialism encompasses practices linked to illegal operations arising from corruption and related facets. Such include the sale of government property by government officials for personal gain. These mosaic-like practices were each abhorred and confronted by strong hostile external forces from the underprivileged masses, university students and other related civil society activism. Though a parallel system of decentralization based on regional, provincial and district local governments was established to delegate powers, it was not far from what the leadership style at the centre obtained.

4.1 Biodiversity and the politics of neo-patrimonialism in Kenya Kameri-Mbote in a rather more insightful analysis of natural resource governance, property rights and biodiversity management in Kenya, points out that legal regimes are sometimes framed on the basis of neo-classical models which sometimes fail to recognize crucial actors in the management of natural resources, resulting into framing of rights at wrong levels.362 This implies that sometimes the rights holders may not be the best people to protect the resources over which they have interests. This assertion opens the debate regarding neo- patrimonial politics in Kenya. It makes one wonder whether formulation of natural resources rules in Kenya is linked to political patronage. The current biodiversity crisis in Kenya began to take its roots at the close of the 1970’s and at the dawning of the 1980’s. It was also discovered that corrupt government agents were responsible for much of the deforestation, by illegally selling off biodiversity resources in form of forested land to political patrimonies in the name of industrial developers. 363

362 Kameri-Mbote, P. 2001. Biodiversity and Property Rights Management in Kenya. Nairobi: ACTS Press. 363 Kanyinga, K 1994. Ethnicity, Patronage and Class in Local Arena: High and low Politics in Kiambu, Kenya 1982-1992. In new Local Level Politics in East Africa, edited by P. Gibson, 87-117. Uppsala: The Scandinavia Institute of African Studies. 73 Kenyan forests were depleted by "selfish individuals," who at the same time fueled tribal conflicts leading to the land clashes of the 1990s. Supporters of the ruling party got the land, while those in the pro-democracy or opposition movements were displaced. This was one of the roots of deforestation and forest degradation in Kenya.364 Ironically, this was one of the government's ways of retaining power. In essence, if communities were kept busy fighting over land, they would have less opportunity to demand democracy.365 O’Donnell, who focused on problematic tendencies of political and democratic transitions, mentioned that the formal level of negotiation and political activity largely produces informal maneuvering which plays a critical role in the dynamics of political change.366 Similarly other theorists of neo-Patrimonial politics such as Bayart, view corruption and predatoriness as modes of social and political behavior shared by a plurality of actors on a more-less grand scale. A critical look at the land clashes in the early and late 1990s, by Muungano wa Wanavijiji informs that, the use of public resources by government to get favors from supporters or ensure political patronage made natural resources available to a small fraction of people, hence a legalized de facto privatization of common property resources. With such practices there were increased land clashes and land shortages especially with the Rift Ralley region and other forested fertile land belts.367 Kenya is one of the few former settler colonies that enacted trust land tenure system. This was motivated by the need to redistribute land that was formerly occupied by white farmers. However, a survey of post independence land resources in Kenya reveals that Kenya is faced with landlessness of many of its natives with recurrent land disputes among ethnic groups and between communities.368 Obtaining from such a diabolical situation, the former Moi Government was forced to set in train a national land policy formulation process, to try and sort out these underlying problems. It must be mentioned that even efforts to solve the underlying land problems were marred by inequities and inconsistencies, to the extent that such efforts degenerated into the sale of most of the public forested resources in the name of solving underlying land problems.369 The new government of the President Mwai Kibaki put in place a commission to investigate and find out the reasons why there were illegal land acquisitions especially public land linked to national forests and other biodiversity reserves. The commission was referred to as the Ndung’u Comission.370 It was one of the series of measures designed to tackle the irregular allocation of forest land to private developers in the country. It was also expected that such ownership will be revoked soon and that disciplinary action taken against all government

364 Holquist, F and F. Micheal. 1992. Kenya: Slouching Towards Democracy. Africa Today 39(3): 97-111. 365 Klopp, J. 1999. Electoral Despotism: Ethnic Cleansing and Winning Elections in Kenya. A paper Presented at the New York Association of Political Science Annual Conference. 366 O’dnell, G. 1996. Illussions And Conceptual Flaws. Journal of Democracy 7(4): 160-168. 367 Bayart, J. F, E.Stephen and H. Beatrice. 1999. The Criminalisation of the State in Africa. Oxford: James Curry. 368 Muungano, W.W. 1997. Manifesto on Land Security and Permanent Schelter for the Poor. Nairobi. 369 Matiru, V. 1999. Forest and Forest Cover in Kenya: Policy and Practice. Nairobi:ICUN. 370 The commision was established in 2003 and charged with the responsibility of inquiring into unlawful allocation of public lands and liase with the relevant Government departments to have the allocations nullified.Much of the land unlawfully allocated was forested land. 74 officials found to have dished out the forest land to politically “correct individuals.” In one of its findings, the report informed that awards of public and trust land were given to the previous cronies of the past KANU regimes led by former presidents, Kenyatta (RIP) and Arap Moi. The report categorically put it that:

Among other details there are glaring concerns of illegal land awards made to both the Kenyatta and Moi families, as well as to a raft of former ministers, MPs, judges, civil servants and military officers. The commission recommends that the large majority of such awards should be revoked. 371

However, while it is such juicy findings which have been highlighted, one important feature in this report is the way it gives the systematic ways in which established procedures designed to protect the public interest, were perverted, flawed to serve private and political ends which may well prove to be its most long lasting value and therefore, the most intrinsic information which highlights these mosaic practices in the management of the Kenyan national resource regime. Land resource issues in Kenya are complex and easily exploited by politicians. Like we have earlier mentioned, land forms the basis for the significant part of the national resource regime in Kenya. It must also be reaffirmed that land retains a focal point in Kenya’s natural resource history. It was the basis upon which the struggle for independence was waged.372 It has been traditionally dictated as the pulse of nationhood not only in this vast East African nation, but also else where in Africa. It continues to command a pivotal position in the country’s social, economic, political, legal natural resource relations. Though it is not the major focus of this study, it is critical to understand and appreciate the history of land ownership and distribution in Kenya. It should be noted that politicians and bureaucrats everywhere have powers to allocate property rights over scarce resources. This places them in a position to bargain for a share of the benefits they allocate. This creates widespread societal complicity in patrimonial practices with legitimacy, primarily a function of who is able to gain access to state resources – hence the role of patronage.373 It is imperative to mention that, though official sources will never acknowledge patronage and related practices in the management of biodiversity resources in Kenya, a discussion with individual respondents acknowledged this as one of the key factors that has bedeviled biodiversity and natural resource management in the country. Many of those who were close and related to the Ex-President Moi, were located large tracts of forest reserves to harvest timber and other resources. They exploited most of the forest resources in a rather depleting way. They were protected by this relationship and conservators of forests found it an uphill task to stop their unscrupulous practices. 374

371 GOK. 2005. The Ndungu Report on Land Grabbing in Kenya. Nairobi: Government Printer. 372 Kanongo, T. 1987. Squatters and the Roots of the Mau Mau, 1905-1963. London: James Curry. 373 Reno, W. 1995. Corruption and the State Politics in Sierra Leone. Cambridge: Cambridge University Press. 374 Key Informant Interview with the Conservator of Forests, Mr. Eric Nahamya 22 May 2006. 75 In the early 1990s, the Green Belt Movement launched a civic and environmental education program. In her Nobel Prize acceptance speech in December 2004, Nobel Laurent Wangari Maathai said that:

The purpose of the program was to help people “make the connections between their own personal actions and the problems they witness in their environment and society. This would also enable people to oppose all facet related to environmental degradation.375

Maathai and the Green Belt Movement led high profile campaigns to save Kenya’s forests and green spaces. In 1991, for instance, the movement saved Nairobi’s Uhuru Park from an enormous tower block to be built by the ruling party. During the interview she noted that:

The dictatorship was still strong, and not amused by protests. Government security forces and hired thugs that regularly inflicted beatings on such protesters, causing enormous injuries to many and yet, they were not put off. You cannot protect the environment if you do not have democratic governance and democratic space.376

Wangari further explained how the country’s biodiversity resources were plundered by the same government that was supposed to protect these resources. She informed that the same government led by President Moi continued to use legal methods to achieve illegal means. This is well exemplified by the attempts that were made to degazzet Karura Forest in 1998. However, the regime abandoned its illegal development plans, which had seen large chunks of the forest land chopped down and fenced off under legal notice Legal Notice 97/13.6.97 and allocated to private developers. 377 We further note that in Kenya’s case, the politics of patronage adversely affected the protection and investment in biological conservation and management. This was due to the weakening state in the context of ethnically fragmented politics, based on ethnic and tribal tenets.378 This weakness was also manifested in the continued decline in institutions as well as institutional management and enforcement agencies like the National Environmental Management Authority, the Forest Department or the Ministry of Environment together with the Kenya Wildlife Services.379 It is worth noting that although these agencies are established under the act of Parliament to conserve the national biological diversity, they were unfortunately caught in this web of political patronage. Sadly, the same state institutions demonstrated failure wriggle themselves out of pressures of this web. Fleuret who examined a similar scenario, noted that in the mid eighties Kenyan masses moving into the common resources including parks and forest reserved areas were sometimes a product of ethnic and tribal politics, spearheaded by the KANU party strongmen. He goes ahead to inform that such movements ended up into ethnic clashes which were used as an argument against multiparty democracy and pluralism at the

375 Wangari, M. 2005. Looking in a new Mirror. Nairobi:The Green Belt Movement. 376 Key Informant Interview with Prof. Wangari- Mathai Assistant Minister of Environment and Natural Resources.14 May 2006. 377 Karura allocations Irreguar. The Daily Nation 2 Dec. 1998. 378 Key Informant interview with Prof.Wangari-Mathai, Assistant Minister of the Enviroment and Natural Resource and 2004 Nobel Lauret. 379 Krhoda, G. 1998. What ails Kenya's policy on wildlife? Policy Insight 1(2):1-4. 76 national level. At the local level victims of violence become easy ploys and acted as pawns for manipulative politics.380 The above observation is however, important in making an analysis of the current trend. Currently the existing central institutions paint a picture of autonomy and increased vigilance although it is still suspect to make a well grounded conclusion towards the same effect. In an expert opinion interview with Dr. Samuel Kasiki, it was pointed out that rare species of birds and animals in the forests have since disappeared due to the massive encroachment. This arises out of the fact that there is habitat destruction. Environmentalists have warned that if urgent measures are not taken, forests like Mau will disappear in the next decade. This will leave the national biodiversity threatened. Destruction of Mau forest for instance is one of the products of patronage politics, yet it serves as a catchment area for many rivers in Kenya and Tanzania. It was partly the reason why the Cabinet recently heeded to the environmentalists’ call and took a radical action to save the crucial forest – a water catchment source.381 It has been reported in the local media such as the Daily Nation that former politicians and benefactors of these client-patron transactions, who are at the verge of losing them have turned to indiscriminate destruction of the indigenous forests, with trees of 100-plus years being felled by illegal loggers, using powerful chain saw machines to cut trees from these once flourishing protectors of the country’s biological diversity, a scenario that continues unabetted. Rivers that once crossed these well conserved forests have since dried up with Lelongo dam, which was meant to supply the entire Nairagi Enkare area five kilometres away, holding only rainwater during the rainy seasons. In a key informant interview with Dr. Oyieke, the Director Centre for Biodiversity at the University of Nairobi, She informed that:

One is able to count several river channels cutting through the hilly topography, a sign that the complex was a water catchment area for many rivers. This is a great danger to the national ecosystem and biological resources. Countless tree stumps, pieces of gigantic logs and rotting tree branches dot the complex – a testimony to the massive encroachment that the forest has been subjected to for many years.382

The National Environmental Management Authority (NEMA), the lead agency working to enforce evictions, listed politicians such as Narok County Council officials as the facilitators of illegal logging in most of the central forests. NEMA insists that such politicians are to blame for the mess because the same local governments are sometimes not helpful. Most local government officials are accused of conniving with the encroachers. Such a scenario frustrates conservation efforts. One of the NEMA officials, Mr Joseph Masinde was interviewed for this study. He noted that local council officers have been colluding with Members of Parliament of the former KANU government to distribute parcels of forest land in return for favours

380 Flurent, P. 1985. The Social Organisation of the Water resources Control in the Taita Hills, Kenya. American Anthropological Review. 381 Key Informant Interview with Dr. Samuel Kasiki, Reserch Scientist, Kenya Wildlife Services. 26 Sept 2005. 382 Key Informant Interview with Dr. Oyieke, Centere for Biodiversity,University of Nairobi. 30 Sept 2005

77 during presidential, parliamentary and local elections.383 This happened in the four decades that marked the post independence KANU regime in Kenya. Mr. Jackson Ole Kamoye, the chairman of the Narok Chamber of Commerce, said politicians, council officials and the provincial administration officials had benefited from the forest illegally through such dubious political schemes. He informed the researcher that Politicians grabbed forestland and sold it to their friends, relatives and tribesmen purely for party, presidential and parliamentary bids for re-election, an aspect that depicts the client-patron relationships in the current biodiversity crisis in Kenya. 384 Kartodiahaijo and Supriano noted that, often governments cannot control illegal operations. The two argue that this lack of control can either be deliberate (often linked to patrimonial politics) or determined by limitation of their capacity.385 While the two authors were writing about conservation and forest degradation in Indonesia; their exposition represented the real features obtaining in the Kenyan forestry and biodiversity sector. In one way or the other, illegal use and destruction of forest biodiversity is rampant in many of the Kenyan forests. Kakamega, Mau or Karura only afford us a microscopic view of the entire national picture. By their nature, the true extent of illegal operations in the Kenyan biodiversity enterprise and more importantly in the forestry sector cannot be accurately known. But available evidence indicates that such activities continue, and their existence is important in unearthing the underlying causes of these mosaic practices in the country. Patrimonial politics weakens the administrative apparatus of the state decisions, as fundamental decisions are biased against activities that do not attract personal concessions or put in another way bribes.386 As a result, a lot of illegal activities linked to degradation continue to occur. An overview of Kenyan forest governance has revealed inconsistencies and contradictions between legalities governing biodiversity in Kenya. These contradictions occur between different levels of administration in government and will be explicitly illustrated in the next chapter. In countries like Kenya, different levels of government ministries, agencies, provincial and local governments possess overlapping legal and regulatory systems that are always inconsistent with each other. Shleifer and Vishney argue that this is sometimes used as a ploy by the actors in the patrimonial political games.387 Although we cannot make outright conclusions in this regard, some instances in the Kenyan context act as glowing examples in this direction. One such example is illuminated by the presidential pronouncements that were thought to have a direct bearing on forest conserving forestry biodiversity. For instance, in 1986 the President

383 Key Informant interview with Mr Joseph Masinde NEMA 29 Sept 2005. 384 Key Informant Interview with Mr Jackson Ole Kamoye, the chairman of the Narok Chamber of Commerce. 385 Kartodiahaijo,H and A.Supriano. 2001. The Impact of Sectoral Development on Natural Resource Conservation and Degradation:The case of Timber and Tree crops in Indonesia. CIFOR Occasssional Paper No.6. Borgor,Indonesia. 386 Oyugi, W.O. 1993. Local government in Kenya: A Case of Institutional decline. In Local Government in the Third World, edited by P. Mawhood, 24-48. Pretoria Africa Institute of South Africa. 387 Shleifer, A and R.W, Vishney. 1993. Corruption Quatery.Journal of Economics10(8): 599-601. 78 declared a ban on felling indigenous trees.388 Whether or not these presidential decrees were followed by a legal notice is highly debatable. This results from the fact that, on the contrary Kenya entered a period of great change, losing the opportunity to move towards social and environmental justice. Many of its vast forests continued to be wrecked by companies owned by the few businesses that benefited from collusion, corruption and nepotism during the Moi regime. Local people were oppressed by these companies, often through the authoritarian apparatus of the police, army and Forest Department. Across Kenya, the situation was so bad that illegal logging outstripped legal timber production. 389 The above scenario vindicates the role played by neo-patrimonial politics in the destruction of the national biodiversity resource regime in Kenya. That is if put simply, political cronies in the former regimes used official institutional power to carry out illegal and unofficial transactions on behalf of the state. Agents of patrimonial politics are seldom independent of each other. This makes it hard to apportion individual contributions to the biodiversity crisis in Kenya at this point in time. However, what we know is that such agents operate at different times and their roles play a significant role in fostering subsequent mosaic practices. In the next sub-section we delve into the historical context of neo-patrimonial Politics in Kenya.

Locating neo-patrimonial politics in Kenya: A historical context In order for us to understand the history of neo-patrimonialism in Kenya, it is imperative to draw ourselves back to the immediate years of post independent Kenya, specifically looking at the new government under the leadership of President Jomo Kenyatta and his eventual successor President Daniel Arap Moi. The new government was sworn into power after the Mau Mau revolution whose chief slogan was to reclaim back the land that had been grabbed by the white settlers. In all, the new government was faced with a task of land redistribution and restoration to the rightful owners.390 While this cause was noble, it was heavily abused. This resulted from the widespread presidential discretion with regard to alienated lands especially the land around forested areas and highlands. In many instances both Presidents Kenyatta and Moi were making land grants to individuals without any consideration to the public interests. This was done for political reasons, and without proper pursuit of legal procedures, whilst there was also extensive illegal allocation by the presidents of alienated land that is; land which they did not have legal power to allocate.391 There were also various commissioners of land who made direct grants of government land without any authority from the President, but also undertook the system of patrimonial land and resource allocation. Forged letters and documents were used to allocate land in numerous instances, with many records at the Ministry of Lands and Settlements having been

388 Wass, P. 1995. Kenya’s Indegenous Forests: Status, Management and Conservation. Naiorbi:IUCN. 389 Daily Nation. Firm Destroying Forests, Says Church leaders. Sepetember 1996. 390 Muchai, J.1985. A History of Mordern Kenya.Nairobi:East African Publishing House. 391 GOK. 2005. The Ndungu Report on land grabing in Kenya. Opcit 79 deliberately destroyed.392 Very often, land was sold by grantees without any adherence to the conditions laid down by letters of allotment, and many illegal titles to public land were transferred to third parties. In most circumstances such land belonged to state corporations and the Forest Department.393 The Ndung’u Report on land which was illegally allocated to individuals and companies, and then often sold on to third parties, whilst land reserved for public purposes such as forests, national sanctuaries and reserves etc., had been sold off in blatant disregard of the law by both the Commissioner of Lands and numerous local Authorities.394 In summary, it was found out that the powers vested in the President had been grossly abused by both the President and successive Commissioners of Lands and their deputies over the years. This happened under both the Kenyatta and Moi regimes. At the lower levels, there had been unbridled plunder of public land and other biodiversity resources by local councillors and provincial officials.395 Most high profile allocations of forested land were made to companies incorporated by henchmen in the ruling KANU Party. Finally, and strikingly, the Ndung’u Report found out that ‘most illegal allocations of public land took place before or soon after the multiparty general elections of 1992, 1997 and 2002, reinforcing the view that public land was allocated ‘as political reward or patronage, which Bayart referred to as the as the “politics of the belly”.396 The other issue that we ought to highlight in this treatment is the farming system that has been obtained in most of the Kenyan Forests - the shamba system. This is a system used by the people who live in the forest because they want to participate in some quasi agro-forestry program.397 Such people are not really forest dwellers. For they are people who are brought into the forest to assist the foresters establish commercial plantations. However, they have been used as agents of deforestation and land grabbing. The shamba system became one of the transit routes to destroy Kenyan forests. But as it obtains today, this is a very politically charged issue because there are people who were displaced and have not been able to go back to their land. This scenario has also led to heated debates, tensions and clashes. There are chances of more emerging clashes and perhaps making the people to reclaim their land could probably create more tension since land issues are commonly exploited by politicians in an effort to obtain political mileage over their rivals.

392 Ibid. 393 Njuguna, P and D. Mbithi. 1996. Reconnaice Survey of Forest blocks in East and Western Rift Valley. Permanent Presidential Commission on soil consevation and Afforestation. Nairobi. 394 Ibid. 395 The Ndungu Report, Opcit. 396 Bayart, J.F. 1993. The State in Africa: The politics of the belly. London: Longman. 397 Jackqueline, M.P. 2000. Pilfering the Public: The Problem of Land Grabing in Contemporaray Kenya. Africa Today 47(1): 7-26.

80 4.2 Institutionalism, local decentralisation and biodiversity resource usage in Kakamega

Debating biodiversity and natural resource usage in Kenya would be incomplete without debating institutionalism and local decentralisation in Kakamega. It should be noted that after independence, Kenya abandoned the vestiges of colonial administration, which was based on western capitalist ideals and embraced various degrees of formal centralization punctuated by some low levels of delegation.398 Recent years have witnessed a worldwide movement aimed at transferring authority regarding the use of living resources from national governments to regional and even local governments.389 Not only are such measures expected to produce results that are more responsive to the concerns of local stakeholders, such measures are also expected produce more sustainable human/environment relationships.390

Decentralisation is defined as the transfer of powers from central government to lower levels within the political administrative hierarchy. It may take the form of decocentration or delegation. Ideally, effective decentralization would place accountability and powers in the hands of local institutions and local instituionalism. That is to say downward accountability, because discretionary power is a key to institutional responsiveness.391 But what happens in real practice is the major interest of this sub-section.

Like many other developing countries, Kenya joined the decentralisation bandwagon through devolution of powers to provincial and regional governments, which we can call regional or local decentralisation. Decentralization is indicated by a combination of different variables that collectively confine the authoritative allocation of political and economic values to a relatively varied number of state actors, through deconcetration, devolution and delegation of power at all levels of governance.392 Proponents of decentralisation argue that in extreme cases, over centralization fostered personalized rule and dictatorships as well as failure in service delivery.393 In the foregoing treatment, an effort will be made to draw a relationship between decentralisation and biodiversity resource usages in Kakamega. What is most striking here is, understanding the relationship between the local resource users and the local power structures within Kakamega District. Specifically we ask our selves, what is the role of the local resource users in the framing of legal regimes relating to resource usage in the

398 Barrow, E. 1998. Collaborative Forestry Management in East Africa. An opportunity for Sustainable forestry Management. Nairobi:IUCN. 389 Ribot,J.C. 2002. Democratic Decentralisation of Natural Resources:Institutionalising Popular Participation. Washington D.C: WRI. 390 Gibson, C.K and F. E, Lehoucq. 2003. The Local Politics of Decentralised Environmental Policy in Guatemala. Journal of Environment & Development, 12 (19):28-49. 391 Litvack, J.J and R.Bird.1998. Rethinking Decentralisation in Developing Countries. Sector Studies Series. Washington D.C: The Wrld Bank. 392 Barkan, J and M. Chege. 1989. Decentralising the State: District Focus and Politic of Reallocation in Kenya. Journal of Mordern African Studies 27(3):434-438. 393 Sylvain, H.B. 2002. Decentralization and Reform in Africa. London: Aspatore Books.LeLondonc 81 district? Does legislation support local accountability for representation? In what forms are powers devolved? What are the discretionary privileges to be allocated by administrative authority as rights? Is there an accessible independent judiciary? Are powers of decision – making that should be kept central such as fixing of minimum environmental standards being devolved to smaller units of government? One issue that this study wishes to point out is that there is a gap between resource users and the legal framers within the district, given the fact administrative supervision is not built on a local representative structure. True decentralisation means off loading of power to the people and making their voice heard for effective decision-making.394 Biodiversity resource use and conservation go hand in hand and therefore when we talk of resource degradation, there ought to be strong role of the local resource users in determining of the institutional choices at play. We shall not over emphasise that degradation of the forest biodiversity is a result of land use intensification especially in an area which relies on cash crops like tea, maize and sugarcane for its rural economy. While many studies on environmental change in Kenya have been conducted with their point of departure being on the nature of land use change and possible degradation, these processes are still so rudimentarily understood that case by case situations are pertinent to undertake. One important issue that this study wishes to emphasize is that land use, conservation and degradation occur simultaneously. Such processes, we argue, are strongly dependent on the nature and development of diverse livelihood strategies at the sub-community level, ultimately leading us to diverse institutional roles and backgrounds to the afore mentioned localities. For instance, Butere-Mumias and Ireho, two of the leading sugarcane producing areas in the district, look at cane production as the leading livelihood strategy and therefore channel their resource management roles in that direction. In this case environmental change or precisely biodiversity and livelihood strategies in agriculture are due to human-induced land degradation that has been the subject of debate for several decades, especially concerning the forested belts of Kakamega district. Earlier research efforts were devoted to the definition of processes of degradation, deforestation and explanations were found mainly in poor resource management regimes especially at the local level aggravated by overgrazing, over cultivation, and deforestation.395 Litereature on decetralisation and natural resource usage has demonstrated that technicist and management-oriented explanations are inadequate, not at least in explaining the diversity of change and in attributing sufficient importance to social and political factors, both at the micro and macro levels.396 Therefore, not only has the perspective on the nature of

394 Fiszbein, A. 1997. Decentralisation and Local Capacity: Some Thoughts on a Controversial Relationship'. Paper presented at the FAO/UNCDF/World Bank Technical Consultation on Decentralisation. Rome, 15-18 December. 395 Thomson, J. T. 1994. The Role of the State versus the Community in Governance and Management of Renewable Natural Resources. An argument and Sahelian examples. Occasional Paper no. 12. International Development Studies, University of Roskilde. 396 Dahlberg, A. 1994. Contesting views and changing paradigms. The land degradation debate in Southern Africa. Discussion Paper No. 6. Uppsala: Nordiska Afrikainstitutet. 82 biodiversity change been altered, but causation, institutionalism and local decentarisation policy intervention issues re-assessed. This evaluation is augmented by concerns over technical solutions with regard to restructuring of production techniques and inputs at the community level.397 The debate about interventions and/or remedies now revolves around a much larger degree regarding the complexity of local and wider community interactions. This does not consider whether the point of departure is taken from above areas such as forest buffer zone management or from below, in form of re-interpreting local change and local resource needs.398

Biodiversity, political decentralisation, and local participation in Kakamega District While local changes, biodiversity and indigenous knowledge are increasingly emphasized, the "local" discourse often remains at the level of the community, as for instance in the Boserupian reinterpretation of conservation and intensification processes in West and East Africa.399 Subcommunity processes such as social differentiation, growing poverty, a diversity of institutions and livelihood strategies, render such generalized community-level interpretations insufficient for understanding how processes of biodiversity resource conservation are sustained from top to bottom or bottom to top.400 Therefore if we are to write about a conservation success story in Kakamega, we must have a strong focus on the outcome of institutional interplay in the planning process for natural resource usage between the district technocrats and the resource user groups as stipulated in the national resource use policy. While we think of achieving this, attention must also be paid to the critical issues of marginalization, institutional heterogeneity and poverty in the conservation process in the district. However, due to heterogeneity within the rural communities, seen in terms of access to and control over resources, conservation and degradation may take place simultaneously within a smallholder community owing to the diversity of household strategies. The livelihood perspective is a way of studying biodiversity and likely changes from below as a way of emphasizing resource actor diversity. This is an issue that has recently gained importance. One example is when the United Nations Development Programme (UNDP) toward the end of the 1990s, made environment and sustainable livelihood programs based on the local decentralised development programs, as a focus area for poverty reduction and diversification in rural economies.401 Another example is when the British Department for

397 Benjaminsen, T.A. 1997. Natural Resource Management, Paradigm Shifts and Decentralisation Reform in Mali. Journal of Human Ecology 25(1):121-143. 398 Oyugi, W. 2000. Decentralization for Good Governance and Development. Regional Development Dialogue 21(1): 3-22. 399 Netting, R. 1993. Smallholders, Householders-Farm families and the Ecology of Intensive, Sustainable Agriculture. Stanford: Stanford University Press. 400 Cernea, M. 1985. Putting People First: Sociological Variables in Rural Development. New York: Oxford University Press. 401 UNDP.1999. Sustainable livelihoods. http://www.undp.org/sl/ 15/ 6/ 2006. 83 International Development (DFID) in 1998 redefined its approach to rural development as "sustainable rural livelihoods" based on the decentralised service delivery.402 All the above strategies indicate a positive move to link conservation to local resource usage within an existing institutional make-up. In both cases, decentralisation was preferred based on the fact that it was the best way to manage regional and district resources in Kakamega. We can perhaps argue that such strategies targeted increased institutional usage in form of local knowledge in the appreciation of biodiversity as well as enhancing resource users’ role in resource, institutional planning and framing, to achieve a two pronged approach: livelihood and conservation via local decentralisation.

The interest in this kind of approach is derived from several quarters as illuminated by Reitsma et al.403 It also obtains from studies emphasizing income diversification within the tropical forest belts, given the fact that many of the people in such areas use local natural resources to eke a living, without necessarily looking at the resource decline.404 Subscribers to such schools of thought also view improving local governance and resource use structures as a way of reversing this spiral. However, we still need to add that such local innovations need to delve more into the local institutional matrices; otherwise they are bound to suffer from what we call elite capture.405 Decentralisation is the devolution of state assets and powers to local or private decision- making bodies, representative local government, local administrative branches of central government, non-state actors and organisations such as NGOs, co-operatives, associations, etc or private individuals and corporations.406 When powers are delegated to local units of the state, the process is called deconcentration or in simple terms known as bringing government and its services closer to the population. Devolution to non-state bodies like NGOs or other private groups or individuals is called privatisation.407 However, it is a form of enclosure when it involves the privatisation of community or public resources. Devolution to community and representative local government is usually called political decentralisation and can be a mechanism of community participation. 408

402 Bryceson, D. F. 1999. African Rural Labour, Income Diversification and Livelihood Approaches: A long- term development perspective. Review of African Political Economy 80:171-89. 403 Reitsma, H; T. Dietz and de Haan, L., eds. 1992. Coping with semi-aridity: How rural the Poor Survive in dry-season Environments. Amsterdam: University of Amsterdam. 404 Davies, S. 1996. Adaptable Livelihoods. Coping with Food Insecurity in the Malian Sahel. Chichester: Wiley. Reardon, T., and Vosti, S. A. 1995. Links between rural poverty and the environment in developing countries: Asset categories and investment poverty. World Development 23:1495-1507. 405 Ribot, J.C. 1993. Market-state relations and environmental policy: limits of state capacity in Senegal. In The State and Social Power in Global Environmental Politics, edited by Ronnie D. Lipschutz and Ken Conca, 24-46. New York: Columbia University Press. 406 O’Donnell, G. 1998. Horizontal Accountability in New Democracies. Journal of Democracy 9(3):112-126. 407 Murombedzi, J. 1998. The Evolving Context of Community Based Natural Resource Management in Sub- Saharan Africa in Historical Perspective. Paper prepared for the International Workshop on Community Based Natural Resource Management, The World Bank, Washington, D.C. 10-14 May 1998. 408 Porter,G and E. Young. 1998. Decentralized Environmental Management and Popular Participation in Coastal Ghana. Journal of International Development 10:515-526. 84 We shall use the term participation in following the sense of Donnelly-Roark. Participation as a concept is used to mean power-sharing in decision-making. Participation must include real devolution of significant powers. Despite its problematic nature, we use the term community to mean a well dissected area of a geographically specified local population.409 The concept of participation waded through the third World at the dawn of the 1990s. This was after the state weathered from a progressive force of change and modernisation to a backward, primordial arena of neo-patrimonialism, dictatorship, corruption and greed, hindering far reaching development. 410 Therefore, when we talk of local decentralisation and local particiapation in natural resource usage, we drift away from the earlier notion of people and local communities being perceived as bad environmental managers or natural resource villains.411 We also tactfully move away from Hardin’s tragedy of commons where communities are perceived to take part in destroying nature through ignorance selfishness and greed.412 But we are rather moving to a dimension where people – environmental relationship is central. We look at people, their local knowledge and affinity with nature as strong drivers to save the earth's threatened biological resources.413 Local decentralisation and participatory approaches to environment and development received a great boost from the state-society oscillation. The two notions emerged from a long history of distress, characterised by failed and frustrating top-down approaches. This “new” phenomenon which is largely a product of social movements notion of biodiversity, centered on indigenous rights, anti-statist sentiments of both the left and the right, structural adjustment agendas and fiscal cries of post-Cold War Third World states.414

Local participatory development has become a means to incorporate civil society into the decisions formerly reserved for state policy elites. Now that the heavy weight of the state is sowly weathering away, decentralisation and local decision-making are inadvertently seen as routes by which control is being transferred from one power centre to another. The process entails local accountability, decision-making, benefit sharing, transfer of discretionary powers as well as local legislation and legal framing, to which we now turn. It was found out that many programs in Kakamega district approach local resource users groups such as woodcutters, pastoralists, farmers, women's or youth associations as a way of enlisting local participation in form of legislation and legal framing. These groups, however,

409 Donnelly-Roark, P. 1997. Reinventing Decentralisation Burkinabe Style: progress and Strategy notes'. Mimeo. 410 Ferguson, J. 1998. Transnational Topographies of Power: Beyond "the State" and "Civil Society" in the Study of African politics'.Draft Mimeo: Department of Anthropology, University of California. 411 Ehrlich, P.R. 1978. The Population Bomb. New York: Ballantine Books. 412 Banuri,T, and F. A, Margolin. 1993. Who will Save the Forests? Knowledge, Power and Environmental Destruction. London: Zed Books. 413 Downs, R. E., and Reyna, S. P. 1988. Land and Society in Contemporary Africa. Hanover: University Press of New England. 414 Rasmussen, T. 1986. The Green Revolution in the Southern Highlands. In Tanzania: Crisis and Struggle For survival, edited by J. Boesen, K. Havnevik, J. Koponen, and R. Odgaard, 191-205. Uppsala: Scandinavian Institute of African Studies. 85 do not necessarily reflect the concerns of a village as a whole, particularly in matters concerning public resources such as Kakamega forest, streams, pastures or public works. While such groups are often treated as if they were representative, more often they are not. They represent the particular interests of an elite leadership. This scenario is confirmed by Ribot who examined representation in natural resource decentralizations in 15 countries. He found out that:

Across all the cases, where you had the transfer of powers to local institutions, those institutions were upwardly accountable, almost systematically. When you found downwardly accountable institutions, they had no significant, meaningful discretionary powers.415

Regarding powers over decision–making we noted that, since the beginning of participatory efforts in Kakamega in the 1990s, little and no real participation has been effected. Rather, local populations have been viewed as “objects of development”, to be educated, informed and guided. In this regard we observed that the only participants in development have been the international experts through international NGOs, politicians, and national technocrats often located at district and provincial local governments in form of Forest Extensities officers and Wildlife Service agents.

A scenario related to the above was analysed by Engberg-Pedersen while studying decentralisation and natural resource management in the Sahel region, particularly in Bokina Faso and Mali.416 He found out that natural resource management committees of the closely related village common projects set up by donors across Burkina Faso to be undemocratic, arguing that they did not represent village populations, owing to the lack of a locally rooted institutionalised process.417 The situation that obtains in Kakamega district depicts little or no representational over forest resource disposition. No power is devolved to local communities. Hence power over decision-making such as fixing minimum environmental standards which should be devolved remains officially located with the Forest Service. No realm of autonomous decision-making is specified. The existence of such a malfunctional and unrepresentative process creates unintegrated institutional framework in the management of environmental and biodiversity resources in Kakamega district. When it comes to participation in the terms of production, management as well as benefit sharing in form of revenue generated from sale of forest products, licences and related eco-tourism services, it was found out that no such mechanisms existed at all. Kenya’s new forestry laws stipulate an institutional structure regarding local management of biodiversity resources related to forestry. The law somewhat assigns shared responsibility regarding forest management to local governments as well as the local community therein

415 Ribot Ribot, J.C. 1996. Participation without representation: Chiefs, Councils and Forestry Lwas in Western African Sahel. Cultural Survival Quarterly20(1): 40-44. 416 Engberg-Pedersen, L. 1995. Creating Local Democratic Politics from above: the "gestion des terroirs" approach in Burkina Faso. Mimeo Working paper. 417 Evans, Peter B. 1997. The eclipse of the state? Reflections on Stateness in an era of Globalisation', Worm Politics 50:62-87. 86 known as community forest user groups.418 The new law gives local governments jurisdiction over forests within their territorial boundaries. On the other hand the new law also envisages local interest variations, hence the propositions for local community participation. According to the new law, any individual or group of individuals wishing to benefit from forest resources must organise in a community forestry association. However, the study noted that although this was perceived as a mechanism for protecting local forests through local participation, it is a far cry from realising this objective. Instead Foresters have used the law to allocate more limbering rights to timber companies through concessions and sale of permits. In the final analysis it was observed that, although the new forest law aimed enlisting local participation through improved decentralisation, more is yet to be achieved in terms of enlisting genuine local participation. Therefore, evaluating it from studies emphasizing decentalisation and resource use among rural communities, one key notion has been found central; protecting local resources from degradation, requires appreciating local people and institutions in their diversity. 419 Overall, appreciating biodiversity, local politics and local participation calls for three dimensions: first, the provision of a framework whereby it becomes possible to examine how wider socio-economic and socio-political changes relate to local change; second, an emphasis on the importance of social differentiation and of agency in determining outcomes of local change; and third, the importance given to both physical and social resources employed by individuals or households in shaping strategies and values for living.

4.3 Institutionalism and bioethics in biodiversity resources management In the previous chapter, we discussed the concept of biodiversity as a common good, whose health guarantees wellness for all and whose destruction pronounces disaster to all. Therefore, in order to address the perceived biodiversity problems and risks, environmental advocates and bureaucracies have coordinated the use of certain techniques such as environmental planning and environmental impact assessment, biodiversity protection policies and other formal rules in protection of protected areas and threatened species.420 The focus of this subsection is to draw a link between institutionalism and bioethics as an avenue that can be used to protect the quality of biodiversity. The interplay of these techniques entails political, technical and individual rationality. Political rationality is based on the ability to solve problems and arrive at effective and collective decisions. Individual rationality however deals with the personal appreciation of what is good for an individual and bad for both him and the society.421

418 The Kenya Forest Act Caps 385, 2005. 419 Reardon, T, and S. A,Vosti. 1995. Links between Rural Poverty and the Environment in Developing Countries: Asset Categories and Investment Poverty. World Development 23:1495-1507. 420 Christiansson, C, Dahlberg, A., Loiske, M.V.; and W, Ostberg, eds. 1993. Environment-Users -Scholars: Exploring interfaces. Stockholm: EDSU, School of Geography, Stockholm University. 421 Bebbington, A. 1999. Capitals and Capabilities: A framework For Peasant Viability, Rural Livelihoods and Poverty. World Development 27:2021-45. 87 Technical rationality on the other hand deals with critical decision-making, in modern capitalist societies, based upon the value of efficiency. Therefore, when discussing these modern environmental management techniques, the concept of bio-ethics is very critical and central. Very central indeed and entails the use of rationality in attaining both means and ends.422 Rationality in this context specifies the means by which given ends can be achieved. Those ends are strictly environmental goals such as less pollution, less forest destruction through over grazing, over cultivation and the arrest of diminishing biodiversity. We must also add that since rationality is hard to achieve and to predict, sets of formal and informal rules are adopted in order to achieve intended objectives. This explains our interest in institutionalism, bio-ethics and biodiversity. Being cognisant of the fact that individual rationality is suspect, the use of biodiversity management rules and methods in tropical poor countries is sometimes hard to implement. Institutionalisation of rationality is grounded in democratic values. In most countries, such values include establishment of environmental management standards as one of the parameters followed in ascertaining rational environmental values.423 A number of agencies at different levels of government are instituted to ingrain such values. These environmental value ingraining agencies may take the form of community groups, interested corporations, resource users and organised ordinary citizens.424 In Kenya, NEMA the leading agency for such an undertaking, working in conjunction with other coalitions and non governmental as well as governmental agencies such as the Forest Department, Kenya Wildlife Services, Resource Sensing and surveying Centre. Other agencies in the non-governmental sector may include: INCRAF, the Forestry Society of Kenya, WWF and IUCN among others. NEMA for instance uses a decentralised system of administration to achieve this feat. Its management system is spread in various districts to monitor and implement environmental management standards in liaison with sister agencies. These obtain information that might otherwise be excluded from administrative decision- making although this information may not directly influence the final decisions; it makes environmental and democratic values more visible and legitimate than before. Hohl and Tisdell reported that for over two decades, development assistance agencies have urged developing countries to adopt rationally based environmental management techniques.425 Howarth and Norgaard add that such organisations while working with government agencies especially in the developing countries, have pressed upon environmental impact assessment as one of a suite of predictive, scientific and essentially rational techniques developed in the late

422 Peluso, N. 1992. Rich Forests, Poor People: Resource Control and Resistance in Java. Berkeley: University of California Press. 423 Crook, R, and Manor, J. 1994. Enhancing Participation and Institutional Performance: Democratic Decentralisation in South Asia and West Africa'. Report to ESCOR, the Overseas Development Administration, on Phase Two of a Two Phase Research Project. London: Economic and Social Committee on Overseas Research. 424 Fisher, A. C. and Hanemann, W. M. 1990. Information and the Dynamics of Environmental Protection: The Concept of thre Critical Period," Scandinavian Journal of Economics 92(3):399-414. 425 Hohl, A. and C. A ,Tisdell. 1993. How Useful are Environmental Safety standards in Economics? The Example of Safe minimum Standards For Protection of Species," Biodiversity and Conservation 2:168-181. 88 1960s and early 1970s in Europe and North America, in response to growing public concern about environmental degradation. 426 On the other hand, Wicks seems to look at bio-ethical stands from another angle. He informs that it has been customary in the past to think of ethics as a purely individualistic school of science. Ethicists or scholars of ethics largely concern themselves chiefly with a description of the moral reactions of the individual human personality.427 However, that is not the sort of ethics this study is interested in, since it is a known that, such a branch of ethics is no-longer realistic given the competition for resource usage. In this regard we are discussing ethics backed by institutional regimes. This argument is buttressedd in the fact that, moral traditions to which individuals give expression, are depicted to be social and economic, rather than moral.428 Moral insight delves into the structure of society; moral interest on the other hand includes the fortunes of institutions as well as of individuals.429 Therefore, in one way it is also the problem of every individual scholar and scientist. The problem of bioethics is a problem faced by all, since we are all engaged in the business of living. We are all concerned with a healthy environment. We are all concerned and affected by the problems associated with desertification, global warming and other associated externalities associated with biodiversity degradation. The only specialized role left to the professional bioethicist, then is not the impossible task of solving the problem, but that of directing the attention of others, elucidating its vastness and its difficulty. 430 Ayres noted that the individualistic bias manifesting itself in both social ethics and in neo- classical economics is replaced by a thorough growing sense of the individual's social makeup. Again Chisholm, notes that bio-ethics is wholly social, and there is no such thing as an individual, in the sense that it is absurd today to think of a 'moral agent' without at the same time thinking of him as a social product capable of producing certain changes in the social structure that surrounds him most intimately. 431 Ayres also rejects the notion that bio-ethics is a highly segregated field of inquiry relegated to authority of experts. This follows from the intrinsic nature of the problem that ethics takes for itself which, Ayres further viewed this as, “the problem of life as a whole”.432 Therefore it is instrumental to note that bio-ethics encompasses accumulated wisdom regarding existing

426 Howarth, R. B. and , R. B, Norgaard. 1990. "Intergenerational Resource Rights, Efficiency, and Social Optimality," Land Economnics 66(1):1-l1. 427 Wicks, A. C. 1995. The Business Ethics Movement: Where Are We Headed and What Can We Learn from Our Colleagues in Bio Ethics?Business Ethics Quarterly 5: 603-20. 428 Wolf, S. M. 1991. "Ethics Committees and Due Process: Nesting Rights in a Community of Caring." Maryland Law Review 50: 798-858. 429 Hauserman,N. 1997. New Values, New Conflicts. Paper Presented at 25th Conference on Value Inquiry, Appalachian State University, April 1997. 430 Ayres, C.E. 1918. The Nature of the Relationship Between Ethics and Economics. Chicago: University of Chicago Press. 431 Chisholm, A. H. 1988. Sustainable Resource Use and Development: Uncertainty, Irreversibility and Rational Choice. In Technological Change, Development and the Environment: Socio-economic Perspectives, edited by C. Tisdell and P. Maitra,188-216. London/New York: Croom Helm. 432 Ayres,C.E. 1918. Opcit. 89 biota. It is this biota that becomes the subject matter of investigation. It also develops from the embedded values that are ingrained within the subject matter that is under trail.433 Bioethics is therefore a product not necessarily incommensurable and even not invisible! It is the state of the common mind reflected in the institutional order. It is not a special science restricted to or within a particular field and subject-matter. But rather the main concerns are with the methods of inquiry and particular apparatus that are peculiar to the kind of task in the particular realm.434 In this regard, the ethical problem is the general problem in contrast with which it is possible to speak of others as "special". Special because, we are somewhat dealing with biological issues but with ethical leanings. Therefore, ethical issues derived from this type of perspective will support and reinforce the basic insights underlying bioethics' current efforts to revolutionize biodiversity and natural resource conservation within an integrated institutional program.435 The only danger of the latter effort is being undermined by an ethical analysis that is premised on the ground that there are alternative, individualistic and varied views of ethics, as seen in the neoclassical institutionalism and ethical paradigms. Thus as Klein and Edythe noted, for purely bioethical analysis to be conducted, the institutionalist perspective would seem, once again, to premise insights more in accordance with the needs of the transition underway, regarding biodiversity and natural resource usage today, than does the mainstream alternatives.436 In the theory of institutionalism and more so in the ethical progress, Ayres postulates his critique of classical and neo-classical ethical thought with a reminder that whether we take it or not, bioethics continues to be an undertaking involving a price, a price in the sense that ethical issues based on rationalism, which is based on economics rather than moral and social decisions. We are therefore talking of a science of value evaluation.437 The analysis drawn from the above postulation informs that efforts to understand bio-ethics will therefore be found more meaningful if it is more associated with economics and less associated with moral or social relationships. Therefore, if bioethics has meaning related to economics, the problem of bioethics and institutionalism is to elicit that meaning. The above analysis presents the point of departure which is critical in the search for both a common good, common ground and a shared perspective that is necessary to ensure fruitful mitigation and collaboration between institutionalists, economists and bioethicists. In reference to understanding biodiversity, the challenges surrounding the amelioration of institutionalists, economists and bio-ethicists include: the introduction of technological and biochemical resources to the biodiversity sector, especially issues surrounding the genetic engineering prowess and threats evidenced by modern science research on one hand and the

433 Lantos, J. D. 1994. "Ethics Committees and Resource Allocation." BioEthics Forum 10 Summer Fall. 434 Ibid. 435 Klein, P.A and Edythe S. M. 1996. Concepts of Value, Efficiency, and Democracy in Institutional Economics.Journal of Economic Issues 30: 267-77. 436 Ibid. 437 Lawson, C.L. 1998. The second Stage of Bio-ethics and Institutionalist Economics. Journal of Economic Issues 32:1187-1192. 90 upholding of the social values and indigenous and local knowledge institutions as well as local and indigenous species. This is a challenge for biotechnology, bioethics, and institutionalism as well as economics. Most commentators on the escalation of costs in the maintained of a rich, indigenous and healthy biological diversity cite the rapid pace of biotechnological innovation in this sector as one of the most critical factors influencing this trend. For instance, Lantos cited that such challenges invariably lead to resource redistribution and allocative question, that is; what kind of resources should be allocated to this sector of the economy and, more broadly, to conservation and economic as well as a social goals.438 Closely related to this is the issue of how allocation resource use rights among individuals and conservation efforts. Here we are talking of how two shared interests between individual, local and societal interests as well national conservation objectives should take place. This discussion is routine, especially in the realm of bioethics and institutional analysis. We often talk of environment and buffer zones and forget enterprise zones which are likely to shift greater pollution and degradation burdens into the neighbourhoods seeking economic development.439 In other words: lower-income minority communities. Therefore ultimate solutions require leadership at all levels of society in redefining biodiversity, economic and conservation goals. We also need to ask ourselves; in what ways can we structure support for sustainable modes of development in rural forest belts, on communal and individual as well as public farms, and throughout the country? Public policies need to be reoriented to take full account to adjust to human activities, social values and to take full account of the value of life with which we share this environment. This means not only disproportional impacts on populations and ecologies that are already at risk, but also rebuilding those communities so that they can survive and flourish alongside the environmental protection. Biodiversity being our area of concern, we ask ourselves, what are those ingrained values that are embedded within the resource users’ experiences? We continue to ask, what are the accumulated levels of wisdom and how these levels of wisdom aid natural resource usage within a given biota? Answering these questions will form the basis of discussion for the next sub-chapter. The following sub-section delves into the institutionalsim, local knowledge and associated cognitions as well as the ethical realties. Finally, to some extent environmental injustices may be redressed and prevented through revising our laws and regulations.

438 Lantos, J. D, Opcit. 439 Evans, J, H. 2000. A sociological Account of the groth of principalism. The Hastings Center Report 30. 91 4.4 Mapping an institutionalist, social cognitive-dimension for biodiversity management in Kenya Too often, researchers talk about conservation, but lightly think or talk about the role of informal institutions. It is important to realize that some communities have important aspects of their institutions that facilitate conservation of the environment and some aspect may destroy the environment. Informal institutions define who the people are and how they see themselves. Their attitudes towards nature provide space for new institutions to change and improve attitudes towards culture and the role it plays in environment and sustainable development. 440 The social cognitive-dimension for biodiversity which this treatment intends to adopt is rooted out of evolutionary economics of institutionalists. It rests on theories of human choice that are in clear opposition to those of neoclassical. Neo-classical institutionalists reject the assumption that the person’s economic character is that of a fully informed, atomized, rational, and maximizing individual.441 They base their reasoning on a variety of theories of human choice. The purpose of this sub-section is to highlight ways in which modern normative dimensions can contribute to an understanding of institutions and institutional change in biodiversity management in a country like Kenya. Advances in human cognition have exposed empirically and well-founded appreciation of how individuals process information.442 This understanding provides an opportunity for scholars opportunity to avoid reducing the human mind to a into a fixation This in turn, presents an occasion to understand the complexities embedded in human choice and social processes in biodiversity resource management in this case. In the light of the contemporary debates regarding the cognitive-dimension, traditional institutionalist theory appears to be based on a somewhat reductionistic perspective of the human mind.443 Although the institutionalist thought is more or less paralleled, the early development of normative theory as well as the recent contributions to cognitive-dimensions can barely be detected in institutionalism, even when these contributions appear to be widely adopted in other social science research undertakings.444 The cognitive-dimension is not free from criticism; it has its own limitations. For instance, like the behavioral theory, this cognitive dimension relies heavily on studies in experimental settings. As a result, environmental, social and societal influences on the human mind are not given due recognition from an institutionalist perspective.445

440 Gifford, A. 1992. Cognition and Rules. Journal of Bioeconomics 6(3):235-238. 441 Anderson, J. R. 1990. Cognitive Psychology and It’s Implications. New York: Freeman & Company. 442 Bourne, L. E., R. L. Dominowski, E. F. Loftus, and A. F. Healy. 1986. Cognitive Processes. Englewood Cliffs, N.J: Prentice-Hall. 443 Carroll, G.R. 1988. Organizational Ecology in Theoretical Perspective. In Ecological Models of Organizations, edited by G. R. Carroll, 1-6. Cambridge, Mass.: Ballinger. 444 Gergen, J. K, and G. R. Semin. 1990."Everyday Understanding in Science and Daily Life." In Everyday Understanding: Social and Scientific Implications, edited by G. R. Semin and K. J. Gergen, 1-18. London: Sage Publications. 445 Giddens, A. 1984. The Constitution of Society: Outline of the Theory of Structuration. Berkeley: University of California Press. 92 The social-cognitive dimension can be used as a conduit for furthering our understanding of biodiversity management in Kenya, particularly in Kakamega. Human cognition treats behaviour, which emanates from societal and cultural blueprints as adaptive to individual experiences and other cognitive processes. According to this perspective these are under socialized, especially when talking about biodiversity perceptions and biodiversity management. In the foregoing analysis, the socio-cognitive dimension is presented to make an understanding of institutions and institutional evolution in regard to particular communities. This analysis is also rooted in the communities around kakamega forest like, the Bakusu, Batsotso, Wanyore, the Kisa, Luo, the Marama, the Marachi, Wahayo, Isuha and Wadumbi among others. In doing so, the cognitive-dimension enables us to understand how such communities relate to the forest biodiversity. We also use this same dimension to evaluate why human choice and rationalism are central in the biodiversity management of the area. We learn that human behaviour is related to inter-subjectively shared beliefs and value-infused norms and knowledge about the way things were done and the way things are supposed to be done.446 Such knowledge is part of the broad social structures and processes that do mould the society in question. Human behavior is also related to the value-infused knowledge and traditions of societal collectives and of individual interpretations. We also must mention that individuals act upon their interpretations of social events around them as well as exposures over time.447 Therefore, basing our analysis on the human cognitive, it becomes important to consider how and to what extent such interpretations are affected by social forces, and how these social forces can affect biodiversity management in an ethnically dominated setting like Kakamega. From a cognitive perspective, we learn that ideas about reality are constructed through interactions that are processes of interpreting the meaning of different species related to ecosystem richness. Human cognition needs to be included in the analysis of such processes. However, this does not mean that the socio-cognitive perspective should be equated to voluntaristic standpoints.448 The above analysis reveals that human thought and behaviour is to a large extent socially restricted in a given situation, say the relationship between man and biodiversity, or more specifically the relationship between the Luhya and particular animal species like snakes, why are the Luo attached to marine biodiversity? why the Wadumbi have spiritual relationship with particular tree species. We also ask whether this relationship amounts to better management of biodiversity or the reverse. On the other hand, this analysis may also disclose that individuals are sometimes ambiguous about the way they act and the way they interpret the situations around them.

446 Ayres , C. E. 1961. Toward a Reasonable Society: The Values of Industrial Civilization. Austin: University of Texas Press. 447 Tomasello, M. 1999. The cultural origins of human cognition. Cambrige:Havard University Press. 448 Douglas,N. 1987. How Institutions Think. London: Routledge and Kegan Paul. 93

Institutions as principle agents in the social-congnitive dimension In the second chapter we looked at the contending debates about how institutions are born. An institution in this regard is a socially constructed belief system about the way things were done, how they are done and the way things should be done in regard to a particular societal setting. This particular belief system happens to be the principle agent that organizes human thought and action.449 It is prudent to mention that institutions in this perspective are not objectives related to physical phenomenon, but rather human mental and metaphysical constructs.450 Institutional beliefs are intrinsically shared among a collection of individuals in a given setting either formally or informally. Institutions in this regard share a wide range of facets, springing from a wide spectrum. It is from this spectrum that they are articulated with tenacity. Therefore, institutions can span across a wide scope involving transboundary-specific realms such as organizations.451 This synthesis factors on institutions as principle agents that govern the creation of meaning and the patterning of actions at various social levels and across diverse categories of agents. Thus in drawing a relationship between different social structures, institutions here act as central structuration principles. Taking this from Bromley who put it that: “it is necessary to view institutions within a particular societal setting as an evolving phenomenon that spans from generation to generation”. 452 The implication here is that institutions are mediators of the outcomes of the actions they induce. In view of this, if we are to use the perspective of decision and choice as a central domain in cognitive dimension, then we are looking at the set of opportunities defined by an institution. In this regard such domains are portrayed as being constituted by various kinds of values. Furthermore, social representations of values, such as evaluation routines, and routines for searching information, are also part of the institutional choice domain.453 These interactions are the continuous composition of knowledge transfer as we shall later see. Institutions transfer substances of intuition such as meaning and understanding in relation to the environment and within the society.454 However, a distinction must be made between the transfer of value-infused beliefs and the transfer of a physical content of both tangibles, such

449 Stein, J. 1997. How institutions learn:A social Cognitive perspective.Journal of Economic Issues 31. 450 Rizzello, S and M. Turvani. 2004. Subjective Diversity and Social lerning. A cognitive Perspective for Understanding Human Behaviour. Constitutional Political Econmy 13(2):197-210. 451 Weick, K. 1979. The Social Psychology of Organizing. Belmont: Addison-Wesley. 452 Bromley, D. W. 1989. "Institutional Change and Economic Efficiency." Journal of Economic Issues 23 : 735-59. 453 Arrow, K. J. 1951. Social choice and individual values, New Haven, London: Yale University Press. 454 Parsons, T and E. Shils. 1951."Values, Motives, and Systems of Action." In Toward a General Theory of Action, edited by T. Parsons and E. Shils, 247-275. New York: Harper & Row. 94 as goods and certain services, and intangibles, such as information and knowledge. The psychological content of interactions in turn has both cognitive and social sides.455

Can human cognition structure institutions? In the foregoing treatment it is imperative to ask this rather simple but complex question. Can human cognition structure institutions? Human cognition is hereunder defined as all processes by which the sensory input is transformed, reduced, elaborated, recovered, and used.456 Cognitive scholars view the representation of the world as an active construction that involves transformation of sensory input through reduction and elaboration. Because human attention is limited in capacity, we need to be selective in order to prevent an overload of information.457 Even so, only a small part of what we attend to can be remembered. In respect to the reduction of information, we use elaboration by adding to the sensory input through the recovery of information from the long-term memory. The learning process occurs with the transfer of information to the long-term memory.458 Based on the internalization process of information from their social setting and contexts, individuals develop personal collections of assumptions about the way things happen, why they are happening and the way things should happen. These collections can be compared to institutions on social levels. Even though individuals need such intuition to mitigate with their bounded rationality, the cognitive processes of reduction and elaboration can lead to choice biases. For example, individuals tend to overestimate the likelihood of events that are available or easy to recall or imagine from experiences.459 When individuals continually create such notions on how to act within the constraints of their bounded rationality, they are governed by experiences or prior knowledge. This apriority knowledge, which results from exogenous processes of social interaction influences sensory inputs. This also implies that individuals need to pay attention to other external process because these provide us with an opportunity to create meaning out of the things that have to be paid attention to.460 As a result, apriority knowledge tends to be used as a basis for verification of individual knowledge processes. This verification is borne out of the bounded capacity to process information, but there is a difficulty in handling too many radical changes in our thought structure. It has been proposed that our knowledge is organized around routine activities. What we know and what we see about such activities that are script-like. These script-like activities make humans to focus their attention on how to fulfil such a routine.461 In here, we use the

455 Geoffrey, M. H. 2004. The Evolution of Institutional Economics: Agency, Structure and Darwinism in American Institutionalism. Journal of New Political Economy 10(1):133-137. 456 Anderson,J.R Opcit 457 Neisser, U. 1967. Cognitive Psychology. New York: Appleton-Century-Crofts. 458 Ibid. 459 Reed, S. K. 1988. Cognition: Theory and Applications. Pacific Grove, Calif.: Brooks/Cole Publishing. 460 Posner, M. I and C. R. Snyder. 1975. Attention and Cognitive Control. In Information Processing and Cognition, edited by R. L. Solso, 55-85. Hillsdale, N.J.: Erlbaum. 461 Leighton, J.P., M.J, Giel and S, Hankas. 2004. The Attribute Hierachy Method for cognitive Assesment: A variation on Tatsuoka’s Rule-Space Approach. Journal of Educational Management 4:205-236. 95 term automatic processing to give recognition to such routines that occur without intention and that do not give rise to conscious awareness. This arises out of distinct signals that stem from the social context which may be needed to raise the consciousness and awareness of individuals and to get them to question their experiences in processing information in situations across board. This cognitive capacity is strongly linked to intuitive capacity of the individuals to tabulate knowledge and information which they receive from both physical objects surrounding them as well as received wisdom. March and Olsen mentioned that institutions can be construed as persons that exist in different environments. They are like all other social phenomena, at the individual level, which emanates from mental constructs.462 In this we mean that changes of such instructional constructs imply learning rehearsing and remembering. It also involves rethinking and evaluating of knowledge about an existing institution. Therefore, as individuals absorb a bowl of value-infused knowledge and beliefs, chances are that, there may be cases of ambiguity about how such beliefs come about and how such beliefs follow and in which sequence. It must also be pointed out that in a certain situation individuals also recognize that there are often cases of miss-representation of facts and issues about received wisdom on values relating to perceived knowledge. This leads to dilemmas of how to interpret both historical and current situations.463 These dilemmas lead to knowledge ambiguity of all kinds and is frequently communicated to others. Further more, if individuals lack experience regarding the shared beliefs in a given collective environment, then they may as well act against established beliefs of others. This situation also obtains from the variation among individuals' experiences which may also lead to different interpretations of a situation.464 Therefore, taking it from our earlier appreciation of the role of knowledge and rules in shaping society, we should point out that institutions influence how information is retrieved, organized, and selected. To say this, is not to suggest that institutions themselves think and act; but they in a way guide and determine the ways through which individuals think and act. In a way institution exert influence on individuals. However, Douglas North thinks otherwise. He insists that institutions are influenced by the knowledge they themselves have induced.465 He seems to inform that institutions play a cyclical role in the process of knowledge generation. To take this to another level we need to understand the emergence, reproduction, and change of institutions, and the reciprocal relationship obtaining between institutions and the knowledge manifesting it’s self in the different societal environs.

462 March, J. G. 1994. A Primer on Decision Making: How Decisions Happen. New York: The Free Press. 463 Johnson-Laird, P.N. 2004. Mental Modelling and Reasoning. In the Nature of Reasoning, edited by J.P Leighton and J.R.Sternberg, 269-270. Cambridge: Cambridge University Press. 464 Zucker, L.G. 1991. The Role of Institutionalization in Cultural Persistence. In The New Institutionalism in Organizational Analysis, edited by W.W. Powell, and P.J. DiMaggio, 83-107. Chicago:The University of Chicago Press. 465 North, D. C . 1990. Opcit.

96 In summary, in this chapter we have endeavoured to appreciate the role of local politics and local decentralisation in understanding current status of national biodiversity. This chapter has also reviewed various aspects of bioethics and the possibility of adopting a cognitive dimension as an avenue to understanding the biodiversity resource regime in Kenya. These postulations add to the current debates in the realm of natural resource usage, particularly biodiversity and of the changes sweeping the sector. This however puts significant attention on the role of institutionalism and human cognition in achieving this feat. To this end it is imperative to suggest that there is a need for mitigation between resource users, institutionalists, ethicits, bioethicists, economists and political decision-makers. This might be useful especially when defining new policy agendas in the improvement of this resource regime. It is apparent that contemporary literature and evolving debate among scholars and practitioners working in the realm of bioethics, biodiversity and natural resource governance.

97 5 National and sub-national level mapping 5.1 Institutional mapping of the biodiversity sector in Kenya In their writings Scherr et al. postulated that biodiversity is an essential component in environmental, social and economic systems. Humans, animals and plants require protection to survive.466 Different species play different roles in the functioning of ecological systems, providing critical inputs within the food chain. 467 Biodiversity is considered to be an important resource in the Kenyan biodiversity enterprise. However, this resource is one of those facing great threats due to a number of anthropogenic factors.468 As a result, a number of interventions to reverse the resource degradation spiral especially in the area of forest biodiversity have been hatched. Such efforts include nationwide programmes that seek to protect the dry mountain forests such as the Namanga Hill forest, the Eastern Arc Mountain Forest Parches in Taita-Taveta District and the dry mountain forests of the Loima Hills in the Turkana district.469 It is equally imperative to highlight the different interventions at various provincial and district levels in form of cross-cutting initiatives such as the Nile Basin River Initiative (NBI), Lake Victoria Environment Management Programme (LVEMP), cross border biodiversity interventions projects such as Mt. Elgon Integrated Natural Resources Management Project (Kenya and Uganda) Mara River Basin Conservation Project ( Kenya and Tanzania ) and Bio- Earth, a project bringing together varied institutions related to biodiversity research such as the University of Nairobi, Kenya Agricultural Research Institute, National Council on Science and Technology. However, at the heart of all these conservation efforts is the restructuring and re-organisation of exiting agencies such as Kenya Wildlife Service (KWS) and the Forest Department, which has since been restructured to become the Forestry Services for in-situ and ex-situ conservation purposes.470 Governance in Kenya is defined by a decentralized administrative system where power and authority are delegated to sub-national levels in form of regional or provincial governments. Here power is further lowered to the district and other local administrative units. At all these levels, biodiversity is highlighted as one of the most treasured resources, owing to the well pronounced catch phrase that “every one has a right to a clean, complete and healthy environment” Biodiversity issues have been a common concern to all Kenyans for along time. This is based on the fact that most of the country is dry and the climatic conditions continue to deteriorate.

466 Scherr, S. J., L. Buck, R. Meinzen-Dick, and L.A. Jackson. 1995. Designing Policy Research on Local Organizations in Natural Resource Management. EPTD Workshop Summary Paper 2. International Food Policy Research Institute. Washington, D.C: Mimeo. 467 Kagwanja, J.C, and M.E. Bredahl. 1996. Determinants of farm-level adoption of Soil Conservation and soil management technologies: Case study of Enbu, Kenya. A Working Paper. Missouri: University of Columbia. 468 GOK. 2001. Biodiversity for all. Nairobi:Global Environnemental Facility. 469 Ibid. 470 GOK. 2002. National Report on the Implementation of the Convention on Biological Diversity. Nairobi: Government Printer. 98 This is compouded by glowing structural weakness in institutions and enforcement agencies. A combination of these have provoked wide spread contentions regarding the nation’s future biodiversity situation.471 It is believed that such concerns could have arisen out of the dire need to change the rather unfriendly environment to both human, plant and animal lives. The other fact that ought to be illuminated is the need to preserve a number of fast disappearing indigenous species and indigenous knowledge.472 Other biodiversity issues in Kenya range from destruction of forest cover, grazing systems, ecosystem stability, protection of marine biodiversity from pollution, protection of wildlife, conservation of general habitats, pollution from the manufacturing sector, impact of farm chemicals on plant and animal life as well as the impacts of the large construction projects such as dams and irrigation projects.473 An evaluation of all these concerns pointed to one important aspect, the question of institutional inadequacy or institutional gaps in meeting all these challenges. The realisation that the nation lacks an institutional clearing house to mediate the conflicting rules and regulations regarding the management of biodiversity in the country, have been a daunting one. Until the end of the 1990s, Kenya lacked a comprehensive legal regime regarding mediation of conflicting environmental management institutions. However, inspire of enacting the Environmental Management and Coordination Act (EMCA), laws on different aspects of biodiversity still remain scattered in the different acts and statutes as well as policy briefs. Such include the water, forest, mineral, fisheries, wildlife, timbers agriculture and a series of other acts.474 The other instructive issue worth noting is that there are several agencies with authority and power to enforce the implementation of the different sections of the environmental laws. These include the ministries of environment, agriculture, fisheries, forest services, local authorities and provincial departments. Therefore because of lack of streamlined coordination, there are always conflicting in-roads on who has what mandate? This implies that, although the legal and policy framework provided a foundation for sustainable management of the environment which of course includes biodiversity, there are shortfalls during institutional implementing by coordination agencies. The result is continued degradation and decline of biodiversity resources. In the subsequent sections we shall evaluate the current formal institutions that are used in the management of the country’s biodiversity resources.

471 Ibid. 472 FAO. 2006. A Brief on the on the Inconsistencies in Environmental management in Kenya. Nairobi: FAO. 473 Mugabe,J and A. Masika. 1996. Incentives for Biodiversity Management in Kenya: Acase Study of Community -Based Conservation Around Amboseli National Park, Kenya. A paper presented at the Workshop for the Development of a Framework for Biodiversity Loss Assessment. Gland, 22–24 April 1996. 474 Ibid. 99 5.2 Biodiversity in the Kenyan constitution A constitution is a system, often codified as a written document, that establishes the rules and principles through which an organization or political entity is governed. In the case of nation- states, this term refers specifically to a national document defining the fundamental political principles and establishing the structure, procedures, powers and duties of a government.475 Most national constitutions also guarantee certain rights to the people. Historically, before the evolution of modern-style codified national constitutions, the term constitution could be applied to any important law that governed the functioning of a government.476 The constitution being the highest legal order in any country or society, basic rights such as environmental rights ought to be central and well entrenched in the national constitutions.477 When debating environmental concerns, it becomes irresistible to discuss biodiversity issues because the former ultimately embodies the later. As pointed out earlier, biodiversity has a lot to do with the human and other living objects’ life support system. Therefore, any potential or perceived danger to environment is agreeably a danger to life itself. Its protection requires the stability of a constitution which should only be changed by a special and substantial majority of the national legislature, based on detailed discussion and debate.478 Hence environmental legislation should see the entrenchment of environmental rights and duties. These should be ranked among some of the highest constitutional provisions. Stone in his classical writings on environmental law and the legal rights of natural objects instructively argued that the environment as a natural object has a legal right to live and this legal right should be protected. He also states that such protection must be based on standing statutes and special environmental legislation, which could be enacted along lines of traditional guardianship.480 Stone further points out that: such provisions must enlist guardianship for natural objects such as forested lands. In short he postulates that the constitution, the Supreme Court and the legislature are the guardians of the environment in this sense.481 However, an overt analysis of the current Kenyan constitution clearly shows that this important component of natural life was blurred by the framers of the Kenyan Constitution. Though the present Constitution of Kenya does not make any direct reference to the environment or biodiversity, specific sections on land tenure and the protection of personal property have a direct impact on the management of forests which are indirectly linked to biodiversity. In addition, broader issues of political governance systems and the role of African customary law have indirect impacts on environment and forest issues. Chapter 9, Section 114-120 of the Kenyan constitution is devoted to Trust Land, the only land category specifically dealt with in

475 Kibwana, K. 2000. Making our Constitution: Questions and Answers. Nairobi: Claripress and Friedrich Ebert Stiftung. 476 William, A. 1968. Constitutions and Constitutionalism. Princeton: Dvan Nostrand Company. 477 Okoth-Ogendo, H.W. 2001. The Politics of Constitutional Change in Kenya since Independence. Oxford: St Anthony’s College. 478 Ibid. 480 Stone, C.D. 1972. Should Trees have Standings? Towards Legal Rights for Natural objects: In Southern California Law Review,7: 450-501. 481 Ibid. 100 the Constitution. The Constitutional provision for setting aside Trust Land is intended to provide a mechanism for the direct involvement of the people in managing their resources. This Chapter stipulates that Trust Land shall be vested in local authorities for the benefit of communities resident in the area.482 Chapter 9 of the Constitution also outlines the conditions and procedures under which Trust Land may be set aside for other purposes through an Act of Parliament or through a request from the President. This may be for the purposes of public utility, for the prospect of minerals or any other purpose that a county council may deem to be of benefit to the people resident in its area of jurisdiction. Trust Land represents the largest land area in Kenya and as of December 1995 the total area classified as Trust Land was estimated to be 457,449 sq. km representing approximately 78% of the total land area of Kenya. Some areas of Trust Land are set aside as National Reserves under the Wildlife Conservation and Management Act (Cap.376) and managed by the local authorities. An estimated 100,000 hectares of close canopy forest is currently found on Trust Land outside these National Reserves. This is approximately 7% of the total closed canopy forest area in Kenya.483 Chapter V; Section 75 of the Constitution of Kenya recognises and provides protection from deprivation of private property. This section specifies the conditions under which the rights to private property can be forfeited, for example through compulsory acquisition by the government. This provision can be used to protect forest catchment areas and can also provide for measures intended to protect and preserve the environment from abuse, pollution and degradation and to manage the environment for sustainable development. The section inherently informs that projects relating to the environment have to be subject to a rigorous national level decision-making. Such projects may include irrigation, power production, industrial works, multi purpose water works among others. The above analysis shows that environment and biodiversity protection issues must be explicitly located and therefore fundamentally registered in the national constitution. It should further be noted that national constitution by its very nature is a social contract aimed at promoting and advancing basic interests and rights of the governed. Environmental rights fall under such a realm of rights and as a matter of fact such basic rights need to be explicitly written in the national constitution.484 Furthermore, arising from the current threats to natural resources in Kenya, it is important that such rights should be overtly mentioned in the country’s supreme governing law; more so in an explicit, fundamental and bold character.485 This would highlight the continuing importance of such rights and imposing upon the state a solemn obligation to preserve and protect environmental resources along traditional guardianship. Having pointed out how political patronage contributed to the current biodiversity decline in Kenya, it is of glowing

482 The Constitution of the Republic of Kenya. Chapter 9 Section 114-120. 483 Wass, P. 1995. Kenya’s Indigenous Forests: Status, Management and Conservation. Nairobi:IUCN. 484 KIFCON. 1994. Kenya Indigenous Forest Conservation Programme: Phase I Report. Kenya IndigenousForest Conservation Programme. Nairobi. 485 Edward, C. 1999. What did the Constitution mean for the early Americans? New York: St. Martins Press. 101 importance that provisions relating to the environment and biodiversity for that matter should be well entrenched in the nation’s supreme governing law book. Within the constitution, environmental provisions may further be adduced in form of a declaration of public policy or as fundamental rights. While the former provisions normally prescribe enforceable rules, the fundamental rights expressly provide actionable obligations. However, often constitutional provisions have a combination of both.486 The 1998 Constitutional Review Act grants the Parliament power to facilitate the comprehensive review of the Constitution by the people of Kenya and its eventual alteration. A reviewed constitution may have far reaching implications on existing legislation and institutions mandated with the management of biodiversity resources in the country. 487 The current constitutional amendment process in Kenya presents an opportunity to have significant contributions that relate to constitutional protection of the environment and biological diversity in particular. Accordingly Harrison notes that discussions can go to great length as long as formulations can lead to creation of effective and durable action plans for long-time environmental governacne.488 Harrison cautions that actors involved should be committed in terms of funds and manpower. He calls for further government commitment, with all government departments and agencies pulling the same way to ensure consistency and durability.489 In short, provisions concerning the environment and specifically biological diversity should be constitutionally entrenched like it is the case in Malawi and a host of other African countries, including Equatorial Guinea, Ethiopia, Burkina Faso, Malawi, Ghana, Lesotho, and South Africa.

5.3 The Ownership and usage of Biodiversity in the Kenyan context The biodiversity or environmental sector is divided into different aspects in the purview of usage and ownership. This is found at two levels. The first level is that of the state, if one looks at it from a state like perspective in form of central and regional or provisional governments. The other level is at the private and communal and/or local level arrangement. At the statist level, biodiversity is fragmented into different categories, governed by different sub-sectors and ministries. These range from biodiversity for agricultural usage, marine to food security and so on. 490 Coordination in regard to mandate among various agencies is not only minimal but also complicated and hard to achieve. The Ministry of Environment and Natural Resources is mandated to coordinate the ownership and usage of biodiversity as well as to steer the policies and programmes relating to the same. There is however little inter-sectoral coordination in as

486 Maarseveen, H and G. Tang. 1978. Written Constitutions: A computerised Study. Newyork: Oceania Publications. 487 Juma C. and J.B. Ojwang.1996. In Land We Trust: Environment, Private Property and Constitutional Change in Kenya. Nairobi: ACTS. 488 Harrison, P. 1989. The Greening of Africa. London. Paladin Grafton Books. 489 Ibid. 490 GOK. 1999. Sessional Paper No.6 on Environment and Development. Nairobi. 102 far as ownership is concerned. As a result several administrative divisions exist. This lack of coordination is visible and even multiplied at the policy level.491 The case of Kenya Wildlife Services and the Forest Services affords a glowing example. Institutional disorder creates uncertainty, resulting into an unclear organizational mandate.492 For instance, prior to 1988, parks were managed as a government department. From 1989– 1991 they were transferred to a corporate management organisation as a body incorporating some form of community involvement. However, this was not achieved because the basis of this shift was partly a philosophical one involving the concept of "parks without borders", yet at the same time maintaining the fines and fences paradigm.493

Private or communal ownership of biodiversity is linked to land ownership.494 This is difficult to regulate given the obscure regulatory legislation. This arises out of the fact that land has a multiplicity of uses and users.495 It will be recalled that this is very typical of common pool resources and linked to Hardin’s tragedy of commons. As expected, it leads to inequities, uncertainties of various kinds as well as conflicts, given the fact that land ownership rights are in most cases skewed.496 Furtherstill, it is important to note that when we talk of private ownership of biodiversity, we are inadvertently linking biodiversity to land rights which leads to unmitigated tapping and unregulated usage by the varied sections of society. This has far reaching repercussions on conservation efforts especially in the rural areas. It is further complicated by the fact that up to 80% of the populations in these areas use the land for cultivation and other livelihood activities.497 Efforts to control the over exploitation of the nation’s biodiversity have already focused on the regulation through the legal and administrative control over its usage. These attempts have seen the amending of several of the existing legislative regimes that indirectly relate to biodiversity. These amendments include the new Forest Act, the amended Wildlife Act, the Water Act, the Timber Act, the Agriculture Act, the Environment Management and Coordination Act, the Chiefs Authority Act, the Tress pass Act and the Mining Act among others. Within these acts, issues relating to biodiversity ownership are still not well defined, a fact that renders their implementation an insurmountable task. For instance, like we noted earlier, private and local owners of biodiversity view it in form of land ownership. This makes it hard to draw a distinction between community land, public or private land. Sometimes the state has prevailed and used this complex situation to retain ownership of community land in

491 Fischer, E. 1996. Habitat Conservation Planning under Endangered Species Act: No Suprises and the Quest for uncertainty. University of Columbia Land Tenure Review 76:371-405. 492 Ostrom, E. 1986. An Agenda for the Study of Institutions. Public Choice 48(1): 3-25. 493 KIFCON. 1994. Opcit. 494 Ibid. 495 Okowa-Bennun, P and M.Mwangi. 1996. Land Tenure and Forest Resource Management in Kenya. In In Land We Trust: Environment, Private Property and Constitutional Change in Kenya, edited by Juma C. and J.B. Ojwang, 175-198. Nairobi/London Zed Books. 496 Bromely, D.W. 1995. Natural Resources Issues in Environmental Policy in South Africa. Madison: University of Winscosin, Land Tenure Centre. 497 David, S. 1997. House hold Economy and Traditional Agro-Forestry Systems in Western Kenya. Agriculture and Human Values.14:169-79. 103 an effort to regulate biodiversity. This has in most cases increased tension between the government and the communities. Mbugua illustrated this using the Taita-Taveta communities. He mentioned that even before independence, 62% of their land was classified as public land and placed under Kenya Wildlife Services for administration. This translated into 2,604,186.9 acres of land for which the people of Taita-Taveta earn nothing, yet land is a crucial factor of production in the development of communities ranging from agricultural development to shelter as well as environmental growth. This has increased tension between the government and the communities who live adjacent to the parks.498 At present, Kenya has several inconsistent Acts of Parliament relating to the governing of land. This continues to be a major hindrance to the development of community land and inevitably affects issues regarding ownership of biological diversity. The argument to make here is that since ownership translates into responsibility, it espouses biodiversity protection. However, in cases where responsibility is suspect, biodiversity stability is put in a situation of double jeopardy.499 At a more regional level, there are cases of collective action to regulate the use of biodiversity, primarily by banning incidents which lead to destruction of existing biodiversity enclaves. In Kakamega for instance, there have been reinvigorated efforts to revive the Nyayo Tea zones, a kind of forest buffer zone management system introduced in the post independence years to protect the forest fringes. This kind of management system does not only act as a boundary to prevent community encroachment on forest biodiversity, but it also helps to control negative externalities such as fires to the forest. It was found that the Nyayo Tea Zones Corporation was established through Legal Notice No. 285 of 1986 under the State Corporations Act. Its main objectives are to protect indigenous forests currently threatened by human encroachment and over exploitation thereby contributing to global environmental and biodiversity conservation. The other reason was to provide an alternative source of earnings through employment in the intensively managed Nyayo Tea and fuel wood plantations and lastly to develop rural infrastructure through the construction and maintenance of roads and bridges. The Nyayo Tea Zones were established in gazetted Forest Reserves. Out of approximately 6,154 hectares of forested areas that were cleared for the tea zones, an estimated 4,000 hectares are currently under tea. These plantations are being maintained with local communities through a non-resident shamba system, whereby young trees are intercropped with vegetables and other food crops. 500 Another issue of concern here is the over abstraction of water tapped from the springs of Kakamega forest. The Water from these springs is tapped far beyond the recommended two thirds levels. The Water Act recommends that water extraction should not go beyond the

498 Mbugua, N. 1999. Getting to Terms with Wildlife Conflict with Man. Sunday Nations Special Reports. 499 Key Informant Interview with Mr. Mirambo, DistrictForest Extension Officer, Kakamega. 24 July 2006 500 MENR. 1994b. The Kenya National Environment Action Plan (NEAP). Ministry of Environment and Natural Resources: Nairobi.Government Printer.

104 maximum spring discharge level.501 This over abstraction is due to the over dependency on spring water from the forest. But through analysis and discussion in subsequent chapters, we shall highlight that this excessive usage is due to inadequate availability of water outside the forest, an increase in human and live stock population around the forest fringes, coupled with poor management of existing water systems. We shall also inform that this situation is also linked to cultural and spiritual reasons. Overall, we note that in some instances state-like actions and controls towards the conservation of forest biodiversity have had far reaching impacts. In some cases it has led to accelerated cases of illegal forest exploitation.502

Key National agencies responsible for different sectoral uses of biodiversity The global call for raising biodiversity awareness was one of the issues that the precluded the United Nations World conference on Environment and Development (UNCED) in Rio de Janeiro in 1992.503 At the conference Kenya did not only endorse and adopt Agenda 21, but also signed the convention for biological diversity. This same document was nationally ratified in 1994. It will be recalled that the Rio de Janeiro and Earth summit in 1992 and 1994 respectively called upon member states to devise means to check all behaviours that undermine biological diversity as well as promote the environment as a means to attaining sustainable development.504 The Government of Kenya (GOK) founded the National Environment Secretariat (NES) in 1994 as the environmental agency to coordinate environmental activities in the country. However in late 1994, partly as a result of the global call at the Earth Summit, the NES founded the Interministerial committee on Environment which was a loose and some what ineffective multi-sectoral and multi-disciplinary membership team with members from the government, the private sector and NGOs. This committee was also made up of sub- committees responsible for the implementation of the Convention for Biological Diversity (CBD).505 In the foregoing sub section we shall look at the national agencies involved in this effort. We note that their motivation is grounded in a national vision under the banner of protecting biodiversity resources and ensuring food security for all the people.506 Most of these agencies premise their action plans on the fact that biodiversity resource will be sustainably conserved if communities are sensitised and empowered. Basing themselves on the best practices model in biodiversity conservation, these agencies call for the integration of biodiversity in their national planning and development strategies.507 However, as we have observed earlier, best

501 The Kenya Water Act Cap 372 of the Laws of Kenya. 502 Nettings, R.M. 1997. Unequal Commons and Unequal equity: Property and Community Among Small holder Farmers. The Ecologist 8:27-28. 503 United Nations World conference on Environment and Development(UNCED). Rio Dejaneiro,1992. 504 GoK. 2000. The Kenya National Biodiversity Strategy and Action Plan. 505 Ibid. 506 GOK. 2000. First National Report to the Conference of Parties. Nairobi:Government Printer. 507 Ibid. 105 management practices have always eluded most of these agencies, hence failing to realise the benefits of sustainable utilisation and conservation of biodiversity.

5.4 Evolution of legal regimes and legal reforms relating to biodiversity The pre-independence period Kenya became independent in 1963. Prior to her independence, Kenya was administered as a British settler colony. It was Kenya’s mountain climate, a characteristic feature of the Kenya highlands, and its incredible fauna and flora that attracted most of the early British settlers into this East African Country.508 This new found land later became a home to many Kenyans of British descent. The new settlers also referred to as new conquerors, became owners of the Kenyan highlands and as a result demanded that new policies relating to the conservation of biodiversity had to be instituted.509 It is imperative to point out that these policies were not aimed at protecting biodiversity as an end in itself, but rather at promoting/securing the interests of the new class of settlers. As a result the newly instituted policies never took into consideration the interests, knowledge’s, cultures or even attitudes of the indigenous people at the time of colonisation.510 We ought to note that while policies relating to biodiversity conservation were enacted, it did not mean that indigenous Kikuyu, Masai, Kamba or Meru were poor managers of their own biodiversity. Sorenson, noted that the new settlers had destroyed the biodiversity else where in Europe through hunting and recreation games. As a result the framers of the new policies to govern the land had to put this into consideration.511 One fascinating issue as Steinhart puts it, is that the new legal framers forgot that as living conditions become better, so will the issue of the population growth. As expected, the new policies did not anticipate this. Generally speaking, as the population of the newfound lands increased, so did the demand for more land and more natural resources. This marked the beginning of the threats to biological diversity in Kenya.512 There is a correlation between population growth and increased demand and/or destruction of natural resources, and this needs no recapitulation.513 Although there are no significant statistical figures for the pre-independence days, earliest estimates made by Kuczynsk put the population in the colony at 2.500.000 in 1897. By 1914 this population was reported to have increased to 4.000.000.514 These estimates were computed based on the hut and poll taxes and therefore can not be taken as absolute figures. However, they can offer us an insight into the population trends in the country at the time.

508 Sorenson, M.P.K. 1968.The Origin of European Settlement in Kenya. Nairobi: East African Literature Bureau. 509 Ibid. 510 Steinhart, E. 1991. The Ideology of Game Conservation in Kenya.1945-1965. 511 Ibid. 512 Dilley, M. 1937. British policy in the Kenyan colony. New York: University Press. 513 Liu, J., G.C, Daily, Ehrlich P.R. and Luck G.W. 2003. Effects of Household Dynamics on Resource Consumption and Biodiversity. Nature 421 (6922): 530–533. 514 Kuczynsk, L. B. 1948. Demographic Survey of British Royal Empire. Vol 11. Royal Institute of International Affairs. 106 During pre-colonial times, issues of environmental conservation or biodiversity conservation for that matter were not taken as critical as we see them today. However, societies lived side by side with the environments and as such the environment played a leading role in the lives of the people by providing products for the basics of life like food, clothing and shelter. In a way, intentionally or not, societies practiced biodiversity conservation especially in a bid to protect those species that were thought to be rare through ensuring that they were not over- harvested. 515 The need to balance between natural wants and nature sowed the foundation for colonial policies and legal regimes aimed at biological conservation. This is clearly discernible in both forestry and wildlife colonial legal frameworks. The escalating recreational and hunting safari games introduced by the European settlers only acted as a major incentive to this endeavour. On top of that, there was a notable increase in the number of visitors coming to the new settlers’ colony. 516 It is also important to note that the completion of the railway improved trade between the interior and the coast. This trade increased demand for wildlife products such as ivory and rhinoceros horns, hence affecting the national fauna since Kenya was the greatest supplier of these trade commodities.517 Furthermore, the settlers’ agricultural interests were beginning to take root and as a result Kenya witnessed further destruction of biological diversity. Wild animals also posed a danger to the settlers’ crops and were hence killed in great numbers. On the other hand group hunting was also taking strong roots among the African tribal communities.518 Hunting was not only a game but also seen as a way to attain animal protein to those communities who could not have domesticated animals due to the rampant spread of sleeping sickness in humans. Sadly, many of the domesticated were wiped out by rinderpest and therefore hunting was one way of providing this source of protein. 519 It is imperative to note that since there were no laws relating to biological diversity at the time, many conservationists were at pain with the continued destruction of biodiversity in the “newfound lands”. The British government was equally appalled by this state of affair. However when dealing with pre-independence legalities relating to biodiversity, it is important to note that they did not take place in a vacuum and were also not motivated by merely a desire to conserve, but rather by long-term colonial interests.520 This is manifested in the 1900 Convention on Biodiversity Conservation which made a distinction between harmful and non harmful species. This convention formed the background and foundation for the pre- independence biological diversity conservation legal regimes particularly in Kenya. 521

515 Lord, H. 1957. An African Survey. London: Oxford University Press. 516 Konnange,M. 1955. The People of Kenya speak for themseleves. Detroit: Kenya Publication Fund. 517 Leys,C. 1975. .Politics in Kenya: Development of Peasant society in the British Journal of Political Science 3 (1):307-337. 518 Crafter, S.A.; J. Awimbo and A.J. Broekhoven, eds. 1997. Non-timber Forest Products: Value, Use and Management Issues in Africa, including examples from Latin America. Nairobi: IUCN. 519 Ibid . 520 Schillings, C.G. 1907. With a flash light and a rifle in wildest Africa. Edited by T,Spear and R.Waller. 521 The 1900 Convention on Biodiversity Conservation. 107 Although this convention was initially applied to the fauna, it was later extended to cover flora as evidenced by the subsequent amendments in 1904, 1905 and 1906.522 The convention outlawed the hunting and gathering of specified or classified species. Selective hunting was introduced and hunting licences were awarded to varied persons of the then settler colony. Such persons included the public officers, settlers and sportsmen. Hunting by the natives was equally prohibited, based on the premise that they used crude hunting methods.523 It should however be noted that although this convention laid the foundation for the future conservation regimes in Kenya and later East Africa, it had a lot of inconsistencies and perhaps this also explains the current inconsistencies in the present day biodiversity conservation policies in Kenya evidenced by the nature of the legal regimes governing biodiversity. Like we have previously noted, the 1900 Convention formed the background for the post independence legal regimes relating to biodiversity in Kenya. At the time of independence, Kenya did not have any specific laws relating to biological diversity conservation and as a result had to embark on it after independence. This sub-section will endeavour to highlight the significant changes made to the effect in the realm of biodiversity. To begin with, the framing of legal regimes under the pre-independence period saw no featuring of local populations. Africans were viewed as an impediment in the construction of these regimes and ultimately the colonial agricultural commercial enterprise. This is faceted by the forceful eviction of most communities notably the Kikuyu and Meru from their traditional lands to pave way for the white farmers especially in the highland areas.524 The practice sent most of the evicted Africans to search for new land elsewhere in the country. This was occasioned by most peasant African farmers turning to forested areas for the re- establishment of homesteads and subsistence farms. Understanding this is critical since it helps in tracing the current roots of forest biodiversity destruction in the present day Kenya. In fact the colonial administrators’ institutions took no interest in the African traditional institutions which formed the texture and meaning of community life.525 An evaluation of the British Protectorate Ordinances reveals that the whole concept of environmental conservation was not aimed at protecting the natural environment in which people lived but rather changing the environment for the settlers.526 The year 1928 saw the introduction of the Colonial Game Ordinance which prohibited communities from keeping animals suspected to be harmful to the agricultural farms of settlers. This was followed by the 1933 Convention which emphasised biological conservation as a prime function of national parks. In this convention the national parks were defined at three levels.527 The first level included a place which was under public control and

522 Tudor, J. 1978. The Law of Kenya. Nairobi. 523 Bernstein, H. 1976. Underdevelopment and the law of the Value. In the review of African Political Economy 6:51-64. 524 Sorrenson, M.P.K. 1967. Land Reform in the Kikuyu Country. 525 Cunning, H.M. 1993. Conservation Issues and problems in Africa. In voices form Africa, edited by J Lewis and N.Carter, 1-8. Nairobi: WWF. 526 Colony and Protectorate of Kenya.Ordinace No.58 of 1921. 527 Ibid. 108 whose boundaries could not be altered by any person and no portion of this land could be alienated except by a person of competent authority. The second level involved setting aside large tracks of land for propagation, protection and preservation of fauna and flora and objects of aesthetic, geological, pre-historic, historic and archaeological other scientific interest for the benefit, advantage or enjoyment of the general public. The third level included prohibition of killing, hunting and capturing of fauna and the destruction or collection of flora except by the direction and agreement of the park authorities. 528 The above ordinance was amended in 1945 as a way of fitting it into the Commonwealth Conservation Protocol. It was aimed at bringing land under conservation given the fact that human populations in these areas were increasing. However, Musili disagrees and instead points out that, the amendment was a clear route to the land grabbing policy that was to be instituted later.529 It will be recalled that all land that was occupied by game reserves and protected parks automatically became crown land herein controlled by the Native Land Trust Board.530 In short, legal regimes relating to biodiversity conservation in the pre-independence era de-linked biodiversity from the people, hence institutionalising state control of resources and usurping of common property rights. This state-like method was carried on even after Kenya attained independence in 1963.

The post-independence period Kenya became independent in 1963 and this practically implied that she was now responsible for her own domestic legal regime not only in the area of resource governance but also in the general legal setting and governance structure. Kenya had an option to change those laws that she felt were not in line with the national objectives and in favour of her population. But it should also be noted that since the colonial enterprise had prepared this country as a settler’s colony, this was an uphill task. It involved a lot of discussion with Britain, the former colonial master given the fact that Britain held a lot of commercial and political interests in Kenya. Consequently the conservation legal regimes in post independent Kenya did not change as such.531 The new government was built on the legal frameworks of the old colonial government. Specifically, the appropriation of property and conservation rights was one issue that has remained unresolved until today.532 Laws relating to resource management have since remained a prerogative of the state. The only thing that has changed is the fact that the government has devolved some powers to the regional and provincial governments. This may be construed as a government effort to consolidate its position in as far as resource management is concerned. This sort of scenario leaves the local communities with no access

528 Ibid. 529 Musili, D.N. 1993. Wildlife Conservation and Tourism in Kenya. Nairobi: University of Nairobi. 530 Colony and Protectorate in Kenya. Land and Land Conditions in the Colony and Protectorate of Kenya 171of 1931. 531 Ghali, P.Y and P.W.B, McAuslan. 1970. Public law and Political Challenges in Kenya. Nairobi.University of Nairobi. 532 Keohane, R.O. & E, Ostrom. 1995. Local Commons and Global Interdependence: Heterogeneity and Co- operation in Two Domains. London: Sage Publications Ltd. 109 rights relating to biodiversity, a situation which usually degenerates into forced access to most of the conserved resource regimes.533 Given the existing institutional inadequacies and inconsistencies, enforcement has largely become hard even in the post independence era. This results from the varied users and uses of biodiversity, ranging from the provision of food, direct economic benefits, to promotion of culture.534 In light of the above, the different post independence legal regimes relating to biodiversity management ought to have taken into consideration the aspirations of these different users.535 Although the Kenyan Wildlife Services seems to portray this in its public memorandum, the fact remains that biological diversity is strictly and closely controlled by government. Both, the pre and the post-independence legal regime relating to biodiversity undermined and consequently weakened the traditional institutions of natural resource management in Kenya.536 The new institutions of resource management alienated the local people hence taking away conservation roles from the natives.537 This is illuminated by the laws that were finally enacted. The existing legislations make mutual existence almost impossible and this in part explains why cases of encroachment on biodiversity remain high. Thus, because of this state of affair, the governmental biodiversity governance regimes have largely remained unmitigated and subsequently less effective. Nagendra, like many scholars in the realm of biological resource usage has pointed out that in governing common pool resources such as forests, there may be conditions that tempt individuals to cheat and gain substantially higher benefits. This happens especially when rule mitigation and compliance is weak.538 In light of such a scenario, resource commons in this regard are bound to be vulnerable to externalities. This significantly obtains in the Kenyan resource regime structure.

5.5 Current legal and policy regimes in conservation of biodiversity In the opening section of this chapter, we did mention that although biodiversity is an important national resource, it does not appear in the provisions of the supreme law in Kenya. Further still, there are no clear cut policies that are spelt out for conservation of biodiversity as a resource. Furthermore, there are no provisions for local biodiversity notions. However, issues relating to biodiversity conservation are entailed in scattered, divergent legal and policy frameworks. This means that, in order to analyse the institutional approaches in biodiversity management entails an evaluation of related acts and policies. The study will detail itself on the following acts: The Forests Act, the Wildlife Conservation Act, the Agricultural Act and the Environmental Management and Coordination Act.

533 Fischer.E Opcit. 534 Conservation awareness, The Daily Nation April 17 1997. 535 Kenya will not allow the hunting of Wildlife. The Daily Nation September 1997. 536 Ibid 537 The Kenya Wildlife Act Cap376 Section 34(c), of the laws of Kenya. 538 Nagendra, H. 2002. Tenure and forest conditions: Community forestry in Nepal.Terai. Environmental Conservation 29:530–539.

110 Although Kenya’s policy and legal framework provides for a firm foundation for sustainable management of national biodiversity, there are shortfalls in formal and informal institutional mediation which leads to cracks during implementation. The result is the continued degradation of biological diversity in Kenya. Since this study is interested in identifying the different notions and institutions regarding biodiversity in Kenya, our analysis of the following acts will rightfully highlight the same. We shall augment this analysis with selected literature on this subject matter. The last section of this chapter discusses issues related to biodiversity management including an evaluation of the demand responsive approaches, the role of international interests in biodiversity restoration as well as the re-evaluation of formal rule design and mediation.

The Forests Act, chapter 385 of the laws of Kenya This law was established as an act of parliament to protect the country’s forest biodiversity in terms of forest flora and fauna. The Forests Act, Captor. 385 of Laws of Kenya was first enacted in 1962. It was subsequently revised in 1982, 1992 and 2005. The Act defines a forest as “an area of land declared under section 4 to be a forest area.” The Act addresses preservation, protection, management, enforcement and utilization of forests and forest resources on Government land. The Forests Act is also applicable to Forest Reserves. This Act interprets biodiversity to mean the variability among living organisms from all sources including ecological complexes of which they are part and the diversity within and among species and ecosystems. According to this Act the forests and woodlands are construed to be the natural habitats for biodiversity. The Act, thus defines a forest as: land containing a vegetation association dominated by trees of any size, whether exploitable or not, capable of producing wood and other products, potentially capable of influencing climate, exercising and influence on soil, water regime and providing habitat for wildlife and includes woodlands. This same Act also defines forestry as the act of tendering, utilizing, establishing and protecting forest and tree resources and therefore includes the processing and use of forest and tree products. Lund defined a forest as an ecological system dominated by trees and other woody vegetation. Forest communities are characterized by complex interactions between woody and herbaceous flora, fauna, soils and other physical factors.539 The International Conservation Union (IUCN) defines forests as tree dominated landscapes. 540 According to the current Forests Act, Forest Reserves are land areas that have been surveyed, demarcated and gazetted. They can be gazetted either from Trust Land or from unalienated government land. Forest Reserves on government land are managed by the Forest Department, while those on Trust Land are managed by local authorities. By 1994, gazetted forest reserves on government land amounted to 1,359,254 ha, while gazetted forest reserves on trust lands totalled 328,136 ha. This amounts to about 20% of the total area gazetted as

539 Lund, H. 2006. Definitions of Forest, Deforestation, Afforestation, and Reforestation'. Gainesville, VA: Forest Information Services. 540 IUCN. 1996. Forest Cover and Forest Reserves in Kenya: Policy and Practice. Nairobi: IUCN. 111 Forest Reserves.541 Most of the area under forest reserves is covered by indigenous forests. A significant 25% of that area in forest reserves is covered by non-forest vegetation while 9% is plantation forests. Approximately 64.63% of indigenous forests are found in gazetted Forest Reserves.542 Section 3 (21) of the same Act also informs that all forests in Kenya, apart from those on private land and those owned by the local authorities, all other forests are vested in the state.543 While this distinction has been made, we must point out that a large bulk of forests in Kenya fall under state ownership, yet continued degradation and extinction continue to occur in most of these reserves. This indicates a shortfall in the implementation of enforcement mechanisms. It is another pointer to the failings embedded in the statist and globalcentrict notions of biodiversity conservation in Kenya. Our analysis indicates that these shortcomings have been far reaching and somewhat reflected in the amended Forest Act, 2005. Though the Act tries to devolve some powers to local governments, local users’ notions and perceptions are still delineated. The Forests Act makes mention of a forest community, which has been defined as a group of persons who have a traditional association with the forest for purposes of livelihood, culture and religion. Usage of forests for purposes of cultural and traditional significance also requires due registration and due permission from the Director of the Kenya Forestry Service, who in turn writes to the Forest Service Board informing it of the apparent need. The Board hereafter advises the Minister of Environment and Natural Resources on subsequent action. All this shows that there are wide discretionary powers vested in the minister who can grant or refuse an application and his response to this is treated as final. We also observe that though the new Forest Act has a fair appreciation of local populations, it is still riddled with inconsistencies regarding local populations’ usage of forest biodiversity. Local institutions can not freely relate to these forest resources. Cernea notes that in order to maintain strong institutions community needs must have social organization. 544 Thus in relation to the above, we note that a form of social organization comes with the ability of such communities to take part in effective decision making especially in cases where informal institutions relating to resource usage are strong. This is clearly lacking in the Forests Act. There happens to be no requisite power granted to the local communities living around the forests to achieve such a feat. The Act also points out that sacred groves found in any state forest, nature reserve, or private forest shall not be interfered with and any person who without lawful authority fells, cuts, damages or removes any such grove or tree or

541 UNEP. 1992. Convention on Biological Diversity. Nairobi. 542 Wass, P. 1995. Opcit. 543 The Kenya Forest Act Cap 385, Section3 (21).

544 Cernea, M.M.1987.Farmer Organization and Institutional Building for Sustainable Development. Regional Development Dialogue 8:1-24. 112 regeneration thereof or biodiversity therein or abets in the commission of any such act commits an offence.545 Armed with such power, the enforcers of the Act have every right to curtail local communities and their informal institutions relating to biodiversity. By virtue of the fact that this power also extends to private forests, is an indicator of total disregard and abuse of private biodiversity property rights. Steins and Edwards remarked that, one commonly accepted criterion for institutional development to take place is devolution of property rights to individuals who use the resource.546 The duo mentions that social institutions that have evolved as a stream of benefits might be stronger and more durable in managing a resource system. 547 A resource system with well defined local institutions and property rights attached to it indicate the intention for some party to ensure that potential users observe any predetermined restrictions or prohibitions concerning access to and use of the resource.548 The mere fact that institutional property rights are flawed and poorly defined may probably be interpreted to mean that local communities may never have the trust and responsibility to protect forest biodiversity.549 In the same regard North warned that failure to define property rights in resource regimes will lead to increased transaction costs.550 The implication here is that enforcers of formal legal regimes may turn to more stringent enforcement measures such as “fines” and “fences” in the management of forest biodiversity. This is more evident when one closely examines section 5 of the current Forest Act. Furthermore, the Act gives a detailed account on issues regarding enforcement, with far reaching powers given to the paramilitary and forest officers alike. More of these far reaching powers are further entrenched in the hands of the Director of the Forest Services under paragraph 25(1). With such power the Director of Forest Services can even enter any private registered forest in order to asses the condition thereof, or to perform any other duty he considers necessary in the circumstances.551 This is a clear violation of rights relating to ownership of property. It is also a direct contradiction of laws regulating ownership of private resources such as land and related resources as indicated by the Land Adjudication Act. The entire amended Forests Act, gives little recognition to informal institutions and their contribution to rule enforcement among communities living near the forest biodiversity

545 The Kenya Forest Act, Section 33 (4). 546 Edwards, V.M. 1996. Managing the Commons: A Framework for the Analysis of Institutional Change and its Application to the Management of the Multiple-use Commons of theNew Forest. Research Monograph. Portsmouth, UK, University of Portsmouth. 547 Stein, N.A and V.M,Edward. 1999. Collective Action in Common Resources Management: The contribution of social constructivists Perspective to existing Theory. Society and Natural Resources 12:539-557. 548 Ibid. 549 Meinzen-Dick, R. and L.A. Jackson.1996. Multiple Uses, Multiple Users of Water Resources. Paperpresented at the 6th Conference of the International Association for the Study of Common Property.Berkeley, California, 6-10 June 1996. 550 North, D. 1992. Transaction Costs, Institutions and Economic Performance.Ocassional Paper 3o. International Centre for Economic Growth . SanFransco: ICS Press. 551 The Kenya Forest Act Cap 385, Section 25 (1) of the laws of Kenya. 113 resources. The analysis obtained from this examination, portrays a situation of the perceived state fear that if informal institutions take precedence, then most of forest resources would degenerate into unregulated access. However, Claude et al. think otherwise. They inform that informal institutions in the form of indigenous knowledge are instrumental in the biodiversity conservation efforts. They look at this contribution outside the economic and political mindset. They observe that local knowledge held by local communities concerning useful plant and animals in and around forests is a practical and cost effective method for identifying species at risk of over-exploitation and hence a great contribution to ethno-botanical research too.552 This position seems to be well collaborated by Uphoff who agrees that informal or local knowledge if well utilized can form the backbone for information which conservationists can use for interventions to promote sustainable use of resources around forest ecosystems. 553 Finally regarding the Forests Act, we ought to note that under the current forest law, there happens to be reviewed understanding between the Forest Services and the Kenya Wildlife Services. The two acts hither to operated in contradiction especially regarding the issue of licenses and game permits. Paragraph 54(3b) informs that provided nothing in this sub paragraph shall be deemed to prohibit the capturing or killing of an animal in accordance with the conditions of a valid license or permit issued by the KWS.554

The Environmental Management and Co-ordination Act (EMCA) The Environmental Management and Co-ordination Act (EMCA) enacted into law in 1999. It provides for the establishment of an appropriate legal and institutional framework for the management of the environment. It should be noted that the EMCA did not override or replace other laws, but was rather established to coordinate and be used alongside other existing laws regarding environmental management. NEMA, which was established by the same Act, is the major agency involved in the execution of this law. Its major role evolves around the co-ordination of environmental activities in collaboration with other governmental agencies and departments. This Act looks at different aspects of the environment such as pollution of land, forest and water biodiversity. 555 The Act was designed to fill the gaps that were created by sister acts in the realm of environmental protection. For this, it upholds an all inclusive approach towards environmental protection and preservation. It provides for the legal regime to regulate, manage, protect and conserve biological diversity resources and access to genetic resources, wetlands, forests,

552 Claude, R, E.Gregorie, P.J Jean and P.L.Delvilled. 1997. Societies and Nature in the Sahel. London and New York: Routledge. 553 Uphoff, N. 1992. Local institutions and Participation for Sustainable Development. International Institute of for Environment and Development-Sustainable Agriculture and Rural Livelihoods Programme, Gatekeeper Series 31: 1-16. 554 The Kenya Wildlife Conservation and Management Act. 54 (3b). 555 The Kenya Environment Management and Co-ordination Act, Article 9(2)a. 114 marine and fresh water resources and as well the ozone layer.556 As earlier noted, the Act creates NEMA as the agency responsible for the implementation of specified clauses of this Act. In relating this act to institutional related aspects, Section 43 of the Act points out that the interests of local communities customarily resident within and around lakeshores, wetland, coastal zones, riverbanks or forest can be declared to be of protected interests.557 The Act however, does not define what protected interests are and for whom. This shortcoming as earlier pointed out, is consistent in most of the legal regimes. Since protected interests are not well defined, utilisation and conservation becomes suspect. This same fact is illustrated by Section 54(2) which states that a Minister in consultation with the lead agency can declare an area of land, sea, or river to be a protected natural environment for the purpose of promoting and preserving specific ecological processes, natural environmental systems, natural beauty or species of indigenous wildlife or the preservation of biological diversity in general. More still, using Section 54(2), the National Environment Management Authority (NEMA) may issue guidelines and prescribe measures for the management and protection of any area considered to be of environmental significance under the section.558 An informed analysis of the above sections and several others portrays a picture of a legal framework aimed at extreme formalisation of environment and biodiversity management in particular. Though this is aimed at preventing further destruction of the environment and biodiversity including that found in private and commonly owned resources, it may face a dilemma of misperception. The Act is also at variance with informal institutions such as customary law in the management of environment or biodiversity. More so, the Act curtails customary rights of access to environmental resources and proposes no steps for compensation to affected communities or individuals. 559 Therefore given such an evaluation, structuring and mediation of formal and informal institutions co-existence in regard to biodiversity is of paramount importance. We ought to appreciate March and Olson who put it that mediation between formal and informal institutions is imperative because it constrains individual behaviour.560 It also goes without saying that institutions constrain the actions of individuals hence individual behaviours are bounded to some degree. This similar situation can be likened to what Khadaha and Gurung described as a catch–all strategy in relation to the Forest Nationalisation and Management Act in Nepal. The duo mentions that when the Nepalese Government nationalised the country’s Forests, it took away collective and individual control of local forest resources. Thus communal responsibility for forestry management rapidly disappeared in the country. Forests were converted into open access areas as a common property resource, with communities having no stake in forest preservation. Yet at the time of nationalisation, the state was unable

556 The Kenya Environment Management and Co-ordination Act, Article 9(2)o. 557 The Kenya Environment Management and Co-ordination Act, Section 7. 558 The Kenya Environment Management and Co-ordination Act, Section 54(2). 559 The Kenya Environment Management and Coordination Act, Section 54(1). 560 March.E and J.P Olson .1984. New Institutionalism: Organisational Factors in Political life. American Political Science Review 78: 9734-749. 115 to protect and manage the country’s forest resources given the fact that it lacked effective institutional network and capacity.561 This same scenario is relevant as we grapple to understand the kind of institutional regime that obtains in Kenya.

The Agriculture Act (Cap 318) The Agriculture Act has the following stated objectives: To promote and sustain agricultural production, provide for the conservation of the soil and its fertility and stimulate the development of agricultural land in accordance with the accepted practices of good land management and good husbandry.562 In the Agriculture Act we find a strong institution regarding the Kenyan resource sector. However, this should not be wholesomely construed to represent efforts to protect biodiversity, but should be appreciated in the purview that agriculture is one of the leading sectors in the Kenyan Economy, contributing up to 27 percent of national GDP and up to 75 percent of the foreign exchange base.563 Agriculture also provides up to 70 percent of raw materials to Kenya’s agro-based industries and provides employment in the rural areas through intensive and extensive farming.564 Fundamentally, the Act defines ministerial statutory powers on how such powers should be used in enforcing the provisions of the act, especially in implementing agricultural related tasks. The Act identifies a number of agencies to assist the Minister in executing these duties. These agencies include the District, Provincial and the Central Agricultural Committees. To achieve its objectives, the Act gives the Minister the authority to determine ownership of agricultural lands. The Act gives the Minister and/or the Director of Agriculture in consultation with relevant authority such as the District Agricultural committee, powers to take over any land resources in emergency cases.565 The Act further stipulates the important formal institutional roles in this sector. These roles are entrusted in the person of the Minister of Agriculture and/or the Director of the ministry and must ensure among others.566 The other institutional role regards enabling of new settlements and provides rules that govern such settlement, including outlining the crops to be grown, the number and type of livestock to be kept, and the agricultural production procedure. This provision is buttressed in the effort to limit activities that exploit land and damage the environment. Under this provision, the ministry in consultation with its various offices can demarcate land for preservation with a land preservation order. We further note that there are no inherent provisions on property and rights of tenure to the affected owners.

561 Khadaha,C and E.Gurung. 1999. Forest Nationalisation in Nepal. 562 GOK, The The Kenya Agricultural Act section 2(1) Cap 318 of the laws of Kenya. 563 GOK. 2004. Ministry of Agriculture, Livestock and Fisheries Development:A strategy for Revitalisation of Agriculture 2004-2014. 564 The Kenya Agricultural Act section31(2) Cap 318 of the laws of Kenya. 565 The Kenya Tea Development Order. LN 113/1970. 566 The Kenya Tea Development Order. LN 113/1970. 116 In addition, the director of Agriculture may issue land preservation orders requiring the owners to adopt any agro conservation system in relation to the land in question.567 Under such orders, the owner is required to undertake conservation and is prohibited to undertake any activities perceived to be incompatible with good land management practices.568 Further still, the director may prohibit the grazing of livestock in vulnerable ecosystems and require the forestation of land in order to reclaim land which is at the verge of degradation. Similarly, the Act empowers the above authorities to make rules for preservation, utilisation and development of agricultural land including the control of farm land activities as well as limiting the size of land available to farm workers for utilisation. It also allows local governments to make bye-laws for the same purposes.569 The particular dilemma with this law is that it does not elucidate the procedures to be followed in undertaking any of the above enforcements. Like other laws in this Country, there are no provisions for local or traditional practices of land conservation in relation to biodiversity, a particular indicator that the law borrowed form the colonial conservation narratives, that usually branded traditional conservation methods as inefficient and wasteful. One other issue that must be pointed out is that the Act can dispossess owners of their land if they violate any land preservation or land development orders. This exhibits an extreme command and control posture of this specific Law. This kind of command and control posture is supported by Wear. He posits that formal institutions exert their inherent influence to regulate individual or human behaviour through surveillance and sanctioning power.570 We however note that while formal institutions perform a regulative function, we must also appreciate that individuals define and assign values to the environment in which they operate. Turning to agricultural conservation practices, it must be pointed out that because of assigned values to the environment, individuals carry out conservation practices based on the normative structures within defined localities. Given the fact that the framework of the agricultural the Act is built around commands and controls as exhibited by section 48(1).571 This can be a major disincentive for efficient land use and long-term biodiversity conservation.

The Wildlife Management and Conservation Act Wildlife constitutes an important national resource with substantial socio- economic, cultural, scientific, aesthetic and environmental values. The Wildlife Act, chapter 376 of the Laws of Kenya, aims at regulating the management and the conservation of the nation’s wild flora and fauna. The Act recognises wildlife conservation in two areas. These are areas set aside exclusively for wildlife such as parks and reserves as well as sanctuaries with no active

567 The Kenya Agricultural Act, Section 48(a). 568 The Kenya Agricultural Act, Section 48(d). 569 The Kenya Agricultural Act, Section 48(2). 570 Wear, D.N.1992. Forest Management, Institutions and Ecological Stability. A paper presented at the Appalachian Society of American Foresters’ meeting, Asheville: North Carolina. 571 The Kenya Agricultural Act. Agricultural Act, Section 48(1). 117 utilisation and development. The other category includes those areas in private trust or government lands which have wildlife.572 The Kenya Wildlife Services (KWS) is the only agency legally mandated to conserve and manage Wildlife throughout the country. It has the sole jurisdiction over national parks and plays a regulatory role in the management of private wildlife sanctuaries.573 The Act was established on the legal provisions of the 1975 wildlife and conservation policy. As a result, it retained some of the pre-independence institutional and legal gaps, chief of which was alienating the informal attributes and values that communities used in the management and conservation of wildlife. The Act has also delinked the proximate relationship between the people and natural resources such as wildlife and land, given the different systems of land tenures that were followed in the design of the wildlife governing regimes.574 Regarding the particular regime in question, we must highlight that, section 18(b) empowers the KWS to demarcate land for wildlife in the name of wild animal protection.575 At the extreme end there is a trust system of permanent land curved out of communal land to create nature reserves, which led to disintegration of social and cultural institutions relating to land use and other related practices. Hence it converts most land from traditional tenure to trust ownership which strictly forbids access to the former owners without due regard to compensatory mechanisms. Wilson mentions that the economic values of biodiversity can be seen from an aesthetic view but hasten to add that this is not easily quantifiable. He further points out that as a result nature’s valuables are reserved in national parks and reserves. However, the Author admonishes that curving large tracts of land to create parks without considering complex and interrelating patterns of natural resource users. This he argues, is considered to be inconsistent with conservation imperatives.576 As regards the rights to property and access we must note that the Act does not integrate populations living around the wildlife parks, reserves and sanctuaries. Section 6 of the Act prohibits those people from collecting and hunting in the parks. This leads to a conflict in the varied demand for the wild flora and fauna. We also note that this system of land use is construed as imposed, given the fact that new land use values postulated by the Act are in conflict with the old values that were found to be well rooted in most of these areas. For instance, Osolo-Nsubo points out that given the fact that most of the land on which the parks are located was originally under communal land holding systems, it meant that all resources found therein were common pool resources and therefore free for members. Such resources included the pasture for grazing, timber resources, water and ecological plants and animals.577

572 KWS. 1991. A Policy Framework and Development Programme:1991-1996. 573 The Kenya Agricultural Act. Wildlife Act Cap 376 Section 3(4). 574 The Kenya Agricultural Act. Wildlife Act, Section 3(4)j. 575 The Kenya Agricultural Act. Wildlife Act, Section 18(b). 576 Wilson, P.N. 1990. Ecological Dynamics and Human Welfare: case Study of Population, Health and Nutrition in Southern Zimbabwe. PhD. Dissertation. Department of Anthropology, University College, London. 577 Osolo-Nsubo, N. 1977. A Social –Economic Study of the Kenya Highlands from 1900-1970: Acase study of 118 Gottfried suggested that natural resource systems that provide related services are appropriately modelled as multiple productive assets that may be long lived. He mentions that the productive assets in the African rangelands are a geographical area of bush land some of which is used to produce food crops. He also points out that the major primary products from these rangelands are food, grazing grass, and bush meat. He therefore concludes by mentioning that property rights and collective action institutions that often mediate relationships between people and natural resources depend upon the motivation of those who value the products of the natural resource system. 578 Therefore the introduction of parks in the Kenyan resource management system meant that the original common resource owners had to forfeit their rights since parks are closed or restricted areas. However, though most of the reserves were created at the dawn of the 19th Century, communities that were displaced from these common pool resources still perceive wildlife conservation with a lot of acrimony and animosity.

5.6 Formal rule design and mediation: between the national and local Interests Debating the design and relationship between formal and informal rules can be daunting because it creates several adjunctions and several points of departure. However, mediating between national and local interests during formal rule design can be more challenging for the actors investigating institutional mediation, because it is a necessary pre-condition for the durability of the intended results. After making an analysis of four critical formal institutions relating to biodiversity in Kenya, one can argue that overall the regimes need to be re-examined and aligned to mitigate the interests of multiple actors in the usage of biodiversity as a resource. This is seen and analysed in the eyes of a holistic rule design which we can also call an institutional and /or rule based perspective. This perspective postulates that rules typically have the “If; then; what else”. It is this structure that examines the state of the institutional system in the question and then sets values in slots accordingly. 579 The rule based system is usually a product of the inputs from forecasting. High priority rules can sometimes overwrite values set by lower priority rules and the opposite is also possible. This means that rules are listed in order of priority and these priorities must be based on the assigned ranking.580 Based on the fact that higher rules sometimes have insufficient information, it makes them susceptible to failure and hence they must always be re-thought, re-examined, re-shaped, and re-ranked in order for them to meet their functions. The assertion that rules will always be optimal is misleading especially when confronted with conflicting

the Uhuru Government. Nairobi. 578 Gottfried, R. 1992. The Value of the watershed as a series of liked multi product assets. Ecological Economics 5:145-161. 579 Schauer, F. 1992. Playing by the Rules: philosophical Examination of Rule Based Decision Making in Law and Life. Oxford: Clarendon. 580 Ostrom, E. 2003. Doing Institutional Analysis. Digging Deeper than Market Hierarchies in Workshop Readings in Political Theory and Policy. Bloomington: Indiana University. 119 realities on the ground. Formal institutions formulated in exclusion of informal inputs and considerations, are always not optimal, efficient and egalitarian. When applied without carefully or empirically analysing them, they will always lead to misleading results. This will in most cases be based on functionalist explanations as a justification for irrational rules. Olson puts it that, formal institutions will always decrease transaction costs, but when inefficient will lead to increased transaction costs.581 In order to achieve a genuine and durable rule system cognisant of the varied interests and conflicts, it is imperative to undertake rule mediation especially in a country whose population is composed of different ethnic groups linked to resource commons. If a country like Kenya is to benchmark its formal rules, it must search for moderated rules systems and methods. This must be done selectively, consciously and deliberately, following a best practices model.582 At issue is; to what extent Kenya’s biodiversity regime managers have emulated the best- practices consciously and deliberately in accordance with a genuine rule based system? The answer to this puzzle lies in the argument advanced by Ostrom. She shapes her proposition from well-documented cases of informal institutions that had evolved into formal institutions, through appreciating localized arrangements. She argues that groups can evolve effective institutions without an external coercive authority if they could solve a "common set of problems relating to resource usage within the group itsself.583 Naturally, this will entail that group boundaries are clearly defined, that rules governing resource usage are well matched to local needs and conditions, that the most affected members can participate in modifying these rules and that the appropriating rights of members to devise their own rules is respected. The new forest law endeavoured, though in a very limited measure to appreciate the role of community participation, but still ignored the role played by informal institutions in the management of forest resources. This is exhibited by the far reaching powers embedded in the extremely formal and stringent management style adopted by the particular provisions of this law. Therefore, although new in outlook it may not be successful in attaining its intended functions. To understand this further we may crane our focus into viewpoints provided in the analysis made by Yami and Ruttan. They argue that design principles can be extracted from cases of successful groups managing their own common resources and simulated to those groups which are having some strictures or which have failed in the resource management. The duo postulates that these design principles may act as clues to the problems preventing collective action in many failed instances. In short they assert that neither direct intervention by the state nor total privatization are remedies for states to evolve successful formal institutions.584

581 Olson, E. 1999. A Microeconomic Analysis of Institutions. Working Papers in Economics. No. 25, Department of Economic, Goteborg University. 582 Selter, R.1978. The Chain- Sore Paradox: Theory and Decisions. 9: 127-159. 583 Ostrom, V, D. Feeny and P, Hartmut. 1993. Rethinking Institutional Analysis and Development. Issues. Alternatives and Choices. San Francisco: California Institute of Contemporaray Studies. 584 Ruttan, V. and Yahami. M. 1984. Towards a Theory of Induced Institutional Innovation.Journal of Development Studies 20:203-223. 120 Based on the review and analysis of the four critical regimes regarding the management of biodiversity resources in Kenya, it can be pointed out that there is a reasonable degree of formal and informal institutional mismatch regarding the management of biodiversity resources, especially seen in the realm of property rights, and informal institutional arrangements. Currently Kenya employs the formal rules system that forms the cornerstone of her resource management regime and has close links with donor-assisted interventions. Therefore, understanding and appreciating this institutional mix is, and will remain essential in informing future legal reforms governing biodiversity in Kenya. Similarly the need to investigate and seek to understand why some rules work and why others fail may be a good formulary for creating new ones that are likely to be successful. This, as Pavlisch notes, is attained when policy elites detail themselves with the formalist insights and the political logic of community mediation practices as a confessional institution that deploys social cultural pressures in a search of non disputing self identities.585

5.7 The role of international interests in biodiversity restoration in Kenya International actors, international treaties and customary international law have a significant influence on institutional development at the national level in Kenya. This influence extends to the legislation of various national laws in the realm of national environment and/or biodiversity. It is a duty of states to ensure that the activities within their jurisdiction do not cause harm to national and global commons.586 Such global commons include marine mammals, the biosphere, seabeds and the atmosphere among others. This means they are supposed to observe the best environmental standards in their boundaries and to control negative externalities to other states.587 Therefore, in the following analysis we realise that national jurisdiction is as a very important pillar of international environmental law. We must also note that the principle of sustainable development is one of the leading tenets in the development agenda in Kenya. It is also a central ingredient in international environmental law.588 In relation to the above and in collaboration with various international actors, Kenya has also embarked on a strategy to incorporate biodiversity restoration as part of the key pawns in its new environmental chess game. In its Environment Management and Coordination Act, the government placed a precautionary provision in relation to biodiversity preservation and restoration. It states that management activities should be undertaken so as to prevent significant irreversible environmental dangers to the country. The country is committed to adopting and implementing the National Biodiversity Strategic Action Plan (NSAP). New policies and legal frameworks are incorporating measures for conservation and sustainable

585 Pavlich,G. 1996. The Power of Community Mediation: Government and Formation of Self Identity. Journal of Law and SocietyReview 30:707-733. 586 Birne,P and A.E Boyle. 1992. International Law and the Enviroment.Oxford: Clarendon Press. 587 Ibid. 588 Okoth-Ogendo, H. 1991. Tenants of the Crown: The Evolution of Agrarian Law and Institutions in Kenya. Nairobi: ATC. 121 development. The 9th National Development Plan recognizes the importance of sustainable use and conservation of biodiversity. Many other initiatives include conservation and sustainable use, deliberately addressing the obligations of the convention. We ought to note that Kenya as a country plays a central role in the international environmental organisation. The country is host to the United Nations Environmental Protection (UNEP) headquarters as well as many other influential organisations and multinational actors in the realm of environment. This inevitably makes Kenya consider biodiversity restoration as an important undertaking. It must also be mentioned that being a tourist destination to many western nationals, Kenya has been adopted as a leading tourist resort base. For this reason, the diversity in this Country’s wildlife has attracted a number of international interests. For instance, due to international pressure the Kenyan Wildlife Service ingrained the provisions of the CITES in the Wildlife and Conservation Act by banning game hunting and revoking all licences.589 More recently, concerns over biodiversity management have assumed prominence in Kenya’s environmental resource regime. In this context, the government of Kenya has undertaken partnership with many leading transnational actors in this area. These partnerships have resulted into the development of long-term strategic plans and programmes for restoration and management of biodiversity. The process has in most cases seen the integration of biodiversity into the relevant cross-sectoral plans, programmes and policies. Such policies and plans have also attracted wide donor funding which to a great extent has oscillated biodiversity restoration in the country. In this study we wanted to further find out what accounts for increased international interest in the Kenyan biodiversity enterprise. Among others the interest of this study was to investigate the impact of international donor initiatives in the biodiversity restoration in Kenya. We found out that some of the leading drivers in the biodiversity enterprise such as INCRAF, OXFAM, WWF, GTZ and ICUN among others are deeply rooted in the Kenyan biodiversity sector. However, a substantial number of the International NGOs evaluated were largely interested in the medicinal and food plants regeneration, ecosystem stability, bio-prospecting and ecosystem services in the forest belts of Kenya. But what is not in place currently is a policy streamlining NGOs working in the biodiversity area. In most cases monitoring reports reviewed by this study revealed that, many of the international environmental NGOs had a strong orientation to a wider political economy of increased forest excisions and bio-prospecting. This observation however, tends to oscillate uncomfortably with the underpinned interests of the state aimed at portraying a picture of improved image in the state of biodiversity in the country, particularly in the forestry sector. This is well articulated in the First and Second Country Reports on the implementation of the Convention on Biodiversity to the United Nation Environmental Program (UNEP).

589 Thayer,W.H. 2004. Fight to keep Kenya's wildlife off Dinner Tables: Poachers are Snaring in National parks. Chronicle Foreign Service. San Francisco.

122 Furthermore, issues of monitoring and enforcement stand out very prominently in the management of biodiversity resources as seen in the realm of forestry and wildlife as sectoral users of biodiversity. We have earlier noted that this is also given ample clout in the Forest Act as well as the Wildlife Act. We certainly note that enforcement translates into big donor funding as articulated in the First National Report.590 The report points out that there is need for a simple, robust, and scientifically defensible monitoring system which will enable institutionalised monitoring within government agencies and other relevant players. To ensure sustainability, there is need to support the initial running costs of the systems. This should be done in view of the following: (i) Standard forms have been developed and are being used to collect data on important bird areas (ii) Synthesised information from monitoring data is being disseminated to stakeholders regularly (iii) Human resource available, but materials and operational costs very limiting (iv) Capacity building on indicators and monitoring programme has been developed.591 In relation to the above, we must point out that there is also a potential conflict of interest from the international donor group, especially with regard to the execution of monitoring, advocacy and other related services for biodiversity. For instance we need to ask: what is the balance of interest in reporting between the negative (forest crimes and offences, degeneration, pollution among others) and the positive (in terms of better forest management and improvement of the national image) try to integrate what is in the brackets into the sentence. These questions are essential since they inform the decisions for those actors interested in seeing more investment in the improvement of biodiversity management. Given the fact that international interest is so strong in the country, such assessments be it partial or impartial can have a significant impact on the improvement or restoration of biodiversity as a resource in the country. The other critical area of interest that forms part of the wider donor interest in the biodiversity enterprise is the capacity building component. This was found to be an integral component in many of the international NGOs evaluated. Seen through an international political economy lens, capacity building translates into big donor funding/multilateral investment. What was not well tabulated however, is how much of the funds are finally absorbed by the Kenyan biodiversity sector? Therefore, although the above treatment offers an insight into the international perspective and influence on biodiversity restoration in Kenya, one key question that remains a puzzle for future research is why Kenya has become a centre of interest in terms of biodiversity restoration and conservation at this point in time.

590 GOK. 2000. The First National Report on the implementation of Convention on Biodiversity. 591 GOK. 2005. The Second National Report on the implementation of Convention on Biodiversity. 123 5.8 Biodiversity and institutional reforms in Kenya: A shift towards a demand responsive approach? A wave of formal institutional reforms continues to sweep across the environmental and inadvertently the biodiversity sector in Kenya. The close of 2005 saw the enacting of the new Forest Act and there is also a new Wildlife Act in the offing. Many other policies relating to water, land, agriculture, pollution and waste management are also under review. More strategically, the UNDP/UNEP reviews in the late 1990s pointed out the poor financial, institutional and operational management of supply driven organisations in the realm of environment that resulted into further inconsistencies in service delivery and degradation.592 Other independent reviews supported by the UNDP and the Global Environmental Facility (GEF) pointed out that the problems were more institutional and structural and if not handled threatened the national and regional environmental status.593 There were apparent calls for more legal reforms at the national level. In such a scenario we continue to ask our selves; are supply driven approaches not delivering or is it a mere shift towards a demand responsive approaches? At the beginning of this chapter we noted that there are no clear provisions relating to biodiversity as a resource in the supreme law of the land, the constitution. Similarly, there are no provisions for ownership of biodiversity and its accruing benefits. There are however a number of calls to carry out reforms in this sector as well as to recognise the intellectual contributions of the local people in the name of local knowledge transfer, and to entrenched new legislations for better management of this resource. We have also mentioned in the earlier sections of this chapter that the constitution of the country puts it clearly that every one is entitled to a healthy environment and this is apparently not well obtained. The management of biodiversity is largely a state-centred affair, with responsibilities being spread to the central and provincial governments through the various agencies in the respective sister sectors, key of which are Forest Services and the Kenya Wildlife Services. This centre-state institutional relationship was premised on the understanding that the government of Kenya, having initiated the process of macro-policy formulation, institutional establishment and autonomy, would help to strengthen the respective government agencies to enforce legal regimes regarding the environment. Further still, it was anticipated that state organisation would gradually enhance efficient policy formulation and achieve financial independence. However, this has not been feasible. We have discussed the need for formal- informal institutional embrace and we need no emphasis on this. The call for institutional reforms in the biodiversity sector? is however not only based on this formal-informal mismatch, it is also based on the interaction gap between state actors and private sector

592 UNDP/ UNEP. 1999. Development and Harmonisation of Environmental Standards in East Africa.Nairobi: UNDP. 593 UNDP. 1999. Legal and Institutional Issues in the Lake Victoria Basin. Nairobi: UNDP 124 players, especially given the role of the extractive industry in the rural and semi-rural economy in Kenya.594 More so, we need to point out that apart from institutional weakness, there are also structural weaknesses at the organisational level, culminating into dilemmas at the level of institutional design and implementation. Throughout the biodiversity decades, that is the years that followed the Earth Summit in Rio de Janeiro, problems of ownership of biodiversity, pollution and biodiversity degradation came to the fore. The debate has attracted issues of Access and Benefit Sharing (ABS) which are increasingly becoming part of international and national policy and legal agendas. In this study it is logical to ask: how do people at the local level perceive and assess access and benefit questions, in particular, in the light of national and international guidelines, model laws and other new forms of defining and regulating ABS of biodiversity resources? What mechanisms can support more equitable benefit sharing among the local people? Do these local perspectives inform the national and international agreements? And if so, how can the potential conflicts between local level accesses and benefit sharing priorities and national/international interests be solved? How to build or strengthen local capacity to have a voice in the above questions and answers to the questions? While these questions formed the backbone of this study, they were not warmly received by the intended audiences in Kenya’s biodiversity resource management sector. The same questions also seemed to torment those in the positions of biodiversity governance and as one Key informant Dr. Matanga intimated to this study, the same questions have remained unanswered and hastily noted that they could be responsible for the current wave of reforms that are eating up the sector.

594 Medows, R.F. 2001. Causal Linkages between Poverty and Environment in Kenya. Natural Chatham: UK. Resource Institute.

125 6 Institutional Mapping at the Local Level 6.1 Sample size determination and identification of clusters A total of 220 farmers were interviewed in a local institutional mapping household survey conducted in villages around Kakamega Forest. The survey respondents, who were predominantly farmers, are spread in the different clusters that were statistically constituted by the district statistical office in Kakamega. These clusters also fall under the sampling frame that is used by Kenya Central Bureau of Statistics. The usual sampling procedure in Kenya consists of randomised selection of clusters corresponding with enumeration areas within a master sample, with a probability equivalent to size in the number of households in every selected cluster. In each cluster, there are 168 house holds. Therefore, delectation of clusters was based on the sampling frame developed by the National Sample Survey Evaluation Programme (NASSEP III). The NASSEP III sampling frame is a two-stage stratified cluster sample design with individual districts forming the strata. In this regard, Kakamega District has 26 clusters. From these, 11 clusters were identified for the survey. These clusters eventually provided the principle sampling points. The Principle Sampling Point (PSP) was a village commonly known as a location. These clusters were purposively sampled given their location and proximity to the forest. Because the survey intended to investigate the role of local notions in institutional framing, clusters with localities in or around the forest were found to be useful. Hence the areas around the forest were deliberately represented in the sample. In each cluster, two villages were visited and in each village, 10 households were randomly chosen and interviewed. Hence, from each cluster 20 households were interviewed. In total 220 house holds were sampled. The sample size for the house holds to be covered in the local mapping survey was statistically determined based on a precision of 5% and a confidence level of 95%.595 On top of data collected from the individual household respondents, 11 focus group discussions were held to augment the quantitative data. Having processed the sample size, the survey team proceeded to identify the eligible enumeration areas. It is important to point out that each cluster contained 168 house holds. These clusters are thought to represent the different geographical scope of the district. However, these same clusters also take into consideration different other aspects such as semi-urban/rural stratifications, economic and social differentiations as well as livelihood zonations.596 Based on the assumption that local notions are more understood and appreciated by household heads, the interviews were restricted to the two household heads. In the survey, either the husband or wife was taken as the respondent. The average distance was 4 kilometres from Kakamega forest. This distance was ascertained by making rough approximation by the survey enumerators. In the survey the mean number of adults residing in a particular

595 Bartllett, J.E, J.W, Kotrlik and Higgins, C. 2001. Opcit. 596 CBS. 2006. Kenya Economic survey. Nairobi: Government Printer 126 household was 6. Adults are here defined as persons above the age of 18 years. This figure was ascertained after taking a mean of all adults residing in the households. During the survey this figure was ascertained by asking the demographic question; what is the number of adults residing in the house hold? Most respondents interviewed had spent at least 40 years in the enumeration area. This is an indicator that they were at grip with the local institutions in the area. It was derived from the demographic question to the respondents….…”How many years have you spent in this area?” The value presented in the table shows the average number of years all respondents in the survey had spent in the enumeration area. The most predominant occupation in the area was farming. This is derived from the respondent demographic question; what is your occupation? The value indicates 85% of the respondents who answered that they were farmers The following table below presents a summary of the sample characteristics.

Table 6.1 Sample characteristics Characteristics Value

Approximate distance from the forest 4 Kilometres Average number of household Adults 6 Adults Number of Adult workers aged 18-65 116 Number of Villages in the sample 44 Number of years spent in the Enumeration Area 40 Most predominant occupation in percentage terms 85 Total number of households in the sample 220

Source: Field Survey data.

Respondents demographics Gender The survey was conducted in July 2006 and it attracted 220 respondents. These were found across the different divisions in Kakamega district. These included Kabras, Ileho, Ikolomani, Shinyalu, Navahorolo and Lurambi. 62.56% of these were men while 37.44% were women. Men constituted the rather bigger component of the respondent given their status as household heads. Household heads were considered to be more knowledgeable on issues regarding the local institutions and nomenclatures in the area. The other reason is that issues concerning biodiversity and more so Kakamega forest are rarely answered by women. Many of the female respondent contacted for an interview in the household referred the researcher to the household head. This also has its roots in the patriarchal nature of the Luhya society where husbands in the home are the ultimate authority and therefore considered to be the 127 spokespersons for the home. Even in situations where a wife in the household accepted to take the interview, she declined to answer some survey questions in the course of the interview. In such scenarios, the researcher was told to wait for the husband to answer such questions, or make a call back. By nature the Luhya people and most notably the Tiriki, have a high level of secrecy and preferred not to deal at length with outsiders, especially on matters relating to their culture. Thus ruled by this voice of fear, in most cases the women declined to participate in the interview based on the above reasons.

Age of Respondents Of all the respondents interviewed in the survey, it was discovered that the average age of respondents varied remarkably. It was found that different age groups participated in the interview. However, the most significant age brackets included 65-74 (29.68%) and the 45- 54(21%) and 55-64(21%). The age groups that participated in the survey have been categorized in the table below.

Table 6.2 Age of respondents participating in the survey Age Frequency Percentage 15-24 0 0,00 25-34 5 1,83 35-44 22 10,05 45-54 46 21,00 55-64 46 21,00 65-74 65 29,68 75-84 36 16,44 Total 220 100

Source: Field Survey data.

The dominant age bracket of the respondents in this study (65-74), is not surprising given the fact that the interviews were carried out in areas that would at best be described as rural. One aspect that can help us to understand this trend is the rate of migration in Kakamega district. Most of the youth do leave the countryside and opt for the semi-urban or the urban centres to look for employment and other related amenities.597 This leaves most households with occupants in the age bracket of 45-74. We must also note that those in the above age brackets were found helpful in this study, as they were found to be in possession of local knowledge related to Kakamega forest. It was also very common that respondents in this age bracket were always accessible and were

597 Wondimu, K. 2006. Rural Livelihoods and Land Use: Drivers and Implications for Biodiversity in Rainforest Ecosystems in East Africa.Acase of Kakamega District in Western Kenya. Paper Presented at the GIGA workshop, Hamburg 23-24 March 2006.

128 readily available for the researcher at the house hold level. But all that said, age plays a very critical role in the transfer of local knowledge.

Education of Respondents In the study, all respondents were asked about their education attainments. It was however found out that, the greatest bulk of the respondent had an education attainment of only primary six. These accounted for 57% of the entire population interviewed. These were followed by 20% who had an education of attainment of secondary level. Only 9.13% had achieved vocational education. However, 10% of the respondents did not have any formal education at all. The low degree of formal education may be attributed to the age in the sample. The dominant age bracket of the respondents in this study (65-74), is a clear statement that can be used to explain the education levels in the sample. For instance, it is important to note that, most of the respondents in the upper age limit didn’t have a chance to acquire formal education, while the others only had a chance to acquire primary education, which was also appreciated to have been an average acquisition at the time. This is partly explained by the British colonial policies for native education which were ambivalent; for they had a difficulty in choosing between education for African development on one hand and education for the colonial economy on the other.598 It was also established that during the pre-independence years formal education was discouraged and emphasis was put in production of cash crops and provision of labour on the white settler farms, an aspect which may explain the low levels of education in these areas.599 The early colonial economy in Kenya was premised upon a spatial dichotomy between settler core of “scheduled areas” and a periphery of African labour reserves. The core was expected to the generate export income and internal development, and the major function of the reserves was to provide a labour force for urban and rural sections of settler economy.600 A classic labour migration system was developed with circulation of workers between labour reserves and areas of labour demand in this settler economy.601 The above political economy analysis offers us an invaluable insight into the historical perspectives that in part explains the current education trends in Western Kenya and Kakamega in particular.

598 Whitehead, C.1982. Education in British Colonial Dependencies. 1919-1939: An Appraisal. In Education and The Third World edited by J.K,P Watson. London: Croom Helm. 599 Overton, J. 1987. The Colonial State and Spartial differentiation: Kenya 1895-1920. Journal of Historical Geaography13:267-209. 600 Ominde, H.S. 1972. Rural Economy in Western Kenya. In Studies in East African Geography and Development edited by S.H, Ominde. Nairobi: Heinnemann. 601 Berman, B.J and L.M, Lonsdale. 1980. Crises of Accumulation, Coercion and the Colonial State: The Development of of Labaour Control System in Kenya. Canadian Journal of African Studies14:37-54. 129 The following table summarizes the education levels among the respondents.

Table 6.3 Education of respondents participating in the survey Education Level Frequency Percentage Post. Graduate 0 0 Tertiary 6 2.7 Vocational 20 9.13 Secondary 45 20 Primary 127 57 No formal education 22 10 Total 220 100 Source: Field Survey data.

6.2 Local perceptions of biodiversity in Kakamega In this study, respondents were asked to give a local definition of what biodiversity is. The question was put in a way that respondents define biodiversity basing on how they locally perceived Kakamega forest environment. This was assumed to provide a pathway to what constitutes the most local perceptions of biodiversity. The answers to this question paint up a picture of how people perceive biodiversity in general and Kakamega forest in particular. The answers to this question brought out the different local understandings of what biodiversity is. As a result, there were different definitions and which form the varied perceptions of what the local understanding of the Kakamega forest biodiversity is. To most of the respondents, the environment in Kakamega forest was defined as a habitat for rare plants and animals. These constituted the majority of the responses accounting for 54.79%. Another section of the respondents defined Kakamega forest environment as an area of great agricultural potential and this accounted for 30.14% of the total number of respondents in the sample. There were however, other varied responses from the survey. These included those who defined the Kakamega forest environment as a sacred forest for the community. These were 13.24%. The following table provides summary of local perceptions about the Kakamega forest environment.

Table 6.4 Varying perceptions of local biodiversity in Kakamega Value Response Frequency Percentage Hunting ground 2 0,91 Sacred forest for Community 29 13,24 Area of Agriculturall potential 66 30,14 Place of common worship 1 0,46 Habitat for rare plants and animals 120 54,79 Place of common ancestry 2 0,46 Total 220 100 Source: Field Survey data.

130 It is imperative to appreciate that, the varied responses also emanated from the different ecological divisions and zones of the district. For instance, in Shinyalu, Mulimani, Shitsiulio and Mushifumbi, there was a higher appreciation of the Kakamega forest as an area of agricultural potential. This has a strong connotation with the agrarian economy in these areas. There areas are characterised by pockets of medium plantations for the cash crop economy in this province. Small plantations of tea are a common facet of the livelihood and income patterns in these areas. As a result, there is a more indirect relationship between peoples’ livelihood and agriculture. There is a general demand for agricultural land in these areas.602 Therefore, it should be noted that such a populace perceives the forest as a destination of rich agricultural potential. However, when probed further about other related gains from the forest, there was an exposition of a wider appreciation of the forest biodiversity, unwittingly portraying a less personalised attachment to the forest benefits. One such opinion was highlighted in a focus group discussion. One participant mentioned that the forest was important in the maintenance of the hydrological cycle and therefore conservation of the forest was important in order to maintain supplies of rainfall. Another participant added that the forest was a good habitat for rare species of plants and animals. This answer was widely construed by the researcher as the one of the many common definitions of the Kakamega forest environment. Although people in Kakamega have less detailed scientific knowledge about the forestry biodiversity, more people held accurate beliefs about details of the different types of animals and plants that were found in Kakamega forest. Many of them intimated to this researcher that some of the most rare plants and animals were found in Kakamega forest. For example, they mentioned that the most rare species of Kolobus-monkeys, Agama-lizards and frogs are found in Kakamega forest. Respondents appeared to have a wider knowledge base regarding the role of Kakamega forest in hosting a variety of rare species. They argued that these species were also found to be of varied significances among the Luhya people of Kakamega. This feat may also have been due to the extension program that has been implemented by various community user groups as the wider aims of the community forestry education programme. In a separate interview with the council of the village elders, it was revealed that the importance of rare species of plants and animals are explained to the children by their parents, grandparents and related clansmen, at an early stage, in order enable new generations recognise the need to appreciate the importance of the forest. 603 In the same survey respondents were provided with a matrix of animals that are perceived to be of great significance to the communities around Kakamega forest. Respondents were asked to inform the researcher their relationship with the said animals to the community. The animals included snakes, monkeys, frogs, lions, buffaloes and lizards and termites among

602 Nambiro, E and Becker. 2005. Land use and Cropping Intensity in Western Kenya: Driving forces and Implications on resource quality and Rural Welfare. In The Global Food and Product Chain-Dynamics, Innovations, Conflicts, Strategies edited by Thiekles, E et al., International Research on Food Security , Natural Resource and Rural Development; book of Abstracts. Stuttgart: Tropentag. 603 FGD with Council of Village Elders, 12 July 2006. 131 others. The respondents informed the researcher that frogs for instance manifested tragedy in the community and were as a result perceived to be animals of not so good luck. Furthermore, it was learnt that monkeys are perceived as animals associated with prosperity and as result monkeys are animal which are hunted for their skin and heads which are also used during the circumcision ceremonies. The red tailed and the blue tailed monkeys are the most hunted type in this sub-region. Monkeys were also linked to the Luhya ancestral history, a factor that makes them one of the highly demanded animal species in Kakamega forest. However, it is not common that this will be easily told to any outsider among the Luhya. One will most commonly be told that monkeys are hunted because they do feed on the crops in the field which is equally understandable in the same regard, but inherently keeping the cultural institutional significance. It is imperative to note that secrecy among the Luhya community is such a great norm which is highly guarded and monitored by a tribal oath during marriage and ceremonies related to adulthood passage. Lizards are considered to be animals related to procreation and extension of ancestral lineage.604 It is widely held among the Luhya sub-tribes that lizards are associated with blessing as far as human fertility is concerned. It was also noted that a young lizard was always given to a newly married man especially among the Idoha sub-tribe. The significance here is: to bless the new couple in their marriage so as to have as many children as possible. The researcher was also informed that couples that mistreated these lizards were bound to suffer a curse leading to infertility. It was also mentioned that a couple that have failed to have children was also given a young lizard to heal them overcome a certain curse and subsequently such a couple would have children. This is such a great custom, a very strong local institution among the Luhya sub-tribes. Snakes are considered to be animals that are associated with the Luhya ancestry history. They are considered to be the temples for the Luhya gods. As a result snakes are some of those animals that are both feared and loved according to the Luhya institutions. Each sub-tribe has a great attachment to and cherishes particular snake species. There are over 30 different snake types in the whole of Kakamega forests. For instance, the Tirirki are so close to the python, the Maragori are so close to the black- Mamba, the Bakusu are closer to the Jameson-mamba, and the Kabras are closer to the gabon-viper among others. Many of the Luhya families especially those that live around the forest keep these snakes in their homesteads and guard them jealously. They are fed and counted as members of the household. However, not any of them will concede to this fact. Only a few elderly men confided in the researcher. Many of these snakes are got from the forest and domesticated in the homes of the Luhya people. Many of the non-Luhyas who get married to the Luhyas are educated about the importance and significance of snakes and a particular snake for that matter. They are also advised against ever killing a snake, because doing so would result into

604 Focus Group Discussion 16 July 2006. 132 tragedy for the entire household, clan and sub-tribe. As a result snakes are some of the most conserved species in and around kakamega forest. In a focus group discussion with Luhya elders, it was noted that high fines are demanded in case a snake that belongs to another sub-tribe is killed. There are a series of intercessions that are held to prevent misfortunes and bad omens from befalling the suspected family or sub- tribe for that matter.605 Lions on the other hand are regarded as animals that portray brevity. They are revered and therefore associated with heroism. It is a well known fact that the lion is referred to as the king of the jungle. In this regard, the Luhya people have a great relationship with this jungle king. Because by nature lions are very strong animals, they are construed to signify authority and leadership among the Luhya. Lions were always hunted for their skin and heads as well. This led to increased demand for their heads and skins. Many spiritual leaders among the Luhya also adorned themselves with lions’ skins as a way of displaying spiritual leadership to their believers. This institution led to the decline of lions populations in and around the Kakamega forest. This strong relationship with the lions was however much more linked to the Bahaya and the Marama. Lastly, elephants are the other animals that are linked to the Luhya cultural institutions. The Baluhya have an ancestral linkage with the elephants in two ways. One, the Bukusu sub-tribe believe that they originated from elephants and as a result, the Bakusu have continued to name many of their children Wanjovu, a significant institutional attachment linked to the elephants. This makes elephants a darling among the Bakusu. On the other hand, other sub- groups like the Wanyore, Marama and the Kisa, have a different institutional linkage regarding the elephants. These mentioned that the sight announces future death of a Luhya sub-tribal head. In the study, it was learnt that, in the olden days when communities still lived too close to one another, the sight of elephants was not a welcome sight since they announced death. These two divergent institutional linkages to elephants, gives them (elephants) some kind of “respected and feared” position among the Luhya. They are never hunted and as such respected. According to the Luhya oral traditions, elephants first appeared during the death of the first Luhya tribal head long after the Luhya migration from Uganda to the present day Luhya- Land. It is reported that a heard of elephants appeared and attended the funeral of this great Luhya head. Ever since then, elephants have been linked to the successive death announcements of a Luhya Tribal head. When asked whether the people are named after the above animal species, 95.89% of the respondents agreed that the people were named after different animal species. However, 4.57% informed that some of the parents no longer name their children especially due to the tenets of christianity that are seen to be penetrating the Luhya-land. But even then, this is a very slight proportion compared to the margin that still goes on with the custom. Children are given such names like Wagwe named after a Leopard, Wanjovu, named after an elephant,

605 Focus Group Discussion with Council of Elders. 12 July 2006. 133 Wasike, named after a swarm of locusts, Walungu, named after worms. Many other names among the Luhya follow in this kind of rhyme. The following table illustrates the wide gap between those who persons who are named after the species and those who are not.

Table 6.5 Respondents named after animal species Value Response Frequency Percentage Yes (Named after an animal species) 210 95.98 No (Not named after any animal species) 10 4.57 Donnot know o 0.0 Total 220 100 Source: Field Survey data.

Related to the above, respondents were asked why people were named after the above animal species. A number of reasons were enumerated to justify this. According to the Bantu people of East, Central and Southern Africa, names signified continuation of the strong institutions within the Bantu tribal setting. 606 In accordance with the above Bantu institution, the Luhya sub-tribes are no exception. We have already mentioned the cultural significance of the different animal species among the Luhya. For that reason, these institutions are eternally carried on even in the every day lives of the Luhya people. This is done through giving names to children who are born in the Luhya community. For instance, respondents answered that people are named after such animal species as a sign of luck; others are named as a portrayal of prosperity, history of events, and sign of good health, tragedy in the community and as sign of inspiration among others. It is a common rhyme to hear names such as Wamalwa, Walungu, Wadumbi, Wenani or Wasike all names with such a myriad of significances related to biological species, biological connotations, biological events and happenings. The following table shows the different reasons why persons are named after different animal species.

606 Llyod, A. T. 1978. The Bantu Bureaucracy. Cambridge: W.Heffer and Sons Ltd. 134 Table 6.6 Why persons are named after different animal species. Value response Frequency Percentage Don’t Know 2 0,91 Sign of good Luck 25 11,42 Prosperity 81 36,99 History of events 37 16,89 Ancestral History 47 21,46 Sign of good Health 2 0,91 Tragedy in community 6 2,74 Sign of inspiration 15 6,85 Source of Protection 5 1,83 Total 220 100 Source: Field Survey data.

In the above table only 0.91% mentioned that they did not know the true relationship between their names and the different biological species, be it plants or animals. However, 11.42% agreed that their names depicted that such animals were associated with good Luck. 36.99% informed that their names are associated with an animal that is associated with prosperity. Others who numbered 16.89% answered that their names were associated with historical events in the community. 21.46% had their names related to animals of good health. Other responses (0.91%) included names that reflected animals that are associated with tragedy in the community, especially at the time of birth. This tragedy is further announced by the presence of such animals. Lastly, other respondents who numbered (6,85%) informed the study that, other animals were a source of inspiration. In regard to this, almost all Luhya sub- Tribes with the exception of the Ishuha, Kabras and Tachoni follow this institutional arrangement regarding the people–animal relationship religiously, a finding which shows a linked relationship between local biodiversity perceptions and the local institutions. This finding to a great extent may explain the framing of local biodiversity perceptions in the areas around Kakamega forest. In the study we also found out that when named after respective animal species, such people developed a special attachment to such animals and as a result became protective of such animal species. This bond between the animal species and the populace among the Luhya community, in a way works to keep the animal species protected. The research also learnt that this institutional relationship bars them from eating such animals. However, on the other hand, animal which are thought to have no institutional relations such as Kobs, impalas or squirrels are always hunted down, a fact that has kept their populations low. The Luhya also believe that there is a strong connection between the animals and their creator. They believe that if you kill any of the animals then you are bound to meet your death too. This death may come in a form of an incurable disease or stricken by lightening. This institution is very respected and followed among the Luhya, especially among the Marama, Batsotso, Maragori, Bakusus Batura, Marachi and the Tiriki sub-tribes. The institutions regarding the relationship between the Luhya people and the animal species postulates one

135 interesting finding; that while there are different perceptions about forestry biodiversity, non-scientific at that, these perceptions seem to complement the existing scientific discourse regarding biodiversity conservation objectives such as preserving animal diversity for posterity and biophilia.607 Biophilia means "love of life or living systems." Kellert, used it to describe a psychological orientation of being attracted to all that is alive and vital.608 Wilson also uses the term in the same sense when he suggests that biophilia describes "the connections that human beings subconsciously seek with the rest of life.” He proposed the possibility that the deep affiliations humans have with nature are rooted in our biology.609 Therefore we found out that the Luhya people have institutionalized these attractions and positive feelings that people have toward the Kakamega forest habitat, objects and living species found in this natural surrounding. These feelings towards nature, in the Kakamega forest environment have been refined into culture and informal rules. It was also interesting to find out that these unwritten informal rules regarding human plant/animal relationships sounded strong in the minds of the respondents.

6.3 Geography and climate of Kakamega district and Western Kenya It is needless to emphasize that Kakamega district is one of the districts that form the Western province of Kenya. Other districts are Bungooma and Busia. The Luhya are the greatest inhabitants of the district. They do live side by side with other tribes such as the Luo and the Kalenjin who live in the north and south east respectively. The total area of this part of the country is 3, 054 Sq miles. Part of this area (53sq miles) is covered by water. This part of Kenya is situated to the north of Kisumu and gulf of Kavirondo. It is also bordered by the Mt Elgon, which extends to the Eastern part of Uganda. The Bagishu, Bagwere, and the Basamia, the Basoga and the Iteso as well as the Japadhola in eastern Uganda are neighbours to the Luhya of Western Kenya. In a large measure, these neighbouring tribes have similar institutional underpinnings like the Luhya people. Generally speaking, Kakamega District is a physically varied area, comprising of lowlands and highlands ranging from 3,600 ft. above sea level, especially in the low-lying areas. These areas are close to Busia district, in the west. The highlands on the other hand are in the ranges of 7500 ft. especially on the mountain slopes of Elgon in the north. The district is also characterised by ridges, valleys lying between 45,00ft and 5000ft above sea level.610 There are escarpments such as the Nandi Escarpments. There are countable hills some of which are named after the different Luhya sub-tribes residing in these areas. These include the Maragoli, Nyangori, Samia and Bunyore hills. On

607 Malcom, H.J. 2001. Mentaining Biodiversity in Forest Ecosystems. Cambridge: Cambridge University Press. 608 Kellert, S.R. 1993. The Biophilia Hypothesis. Washington D.C.: Island Press. 609 Wilson, E. O. 1984. Biophilia. Cambridge: Harvard University Press. 610 Baringer, T.A. 1998. Physical Geography of East Africa. Oxford: Oxford Berghahn.

136 the extreme lowland side, the area is characterised by low-lying zones with two major soil zonations in this sub-region. Interestingly, there is a side of this province well supplied by high parts of the Mt. Elgon and as a result contains the Alpine meadows and the shallow soils alternating with great alluvium and peaty soils.611 The high slopes in this Luhya land are however characterised by sandy loam soils that make the land in this part of the country quite fertile and with very healthy vegetation. The soils are also extensively cultivated a very significant characteristic of the wetter parts of the tropical land use systems. This also accounts for the reasons as to why the land in this part of the country is scrambled for and why the population size in this province is soon going through the roof. It is also imperative to note that there are very big tracts of land in this province that are covered by savannah, making the place look like a park-like zonation. Early writers about this province have indicated that it was once covered by forest from the eastern part of Uganda. Such writers included Johnson, who formed the advance team that laid the foundation for the British East African Company. For instance, Johnson asserts that it was due to the wasteful type of cultivation that led to the degradation and eventual disintegration of the tropical forest belt in this part of the country.612 According to this author, the whole of present day Western Province was covered by a forest and was only brought down by over cultivation. The above analysis has however been found to be somewhat hollow by scholars like Were. Were, who has researched extensively about the Buluya-land and Abaluya people, argues that, Johnson’s claims were an exaggeration.613 He states that the method of cultivation that Johnson advances cannot be used as a point of departure in understanding the reasons as to why the land that was once forested is apparently not. Were further asks why the same type of cultivation has been responsible for the destruction of the forested land in Western Kenya has not accounted for the destruction of the forest belt in the parts of West Africa?614 While Were seems to have negated Johnson’s synthesis, it was too early for him to make the conclusion. The steady increase in population of western Kenya can be used to justify Johnson’ argument. It is also wise to mention that, Were’s writings were made forty years ago and since then the biodiversity of this area has been declining. Were on the other hand doesn’t seem to postulate the reasons as to why the area seems to have lost its original forest cover. In terms of Climate, the area receives abundant rainfall throughout the year. But there is a short dry spell lasting up to mid-December. However, when compared to the rest of Kenya, this dry spell is not pronounced. The rain seasons are between the months of March and August. The area receives up to 61.7m-76.3ml within the different parts of Kakamega. In Kakamega, the areas of Kaimosi and Cheptul do receive the highest amounts of rainfall.

611 Ominde, S.H. 1963. Land and Population of the Western Districts of Nyanza. London: Oxford press 612 Johnson, H. 1904. The Uganda Protectorate, Vol.II. Brititsh Cataloguing Series. 613 Were, G. 1967. The History of Abaluya of Western Kenya. Nairobi: East African Publishing House. 614 Ibid.

137 Lastly, the area is also watered by a number of rivers. These are: Nzoia, Sio, Lusumu and Malaba.

6.4 Biodiversity and resource usage in Kakamega Forest In Kenya, indigenous forests cover just over one million hectares, while plantation forests cover over 120,000 hectares. About 3 million people in Kenya live within 5 km of forest boundaries and benefit from a whole range of goods and services from the forest.615 This has resulted in pressure leading to encroachment, excisions, over exploitation and loss of flora and fauna. Biodiversity or biological resource diversity is a comprehensive concept and includes all nature’s possessions and nature’s variety. 616 Talking about biological resources in Kakamega entails the summation of ecosystem and the ecosystem functions, species and genes in a given locality that is: Kakamega forest in this case. Biological resources embrace species richness and genetic diversity. Being a forest that has people around it, food and cash crop production is the main land use activity. However, there are individuals who exploit different wild forest roots, fruits and vegetables from the forest for food. 10.05% of the respondents agreed that they have acquired products for this very reason. Further still, there were another 12.79% who answered that they had entered the forest to collect animal products in form of game meat that is gotten through hunting. Kobs and impalas are some of the animals that were got for the purposes of hunting to get animal protein. We have however indicated that animals such as the monkeys, lions and leopards are demanded for spiritual reasons as well as related cultural rituals. These accounted for 30.59%. Another 24.66% of respondents also answered that they used forest resources especially the forest herbs for the medications. The rapidly increasing human population in areas around this forest has incredibly contributed to the scramble for land for agricultural and related reasons. Many respondents agreed that even though they are aware of the pressure that such land use activities presents to the forest, they badly needed land for food and cash crop production. Others want the land for settlement in order to acquire the accrued benefits from the forest such as forest firewood, grass and pasture for the animals. This scenario has consequently led to habitat destruction, all of which have resulted to diminished quality of ecosystems in and around the forest. This study however didn’t delve in to the intricacies of the impact of the human population on the Kakamega forest environment. The impact of the human population

615 GoK. 2000. Kenya’s Biodiversity at a Glance. A Report by the Technical Committee of the Conference of Parties. Nairobi:Government Printer. 616 Myers, N. 2002. Biodiversity and Biodepletion: The need for a paradigm shift. In Biodiversity, Sustainability and human communities: protecting beyond the protected, edited by T. O’Riordan and S. Stoll-Kleemann, 46-60. Cambridge: Cambridge University Press.

138 on the forest biodiversity is neither new nor surprising as evidenced by Olembo et al., 617 Chweya and Eyzaguirre.618 Through the demand for these forestry resources, humans have impacted and modified natural biodiversity around Kakamega forest. In doing so, a number of different forest species have to a large extent been affected. This process has down played the natural regeneration of different plant species ultimately compromising the species regeneration of such species. Such plant species to which the Luhya people have a great attachment include the following:- Murembe, Mutukuyu, Mustu, Mushu, Shingulosho, Mugombero, Mandala, Bikuma, Tsimbalagaya, Vusangu, Manyumya, Namideri, Visamia, Shinyuza, Lusui, Misine, Shingututsui, Shingoye, Mweriza, Muduyu, Lusuyi, Mugoma, Mwenye and shishuma among others. Kakamega forest’s position in Kenya’s national resources regime needs no recount. The forest has other physical and biological resources that are of considerable domestic, economic and intrinsic value. It is estimated that the forest country has other 35,000 known species of animals, which are important to both life and the rural economy. These are based in natural habitats such as water, rocks and soils within the forest. These and their ecosystems are however, increasingly under pressure from competing users resulting in a situation of future depletion. These biological resources, which are sources of food, medicine, shelter, income and fuel, are only assured if sustainably used. 619 The government is making efforts to conserve the remaining forests by strengthening management, creating awareness and encouraging the planting of trees on farmlands and public utility areas. This however has been slow. In Kakamega forest, there are both formal and institutional regimes to manage the forest resources. The aim is to reduce the over exploitation of the species that are found to be under great threat. When asked whether there are penalties aimed at curbing this wanton harvesting and usage of rare plant and animal species from the forest, a great section of the respondents answered in affirmative. The study also learnt that both the formal an informal institutional rule enforcement mechanism were used in enforcement of such penalties. These were the Community Disciplinary Council, the Village Chief, Customary Law, the Forest Wardens, the Tribal Heads, the Village Council of Elders and even Parents. However, amongst all these the Forest Wardens were seen to take a leading role and were more respected and feared. In terms of strict enforcement of penalties, the forest wardens were rated at 77.07% while village chiefs were rated at 15.07%. But inspite of all these enforcement mechanisms, it was found out that the crimes relating to wanton forest exploitation of rare resources continued

617 Olembo, N.K., Stephen S. Fedha & Edah S. Ngaira. 1995. Medicinal and Agricultural plants of Ikolomani Division Kakamega District. Development Partners. Nairobi. 618 Chweya, J.A. & P.B. Eyzaguirre. 1999. The Biodiversity of traditional leafy vegetables. International Plant Genetic Resources Institute, Rome, Italy. 619 Dewees,P.A. 1995. Trees and Farm Boundaries: Farm Forestry, Land Tenure and Reform in Kenya Africa: Journal of the International African Institute 65: 217-235.

139 and the same victims commit the same crime again even when the penalties have been served! This same scenario was confirmed by Guthiga et al.620 Asked why the people committed the same crime again even after enforcement of penalties, the study found out that an array of reasons accounted for this predicament. 32.42% informed the study that this state of affair resulted from weak community disciplinary council that is said not to be strong enough to enforce the penalties. Another 27.85% informed the researcher that the penalties themselves were weak and flexible! In this, the perpetrators of the crimes found it easier to commit the crime and then face the penalties. Another 26.49% of the respondents informed the study that the culprits found it easier to pay bribes and other related incentives to the enforcers of the penalties so as to get into the forest and harvest what they wanted. But a given section of the respondents (9.38%) informed that overall the enforcement mechanisms were weak characterised by weakening customary law in some areas. Therefore, the study learnt that because rare plant and animal species are demanded for different reasons which range from economic, spiritual and medical treatment, it becomes difficult for the enforcement mechanism to achieve the desired achievements.

6.5 The people of Kakamega Kakamega district forms the bulk of the province of western Kenya. There are a varied people in the district of Kakamega, including the Luo, Nandi and the Luhya. The Luhya are also known as Abaluuyia, but also pronounced as Luhia. The word Luhya refers both to the people and the Luhya languages. The Luhya are the biggest and the most dominant tribe in the district. These Bantu people residing in the Western Province of Kenya are bordered by Uganda to the West. They also face the wind ward side of mountain Elgon. According to the 1999 Kenya Population and Housing Census, the Luhya tribe is the second tribal grouping in Kenya, only rivaled by the Kikuyu. They number about 4.6 million people. Kakamega district is one of the few districts in Kenya which also doubles as a food and cash crop basket of the country. Land in this part of the Country is very fertile and area receives reliable rainfall. This in a large measure explains why Kakamega attracts a lot of people, making it one of the districts with the highest population densities in Kenya. 621 The Luhya tribe is made up of over 17 sub-tribes. These include; Bukusu Maragoli, Wanga, Abanyore, Marama, Idakho, Kisa, Isukha, Abatsosto, Tiriki, Kabras, Abanyala (Busia and Kakamega) Abatachoni, Abakhayo, Abamarachi and Abasamia among others. The Luhya myths of origin suggest a migration into their present day locations from the north. Virtually all sub-tribes claim to have migrated first from Misri before settling in what is now central Uganda.622 The same oral traditions also reveal that the Luhya migrated further east, first

620 Guthiga, P, J. Mburu and S. Wambu. 2006. Extraction of Direct Forest Products and its driving factor. The Case of Kakamega Forest. A paper presented at that GIGA Workshop. Hamburg, March 2006. 621 CBS.1999. The Natioal Poulation and Housing Census. Nairobi:Government Printer. 622 Were, G. Opcit. 140 settling around the Mount Elgon area before displacing a pygmy race to settle in their current homeland. On the other hand anthropologists believe that the progenitors of the Luhya were part of the great Bantu migration out of Camerron.623 Other available accounts of Luhya oral tradition, mention that the Luhya may have been pushed out of a pygmy race in the Central African tropical forest. These accounts are very similar to the oral traditions of the Baganda. It is significant to note that the language of the Baganda who have a close migratory history with the Abaluya, is closely related to the dialects spoken by the Luhya, especially the Maragoli dialect. This in a way points to a common point of origin.

The structure of traditional authority and Luhya cultural institutions The sub-tribes The Luhya are divided into over different 17 sub-tribes, each speaking a certain dialect of the Luhya language. Linguistically, these sub-tribes can be grouped into four main categories. These categories were arrived at according to the dialectical variations.624 This also has a significant relationship with further emigration and settlement patterns among the Luhya, after they migrated into this forested belt of Western Kenya. As a result of this, different sub- tribes dialect emerged. For instance, the Wanga dialect, or variations of it, is spoken by the Wanga, Marama, Kisa, Batsotso, Kabras, Isukha, Idakho, Banyore and Tachoni. The Maragoli dialect is spoken by the Maragoli and the Tiriki. Similarly, the Bukusu dialect, and/or variations of it, is spoken by the Bukusu, Gisu and Masaba. The Nyala dialect is spoken by Abanyala of Busia and those who emigrated to Kakamenga popularly known as Abanyala ba Ndombi. Lastly, the Samia dialect is spoken by the Samia, Nyala, Wahayo, Tura and the Bamarachi.625 However, there are significant overlaps that exist between these sub-tribes. These overlaps stem from mini-dialects that are composed of two or more dialects. In the Bukusu of Lugari area, for example, speak a dialect that is mixture of the Kabras and Bukusu dialects. All the Luhya, with the exception of the Kabras, Marama, and Saamia, practice initiation ceremonies which includes both circumcision and in some cases clitoridectomy. Traditionally, circumcision is a period of training the youth for adult responsibilities for the youth. It also signified a graduation of the youth into adulthood, from one age set to another. Among Luhya, circumcision is carried out every four or five years, depending on the sub-tribe. For example among the Banyala living in Navakholo; the initiation of the young boys was every other year and notably an even year.626 The initiates are about 8-14 years old, and the ceremony is carried out in the forest in a highly guarded and exclusively sacred place. When asked whether this place is accessible to other members of another sub-tribe, the researcher

623 Ibid. 624 Ibid. 625 Mulusa, J. 1999. The Luhya Way of Life. Nairobi: Oxford University Press. 626 Ibid. 141 was overtly informed that this place is sacred and only accessed by the candidates who are going for the ceremony. Other members are also prohibited form visiting the site. It was also pointed out that not even firewood is picked from this place. It is sacred and holy place, a fact which could be proved on observing it flourishing vegetation. As we shall later learn, the study found out that spiritual head usually collected the herbs to avoid contamination and undue exploitation. Replanting and regeneration of herbs from the sacred area is encouraged. The practices of initiation are still popular in Kakamega and traditional methods of initiation persist.

The clan Like any other Bantu sub-group, else where in Africa, the Luhya people are usually identified by a clan. Each clan is traced from the sub-tribe. This is some form of tradition hierarchical structure, through which people and their ancestral lineages can be traced. A clan therefore brings together a people with a common ancestry heritage and history. This history is usually seen in form of generations which span from ten to forty generations. The clan is an automatic forum that guarantees social interaction and determines how institutional norms should be observed and passed on. The clan is headed by a clan leader who in most cases is elected by a council of elders, strictly following particular ancestry history and observing a strict and conservative tradition. Through the clan, family relationships such as marriage, kinship ceremonies are arranged. The Luhya are a strong clan based society that is organized into age groups called likhula. Those born in the same year usually belong to the same likhula, and are initiated together by a circumcision ceremony. The initiated group then goes through several different stages together. These age groups include; middle age, old age, respected old age. Village elders from the last two stages form an honoured ruling group. Marriage is an important institution among the Luhya. But marriage within one's clan is a taboo and is strictly forbidden. This custom persists even today. Before young people get into serious relationships with members of the opposite sex, they will usually find out the clan of their would-be fiancée. If it is established that the two, in fact, belong to the same clan, the relationship is abandoned. The Luhya are a very diverse people with about thirty different clans which have intermarried forming a whole complicated network of relationships popularly called "Olwikho". The Luhya clans include: Abaafu, Ababenge, Abadavani, Abaengele, Abakangala, Abakhubichi, Abakoye, Abakwangwachi, Abalanda, Abalindo, Abamisoho, Abamuchuu, Abamugi, Abamwaya, Abasaacha, Abasaya, Abasenya, Abasia, Abasiloli, Abasonge, Abasumba, Abatecho, Abaucha, Abauma, Abaumwo, Abayaya, Abayirifuma, Abayisa, Abayundo. One is not allowed to marry from his/her own clan. The Luhya have extensive customs surrounding death. In the olden days there would be a great celebration at the home of the deceased, with mourners staying at the funeral for up to forty days, and some times

142 concluding the ceremonies with the intercession of the spirits that was done by a spiritual leader. These ceremonies involved the ritual performances in forest sacred places. If the deceased was a wealthy or influential man, a big tree would be uprooted and the deceased would be buried there. Nowadays, the mourners stay for shorter periods of time (about one week) and the celebrations are held at the time of burial, with a single closing ceremony again to end the forty days. The Luhya believe in animisms/spirits. Sacrifices are made to please the spirits. These traditons are also tied to the birth of first born children. For instance elaborate ceremonies are carried out during festivals to mark the first born’s birthday. Different animals species were always involved in these elaborate ceremonies. Such animal would kiss the new born as a sign of blessing and good health to the new child. Different animals are used by different clans and such animals were later released back to the forest while others were domesticated in the respective homes.627

The family Luhya culture revolves around the extended family. Polygamy is allowed it is a traditional norm. Today, however, polygamy is seen to be declining in some parts of Luhya land. About 10-15 families traditionally make up a village, headed by a village headman (Omukasa or Oweliguru ) who is elected by the male population in the village. In many cases, the village chief is also a medicine man and healer within a family.628 Among the men, the man of the home was the ultimate authority, followed by his first-born son. In a polygamous family, the first wife held the most prestigious position among women. The first-born son of the first wife was usually the main heir to his father, even if he happens to be younger than his half-brothers from his father's other wives. Daughters have virtually no permanent position in Luhya families. They were viewed as other men's future wives, and are brought up to fulfil this role. They do not inherit property, especially customary land, and are excluded from decision- making meetings within the family. Children are named after the clan's ancestors, animal species, grandparents, or after events or the weather. The paternal grandparents take precedence, so that the first born son will usually be named after his paternal grandfather (kuka), while the first born daughter will be named after her paternal grandmother (kukhu). Subsequent children may be named after maternal grandparents, after significant events, or even after the weather. For example, the name "Wafula" among the Bukusu is given to a boy born during the rainy season. This comes from the Bukusu word for rain, "efula" and Simiyu among the Banyala was the name given to the child born during the dry season.

627 Focus Group Discussion 12 July 2006. 628 Middleton, J and G.Kershew. 1965. Ethnographic Survey of East and Central Africa. London: International African Institute. 143

6.6 Local institutions and farming systems in Kakamega District The Luhya are traditionally agriculturalists, and they grow different crops depending on the region where they live. Close to Lake Victoria, the Samia are mainly fishermen and traders, with their main agricultural activity being the growing of cassava. The Bukusu and the Wanga are mainly cash crop farmers, growing sugar cane in Bungoma and Mumias areas respectively. The Bukusu also farm wheat in the region around Kitale. The Isukha of Kakamega area and the Maragoli of Vihiga raise tea. In Bukura area, the Kisa are large-scale rice farmers. The Kabras of Malava area grow mainly maize at subsistence levels, with a few also farming sugarcane. The farming system in Kakamega district is a mixture of live stock keeping and crop production for both domestic and for sale. Intercropping is widely used in the district. Farmers intercrop maize with beans or maize and some bush millet. Most farmers plant between two to four crops on a piece of land. Many farmers in the relatively highland areas plant between two to three crops on a piece of land. That is: beans, maize and/or millet. Farmers in the remaining areas intercrop at least two crops on one plot mainly beans and maize or beans and cassava. The farmers in the relatively highland areas grow a wider range of crops and this is due to the different climatic conditions. The lowland and central plateau areas have relatively less rainfall than the highlands and as a result allow fewer plants to be grown. Through a system of intercropping, soil fertility is maintained. In the past the system of intercropping was practiced together with shifting cultivation a fact which could somewhat explain why some areas are not as forested as others. This system of shifting cultivation was also combined with charcoal burning. Shifting cultivation was used to clear field to allow new grasses for the animals. It was also a way of trapping monkeys and other animals in the forest which were demanded for Luhya traditional spiritual and cultural ceremonies. However, after the villagernization especially in the late 1960s, and largely because of the increase in the population, shifting cultivation declined. The recent increase in demand for land and the exhaustion of current farms, has made some farmers to open up farms near the forest belt have been established, a practice which may in future threaten the forest margins. Another important feature of the farming system in Kakamega district is the influence of relief on agricultural activities. In the highland areas where climate and soils favour a variety of crops, farmers have tended to move away from the forest margins, a trend which wittingly or unwittingly protects the forest belt. In hilly areas such as the Nandi and Kaimosi villages, the topography is composed of hilly anticlines which attract extensive cultivation of maize and millet. The grass lands on the hill also attract some grazing for the animals.

144 Gender, cropping systems and labour practices in Kakamega Land is a very important resource in Kakamega and among the Luhya in particular. It is needless to mention that, it is the most critical resource for the production of both the food and cash crops on which the Luhya rural economy depends. Understanding gender cropping systems and labour practices in Kakamega, requires us to unravel the critical institutional factors and practices underlying relations of production between men and women. Therefore, to understand the dynamics and linkages between cropping systems and farming practices as well as the micro institutions governing cropping systems and land, it is important to investigate peoples’ (both women and men) security as well as their insecurity in perceived land tenure. But as Leach argues, arrangements for land tenure and access always implicate gender relations.629 As a preliminary step, the study inquired why particular crops and plant species were restricted to a particular gender. It was found out that this relationship lay in the institutional practices upheld among the Luhya. In the typical Luhya setting, men and boys for that matter are pre-occupied with the growing of the specific crops. These crops include bananas and restricted tree plants such as Lusiola and Museno. Among the Luhya, it is believed that the women are not pure enough in the cultural sense and therefore cannot be associated with the growing of trees and plants such bananas. It is also perceived that the growing of tree crops such as Lusiyola and Museno by women is a taboo. Lusiyola is a tree associated with good luck and this good luck is only believed to be associated with men. A woman growing such a tree amounts to bringing bad luck at home and community as a whole. Museno, on the other hand are tree species that are associated with reconstruction and regeneration of life. Men are seen to posses the power to this regeneration. Women are on the other hand are associated with the powers to curse. Other accounts informed the research that women may also become barren when they plant trees and other restricted crops. Another account from one of the respondents informed this study that: in the Luhya tradition, especially among the Maragoli and Tachoni, women are barred from planting trees because as a woman, “when you plant a tree when your husband is alive, then you want him to die.”630 These deeply rooted Luhya institutions that restrict women from planting trees and other restricted plants continue to hold sway especially in the absence of a husband or the elder sons in the home. While men's roles and responsibilities have eroded in other labour enterprises, men continue to retain control over the activity of planting trees and different plants species, in all circumstances. Men's control over this activity represents their power and authority over biodiversity resources and confirms their control over other material and symbolic demarcation of physical space. More still we note that both the decision-making and the actual labour in planting trees reinforce men's roles as heads of household and are symbolic of men's power. Women who

629 Leach, M. 1991. Gender, Land, and Livelihood in East Africa. Nairobi:IDRC Publications. 630 Focus Group Discussion. 25 July 2006. 145 are heads of household cannot simply hire men to plant trees and other plant species, but must call upon male relatives or sons to do so. It is therefore important to understand these gendered rights and nested obligations around the control of trees and related plants when formulating biodiversity conservation policies in order to reflect these traditionally institutionalised gendered dimensions in the biodiversity conservation. It was also interesting to learn that the location of a tree to be planted on the household farm has always been a focus of struggle between husbands and wives, and this may partially explain the reasons as to why the colonial forestry programme that characterised the 1940s, consequently collapsed. 631 We have earlier mentioned that, the Luhya cultural institutions bar women from the growing of particular crop and plant species. This kind of institutional arrangement is also extended to food crops such as bananas. Women are perceived to have bad luck and as a result, their participation in the growing of such crop would lead to inviting bad omens which could even lead to hunger, drought and sometimes community unrest. Women are however advised to take good care of the crops they find in the homestead and the forest as well. They are also barred from collecting certain plant species from the forest. A newly wed wife is taught about these Luhya traditions and is advised to follow them religiously. She is also supposed to pass on the same information to her daughter and other female members of the household under her care. The above practices are also extended to crops and plants in the forest. The study also found out that in the olden times only men were supposed to collect firewood from the forest since they could identify specific plant species that were supposed to be used and those that were not supposed to be used for cooking. The key respondent in this case who happened to be a tribal head informed the researcher that in a way, this preserved most of the plant species in the forest. Non members (those who did not belong to the Luhya sub-tribes) were barred from entering the forest for fear of wanton harvesting of the forest species, meaning that there was restricted access to the forest as a common resource regime. In light of the above, it is justifiable to make mention of the fact that a closer look at the part of the forest where these strict institutions still hold strongest, for instance in Shipalo, Bukhonyi and Mukshakawe areas, the forest cover is still firm and far more intact and flourishing compared to shinyalu, Mulinami Shitsuilio and Kapsukuru, where there is relative flexibility as far as the local institutions regarding access are concerned. This observation was interpreted to mean that strict local institutions regarding access to common resource regimes were a pre-requisite to the health forest biodiversity since they culturally regulated the access to the forest resources and were neither viewed as barriers in anyway. When cash crops were introduced in the colonial times, there was the introduction of division of labour in the types of crops grown by men and women. It was however important to find out that cropping and labour roles changed. Given that land is a critical resource for sustaining

631 MaCGregor, J.J. 1950. Colony and Protectorate of Kenya. An Economic Survey of Forestry in Kenya and Recommendation Regarding the Forestry Commission. Nairobi: English Press.

146 rural livelihoods, it became the focus of intense struggles between and among women and men. But we must also note that struggles over land are experienced differently by women and men, depending upon the complex interactions of gender, class, age, marital status, and life-cycle positioning. Men negotiate, access, and maintain control over land as a productive and material resource and inequitably achieve this within local institutional setting. In the study it was established that 96.35% agreed that men were the greatest owners of cash crops as opposed to 3.65% of women who were the controllers of cash crop production. Respondents were asked what framed the division of labour among the Luhya. It was established that: because men owned the land as an important symbolic resource, cash crops were a preserve of the men who also doubled as the managers of the means of production as well as the financial resources in the home. This fact was also cross checked in a focus group interview held among the tribal heads of Tirirki sub-tribe. They defended this based on the fact that the land among the Luhya is customary land and therefore all the work done on the land belongs to the men who controlled that same piece of land. A focus on women's and men's struggles over land must also consider the symbolic and discursive contestations that constitute those struggles as postulated by

Meinzen et al., 632 and Beneria. 633 It is further imperative to observe that as a symbolic resource, land holds important meanings within Luhya cultural discourse, defining gender relations and women's and men's rights to access and use. These multiple meanings are constantly being contested and transformed within a situation of legal plurality in Kenya. These, in addition to the dual importance of land as both a material and an institutional symbolic resource, illustrate the diverse ways in which women and men struggle over long-term access to and security of land, as rights to land are gendered. Among Maragoli, Kisa, Idhoha and Wanyore, there is a critical connection between key gendered aspects of security in tenure and sustainable soil management and farming. Although women carry out the day-to-day work and decision-making in farming and soil management, the planting of trees, cash crops and other restricted crops is a symbolic gesture of power invoked by men within these societies.

632 Meinzen, R.D, et al. 1997. Gender, Property Rights and Natural Resources. Washington D.C: IFPRI Publication. 633 Beneria, L. 1992. Accounting for women’s work: The progress of Two Decades. World Development 20 (11):1547-1560.

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Cherished plants and condemned plants It is now an open secret that local institutions play a leading role in the protection of local biodiversity in Kakamega depending on which particular plant species one is pointing to. This study therefore asked the respondents whether there were plant species that were construed to be cherished and others that were condemned. Among the Luhya specific crops are categorized according to how they are perceived. There are crops or plants that are perceived to be cherished. These sometimes derive their privileged position from the role they are seen to play in the Luhya traditions. These cherished plants are seen to be useful because they are used during the spiritual ceremonies, cleansing of the demonized, circumcision ceremonies, healing of the sick among others. Plant species that follow in this category included; Apaki, Munyama, Luhabari, Liponi, Bugala, Bukomasi, Busagala, Busema, and Simbwe. Other plant species are cherished for other nested reasons, such as: house construction, guarantee of protection, bringing peace, used during the ceremonies such as the installation of a Tribal head, birth of twins, birth of a first born. Such plants include: Murembe, lusiola, musufu, mtukunyu, shingulosho, madala, Vusagu, simbalagay, visamia, shinyuaza, udaro, misine and shingututsi. When asked what the community of Luhya does to such plants that are perceived as cherished. The following table illustrates the varied perceptions regarding the protection of cherished plants in Kakamega forest environment.

Table 6.7 Responses regarding protection of cherished plants in Kakamega Value response Frequency Percentage Don’t Know 0 0 Planted in community gardens 73 33.33 Planted in home gardens 52 22.74 Construct homes near such plants 77 35.16 Planted in the forest 7 3.20 Teach children about such plants 10 5.57 Total 220 100

Source: Field Survey data.

In the above table we realize that an array of ways as to how cherished plants are treated is presented. 33.33% agreed that they do plant such species and protect them when they find them.22.74% informed the researcher that they construct homes near these plants. It is perceived that these trees or plant species provided residence for the Luhya gods and spirits. Therefore constructing homes near such plant species amounted to living near the gods. 35.16% informed the researcher that plants perceived to be of good luck are also planted in the garden since they too are associated with good or bumper harvests and good soil management, thereby enabling continuous soil fertility in the gardens. 3.20 % of these

148 respondent said that they planted such species in great numbers so that they could regenerate in abundance so that they could abundantly found by any person in need of such plants. Another 5.57% informed this study that they teach their children about such plant and through such teaching; the children can learn to preserve such plant and even protect them as they grow up. On the contrary, there were rather very negative responses regarding individual perceptions of what the people do to the plants that are perceived to be of bad luck. These are treated differently! They are condemned plants. It was found out that unlike plant species perceived to be of good luck, condemned plants, trees or crops have to face the choice of extinction through the various methods. It was observed that such plants are avoided or destroyed. In obtaining the varied perceptions regarding such plants the respondents were asked a leading question; what do you do to plants that are perceived to be of bad luck? The following table summarizes the various responses regarding community treatment of condemned plants.

Table 6.8 Individual responses regarding treatment of condemned plants. Response Frequency Percentage Burn them down 138 62.7

Cut them down 52 23.6 Leave the land with such plants 22 10

Avoid such plants 8 0.36 Total 220 100

Source: Field Survey data.

From the above table, 62.7% of the respondents answered that such condemned plants were burnt down. While 23.6% agreed that such plants were usually cut down when found to grow especially around the homesteads. Only 10% informed the study that they would vacate the land where they found that such plant species had existed. It is however important to note that the institutional beliefs surrounding condemned plants are; such plants were habitats for the bad spirits and bad omens. The omens contained in such plants were suspected to move closer to those who lived or used them. Such plants are never used in the day-to-day lives of the Luhya sub-tribes. They are only brought into light during performance of rituals such as cursing those who have proved to be a disgrace to the community. What was however interesting to find out that this practice of destroying condemned plants was only done in areas around the homesteads. The implication derived here is that condemned plants found in the forest remain unaffected and avoided. This gives the forest ecosystem a chance to flourish as they are practically avoided.

149 When a matrix of cherished crops and condemned plant species, was drawn, it was found out that there are more cherished crops than condemned plants. As a result there was more protection given to the cherished plants than the destruction to condemned plants. But it was also astonishing to learn that while there were efforts to plant and regenerate cherished plants, this was done on the farm fields and not specifically in the forest. But even then, this practice was found to be very complementary to the forest biodiversity, given the fact that community users of such plants can often get them from their own farm fields, than harvesting them from the forest on a regular basis. This gives a chance to the forest vegetation to regenerate. It was also found out that the act of growing the cherished plants was motivated by an informal institutional belief that such plants need to be protected and planted.634 In a large measure, this works to protect the forest biodiversity.

6.7 Local Knowledge and biological conservation: The Interface Local institutional mapping would be incomplete without discussing the place and role of local knowledge in the understanding of local biodiversity perceptions in Kakamega. It is needless to mention that local knowledge derives much of its strength from the presence and continuity of local institutions such as customary law. Customary law can be understood as an established system of rules that evolved from the way of life and natural wants of the people. It is also seen in the local norms where the general context of which is a matter of common knowledge, retained in the memories of the chief and the chief’s councillors, their sons’ sons until forgotten, or until they became part of the immemorial rules. 635 Therefore like customary law, local knowledge is knowledge held by a specifically defined community, following a strict code of procedure and conduct in the management and transfer of such knowledge, which provides the foundation on which customary law is built; the philosophy that informs life in local communities. 636 When investigating the interface between local knowledge and biological knowledge in Kakamega, we need to appreciate that the two are intimately fused into each other. For instance, during the study it was found out that 76% of the respondents linked their current protection of local herbs commonly linked to the local knowledge they had come across either through their parents or through their clan meetings. This same scenario was also encountered when it came to investigating the role of peoples’ perceptions towards the protection of animals or different tree species. 85% of respondents informed the study that, they did protect specific plant species because culturally they are forbidden from using and cutting down such tree/plant species.

634 Cotran, E. 1988. Case Book on customary Law in Kenya. Nairobi:University of Nairobi Press. 635 Agarawal, A. 1995. Dismantling the Divide between Scientific and Indigenous Knowledge. Development and Change 26 (3):413-439. 636 Ibid 150 Like we have earlier noted, most of the respondents referred to their local knowledge as the reason as to why they had come to learn about the protection of the local trees and animal species. In one of the focus group discussions, the discussants pointed out that cutting a certain tree species that house some of their ancestral gods had led to drought and poor yields in their community.637 Some of the discussants referred to the cutting down of particular tree species as invoking curses and undue suffering for the same offence. In all, it was established that all these local perceptions helped to build up a strong base for local knowledge and ultimately strengthened by customary law. This in the process has shaped future biological conservation, especially in areas where there is little formal/biological education. The strict customary law which forbids the non-members from reaching some of the sacred places had helped to keep large tracts of the forest biodiversity under community guardianship, courtesy of customary law especially among the Maragori, Tiriki and the Marama.

The Transfer of local and biological Knowledge In the study, it was imperative to find out how local knowledge that is known to be the cornerstone of understanding local biodiversity perceptions is transferred. It was also important to establish how such knowledge is managed for the conservation of forest biodiversity in Kakamega. To attain this, respondents were for instance asked who they considered to be the custodians of local biodiversity knowledge in the area. In response to this, the study found out that village chiefs, traditional priests, Village elders, parents and Tribal chiefs were the key custodians of local knowledge. However, before we delve into further details we must observe that there is a thin relationship between the structure of traditional authority and the custodianship of local knowledge. It was also established that the local Luhya institutions were also central in the transfer of local knowledge be it related to biodiversity or otherwise. More to that, age was found to be an important aspect in the control of local knowledge. Old people such as village elders were considered to be the local encyclopaedias for the society concerning its local institutional norms, belief and values. Lastly, within the Luhya institutional setting regarding the transfer of local knowledge, parents were regarded as central since they were the first point of contact when a new generation of children was born. Similarly, we found out that 28.31% respondents regarded the village chief, commonly known as the ligulu as the custodian of local knowledge. In the following table we see who the custodians of local knowledge are.

637 Focus Group Discussion: 22 July 2006 151 Table 6.9 Custodians of local knowledge Value response Frequency Percentage Don’t Know 0 0.0 Village chief 62 28.31 Traditional priest 14 6.39 Village elders 31 13.70 Parents 40 18.26 Tribal chief 73 33.33 Total 220 100

Source: Field Survey data.

It is equally important to mention that, as far as management of the local biodiversity is concerned, 6.39% the respondents agreed that traditional priests were also custodians of the local biodiversity knowledge. The respondents mentioned that the traditional priests are regarded as so, owing from their position in the society. They are perceived to have supernatural powers that enabled them to have extra-ordinary wisdom. They are also known to be intercessors and therefore often visit the sacred places in the forest. They are in constant touch with the forest spirits and this makes members in the local community believe that traditional priests have a deep understanding of the local forest biodiversity. On the contrary, 33.33% of the respondents showed that village elders were the custodians of local knowledge. These owed their recognition from the fact that they have lived for long and have a clear grasp of the local institutions. Further more, village elders are known to be in charge of enforcing the local customary law, so they are construed to be the real custodians of the local law and knowledge as well. 28.31% of the respondents highlighted the Tribal chiefs as the custodians of local knowledge. These, the respondents said are the leaders in the respective sub-tribes and as a result are seen to be torch-bearers as far as traditional knowledge was concerned. In the process they are consulted on almost all the major issues that relate to the sub-tribes and are presumed to have provided answers on almost all including the local biodiversity issues. Lastly, 18.26% of the respondents agreed that parents and relatives were also important custodians of local knowledge. This is largely found within the Luhya tradition that maintains that parents especially the grandparents are the holders of the local wisdom. This arises from the fact that wisdom manifests its self in age and therefore aged grandparents are hosts of this much desired/cherished wisdom. Likewise, they are consulted on the relevance of different local biotic and non-biotic issues, and they readily provide the answer Grandparents are also behind the major ceremony of naming the newly born children. We have already mentioned, many of these names have a connotation with the biological species especially animals. The aged grandparents are also the major teachers in the informal education system that is largely based on the oral tradition method of instruction that has existed since the old times up to today.

152 When asked how such people (Custodians of local knowledge) are perceived, there were a myriad of responses regarding the same, as reflected in the following table.

Table 6.10 Respondents perceptions of custodians of knowledge. Value response Frequency Percentage Don’t Know 0 0.0 Protectors of Cultural norms 68 31.05 Sources of Wisdom 20 9.13 Spiritual leaders 19 8.68 Extensions of Culture 72 32.88 Guardians of Society 40 18.26 Total 220 100 Source: Field Survey data.

In the above table, 31.05% of the responses informed the study that they perceived the custodian of local knowledge as protectors of the local and cultural norms. For this reason, they specifically referred to the village elders, whom they described as the people in total control of what “was” and what “should be”. They are consulted on all issues relating to the local biodiversity and therefore their wisdom is given in lieu of keeping the cultural norms regarding such biodiversity intact. In another focus group discussion with some of the tribal elders, it was agreed that their information is taken seriously but hastened to add that; some of it is disregarded. But they emphasised that their advice is given with an aim of protecting the cultural norms. We also found out that 32.88% of the respondents perceived custodians of local knowledge as sources of wisdom. This is especially in respect to the aged. It is believed that the most spiritual and magical powers are obtained and retained by the aged. This belief lies in the old people’s monopoly of magical power and is further reinforced by the Luhya adage that the most powerful source of wisdom is age. 9.13% agreed that the custodian of knowledge are also are also seen as spiritual leaders. This is especially in regard to the traditional priests. These are perceived to be seats for the ancestral spirits, Baguga, and therefore they are perceived to be close to the Luhya gods. This means that they are able to obtain the goodwill of the ancestral spirits Misambwa-mu-mi-sambwa, an enhancement of their ability to guide the people in almost all aspects of the cultural and spiritual nomenclatures which of course have a lot to do with the local biodiversity in and around the forest. Finally, with regard to the local, the Luhya traditional religious beliefs, they are in harmony with the prevailing Bantu idea that the deceased have a continuing influence over the fortunes of the living. This is a crucial aspect of the relationship between the people the traditional priest. 18.26% agreed that holders of local knowledge are perceived as guardians of society. This is construed to mean that, in a way a society can only be held together by those who have a rich grasp of what the local knowledge systems are. Similarly local biodiversity knowledge can only thrive on an enriched system of local knowledge especially in areas where local

153 institutions are well rooted. It is needless to recount that the local knowledge system informs and guides in the local decision-making process of the local resource development and usage. In view of this, the custodians of the local knowledge are the guardians of society. Lastly 8.68% respondents informed the researcher that the custodians of local knowledge are also perceived as extensioners of culture.

154 7 Historical and Sociological Institutions in Kakamega district

7.1 Institutionalism and customary law Anthropology has been branded to be slow in responding to the institutional and environmental expectations, as well as taking up issues relating to environmental and more so biodiversity. A number of reasons have been advanced in this direction. One reason for this hesitancy are the many changes that are introduced in the name of environmental institutions that are insensitive to local institutions such as customary law.638 The results in the previous chapter revealed that local institutions are central in the transfer of local knowledge. We also found out that there is a relationship between the structure of traditional authority and the custodianship of local biodiversity knowledge. We also found out that customary law supports the building blocks for this interface. In this chapter, we outline the interrelationships between institutionalism and customary law, which is sometimes referred to as legal anthropology. Proponents of legal anthropology typically admire the use of customs because they arise spontaneously, outside the state.639 The informality of social norms obscures their operation and causes observers to under- estimate their importance relative to formal law. Informal law plays an important role in basic community resource usage where state enforcement of formal rules and contracts fails as is the case in many developing countries. 640 Demsetz noted that over zealous regulation forces informal law to operate in opposition to formal law, which impairs resources development.641 In recent years, institutions relating to environmental management have corrected the tradition of underestimating informal norms. Anthropology which forms the foundation for the analysis of customary law and social norms has become central to the law and environmental agenda, especially after Ellickson’s research on liability for straying cattle framed legal decentralization in terms of the Coase Theorem. 642 In this study we found out that the institutional analysis of social norms, such as the customary law are central in redirecting resource usage redistribution. This observation is grounded in the utilitarianism of resource user groups and sub-tribes among the Luhya communities. Through the use of customary law, it was found out that there is a tendency to create efficient rules for cooperation within resource communities groups. Customary law which is partly a result of Kinship provides a framework for repeated interaction among the same people. Consequently, such kinship groups like sub-tribes can solve problems of internal

638 Kay, M. 1996. Environmentalism and Cultural Theory. Expoloring the role of Anthropology in Environmental Discourse. London: Routledge. 639 Leoni, B. 1991. Freedom and the Law. Indianapolis: Liberty Fund. 640 Winn, J. K. 1994. Informal Financial Practices of Small Businesses in Taiwan. Law and Society Review 28 (2):193-241. 641 Demsetz, H. 1967. Toward a Theory of Property Rights. American Economic Review 642 Ellickson, R. C. 1991. Order Without Law: How Neighbors Settle Disputes. Harvard: Havard Univerty Press. 155 cooperation without relying upon state law. Posner’s study on group regulations and collective action affords a glowing example.643 Historical institutionalists involved in studying common resource regimes note that customary law is both an essential part of everyday living and a backup system used in maintaining common pool resources. Rule use must correspond to what the system can tolerate. Successful resource user groups appear to prefer environmentally conservative use. McAdams further demonstrated this fact in careful and detailed studies of social groups, in which people have repeated transactions with each other. Such social groups included those involved in direct usage of grassland and forest related resources. 644 Accordingly, customary law ideally corrects failures in the “market for social norms,” rather like regulations should ideally correct failures in the market for commodities.645 This analysis upholds that incentive structures in society which cause the evolution of efficient social norms and, conversely, these incentive structures which are rooted in customary law, cause social norms to succeed. The principles of social anthropology elucidate that, one prerequisite for the success of customary law is the possibility that humans have the capacity to engage in the intentional activity of making rules concerning the appropriateness of human conduct using customary beliefs of what is right or wrong. 646 Posner’s arguments illustrate that the interpersonal approach recognizes humans as rational and responsible individuals, facing the task of developing structures to serve human ends. One way of doing this, is for humans to act both rationally and communally to create valid rules of customary law that regulate the conduct of both themselves and others. This interpersonal perspective makes room for customary law as a separate and distinct procedure alongside formal legislation for the making of valid legal rules. The linkages between the Luhya people and nature are as old as the Luhya themselves. The Luhya prospered by husbanding natural resources in an attempt to adapt to the local natural environment. In the process, a wide ranging body of knowledge, innovations and practices evolved, inextricably linked to the use of natural resources. This has enabled most of these communities to live within the limits of their local environment and contributed to shaping their customary law as well as their spiritual identity. In order to understand how the Luhya conserve nature and ecosystems, we must take into consideration the interface between the Luhya, nature and culture, to which we now turn our attention.

643 Posner, E. A. 1995. The Regulation of Groups: The Influence of Legal and Non-Legal Sanctions on Collective Action. Paper read at ALEA, at Berkeley. 644 McAdams, R. H. 1995. Cooperation and Conflict: The Economics of Group Status Production and Race Discrimination. Harvard Law Review.108:1003-1084. 645 Kuppe, R and R. Potz, eds. 1994. Law and Anthropology: International Year Book for Legal Anthropology. Dordrecht/Boston/London: Martinus Njihof Publishers. 646 Posner, E. A. 1996. Law, Economics and Inefficinet Norms. Paper read at ALEA, Chicago. 156 Biodiversity and customary law in Kakamega District In previous chapters and more precisely chapter two, we have already mentioned that institutions are the foundations of politics and economics life as well as social order. These consist of both formal and informal enforcement mechanisms and systems of attaching and interpreting meaning to specific life contexts. In this regard institutions also define the context in which individuals and other organizations live, operate and interact with each other. 647 In the foregoing treatment we understand institutions as settlements born from struggles and bargains, reflecting the distribution of resources and power in the society. Once created, institutions determine how people make sense of their world and act in it. It also relates to how they channel and regulate conflict, hence ensuring stability in the society. At the foundation of all this stability is customary law. This is the basis of both formal and informal institutional arrangements in both industrial and agrarian communities. Further more, in our discussion of customary law in Kakamega, we shall limit ourselves to the institutional arrangements in terms of customs and nomenclatures relating to the usage of biological resources. In the study, it was found out that the Luhya still have a strong adherence to laws relating to the universe (cosmology), laws/customs relating to rain-making and the powers of the rainmaker Omugimba. The institution of a rain-maker has an important position in the Luhya traditional authority structure. He is referred to as a giver of life through rain-making. He is well guarded from individuals perceived to be harmful to the Luhya sub-tribes and therefore, only approached through his representatives. Rain is construed to preserve life because it facilitates both plant and animal life. It also goes without saying that rain is also seen to be the fulcrum for the Luhya agrarian economy and therefore, the preserver of economic life in this context. In the same respect, the institution of the omugimba is a strong institution guarded by Luhya customary law. We need not to recapitulate the role of precipitation on the development and sustainability of ecological life and ecological functioning. Metrological observations show that rainfall is not only abundant, but also regular in Kakamega particularly, in the Luhya occupied locations. However, there are several rituals and taboos relating to rain-making and rainfall reliability. These are performed to avoid a repeat of what happened in 1918, when a great drought hit the area. As a result, customary law in Kakamega forbids people from getting involved in actions that may lead to rain failure. Such actions may be related to the destruction of different plant and animal life. It may also result from using plant or animals in a state of impurity. As we earlier noted, customary law is extended to the perseverance and respect of different plants and animal species given their significance in the Luhya communities. For this reason there are laws relating to plants and animals in a state of impurity. The law here is an

647 Giovani, D, R. Nelson and G. Winter. 2000. Nature and the dynamics of Organisation. Oxford: Oxford University Press.

157 observation of a number of closely related notions and beliefs regarding a host of plants and animals in and around the Kakamega Forest environment. The latent meaning and implications of the law is to avoid such plants and animals. Customary law is further extended to the places around rivers especially River Nzoia and River Yala. Places near and around the river are supposed to be cleansing places for particular cases. They are also associated with the spiritual rituals concerning the death of a senior Luhya chief. For instance, the Ishuka and the Idaho have very close relationship with River Yala because it is believed that their descendants the Mwisuha and Mwidaho respectively, descended and still live there One respondent informed the researcher that; “there is sanctity and must be observed around such a river. Everything here must be respected.”648 The same customary law is invoked by other sub-tribes regarding other small and big rivers and streams crossing Kakamega Forest. Lastly, there are strict laws relating to access to the forest. Non-members (those that don’t belong to the Luhya sub-tribes) are barred from reaching the forest. The local law forbids such people from entering the forest since they are construed to be destroyers of the forest and contaminators of certain forest species. To a great extent, customary law bars women from reaching some parts of the forest. In this regard, most of the laws work to prevent adverse effect on the ecological diversity of the forest. Generally speaking, there are similar interpretations of customary law among the Luhya sub-tribes, what happens in one Luhya sub-tribes, happens in another and almost for the same purpose/reasons. However, other accounts from focus group discussions with the community elders among the Maragori, Banyole and Bukusu informed the study that; over the years, local/customary law has been changing and declining, a phenomenon that is usually referred to as institutional change. In the realm of historical and sociological institutionalism, it is argued that institutions change differently, following different time series. The changes are sometimes radical, sometimes gradual and sometimes evolve more incrementally. But it is also better to understand how different types of institutions change and understand some of the forces that determine institutional change.649 In the case of Kakamega and the Luhya for that matter, it is still troubling to understand what explains this institutional change. But in some instances, there are clear accounts that do point to the role of extensive missionary work in this area which could be used as a prelude to explain this institutional change. Sangere who investigated the significance of both the mission and break away Christian church groups among the Tiriki sub-tribe postulated that: the Tiriki and other sub-tribes of the area have been heavily missionized by a variety of protestant sects. He goes on to illustrate that not only have the missions been very busy evangelizing, but also ever since 1902, they have provided the

648 Field respondent No: 12, 24 –July- 2006. 649 Thelen, K and S. Steinmo. 1992. Historical institutionalism in comparative politics. Annual Review of Sociology. 25:597:622.

158 education and a majority of social services in some of these areas, a fact which has seen rapid economic, political and social transformation. 650 This same revelation is well collaborated by Günter Wagner who researched about the social institutions of the Bantu of Northern Kavirondo. The Author made several trips to northern Nyanza between 1938 and 1942 (by then this area was known as Kavirondo). He amassed a great deal of data on the twenty two tribes of the current Western Province. Much of Günter’s data dealt at length with the Maragori, Kisa, Bukusu and Tiriki sub-tribes. He noted that the flexibility in the social institutions in terms of organization, rule enforcement, place and value of power at the time, were a manifestation of social and political change, a revelation he said was a product of extensive British administration and innovations.651

Sources of customary law in Kakamega District The ability of individuals and communities to preserve natural resource elements within their environs stems from historical and sociological institutionalism. The proponents of these institutionalisms, be it formal or informal, argue that it is the rules and procedures that structure the conduct of the communities and individuals as well as their relationship with the diverse resource species in any given resource environment. However, organizational institutionalists recognize that informal rules such as customary law which we take for granted, are the major framework scripts that form the cognitive struts for the formal rules.652 But all this said, one question remains important; what are the sources of this influential customary law in Kakamega? This question will be answered in the light of the Luhya people living around Kakamega Forest. During the study, it was widely ascertained that customary law in Kakamega dates as far back as the history of the Abaluhya people. This customary law has its roots in the many achievements and the many tribulations that the tribes encountered, right from their cradle land to the arrival in their present day homeland. Like many other Bantu East African tribes, the Luhya are greatly attached to the far past or remote past kahale and present future imbeli. Historical occurrences have a great impact on the lives of the Abaluhya and such happenings have a way they shape (d) and structure (d) the local or customary law that is followed by the Luhya sub-tribes. It is by looking at the distant past that the people and more precisely the council of elders interprets, or finds an explanation for the present occurrences. The explanation from these occurrences constitutes an abstraction of myths and prohibitions that later turn into emergence of knowledge, beliefs, customs and eventual customary law.653 These historical landmarks are transformed, compacted and scaled down into traditions that are handed down from one generation to another.

650 Sangaree, W. 1966. Age, Prayer and Politics in Tiriki, Kenya. London: Oxford University Press. 651 Wagner, G. 1949. The Bantu of North Kavirondo. London: Oxford University Press. 652 March, J.G and J.P, Olson. 1984. The New Institutionalism: Organisational Factors for Political Life. American Political Science Review 78(3):734-749. 653 Vanisina, J. 1985. Oral Tradition as a History. Nairobi: Heinemann. 159 Customary law relating to use of biological resources has a great relationship with the occurrence of specific events. For instance, the appearance of locusts, the delay of rains, the death of specific animals, the outbreak and spread of epidemics and above all death of people. These particular happenings are in most cases related to the destruction of certain biotic species. For example, the killing of a given animal species or the cutting down of a specific tree species which are related to the Luhya traditions. In an interview with an elderly respondent, he recounted that: “In 1968, the killing of a cobra by a group of unknown people led to a host of problems including unrelenting deaths in the community, a trend that took up to a whole year”.654 The concept of the “living dead” is a strong institution that has structured customary law in Kakamega and specifically among the Luhya sub-tribes. There is a way biological life is linked to the Luhya way of living and other institutional interchanges. There is a cycle of seasons, occurrences and activities within the Luhya communities such as sowing, cultivating, harvesting and hunting among others. Such key events are often marked by religious rites and ceremonies. The unusual events which don’t rhyme within this rhythm of events, for instance, the occurrence of locusts, the delay of rains, the death of specific animals and rampant spread of epidemics, are interpreted to be bad omens requiring special attention from the community, spearheaded by the council of elders. The observation to make here is that; although unscientific explanations are used to account for the occurrence of such events, there is usually an informal biological linkage annexed to such explanations. In a way, some of the informal biological explanations are sysnonymous with some of the scientific explanations to such “bad occurrences”. It is this linkage that forms an interface between the local knowledge and the local biodiversity conservation interventions. Though perceived differently, and not explained scientifically, the customary law among the Luhya has a great deal of alliance with conventional scientific methods explaining why biological diversity should be conserved. The “laws” regarding the preservation of the cosmos and its cosmological interactions are a clear manifestation of this. This brings us back to the complex issue of historical and sociological institutional analysis. Institutionalists have been at war, debating whether institutional analysis involves the recognition of different institutional paradigms sharing common problems and the need to be resolved. Institutionalists like Campbell argue that, the best way in which to describe institutional analysis and institutional change is to follow the evolutionary pattern characterized by gradual accumulation of increased changes over long periods of time.655 In this sense, such institutions are characterized by prolonged periods of either equilibrium or stability or evolution that are interrupted suddenly by a crisis that throws it into turmoil until a new institutional arrangement is established. Such an institutional arrangement then remains in equilibrium or evolves slowly for another longer period of time.

654 Key Respondent Interview No: 8. 6 July 2006. 655 Campbell, J.L. 2004. Institutional Change and Globalisation. Princeton: Princeton University Press.

160 Put in the context of Kakamega, it leads us to what we shall call trans-regime ambivalence, a situation in which two legal regimes regarding the perception and conservation of biodiversity obtain. We are talking of a people offering two allegiances to both the formal and the informal institutions regarding the conservation of biodiversity. There has been gradual institutional change in Kakamega especially with the coming of the British Administration. Informal institutional regimes are still important in the peoples’ lives in Kakamega and in this study we found out that this makes people compromised in order to play these two roles. As a result of this, we are bound to grapple with continuous development of theories that identify the causes of institutional analysis through change raising such questions like; what causes radical institutional change in egalitarian communities? What does it look like and when does it occur? Is it more of revolutionary processes or evolutionary processes? In short; we continue to wonder about what should be the best patterns of institutional change – continuous and smooth, following a gradual process where those that are discontinued paint a different picture consisting of sharp shifts from one institutional arrangement to another or those that are radical and revolutionary? Dopfer noted that the best institutional analysis is attained when institutional change is evolutionary. This is made out of the appreciation that today’s institutions are yesterday’s because they have inherited their predecessors’ characteristics.656 As societies change overtime, so does the development of new experiences and practices, making it difficult to define how much and what kind of change has been accumulated, hence problems of quantification do set in. According to this school of thought, decision-makers often suffer from insufficient information regarding the problem at hand, resulting to poor institutional change analysis. The above exposition is useful in aiding our appreciation of the Kakamega scenario. This stems from the deep rooted informal institutional attachments among the Luhya sub-tribes. These Luyha sub-tribes are too procedural and too conservative, strictly following too many customs and beliefs. It is therefore appropriate to have a fair grasp of these deep seated norms and values. Poor methods of evaluation and interpretation may lead to policy ineffectiveness and related difficulties. This may also help us to explain the constrained implementation of conservation policies in the 1940s. 657

7.2 Local ecological knowledge and local perception of national biodiversity laws Local ecological knowledge represents experience acquired over years resulting from direct human contact with nature and the environment. It also encompasses the perceptions held by a people in a defined society. This kind of knowledge is usually transmitted through attitudes, beliefs, principles and conventions of behavior and practice derived from historical experience. Traditional ecological knowledge refers to the understanding and appreciation of

656 Dopfer, K. 2001. Evolutionary Economics: Framework for Analysis. Boston: Kluwer Academic Publishers. 657 Wagner, G Opcit. 161 plants, animals and their natural history.658 Local ecological knowledge also involves studying of peoples’ traditional lifestyles which in a way offers many lessons in the management of resources, particularly in forestry ecosystems. Capta observed that ecosystems sustain themselves in a dynamic balance based on cycles and fluctuations in a non-linear process.659 Therefore, talking about traditional ecological knowledge involves the ecological awareness that arises when we combine rational knowledge with intuitive wisdom. This is characteristic of traditional non-literate culture. In this sub-section we wish to investigate the role of traditional knowledge in shaping biodiversity resource management institutions. For instance, what shapes the varied interpretations of different tree and animal species in and around Kakamega forest? How relevant is it to compare these interpretations with those given by the national forest conservatory services? Local ecological knowledge models followed by the people around Kakamega forest are buttressed in Luhya old traditions regarding this bio-region.660 The local ecological knowledge surrounding the forest has in many ways continues to evolve. Observations and experiences continue to be accumulated through generations. It was striking to note that local directories used to document various plants and animals species, contained many more species that did not appear in some of the recent national forest directories. On the contrary the people living around these forests argued that these plant and animal species have been seen for decades. It is further imperative to note that, the local population is knowledgeable about the species that are threatened and facing extinction, yet the forest management service is not. While in practice the local population was more conversant with the informal local ecological knowledge in these localities, they have a faint grasp of the trend and scientifically related discussions regarding the natural biota in their region. Similarly, they had no clear comprehension of the formal legal regimes regarding the national biodiversity laws. This discrepancy may be useful in exploring the chronic conflict between the local communities and the forest wardens especially in areas of Shinyalu and Kaimosi among others. It is therefore logical to ask whether if the local ecological knowledge model used by the people around the Kakamega forest if well interpreted can be useful in shaping peoples’ knowledge regarding the current formal biodiversity resource management regime used in Kakamega and other forests. Although this postulation may require further scrutiny, evidence of strong local ecological knowledge obtained from the Tiriki and Bunyala shows that the behaviours of the local population towards the forest in these areas is quite different, yet there is minimal supervision and control especially by the forest wardens. In an opinion interview

658 Gilchrist, G. and M. L,Mallory. 2007. Comparing Expert-based Science with Local Ecological Knowledge: What are we afraid of? Ecology and Society 12(1):r1. 659 Capta, G. 1995. Ecology, Diversity and Diversity of the Middle Grande Basin. A Report of the United States Department of Agriculture. 660 Jungerius, P.D. 2004. Indeginous Knowledge of Landscape: Ecological Zones Among Traditional Herbalists. A case Study in Keiyo District , Kenya Geo Journal 44 (1):55-60 162 with one of the Tirirki elders, the study learnt that due to the strict local ecological knowledge programme in the area, the behaviour of the local people in these localities is different.661 Parallel to the above, throughout the entire period of fieldwork, one could not fail to observe the negative perception that the local population had towards both the national laws and the formal enforcement mechanisms. Up to 78% of the respondents depicted that they had no knowledge of the national laws regarding access to forestry biodiversity resources, but knew about the forest wardens. The answer to this was attained by asking local respondents whether they had particular knowledge of laws that govern access to forestry resources in Kakamega. It was also evident that there was an open acrimony between the local population and the forest wardens. Many respondents interviewed by the study expressed a clear grasp of the penalties that would befall them if the forest wardens got hold of them. It was also interesting to find out that the majority of respondents admitted that acts such as charcoal burning, harvesting of plant species and tree cutting were illegal. Locals were also frequently heard remarking that they have problems with paying their debts and meeting other monetary obligations. Such arguments were used in the condemning of forest officials. The remarks used in the condemnation of the forestry officials were in form of social and economic justice. Both constructions represent a kind of moral condemnation, referring to norms concerning “right” and “wrong” methods of forest resource usage, ultimately leading us to issues of rational choice institutionalism and bio-ethics. However, we may argue that this is the ecological insight of the Kakamega locals and that is their way of constructing arguments representing a conflict of economic, social and to some extent cultural institutional interests. In evaluating the interface between local ecological knowledge and perceptions of national laws regarding the protection of forestry biodiversity, it can be summed that while scientific scholars view ecological knowledge in a rather neutral perspective, local people residing around the forest resource areas in Kakamega, are to a given extent involved in a world of conflicting institutional interests. It was also found out that varied sections of the local population viewed or perceived the formal resource regimes as very much in conflict with their economic and social interests. For instance, in the study we asked the respondents what their views were, as regards the national laws that are used in the management of national forestry biodiversity. The essence of the above question was to gauge local perceptions regarding the formal legal regimes that govern biodiversity in places around Kakamega forest. Up to 61.64% answered that they felt the national laws (laws enforced by forest wardens) were unfavorable to their cultural, social and economic interests. When further probed to find out whether the forestry authorities knew about these varied interests, 63% of the respondents said that the forestry authorities knew about their cultural and social and economic interests, while 36% informed the researcher that the forest authorities did not know about their varied interests.

661 Field Interview No.6 15 July 2006. 163 These responses were collaborated with the transcriptions from a key informant interview with Mr. Saisi, the District Environment Officer. He admitted knowledge of the varied interests of the communities. He responded that; as an individual he was aware of these interests but the law did not permit the use of forestry resources to that effect.662 Therefore, the situation regarding the local ecological knowledge in Kakamega can help us in understanding two scenarios: the first is that while scientists like the conservators of forests in Kakamega view ecological regimes in a scientifically focused scope, local people are involved in a world of conflicting interests ranging from traditional, social to economic interests. This will be discussed at length in the subsequent sections.

7.3 Forest biodiversity and cultural heritage in Kakamega Tracing it from their migratory history, most of the present-day Luhya sub-tribes had been living in the forested land belts prior to their final destination in the present-day homeland. For instance, the Banyole during their migration process spent many years in Bunyala forest. They usually lived in the forest but they farmed in the open fields, growing elesusine, millet, sorghum, sweet potatoes and monkey nuts. This sub-section outlines the reasons as to why forest biodiversity and cultural heritage in Kakamega are intimately linked among the Luhya. We also present reasons as to why this heritage has to some extent contributed to the conservation of the forest biodiversity in Kakamega. As earlier noted, the biodiversity of Kakamega is shaped by nature and history that is passed on from one generation to another. It encompasses a myriad of issues including laws, language, history, traditions, and cultural diversity of the various places in the forest, as well as the species and objects found in such places. The Luhya attach great significance to places related to their cultural heritage. Such places are referred to as sacred. They are protected/guarded, conserved and respected places of worship and intercession. In the study, respondents were asked whether they had knowledge of sacred places in Kakamega forest. Up to 91.78% agreed that they knew about the sacred places in Kakamega forest. Only 7.31% said they didn’t know about these places. Though the figures are not surprising, what is astonishing, yet contradictory, is the fact that these places are not discussed in public. Thus it is assumed that those who answered no could have done so in the interest of keeping this fact a secret. This was confirmed by the check responses from the question that intended to find out whether people are allowed to visit such places. 74.89% said yes. But the yes in this scenario should be taken with caution! It meant that the people who are allowed to go these sacred places are of the Luhya descent only. 24% answered that people were not allowed to go there and this can be translated to mean that non-Luhya are not allowed to visit such places and only 0.91% said they didn’t know. When asked why people visited the sacred

662 Key Informant interview with Mr. Saisi, District Environment Officer 26 August 2006

164 places, there was an array of reasons that were recorded. These are illustrated in the table below.

Table 7.1 Why people visited sacred places in Kakamega Forest Value response Frequency Percentage Never visited 0 0 Spiritual Healing 60 27.40 Circumcision 75 34.25 Carrying out traditional rituals 22 10.05 Clan obligations/ Heritage 50 22.83 Cultural ceremonies 13 5.48 Total 220 100 Source: Field Survey data

In the above table 34.25% informed the study that they had visited these places to witness circumcision ceremonies, while 10.05% visited to carry out traditional rituals like cleansing and worship. 22.83% argued that they visited these places due to cultural heritage obligations (Pilgrimage). 27.40% visited the places in order to seek spiritual interventions and healing. People visit these sacred places to seek religious healing and purity. They go to get good heath, good fortune and peace. Therefore, because we bore in mind the role of cultural continuity in this process, we asked respondents how they had learnt about such places. In short we wanted to literary find out how this history is shaped and passed on from one generation to another. The responses are also summarized in the following table.

Table 7.2 How information about sacred places is transferred Value response Frequency Percentage Don’t Know 0 0 Parents 18 8.22 Old school peers 46 21.00 Local bulletin 65 29.68 Village peers 34 15.53 Grand parents 52 23.74 Tribal head 5 1.83 Total 220 100 Source: Field Survey Data

From the above presentation, it is observed that 8.22% of the respondents had accessed information about the sacred places and cultural heritage through their parents, while 21.00% of the respondents learnt it through their old school peers. 29.68% had learnt about these places through their local bulletins and another 15.53% had learnt this through their village

165 peers. 23.74% learnt about these places from their grandparents and only 1.83% accessed this information from the tribal head. The results from the above question made some important revelations for the study. The first is that the concern to protect the broader qualities of Kakamega’s sacred places like the Bunyala site and other old growth shrubs and thickets from degradation is an environmental as well as a social and fundamental obligation among the Luhya sub-tribes, an aspect which has great broader ecosystem and bio- regional implications in this part of the country. The cultural heritage values of Kakamega forest are often difficult to disassociate and disentangle from the wider biodiversity and conservation issues which have been highlighted in this study. The other important fact that underlines this statement is that the forest biodiversity and cultural heritage places are located in the valued and well-protected areas of the forest. Surprisingly these sacred sites in the forests are not identified and defined/listed as heritage sites by the Forest Departments, the Kenya Wildlife services or the National Museums Kenya, as heritage sites, given their significance in this bio-region. In an interview with one of the respondents regarding the significance of the sacred places in the Luhya institutional landscape, the informant answered that: “The sacred places signify our right to this land, the traditional principles of our descent kinship and heritage”.663 This pronouncement shades more light regarding the natural and social values that the Luhya attach to these places. It also depicted the dualism that exists between cultural heritage and biodiversity in Kakamega, signifying the relationship that people have with their culture as well as the natural biota on the land. When pressed further on why such land was very valued, during the study, we learnt that all the land on which the Abaluhya live, was acquired through conquest and war, an indirect way to inform us that many of their ancestors had died through the wars of conquest. Therefore, it is believed that the Luhya ancestral spirits converge in some of these places and that is why such places are referred to as sacred and holy grounds, which require purity.664 It was also found out that the sacred places in the forest are often defined in terms of their spiritual values augmented by their physical fabric. They are resting places for some of the Luhya spirits and as a result, the Luhya people have a responsibility and a duty to conserve the sacred places in Kakamega forest. They have the duty to guard, regulate access and grant permission to those who visit these sites in the forest. Those thought to be impure and hostile to the Luhya tribes are barred form reaching these sacred places. This was obtained by asking respondents whether they had great attachment to the sacred places in the forest. Up to 93.61% of the respondents responded in the affirmative. We also wanted to confirm whether this attachment goes hand in hand with the conservation of the natural biota in these areas. 90.7% of the respondents agreed that the environment of these places in preserved and protected. It is needless to recount that, the protection of the environment in these areas is a responsibility of all Luhya sub-tribes.

663 Field interview no.12, 27 July 2006 664 Yokoo, S. 1966. Death Among the Abaluya. PhD Dissertation.Makere University, Kampala 166 Further still, it was discovered that traditional ecological knowledge about such places is passed on to the young ones through different persons at different mediums, as depicted in the following table.

Table 7.3 Transfer of local ecological knowledge in Sacred Places Value response Frequency Percentage Mother to child 30 13.70 Father to Child 65 29.68 Grand Parents to Children 91 41.10 Clan meetings 34 15.52 Village elders to young ones 0 0.0 Local news bulletins 0 0.0 Total 220 100 Source: Field Survey Data.

In the above table, we note that 43.38% informed the study that parents transfer this ecological knowledge to the children (this includes a summation of all mothers and fathers who passed this knowledge to their children). 41.10% responded that the Grand parents were central in the transferring the traditional ecological knowledge, while 15.52% informed that through clan meeting, young ones were taught about this vital local knowledge. Incidentally local news bulletins and village chiefs were not mentioned as central in the transfer of such knowledge. The land holding sub-tribes have a collective responsibility to look after the natural biota in these places through regulation of access and performing traditional ceremonies to ensure continued fertility, peace, prosperity and good life. Each of the sub-tribes council of elders shares the responsibility in exercising this leadership. The members of each sub-tribe also celebrate in the religious festivals, to commemorate creation of the natural features of the present day Kakamega forest environment. The history of the cultural heritage in Kakamega forest is associated with the history of the Abaluhya people. The study appreciated the fact that these natural and cultural heritage sites have intangible qualities such as spiritual, ethereal, memories, views and perceptions which have strong meaning to the Luhya sub-tribes. We also wished to know whether there are any special plants that are got from these places. 93% of the respondents agreed that they always got special plants from these scared places. However, we also learnt that because these sites are visited for a number of reasons, the plant species gotten from these places are also used for different reasons. These are enumerated in the following table.

167 Table 7.4 Why Respondents got plant species from sacred places Value response Frequency Percentage Don’t Know 4 1.37 Good life and good luck 8 3.65 Medical healing 91 41.55 Blessing the community 99 45.21 Cleansing the community of evil 13 5.94 Planting at home for prosperity 5 2.28 Total 220 100 Source: Field Survey data.

In the above table, the respondents’ reasons for picking collecting plants forest’s sacred places are varying. 41.55% of the respondents answered that the carried these plants because they needed them for medical healing. 45.21% informed the study that the plant species gotten from these places are used for blessing, while 5.94% of the respondents confirmed that the plants were used in the cleansing the community of evil. 2.28% noted that people get the plants from the sacred places to plant in their homes for prosperity. Lastly 3.65% informed the study these plants are used to bring good life and good luck. Therefore, the above responses illuminate the fact that traditional and religious beliefs have an influence on nature and biodiversity conservation practices within the Kakamega forest sacred places. The above finding postulates a relationship between biodiversity and religion. This relationship is one laced with generated concerns of rationalism and bio-ethics. Many of the respondents believe that there is a need to balance and preserve nature. This was extracted from the Luhya belief that every animal and plant species plays a role in the balance of life and nature. It is needless to re-emphasise the varied importance adduced from the various biodiversity species. These interpretations help us to understand the real interchanges that underpin the link between religion and nature. Therefore, given the fact that the Luhya communities have variegated meanings assigned to the biodiversity, then, it helps us to appreciate the synthesis that local communities value biodiversity far beyond the instrumental and economic values. This purposeful observation results into the motivation for further conservation of the natural biota, a strong facet of rationalism and humanism. This deduction is derived from the interpretations and the different values ascribed to the varied plant and animal species within different localities. This may also be located within the traditional Luhya belief in the societal concern for nature and humanity, an aspect which has favorable implications for forest environment in Kakamega.

168 7.4 Collective community action and biodiversity in Kakamega This study would be incomplete without looking at issues of collective community action in Kakamega. When investigating the issues related to collective action in relation to the environment around Kakamega forest, one central question keeps lingering in our minds. The question is; what motivates the Luhya to co-operate with the non-Luhya in an environment that they totally control? Of course those conversant with the scholarship on common resource regimes will naturally answer this; to avoid the tragedy of commons. But this similarly posses another challenging question. How can resource governors design institutions to encourage cooperative behavior of complete social welfare that can be fully maximized? We have established that biodiversity conservation and institutionalism are closely linked to issues cooperation and collective community participation or simply put; collective community action. This interface calls for operationalization of jointed and acceptable practices especially those that encompass everybody and every one in a particular resource regime. The process also calls for acceptable and understood practices and norms that deal with biodiversity and resource conservation mechanisms. These should be well appreciated. Although such norms many not be effective in guaranteeing conservation, they can be improvised to suit the present circumstances. Ostrom for instance notes that the ability of groups to communicate informs the success of conservation regime.665 In the study we recognized that, to a great extent there was a pleasantly healthy relationship between the Luhya and the non-Luhya. We learnt that this relationship depends on the historical interaction that existed between the Luhya and other non-Luhya tribes. For instance, relations between the Luhya and Nandi, Luhya and Luo, Luhya and Iteso. We did find out that many of these tribes had been assimilated by the Luhya because they did not have land for cultivation and had been facing precarious situations like constant famine. However, many of them had been conquered and were therefore made to adopt the Luhya way of life.666 Ostrom gives outlines eight design principles for long and enduring institutions, each of which is an essential element that helps to account for the success of these institutions as well as sustaining group compliance for generation of appropriators of rules of use. These include:- i) Clearly defined boundary, (ii) congruence between appropriation and provision, (iii) collective choice arrangement, (iv) monitoring systems accountable to appropriators, (v) guarantee sanction for non compliance, (vi) conflict resolution mechanisms, (vii) recognition of rights of appropriators, to organize their own institutions for common property rights that were part of larger systems, viii) organization of multiple layers of nested enterprise.667 But we have to note that this depends on the existing relationships among the communities. This is borne out of the fact that the pattern of relations that exits among the populace will be an instrumental guarantee in securing trust and respect during the conservation process. It will also spur ethical consideration seen through the usage of the biodiversity resources.

665 Ostrom, E et al. 2006. Rules, Games and Common Pool Resources. Michigan: Michigan University Press. 666 Field Interview No-14, 29 July 2006 667 Ostrom, E. 2005. Understanding Institutional Diversity. Princeton: Princeton University Press. 169 Wholesomely speaking, the Kakamega forest environment does depict all the above enumerated characteristics and therefore we can safely argue that the internal dynamics of collective action within and among the Luhya and non-Luhya communities does exist in a large measure. Agrawal argues that the occurrence of these relationships will support collective assent of the powerful and the less audible dissent or indifference of the less powerful or indifference from the less powerful. 668 Collective action in the management of biodiversity resources is important because it reveals the chain of interrelationships and how they are useful in the governance of the biotic resources especially in the regulation of access both in open and closed access regimes.669 Further related to the above, we found out that the management of common biodiversity resources in Kakamega is punctuated by inter-tribal webs to oil the existing trust, relationships and other paternal networks. Holding and managing biodiversity in a common resource regime like a forest is derived out of the bond that exists between the people and this forms the pivot or basis for collective action. For instance, we noted that in Kakamega where a communal tenure of ownership exists, members do govern the available resources based on the patrineal hierarchy which reinforces the family bonds that spur the collective action and in the same way limits the access to those with “unethical” conservation methods especially the outsiders. The biggest unanswered question that remains is; what are the implications of institutional collectiveness on the access to biodiversity resources especially to outsiders are. The answers to this question are constructed around the common scenarios that collective action has built. This has been witnessed in the realm of framing rights over resources especially in the scenarios where people feel there should be increased rights regarding ownership and management of resources. We also have to bear in mind that this has been the debate that has framed resource usage in the last two decades. This is true, as one focus group discussion with some members of a community resource user group revealed. Furthermore, when discussing implications of institutional collectiveness in relation to the Kakamega environment, we ought to note that, this in a large measure mirrors the gender and tribal differences that exist in the present day Kakamega forest environment. We have earlier discussed that because of the significant presence of customary law, women and other non- Luhya are not allowed to take part in significant decisions relating resource control and usage in this part of the province. In relation to the above, we highlight that this kind of inequity has in a way blocked the women and non-members from individually owning land and other related resources. However, in the study it was found out that this was one of the reasons that accounted for the

668 Agrawal, A. 1992. Risks, Resources, and Politics: Studies in Institutions and Resource Use from India. Ph.D Dissertation, Duke University. 669 Bromley, D.W and M.C, Michael. 1989. The Management of Common Property Natural Resources: Some Conceptual and Operational Fallacies." World Bank Discussion Papers no.57. Washington, DC: The World Bank.

170 development of various community resource user groups in Kakamega. This need to acquire rights has engineered collective action. For instance, many non-Luhya seem to have joined most of the community forest user groups in order to acquire use of a collective garden or tree nursery. For example, when asked about the composition of the community user groups, we found out that most of the community user groups were characterized by women and non- Luhya! It was also found out that through collective community action, such “outlawed members” of society are negotiating for more powers over access to resource usage and conservation. In such community user groups, there is a call to review a change in the current customary laws that govern the access and use of resources. Suffice is to note, women in the collective action groups were also visibly dissatisfied with the inequitable rights regarding the usage rights over resources because the current local law forbids them from such ownerships. Such commentaries were very common among the Maragori, Kisa and Tiriki. However, it was established that this was a general custom among the Luhya sub-tribes. Therefore this kind of insight brings important revelations that women are craving for in this resource use/owner matrix under the current customary law in Kakamega. The second observation is that the non-Luhya are also clamouring for more rights in the usage of resources in this traditionally Luhya dominated province. However, on the other hand, community user groups have also been instrumental identifying with the current customary law, despite the underlined inequalities they do face. It is also imperative to mention that, community user groups have continued to follow the local law that governs the usage of specific biotic species. During the study, it was common to find many members who didn’t belong to the Luhya sub-tribes referring to the Luhya usage of particular plant and animal species. This kind of adherence to the local Luhya nomenclature depicts some form of assimilation among the non-Luhya communities, a fact that signifies the local law regarding the conservation of biodiversity efforts in Kakamega. Be it as it may, the above observations strengthen the argument that collective action is critical for the functioning of local law and local conservation efforts. It was also learnt that this co-existence leads to complementing each other. Thus in many instances, especially where there is collective control by community user groups, there were increased incentives for monitoring and restrained misuse, converting owner-protectors into poachers, and thus restraining the resource depletion. Thus, there is renewed interest both in the lessons to be learned from successful collective community action.

7.5 Biodiversity and property rights in Kakamega Biodiversity is associated with property resources rights, characterized by social relations that are defined by the property holder with respect to the valued attached to the property. We are also looking at property rights from a rather institutional perspective, meaning that we are looking at the collective entitlements by which humans seek to mediate interactions with

171 nature.670 In this we also look at the duty as well as the rights holders’ meaning that what is valuable is therefore worth protecting. When looking at biological resources in Kakamega forest, we must treat them as both physical and non-physical such as local ecological knowledge. It is also imperative to understand the above issues from a rather historical perspective. We have already noted that land is the most treasured physical property in Kakamega. This evaluation is derived from the stream of benefits that are accrued from land, ranging from the forest resources to the agricultural products that are generated from this land in the areas around Kakamega forest. It is these benefits that will shape our appreciation of the property rights in Kakamega. In this study it was hard to make direct interpretations regarding property rights issues because they are highly contested issues with this sub-region. However, through discussion and debate especially during focus group discussions, we came to understand that issues regarding property rights in Kakamega and more precisely among the Luhya can be located within the larger institutional structure of the Luhya society. In this regard, we found out that there obtains a dualistic property rights regime regarding the resource rights in Kakamega. Specifically it emerged that there were vertical and horizontal property rights regimes. This dualistic regime was found to be embedded in the mutual relationships that are held among the Luhya people, originating from the existing customary rights regarding landed resources. On the other hand, the vertical rights were exuded by the collective relationships and concerns that the Luhya people attach to nature. We have dealt with these concerns and relationships in the previous sub-section and therefore need no recount in the ongoing treatment. In line with the above, it is ideal to mention that the foundation of these historical and circumstantial relationships arises out of the cultural heritage that the Luhya attach to the land and the resources that are found thereon, creating a cyclical nature of relationships among them. One observation is central: that property rights among the Luhya are a product of human/individual relationships shaped by the collective and historical behaviours embedded within the Luhya sub-tribes. In short, we are talking of the circumstances of value that structure these collective behaviours among the people of Kakamega. Generally speaking, the nature of any physical good is found in its inherent physical characteristic, not susceptible to manipulation by humans. But we must admit that property institutions are human inventions. In essence, the centrality of property rights refers to the clarity, specificity, and especially the exclusivity of the rights, and not to the identity of the rights-holder.671 Thus, most of the permutations and combinations of resource types, property- rights types, and rights holders theoretically exist. But there is surprisingly very little agreement about which of these combinations and permutations are wise or efficient.

670 McCay, B J., and J.M, Acheson. 1987. The Question of the Commons: The Culture and Ecology of Communal Resources. Tucson: University of Arizona Press. 671 Larson, B and D.W, Bromely.1999. Property Rights, Externalities and Resource Degeneration:Locating the Tragedy. In Sustaining Development. Environmental Resources, edited by D.W, Bromely,163-179. Massechussets: Edward Elgar Publishing. 172 Other scholars in the area of property rights like Engerman and Metzer who studied land rights, ethno-nationality and sovereign history, noted that traditionally property rights are viewed as necessary pre-conditions for the efficient operationalization of the environment market place community user.672 This same argument is reinforced by McKean who states that there are natural resource regimes that are governed as open access regimes but no one claims recognized property rights.673 This same postulation appears to fit well in the Kakamega scenario, where the structure of traditional authority in a great measure presides over ecological and cultural decisions among the Luhya sub-tribes. But we also have to look at the property rights regimes in Kakamega from another view especially where a formal/national resource regime management style exists but inherently met with immeasurable acrimony and missive. There are general principles which are necessary but not sufficient in them for the efficient normalisation of property rights regimes. In making an analysis of the above postulation, we observe that specific attributes of social and ecological contexts which must be represented. The social contexts, as we have noted earlier contain all the dynamic relationships between the humans and nature, but must also contain entitlements and duties that come with the entitlements in maintaining the resources of nature. For instance, as we mentioned earlier, during the study we wanted to investigate the respondents’ views on whether the current formal legalities such as the Forest Act, the Environmental Management and Coordination Act, the Local Government Act among others, favoured their social and cultural interests. 61.64% responded in the negative, arguing that they felt the current legalities didn’t favour their social and cultural interests. Only 34.29 felt otherwise. We also wanted to find out whether the respondents felt that the current forest authorities know about their social, economic and cultural interests. From the field results, 63.01% of the respondents answered that some of the authorities didn’t know about their interests, while 36.01% informed the researcher that the forest authorities knew about their local interests. The above accounts paint a picture of unmitigated resource usage interests and resource rights between the formal institutional regimes and the local institutional regimes. For example, the respondents gave instances of when the forestry authorities curtail them form collecting local herbs which they use in some of their traditional ritual ceremonies, an issue that put forest wardens and local communities at logger heads Further still, it was also found out that some of the forest authorities did not even trust the local tribal heads that worked to prevent unhealthy access by those thought to be destructionists within their localities. In one such instance a local tribal head among the Tiriki informed the researcher that they feel mistrusted by some of the forest wardens. As this key respondent informed; “they think that the local authorities connived with the destructionists

672 Engerman, L.S and J, Metzer. 2004. Land Rights, ethno-Nationationalism and Sovereignity History. London:Routledge. 673 McKean, A. M. 1992. Management of Traditional Common Lands (Iriaichi) in Japan. In Making the Commons Work: Theory, Practice, and Policy, edited by. D. W. Bromley. San Francisco: ICS Press.

173 especially those unlicensed timbers extractors”.674 We later learnt that this has led to increased animosity and acrimony between the formal and informal regimes. In some areas like Cheptulu, Mlimani and Shipalo, there happened to be a growing rift between structure of traditional authority and the forester authorities. From these results we were able to learn that, rules only work when they are well enforced, but work better when they are well harmonised with the local needs and interests. Agrawal who examined the “fit between rule systems and resource use” among the communities in Uttar Pradesh in Indonesia, found out that enforcement among the communities in Uttar Pradesh differ widely in the extent to which they devote village resources to enforcement, particularly hiring guards or assigning villagers to guard duty by some rotational scheme.675 He further noted that the communities with healthy common forests were those that recycled the fines and penalties they collected into providing for their guards. The communities with degraded forests were those that had fewer guards, enforced the rules less, collected much less in fines, and put the fines into a general village budget rather than into the enforcement mechanism. There is also evidence that penalties need not be draconian: graduated penalties, mild for first offences and severe only for repeated infractions, are adequate.676 In this study we have already highlighted the role played by the local authority structures in using local guards to enforce conservation of the forest in Kakamega through use of local institutions. What our study did not capture however, was the role of monetary fines in the enforcement mechanism especially among the local authority structures. But we did mention the role of penalties in enforcing compliance. Similarly we reported that monetary fines are perceived as weak and have facilitated the incidence of corruption among the forest authorities! However, we did not establish whether this could have precipitated the animosity between the forest authorities and the local tribal guards in some parts of Kakamega. The results also show that there is an overwhelming display of two points about the appropriate combination of property rights. First is that: property rights relating to natural resource usage in Kakamega are reflections of pre-collective function of the Luhya society, of which property/nature/society relations are of current interest, and that some sections of the resource regime in Kakamega are best held as collective property. The second observation is that local institutional innovations, used by communities to manage common resource regimes such as forests and other resources for long-term benefit, as is the case in Kakamega, would only work well if well understood by the parallel authorities enforcing the formal institutions. An arrangement to produce a hybrid system can also be an eventual outcome after the long-term benefits from this co-existence. This can happen in several different ways:

674 Key respondent Interview No- 7 , 15 -July 2006 675 Agrawal, A. 1994. Rules, Rule Making and Rule Breaking: Examining the Fit between Rule Systems and Resource Use. In Rules, Games, and Common-Pool Resources, edited by E. Ostrom, R. Gardner, and J. Walker, 267-82. Ann Arbor: University of Michigan Press. 676 Ostrom, E. 2000. Reformulating the commons. Swiss Political Science Review 6(1): 29–52.

174 for instance, where common property rights regimes have elaborate and long lasting rules can be codified in an attempt to formalize and codify property rights to the resources in question as was the case in Indonesia, Brazil, where common property regimes had legal recognition. The other property regime which this study found important is the non-physical component which relates to biodiversity, knowledge and intellectual property of the Luhya in Kakamega. In this regard we are talking about the territory and issues relating to the access to the intellectual resources. From the study it was learnt that issues to deal with knowledge determination and the use of knowledge are collective, interrogational, and very restricted. We for instance found out that the protection of natural, historical cultural and traditional knowledge resources of indigenous natures is collectively guarded. It was established that while the custodians of local knowledge system had a duty to relay this knowledge to their subordinates and tribes-men, those who had received the knowledge had the obligation to keep that knowledge and prevent though with “wrong intentions” to have that knowledge. Access to such knowledge is usually through a process that takes one through various procedures! We must remember that the Luhya are too secretive, too suspicious and too procedural! For instance locating those people anticipated to have the requisite authority over some detailed and knowledge that is regarded confidential in the Luhya terms is such a long process. From the above account we came to learn that institutions regarding knowledge-giving are strict. For example during the field study we learnt that, clan elders can only be identified or accessed through an area warden or local chief who negotiated and briefed the chief about the kind of people who wanted to meet him. The chief in this case acts as an emissary and exudes some reasonable degree of diplomatic skill in negotiating the acceptance of the elder. In most cases an elder would invite other elders who are known to have a clear grasp on the subject matter. It is also done in an effort to dispel fear that he has not given out any important information regarding the Luhya customs and critical knowledge found to be confidential to the society and its resources. In such instances, the team of elders would be briefed about the real intentions of the study. Therefore, when one sums up all this, we are made to understand the relationship between the community and its knowledge resources. We also need to recognize the authority of the local law or customary law in the governance of the right to knowledge access. This ultimately makes one appreciate the way in which the rights relating to intellectual property resources are framed. Among the many justifications usually advanced for over centralising community ownership of knowledge resources, was the argument that; institutionalising the power to give and advance the traditional ecological knowledge those outside the Luhya sub-tribes, would offer enhanced efficiency in resource use and greater long-term protection of both the knowledge and physical resource. This is very common because there are many traditional Luhya people who still live near these forest resources and their lives depend upon their traditional rights of physical access to use these resources.

175 More so, the people who live nearest these resources still have ample opportunity to use them, but when they lose secure property rights in the resources to others, they also lose any incentive they might have felt in the past to manage these resources for maximum long-term benefit. The other issue we came to learn is that local ecological knowledge is not monetised among the Abaluhya, but a token of appreciation is given depending on the scope of the subject matter. This token is customary and is paid after the elders and respective council of wise men have passed on the required known. When the researcher probed to further to find out whether this is the price equivalent of the knowledge given, our confidant, who was the local Chief, refused to regard it as the price of knowledge. The argument was that knowledge is not marketed among the Luhya customs, but rather appreciated. This therefore makes it hard for one to evaluate the true cost of local ecological knowledge among the Luhya.

176 8 Summary and Conclusions

8.1 Recap of findings: linking research questions to study findings The biodiversity crisis in Kenya coincides with the international environmental debates that have been going on for the last two decades. This has directly impacted on the national resource regimes in Kenya, particularly in the realm of biodiversity. In a large measure, these have inspired national debates relating to biodiversity. However, positive change has been somewhat slow. It is interesting to point out that the biodiversity crisis can be described as a window of choice especially in the purview that it presents Kenya with an opportunity to stem the current biodiversity problems in the homeland. This study was guided by five research questions. First we asked whether there are different notions relating to biodiversity in Kenya. In the study, our analysis revealed that Kenya has a multiplicity of notions explaining biodiversity and these depend on what level of analysis one is looking at; national, local or international. As a result we have identified complex interactions between these three layers, since each layer represents a varied notion. This raises the two closely related problems of fit in identifying the incentives of those responsible for enforcing the rules and the determinants of institutional change. The second research question of this study aimed at finding out whether there are provisions for local biodiversity notions in the planning process for national resource management in Kenya. We revealed that most of the planning for biodiversity management in Kenya is based on neo-classical models, extremely state-centred and in most cases less informed. Such a planning process has in most cases led to dysfunctional biodiversity management regimes in Kenya and Kakamaga in particular. Most institutions have no regard for locally relevant biodiversity notions or more specifically Local Ecological Knowledge (LEK). Consequently, LEK is rarely integrated into biodiversity management planning and decision-making. There is a need to carefully compare specific observations from LEK with those from formal and technically drafted institutions, because they reflect independent sources of information that could collaborate and complement each other. Such a comparison could also increase confidence and depth of knowledge, hence institutional strengthening in biodiversity and resource management. Therefore because we are aware that institutions may be conceived as an equilibrium outcome, it is important that initial conditions, path dependence, and cultural beliefs are allowed to play a significant role in selecting the planning process for national biodiversity management. The other research issue that we wanted to answer is: what institutions are in place to manage the national biodiversity resources in Kenya? We have highlighted that there is no single institutional arrangement that is unilaterally used in the management of biodiversity resources in Kenya. However, there are scattered indirect provisions which relate to biodiversity in the varied formal institutions. These as we have pointed out, are neither put in explicit terms, and therefore not explicitly defined. This in a number of ways explains the continuation of the biodiversity crises in Kenya especially at formal institutional level. Based on the analysis in

177 the line of national resource management and institutional performance, we endeavoured to evaluate and highlight some of the flaws in Kenya’s institutional framework relating to biodiversity management. Taking the Kakamega scenario as a test case, Kenya needs to re- evaluate and benchmark its resource management policies to best rule practices. Though we have not formulated a complete definition of the entire biodiversity crisis in the literature, we have noted that part of the problem results from the institutional building capability, and in a large measure warrants continued institutional reform. Futhermore, the study intended to investigate the national and local actors in the management of the country’s biodiversity resources. Our findings have pointed out that there are numerous actors in the realm of biodiversity and these include the state as an actor and other non-state actors such as the NGOs, public and private sector organisations, the civil society, local community resource user groups and individuals. One important drawback is the absence of coordination between the interests and initiatives from the different actors. These are found to manage biodiversity at different levels and at times with variegated interests, an aspect which in part explains the conflict. What was however most intriguing is that at the national level, there seems to be an absence of a real forum that brings together the all these actors. This keeps out most of the non-state actors’ opinions in the decision-making matrix regarding biodiversity and environmental management. The role of public opinion cannot be replaced in this task. Consequently, one key function of the polity is to preserve the basic right to shared learning. Perhaps, the bulk of the challenge lies in the effort to build and improve institutions that guarantee public participation in environmental governance and decision-making. Further still, one other research question was; what is the role of donors and international actors in the current biodiversity restoration in Kenya? Our analysis revealed that the Tran nationalisation of biodiversity and environmental problems has attracted the international donor agencies in the realm of environmental governance. Most of these agencies though northern based have set up “support systems”, particularly in the tropical world, where the biodiversity crises have been linked to poverty. In the Kenyan context, we found out that in order for the state to build an efficient resource management system, it has enlisted international collaboration in this regard. Though we are aware that in an interdependent and asymmetric world, national polities are not always able to perform most tasks alone, we found that the role of donor interests was far beyond the environmental governance debate. The donor interests in regard to the biodiversity restoration in Kenya can be linked to issues of a wider political economy debate. Indeed, since the governance structures of the international environmental governance are not well defined and coordination failures between the polities involved are pervasive, it is no wonder that the rules governing donor interests to Kenya’s biodiversity crisis are rather diffuse. Therefore, much more research is necessary on the causes and consequences of biodiversity legal reforms motivated by external pressure and the role of supra national entities in general.

178 Conclusions The overall objective of this study was to examine the contention whether there are conflicting notions relating to biodiversity and how such conflicting positions are institutionalized. Based on literature in the line of national resource management and institutional performance, we endeavoured to evaluate and highlight some of the flaws in Kenya’s institutional framework relating to biodiversity management. We found out that national regimes governing and regulating biodiversity usage in Kenya, are often in conflict with local institutions and practices, a situation which leads to institutional conflict. In short, one cannot de-link institutional mediation, participation and institutional coordination from proper institutional functioning as well as efficient resource management in a protected area like Kakamega forest. In the study we have noted that in the tropical world, poor protected area management especially in the realm of forestry, significantly compromises biodiversity, ecosystem services, livelihoods, and all the other values associated with protected areas. In many developing countries like Kenya, poor management of resources persists regardless of the extent of international intervention in form of substantial financial assistance and technical assistance designed to improve conservation outcomes. These ensuing concerns have illustrated the need for furthering a deeper understanding of why persisting failures in meeting protected area objectives continue to exist. In the study, we have indicated that comprehending the successes and failures in forest biodiversity conservation is more complex than simply looking at generalised case studies. Instead, specific local case units like Kakamega need to be considered as part of a larger system of structured possibilities, within a politically charged framework. The institutional analysis which this study has employed has provided a framework for examining the numerous variables influencing actors’ interests, behaviours, values and for understanding the relationship between these parameters, to one another, as well as the resultant institutional and management outcomes. One of the critical requirements for successful performance of conservation programmes in forest reserves that also inhabit people is that, local populations must participate in the creation, planning and management of the reserve. The problems in case of the Kakamega forest reserve demonstrate that, local participation is not an option, but a must. A forest reserve governed by only formal institutions cannot effectively work, as the forest is a resource that is linked to the peoples’ feelings. On that note the local people cannot be treated as pawns of externally enforced mechanical act. Local people should be invited and actively involved to take part in institutional and management discussions. This calls for a fundamental shift in the approach to conservation and participation of local populations. Poor governance is one of the key characteristic that has been highlighted to cause the failure of tropical forest resource conservation. Again, the Kakamega scenario affords a glowing example. Therefore, good governance characterized by transparency, accountability and representation of a multiplicity of interests is one of the key ingredients needed to right some 179 of the wrongs in Kakamega forest management. In most of the communities visited, the community members expressed a high level of dissatisfaction in respect to the current forest leadership, especially on the side of the government extension workers and forest wardens. There were reported cases of corruption, lack of communication and community consultation, and general inefficiency of leaders from the Forestry Services and the KWS. In most cases, the community members reported that, Forest Wardens were for example, taking bribes from external resource extractors to allow illegal extraction of timber and related resources from reserved territory, without consultation with the community. In other cases forest authorities were believed to be using taxes and fines collected from the forest for their own needs. The most common complaints however, regarded the lack of recognition regarding the control and sanctions used by community authorities, both against outside invaders, and against community members who were seen to be over-harvesting resources. Further still, there are no institutionalized efforts to resolve intra- and inter-community conflicts. Effective participation requires efforts from both external protected area stakeholders, and from the communities themselves. Institutional limitations and conflicts at the national, regional and local levels hindered the participation of local populations and have resulted in overall failure in the management of its natural resources. At the national level, the drawbacks concern the general policy context, which currently fails to support regional initiatives and bottom-up approaches for conservation. At the regional level, the institutional weaknesses consist of poor inter-organisational relationships and misfits that limit co-ordination and collaboration between stakeholders, adding delay and difficulty to the process of reserve implementation. At the community level, the main challenges hindering institutional development for sustainable management of natural resources, relate to social organisation and governance of communities, as well as undefined property rights. The challenges that external stakeholders face in recognising, defining, and agreeing upon participatory methods in protected area management are many. The behaviour of protected area stakeholders is an interaction of a complex and multi-faceted institutional environment that requires a collaborative relationship which can only work in the long term if the terms of reference are clearly defined and agreed upon. This requires the conscious effort on behalf of actors, a balance of power and negotiating skills, and calls for institutional changes in the policy context. The challenge lies in designing appropriate institutional mechanisms that encourage the spread of local participation, with directors of all government resources agencies, members of public, NGO and private sector conservation organisations, radically restructuring procedures and working relationships both within and between organisations. Although the local communities within and around Kakamega forest reserve are faced with numerous challenges in achieving successful community oriented conservation, local institutional assets such as local knowledge, values and institutional heritage, remain valuable to any attempt geared towards construction of any localised solutions. Attempts to increased community oriented management; need to recognise that existing institutional enforcement mechanisms in Kakamega ought to work in a harmonious manner, in order to uphold what

180 already exits within the Luhya resource management setting. In this study, it has been observed that there is ample evidence of local people’s willingness to engage in institutional dialogue if there is sufficient information, communication and trust. It is needless to say that, this can only happen when new resource management institutional enforcement mechanisms are appreciated and perceived to be beneficial, and as long as decisions are not externally imposed. Furthermore, the local communities in Kakamega do possess some fairly effective institutions, but few relate to resource mobilisation and management. There are, for instance, no strong sanctions to deter the abuse of common property. Although the communities are loosely structured, people’s social networks such as family, sub-tribal and clan kinships, neighbours, friends still form the pivot to execute the local rules. Some of the communities seemed to be lacking in terms of internal communication between households. Furthermore, rivalry was witnessed in several cases among non-Luhya tribes and families, often due to economic interests in land and related resources, or conflicts in resource harvesting, which demonstrates a further weakness in the political organisation and its capacity to resolve internal conflicts. It is also imperative to mention that despite the rhetoric of observing international conservation covenants, signatories to such covenants like Kenya, often contradict them in practice. For instance at the close of the 1990s and late 2005, because of actions which are both contrary to trends elsewhere in the world and to its own obligations under the IUCN, COP and CBD, Kenya was faced with a situation where several thousands of people were displaced and others threatened with ‘displacement by a series of Central Government orders on wildlife and forests conservation. Yet it was as recent as 2002 when the Kenyan Government had committed itself to meeting the targets under the CBD, moving towards full legal and institutional arrangements as well as participation of local communities in the management of forestry and wildlife conservation, and in receiving benefits from such conservation, by 2006. However the situation in Kakamega contradicts Kenya’s commitment to the above international regimes. Lastly, local institutional development for community oriented conservation has received little systematic attention in previous literature. If protected area management is to be sustainable, then researchers, practitioners, and conservationists must pay closer attention to the architecture and performance of institutions involved in sustainable forest management. Once these institutions are better understood, local institutional development is of great urgency, for the participation of local people in managing forest resources is crucial to successful conservation.

181 8.2 Towards institutionalised participation and local resource governance in Kakamega In the previous chapter, we presented the various local perceptions and local ecological knowledge systems that obtain in the management of biodiversity in the areas that surround Kakamega forest. We however realise that these knowledge systems are not formally institutionalised and in part fuel the institutional clashes in the management of the forest. We must make a re-mention of the fact that prior to the introduction of the state-centred institutions in the management of biodiversity resources in Kenya, most terrestrial as well as aquatic ecosystems were traditionally managed by local communities according to time-tested indigenous knowledge systems. Specifically, the management of most forest systems have since come under the ownership of government agencies, resulting into de jure alienation and marginalisation of the local communities. The implication is that, the degree to which indigenous people and local communities can exercise governance of their resources is subject to government priorities. The issue of local people governing and managing their natural resources through traditional biodiversity related knowledge systems, especially in a centrally gazetted forest like Kakamega is highly complex. Indigenous and local groups face threats from the centralised institutional governance in this regard, and without recourse to institutional protection, they are completely powerless when the biodiversity agencies are enforcing their natural resource conservation interests, with influence at the government level. This is particularly the case in countries like Kenya where the biodiversity crisis has raged for the last two decades. We also realise that, this inability to formally mediate these institutions also results from the failure to guarantee genuine local participation in the management of the forest biodiversity resources. Yet we are aware that local resource governance is the oldest form of protected area management.677 Community conserved areas have developed over the years as human communities shaped their lifestyles and livelihood strategies to respond to the various opportunities and challenges that such environments present. Therefore, in doing so many communities have managed, modified, enriched and often conserved the biological environments within their surroundings.678 As earlier noted, the Luhya community in Kakamega forest affords such a glowing example. In many cases, as illustrated by the previous chapters, the Luhya community interaction with the environment has generated a kind of symbiotic relationship, which in some instances may be referred to as bio-cultural components or cultural landscapes, which form the locally relevant biodiversity notions in this sub-region. We have therefore noted that much of this interaction happens in the pursuit of a variety of interlocked objectives and values including economical, spiritual, and religious which have resulted into the conservation of eco-systems, species and ecosystem related services. In this

677 Rudel, T. K. 1993. Tropical Deforestation: Small Farmers and Land Clearing in the Ecuadorian Amazon. Methods and Cases in Conservation Science. New York: Columbia University Press. 678 Endicott, K. 2003. Indigenous Rights Issues in Malaysia. In At Risk of Being Heard: Identity, Indigenous Rights, and Postcolonial States, edited by B. Dean and J. Levi, 142-164. Ann Arbor: The University of Michigan Press. 182 sense, the community conserved areas comprise of natural and modified ecosystems including significant biodiversity, ecological services and cultural values voluntarily conserved by the indigenous and local people through customary laws and other local institutional means. Furthermore, in many of the community conserved areas in Kakamega, authority and responsibility rests with the community through different levels of traditional governance and locally agreed rules. We have noted that these rules are very complex and represent a myriad of sociological and historical institutional significances. In this regard, communities’ accountability to the larger society has in most cases remained complicated. However, this may be defined as part of the broader issues of concern that need to be negotiated with the central government together with other actors in the realm of natural resource usage and management. This is, for instance, seen in the recognition of collective property rights and appreciation of customary law and the negotiation of related benefit sharing mechanisms. The institutionalisation of such modalities would be an indicator to institutional mediation and a move to successful participation and genuine local resource governance. In the subsequent subsections, we shall further examine the developing international frameworks for creation of protected areas and selected implications to such initiatives in a tropical country like Kenya. We shall highlight the flaws that come with centralised management of created reserves such as the Kakamega forest reserve amidst the failures of genuine participation. We therefore continue to argue that guaranteed institutional security and the ability of indigenous and local peoples to exercise their own governance structures is central to the success of the Kakamega test case. Further still, in contrast to available criticism of local-based resource conservation elsewhere,679 and in unison to many successful locally oriented conservation areas,680 there are significant benefits in using local knowledge systems and institutions of local and indigenous peoples in the conservation and resource use matrix. In that regard, the Kakamega case is examined in more detail in order to provide an account of how indigenous peoples’ efforts and capacity to protect, promote and facilitate the use of their traditional knowledge under the control of indigenous modes of governance, are curtailed when the central institutions and government agencies enforce their resource conservation ideals. This can be achieved through institutional mediation, strengthening of traditional modes of governance and sustainable resource management regimes. We conclude that the benefits accruing to indigenous peoples and local communities from participation in local-oriented and, most crucially, protected reserves can include the preservation, renewal and maintenance of the knowledge systems upon which indigenous livelihoods and biodiversity security depends. The diagram at the end of this chapter illustrates this mismatch and the implications that obtain when institutions to manage forest reserves like Kakamega are formulated without genuine local participation.

679 Berkes, F. 2004. Rethinking Community-Based Conservation. Conservation Biology 18(3): 621-630. 680 Ghai, D.1994. Development and Environment: Sustaining People and Nature. Oxford, UK: Blackwell Publishers.

183

8.3 Re-visiting and re-conceptualizing institutionalism and participation in Kakamega Lessons to learn from institutionalism and participation in Kakamega As we draw ourselves to the close of this treatment, it is imperative to illustrate the kind of lessons that ought to be learnt from the process of institutionalism and participation in Kakamega. One such lesson will be made in light of what Oliphant pointed out. He noted that whether participation is regarded as a means to achieving an end, or as an end in itself, or whether it is merely a matter of principle, or of practice, or both, the key question is whether it makes any real difference to those most directly affected by any planned intervention.681 In other words we ask: does the participation enable the communities to have their voices heard? Does it enable them to assert their own ideas about what their needs and problems are, what solutions need to be found, and what resources are made available? Does it enable the creation of a shared institutional system of meaning among the key players, as they jointly construct a new institutional pattern to govern an existing resource regime? These questions illuminate the key elements that define drawbacks in the institutional and participation process, as evidenced in the management of Kakamega forest. There are varied views on which level of participation is most appropriate, and its importance that those using participation clarify its specific application. For instance, Finkel and Bevis point out that participation in formal procedures like attending community meetings, joining with others to raise issues or contacting elected leaders can have an educative effect, increasing interest and efficacy as well as building support for development.682 However, Bratton et al. argue that institutions aimed at generating real participation should find ways of shifting from the commonly passive, incentive-driven participation towards the more interactive end of the spectrum.683 Others like Ulfelder and Poats labour to question the reality of community self-mobilization. They argue that not all local communities possess the organizational skills and technical knowledge to conduct forest management. They also highlighted the dangers of these supposedly ‘ideal’ bottom-up activities as they may lead to inequalities in the community, with complete auto-mobilization generating conservation activities that favour the powerful locals and prejudice against socially disadvantaged members of the community.684 Thus, the lack of a universally agreed-upon definition of participation is not only due to differences in scale and interpretation, but also due to fundamental differences in the moral grounds regarding the effectiveness of a particular approach. At a more local level of resource

681 Ulfelder, W. H. and S. V. Poats. 1997. Buscando la Conservacion Participativa. Quito, Ecuador. The Nature Conservancy and Facultad Latinoamericana de Ciencias Sociales 1:1-30. 682 Finkel, C. S and Bevis, G. 2000. “Civic Education, Civil Society and Political Mistrust in a Developing Democracy: The Case of the Dominican Republic. World Development 24: 1851-1874. 683 Bratton, Michael, Robert Mattes and E. Gyimah-Boadi. 2003. Learning About Reform: People, Democracy, and Markets in Africa. Cambridge: Cambridge University Press. 684 Posey, D. A. 1992. "Traditional Knowledge, Conservation and `The Rainforest Harvest'." In Sustainable Harvest and Marketing of Rain Forest Products, edited by. M. Plotkin and L. Famolare, 441-443. Washington, DC: Conservation International, Island Press. 184 management such as Kakamega, these pitfalls also illustrate the institutional dilemmas that arise when planning for forest management. In this treatment we therefore point out that, for institutions to be more effectively promoted, these institutional conflicts and limitations should be addressed. Therefore, in the foregoing treatment, we discuss the issues that should be learnt in respect to Kakamega forest. The management of Kakamega forest presents some of the most compelling lessons on the right of communities and resource users’ rights regarding participation in formal institutional framing particularly, in the realm of environmental decision-making. These are a classical manifestation of the inequities faced by communities living around biodiversity hot spots such as Kakamega forest. Perhaps the most significant lesson from the management of Kakamega forest is the role prejudice and perception of local communities play in the management of natural resources and other related biota. These prejudices as illustrated by some of the negative perceptions held by forest wardens and as pointed out by the traditional and local leaders, display the complete lack of opportunity for participation in formal institutional framing and environmental decision-making and management. Up to 1931, Kakamega forest was managed by local people especially the village elders and was then brought under the control of the then Forest Department (FD) which gazetted the forest as Trust Forest in 1933. In fact a lot of villages adjacent to the western border of the forest are named after indigenous forest tree species. It is clear that the colonial government originated the gazetting of present day Kakamega forest without involving or giving due consideration to the participation of the local people most especially the Luhya in the process. Most of the planning was done in the colonial capital, Nairobi, hundreds of miles away from Kakamega. The local people had no idea of what was going on and only got to know of the process when the forest was already gazetted and were being notified not to cross into certain reserved areas. This was followed by information to locals that whoever was found in these reserves was bound to be penalised. This also preluded the subsequent framing of the criminal Trespass Act. These issues are very significant in the sense that, the process of gazetting Kakamega was lengthy, involving several phases. All available accounts indicate no time when government and its respective agencies such as the Kenya Wildlife Authority or the Forest Services, considered involving the Luhya in the decision-making process. Neither were they involved in the planning for the management regimes to be used in the governance of the forest. No due consideration was given to whatever interests the Luhya have towards the forest. No particular consideration regarding historical significance of the forest to the Luhya people was fitted into the gazetting equation. The effects of all these issues on the future success of forest management were intentionally or unwittingly blurred. Instead the law gazetting Kakamega forest was debated and approved without much or mention of what the Luhya people had to say, in their own right as the indigenous community in Kakamega Forest. Therefore, it is certainly clear that the above processes flawed the principles and ideals governing institutionalism and participation.

185 What happened in the gazetting of Kakamega forest, and what happened to the Luhya in particular, clearly elucidates what many indigenous people in the Tropical World experience in the realm of environmental and resource decision-making, management and legislation. This is largely rooted in the colonial administrative and institutional framing process as evidenced by British system of indirect rule administration, not only in Kenya but also else where in Africa. For instance, in his writings about Native Administration in the British Territories, Lord Hailey reported that:

The indigenous communities in resource rich areas such as forests were not involved in the legislation decision–making process at any level and certainly not in any matters relating to environment or natural resource management. 685

This same analysis was made by John Cell in response to the British indirect rule regarding natural resource management in Ghana. He noted that when Ghana was first colonised by the British, they created a loose system of local governance in regard to the management of natural resources headed by a chief who was in most cases outside the immediate community responsible for a defines resource system such as a forest. The chief was an appointee of the colonial head, the Governor, and was not accountable to the local people he headed.686 In the same regard, Delflem who made a comparative study on law enforcement in British Colonial Africa points out that:

Backed by power of the colonial government in guise of the district commissioner, the chiefs’ powers of arrest and seizure and control, over allocation and use of forest and other landed resources were unlimited. His powers were limited by his accountability to the District Commissioner who was also in turn accountable to a distant colonial official. The chiefs were therefore relatively free to exploit their subjects.687

Therefore the above expositions explain the current flaws in the forest management in Tropical regions in general and Kakamega in particular. We are specifically talking about what happens to resource communities in the realm of institutionalism and management of forest and other related environmental resources. Like the Luhya of Kakamega, many of the communities around forests often wake up to the inconvenient truth from the government policy making machinery, informing them to give up their resource rights and interests, without prior consultation or involvement in the gazetting process. Indeed lack of participation in the decision-making process is one of the key issues of concern that was raised by many of the local community elders in Kakamega. This is especially important in natural resources decision-making and management, since most of the local people often find their livelihoods being part of the protected areas such as Kakamega forest.

685 Hailey, L. 1951. Native Adminstration in the British African Teritories: A genaral Survey of the System of Administration Part iv. London: His Majesty’s Stationary office 34. Pp 358-361 686 Cell, J.W. 1970. The Britsh Colonial Admisntration in the Ninteenth Century. The Policy Making Process. New Haven:Yale University Press. 687 Deflem, M. 1994. British Colonial Africa: A comparative Analysis of Imperial Polcing in Nyasaland, The Gold Coast and Kenya. London: Sage. Pp 53-55.

186 We have already indicated that like in other areas of British colonial Empire, the colonial government did not involve the Luhya people in the decision making process because of the colonial prejudice regarding the local communities and resource commons especially forests.688 Accordingly it did not occur even to the colonial government that the local people such as the Luhya, were worth consulting or involving in the process. However, what is more striking is that the post colonial governments have not been any different from the colonial government. Many of the current government officials still hold the colonial constructs that local people are bad environmental managers. This was clearly illustrated by the regional and local government officials in Kakamega. For example, we noted that many of the officials involved in the enforcement of formal legal regimes viewed the Luhya elders as people who collaborate with the resource exploiters, a scenario that fuels acrimony between the mainstream forest management and the traditional forest managers. This defeats the real objectives of decentralisation and natural resource governance in tropical countries like Kenya.689 In many ways, this has acted as a bottleneck to institutionalism and participation, because of failure to involve local people in the resource management decision-making process. The lesson to learn here is that prejudice against the local people has its effect on the right of the local people to participate in the day-to-day institutional making process. Local people and their knowledge need to be involved in the national planning process, since this is one of the root causes of the institutional conflict in resource management in Kakamega and Kenya as a whole. The integration of local knowledge within the wide institutional planning process is fundamental because it inherently manifests the important role of involving local people in the decision-making process. In addition to the above, one other compelling lesson to learn from the Kakamega scenario is that there obtains a general lack of commitment and apathy by government towards setting up mechanisms that can guarantee meaningful participation of the local people in the institutional making processes for resource management. The National Environment Management Policy (NEMP) requires that government should set up guidelines for public participation in the environmental decision-making process. However, close to ten years, national guidelines for public participation in environmental decision-making process have never been made. This has resulted into local people or local community resource users to come up with resourceful ways of participating and involving themselves in traditional environmental management. However, because there are no national guidelines for public and community participation in environmental management, such traditional innovations regarding biodiversity/environment resource utilisation are never formally institutionalised. For this same reason, the clash between traditional institutions and formal institution persists.

688 Wanjala, S. 2000. Essays on Land Law:The Reform Debate in Kenya. Nairobi: University of Nairobi. 689 Kant, S. 2000. A Dynamic Approach to Forest Regimes in Developing Economies. Ecological Economics 32: 287-300.

187 Lastly, the competing interests between national agencies linked to environment like the NEMA, KWS and the Forestry Services, work with various local government committees. All these myriad of committees are purported to work at local levels but work parallel to each other. To such agencies, these local committees are the conduits of participation. However, these committees are opaque and it was hard to understand who constitutes these local committees was hard to understand. There are no local community representatives on these committees. They are there in name, but not in actual presence. The existence of such a malfunctioned and unrepresentative process creates disintegrated institutional framework in the management of environmental and biodiversity resources in Kakamega district. When it comes to participation especially in the terms of production, management as well as benefit- sharing in form of revenue generated from sale of products, licences and related eco-tourism services, it was found out that no such mechanisms existed at all. It was not therefore, surprising to learn that the representatives of these agencies at the district and provincial levels have a very faint appreciation of what obtains locally in the forest and among the forest communities. It was also not surprising that most of the local communities have an equally vague perception of what the formal regimes/laws regarding biodiversity are.

8.4 Institutionalism and participation in Kakamega: An out look In the ensuing section we torch into the future of institutional framing and participation in respect to the Kakamega and Kenya as a whole. We examine this within the global discourse on the right of local communities to participate in resources and environmental decision- making, natural resource legislation and management. The Luhya for instance, identify themselves as the indigenous people of Kakamega forest and we are therefore, going to examine their right to institutional participation in that context. We also make this examination in the realm of forest reserve/protected area designing and management. The following questions are therefore pertinent: why are they created, how are they created and for whom are they created? The rights of local people are x-rayed in an international framework for participation of local people in institutional framing in regard to the management of protected areas. Indigenous people inhabit nearly 20 percent of the planet, mainly in areas where they have lived for thousands of years. Compared with protected area managers, who control about 6 percent of the world's land mass, indigenous peoples are the earth's most important stewards.690

Eclecticism, institutionalism in forest reserve management The conventional debates regarding protected area approaches have been dominant in the last 200 years. However, these have tended to see humans and nature as completely different clusters, often seeking the exclusion of humans from the identified areas of interest,

690 Kothari, A. 2003. Community-oriented Conservation Legislation: Is South Asia Getting Somewhere? In Innovative Governance: indigenous Peoples, Local Communities and Protected Areas, edited by H. Jaireth and D. Smyth, Pp 1-26. New Dehli: Ane Books. 188 prohibiting the use of natural resources and seeing their concerns and interests as incompatible and contradictory to sustainable resource management.691 Therefore, given that most protected areas in the tropical world have people residing in and around them, as well as depending on them in terms of livelihood support, the notion of designing institutions that exclude such people from the identified areas has profound social, economic and environmental costs. This is grounded in the fact that local people have existed even before the creation of the forest reserve or other related interventions.692 In ancient Greece untamed natural areas were perceived as a domain of the wild, irrational, female forces that contrasted with the rational culture ordered by the males. Through this conceptualisation, man was seen to be at war with nature. 693 On the contrary, wild nature was seen to provide sanctuary to those who had been illed by the city’s brutality. The WWF and the IUCN uses the tales of the Gilgamesh, the world’s most ancient city to illustrate this primordial struggle between kingly civilisation and the forest. It is this eclectic idea of forest wilderness that formed the basis for the evolving and current concept of protected area management. The earliest examples of protected areas suggest that game reserves for royal hunts were first recorded in the history of Assyria-Ashoka. This idea was reinforced in India especially among the ruling Mogul elites.694 In the 11th century, the Normans introduced this same idea in England, through enforcing the concept of royal forests during the reign of King Henry II, leading to the declaration of almost one quarter of England as Royal forests. In the United States of America, the concept of protected area management began with end of the American civil war. Lafeyette who led the attack on the native red Indians professed the principle of take no prisoners. He deviated from the earlier beliefs and prejudices that the red Indians were superstitious, treacherous and marauders. In that respect Lafayette proposed that the remnants of the conquered states be preserved in the protected areas. This later paved the way for the establishment of the National Parks Service (NPS) in 1916.695 This was followed by successive legislations that associated the wilderness with preservation. This also laid the foundation for exclusionary model of conservation that was established in the entire United States of America, as stated in the 1964 Wilderness act, expressing the need to conserve nature. The act stipulated the principles of conservation through creating of national and forest parks.696 According to this act, its major objective is to preserve some of the country's last remaining wild places in order to protect their natural processes and values from development. Not only did the Wilderness Act establish a system of wilderness, it also put in place a process for expanding the system. In doing so, the Act made a fundamental change in how new wilderness areas were recommended and acted upon. Essentially, the act shifted

691 Jeffery, M. 1996. Public Lands Reform: A Reluctant Leap into the Abyss. Virginia Environmental Law Journal Law 16(1): 80-95 692 Ibid. 693 Ibid. 694 Colchester, M. 2003. Conservation Policy of the Common Wealth. A Paper Presented to the Conference of the Common Wealth at the Millenium Development Goals. Common Wealth Policy Studies Unit. Institute of Common Wealth Studies. University of London. 695 Keller, R and M, Turok. 1998. American Indians and National Parks. University of Arizoina Press. 696 The Wilderness Act Handbook of 1964. Washington, D.C. 189 much of this responsibility from the federal land management agencies and put it into the hands of the American people and the legislative process.697 We ought to mention that the American model of nature conservation set precedence in terms of protected area management in the years that followed. This was especially common with many of the newly independent states of Tropical Africa, though it was not any different from the conservation model which had earlier on been set up by their former colonial masters. In the same way the American model of conservation also formed the basis of what is today known as the classical model of protected area management. This classical model largely looks at setting aside protected areas for protection of particular wildlife, with a major emphasis on how things work rather than how natural systems functioned. Under the classical model, protected areas or reserves are managed for tourists and visitors whose interests normally prevailed over those of the local people. The Kakamega model of forest reserve management falls under this kind of arrangement. In this regard we note that the classical model of reserve management puts much emphasis on wilderness and ecosystems rather than the human system interactions and as a result, management of protected areas is done by central governments, run by technocrats with little regard to local knowledge and local methods of resource usage and conservation.

Emerging paradigms in institutionalism, participation and forest reserve management The last two decades have seen a shift from the “fines and fences” method of conservation. Other scholars like Adrian call it the move away from the ‘fortress conservation’ framework to a community-oriented protected areas approach has emerged alongside international trends seeking to combine conservation and local community development, hence the notion of community-based conservation. These divergent shifts have paralleled paradigms which have occurred in the discipline of natural resource conservation, away from reductionism to a systems view of the ecosystem, towards an inclusion of humans in the ecosystem management. The new paradigm shifts also manifest a deviation from expert-based approaches to participatory approaches to ecosystem management.698 The changing paradigm is thus an elucidation of the growing change in the classic view of protected area management. This new paradigm is an advocate to inclusion of local resource users’ knowledge and perceptions in the conservation of natural resources such as forest ecosystems. The new paradigm also contrasts in almost every respect with the classic model of conservation and management of protected areas. It includes social economic, conservation and restoration, rehabilitation, regeneration objectives of protected area of forest reserve management. The new paradigm further involves creating protected areas, often for scientific,

697 Ibid. 698 Adrian, P. 2003. The New Paradigm for Protected Area Management. In Innovative Governance: Indigenous People,Local Communities and Protected Areas, edited by Hanna. J and S.Dermont, 1-24. S. New Dehli: Ane Books. 190 economic and cultural values with a more complex and elaborate rationale. Under this paradigm, the protected areas are managed to ensure that local people contribute in terms of local knowledge and rule-making.699 The new paradigm also postulates that the objectives for the creation of reserve or protected areas should not undermine the interests of the local people. In other words, local people should benefit from the eventual outcomes of the created reserves. In this bid, the paradigm recognises that the so-called wilderness areas are often culturally important areas and therefore, formal institutionalisation and management of such areas, should view the local people who reside in and around such areas as inputs to the entire conservation matrix. 700 One other compelling key element underlying the new paradigm on protected area management is the quest for social equity in the protected area conservation. The proponents for the social equity component are found to ground their concerns in the widely shared ethical and moral gaps that characterise the classical conservation model. Their argument lies in the plight of many communities including some of the world’s poorest and marginalized resource communities.701 This is because many of these communities especially the indigenous communities such as the Luhya, have been involuntarily barred from accessing some of their traditionally owned resources, as a result of the creation of reserves and protected areas. This, in most cases has profound economic and social consequences. Therefore, equity in protected areas emphasises the need to come up with institutions for resource conservation that do not harm the human society whose livelihood and traditions depend on the targeted resource base. This position is overtly articulated by the World Conservation Union in the strategy for sustainable living. The strategy argues that the process of creating reserves and protected areas should take into consideration the involvement of local area inhabitants’ interests, notions and knowledge systems. The process should also enlist effective participation of the said communities in the design and management operations of the individual protected areas.702 Along with the emergence of equity concerns in conservation, there has been a growing concern for the unique skills, resources and local institutions the indigenous and local people can bring to the protected area management. Management practices that engage communities’ local knowledge and skills are seen to enhance the long-term effectiveness of protected area conservation. Accordingly, most countries such as Kenya have developed National Biodiversity Strategy and Action Plans (NBSAPs) to strengthen their capacity to respond to their obligations under the CBD. These NBSAPs contain elements that acknowledge, in many ways, indigenous

699 Langton, M. 1998. Burning Questions: Emerging Environmental Issues for Indigenous Peoples in Northern Australia. Darwin Centre for Indigenous Natural and Cultural Resource Management, Northern Territory University. 700 Grazia- Borrini, F, A. Kothari, and Gonzalo, O. 2004. Indigenous and Local Communities and Protected Areas:Towards and Equity and Enhance Conservation. Best Practice Protected Area Guidelines Series. No.11 701 Jeffery, M. 2004. International Legal Regime for Protected Area Management. In International Environmental Govervanace: An International Regime for Protected Areas., edited by J.Scanlon and F.Burhenne-Guilmin, 9-37. IUCN Environmental Policy Paper No. 49 702 McNeely, J. A. 1994. Lessons from the past: Forests and biodiversity. Biodiversity and Conservation 3: 3-20. 191 peoples’ Knowledge and contributions to biodiversity conservation. Such innovations by local communities are mostly in the area of in situ conservation measures that involve these peoples who retain traditional or indigenous knowledge systems. These acknowledgements are not without contradiction, but should be construed as a representation of diversity of opinion in form of local and formal institutional mediation. It is also a reflection of how formal institutions position indigenous people and local communities in both the country and within the international conservation and global market system. As earlier noted, many of the biodiversity resource rich countries in Tropical Africa are economically developing nations and the majority of their people survive outside cities and within a subsistence economy that relies heavily on such resources like forests for traditional food production knowledge.703 For example, most economically developing African countries do not have the capacity for all of the people who live within their borders to fully enter the market economy. Without attention paid to the protection and preservation of the lands and waters of local communities and indigenous people, these nations would be unable to feed their populations.704 This critical fact has given impetus to serious consideration of the development of community-oriented protected areas across the Afro-Tropical region to ensure that national resources development does not result into massive exploitation. Some countries in acknowledgement of their agreement to the principles of the CBD, are seeking ways to conserve rich biospheres whilst balancing a need to ensure that traditional communities can continue to sustain themselves. Given that in most regions of the globe, significant numbers of people rely on access to their traditional land and sea resources for survival. 705 It is therefore, in the interest of nations and the interest of durable conservation to engage indigenous people and local communities in the task of protecting the biological diversity in their environment. In respect to the above postulation, the Kakamega scenario and the Kenya as a whole represents a deviation from this paradigm. The deviations in this regard need no recapitulation. The Kakamega case study provides an insightful account of how indigenous peoples and local communities in Kenya have been disenfranchised of their traditional governance and management role in relation to natural resources. The vast majority of natural resources in Kenya are government-controlled. Starting with the introduction of Trust Land administration systems introduced during colonial time, virtually any land on which forests and related resource are found, does not belong to local or indigenous communities. Such resources automatically belong to the government, apart from limited examples of common customary resource rights.

703 Matowanyika, J., R. Serafin, et al. 1992. Conservation and Development in Africa: A Management Guide to Protected Areas and Local Populations in the Afrotropical Realm. Gland, Switzerland: WWF International. 704 Ibid. 705 Storrs, M. and E.Young. 1999. Indigenous Social, Economic and Cultural Issues in Land, Water and Biodiversity Conservation: A Scoping Study for WWF Australia, unpublished report on behalf of the Centre for Indigenous Natural and Cultural Resource Management, NTU, Darwin. 192 The wider and long-term implications for this kind of scenario is that the loss of biodiversity and the degrading quality of the country and regional environment. But we should also point out the increasing failure on the side of the state controlled environmental agencies to recognise the continued loss of cultures and knowledge related to biodiversity conservation. Traditional peoples have accumulated vast amounts of ecological knowledge in their long history of managing the environment - knowledge that could be beneficial for nature conservation and sustainable use of natural resources in the country. Through evaluation and analysis, we have found out that indigenous and traditional peoples can sustainably manage their resources, maintain usage, and strengthen their traditional/ local ecological knowledge. Therefore, it is imperative that central and regional level governments fully respects indigenous and traditional peoples' importance in terms of their role in ecological conservation, through realization that their local institutions have in some respects been instrumental in the management and governance of national resources, though this is a difficult and complex challenge in times of globalisation and expanding economic and market forces; a task that requires cooperation and partnerships.

Implications for policy The theoretical arguments related to local participation and establishment of institutions for effective management of forest biodiversity in protected areas have been highlighted at length in the previous chapters and various sections of this chapter. There is no doubt that, without genuine institutional support and participation, successful resource conservation in Kakamega forest and Kenya at large will be hard to achieve. In this section we make an analysis of the existing weakness in the institutional frameworks for the management of forest resources in Kenya and specifically the implications for national resource regimes. In the same analysis lie the critical issues that need to be revisited in order to review the existing flaws in the management of the forests like Kakamega. For the purposes of this study, the existing institutional issues and implications will be examined at three levels. These include the national level, sub-national/regional level and the local level. At the national level, a highly dominant and influential state-centred characteristic of the institutional context in which the creation of Kakamega Forest Reserve is situated, greatly obtains. This exemplifies the centralised nature of the institutional structure in Kenya. Particularly in the regard to environmental state institutions and agencies, most of the decision-making takes place in the capital city, Nairobi, with minimal decision-making power held by sub-national. Several agencies involved in the planning and management of natural resources like forests reserves, admitted to this centralised system. This has been a commonly reported drawback in the management of Kakamega forest Reserve. This has also been high lighted in the management of other protected area management systems such as Latin America,706 and Tropical Africa.707 This system of centralised government and large

706 Hall, A. 1997. Sustaining Amazonia: Grassroots Action for Productive Conservation. Manchester: 193 bureaucracies tends to increase transaction costs and the rigid, centralised attempts to manage forest ecosystems often lead to their collapse.708 Worse still, like in many tropical resourced countries of Africa, the decentralised system of resource management in Kenya has been held hostage by the dominant forces of elite capture. The political and economic conditions in Kenya are not supportive of local conservation and sustainable development initiatives, making progressive reserve management all the more challenging at the regional and local level. The issues pointed out at the national level are an indication of the fundamental and difficult challenges that exist at the sub-national/regional level. Like we have earlier pointed out, there are several institutional weaknesses at the regional level which are hindering local participation and effective reserve management in Kakamega. All institutions and agencies involved in the planning and management of Kakamega forest reserve located at the city centre, in Nairobi. The relationships between the institutions and enforcement agencies involved in the management of this reserve, and the relations between institutions working on environment-development related issues, are weak. The key respondents in charge of these institutions at the regional level intimated about the general lack of communication, information sharing, co-ordination, and collaboration between institutions. This has not only added to the already existing institution inefficiencies in planning for the Kakemega forest management, but has also led to conflicts between institutional agencies. In addition, it was evident that there exists an imbalance in power between certain institutions, particularly between state and non-state at the regional level and those at the national and local levels, further affecting relationships and decision-making. Perhaps the greatest hindrance to local participation and sustainable reserve management from the regional level has come from what Rosendo and Brown call ‘problems of fit’, both within and between institutions.709 It is often assumed that institutions and actors are involved in strategic alliances and coalitions have mutual interests and goals. However, in real practice they may only be a limited mutual means of achieving quite different objectives. These same variations and difference have been particularly noticeable in the goals, that is to say: national conservation and aid/development- oriented priorities on one hand and visions- that is short-term versus long-term thinking and planning between institutions on the other.710 Perhaps the most controversial “problems of fit” that exist between actors has been the opinionated differences regarding formal resource entitlements such as property rights being given to the communities within the Kakamega Forest Reserve, and the degree to which the local communities should be allowed to take part in the decision-making regarding the management of reserve. These institutional weaknesses

Manchester University Press. 707 Hitchcock, R.K. 2005. Centralisation, Resource Depletion and Coercive Conservation among the Tyua of Northern Karahari. Human Ecology 23(2):169-198. 708 Holling, C. S. 1995. What barriers? What bridges? . In Barriers and Bridges to the Renewal of Ecosystems and Institutions. Edited by C. S, Holling, 14-16. New York: Columbia University Press. 709 Brown, K. and S. Rosendo. 1998. The Institutional Architecture of Extractive Reserves in Rondonia, Brazil. Norwich, U.K: CSERGE. 710 Ascher, W. 1995. Communities and Sustainable Forestry in Developing Countries. San Francisco, CA: ICS Press. 194 will make it much more difficult to reach consensus between actors in the management of the forest reserve. At the local level, we note that; the dismal progress in the development institutionalisation of natural resource conservation policies in the tropical region, especially among the resource rich countries, has led to variegated opinions between academics and actors in the field of tropical resource management. The changed dimensions of thinking have led to an institutional shift. This move represents a new focus away from state-centred policies which are limited in their effectiveness to mobilise information, efficiently institutional enforcement and support or sanction resource use behaviour.711 The current shift is geared to finding solutions at the localised level in the management of natural resources especially in the realm of forest resources.712 These shifts have been highlighted by the various multilateral organisations in the realm of environment and development such as the IUCN. The shifts also indicate the category classifications that that is meant to clarify and enhance community participation in institutions regarding environmental decision-making and natural resource management. Although we realise that all protected areas must be specifically dedicated to the protection and maintenance of biological diversity and natural resources, the new shifts as postulated by IUCN guidelines, recognise a gradual change of human intervention.713 Within the new guidelines there are several asserted conditions believed necessary for successful natural resource management by local people. Most of these requirements recapitulate the centrality of the notion that local communities have the ability to create institutions to regulate the use of their natural resources. Local institutional arrangements have been shown to be more effective in providing, inter alia, rules related to access, harvesting, and management, allowing faster, cheaper and more effective response to conflict, monitoring and sanctioning methods.714 Thus, the detailed guidance on respective categories, reflect the significance of different levels of human intervention in resource use and conservation. Accordingly, following category 1b of the IUCN guidelines, indicate that successful natural resource management under a protected area arrangement should be compatible with indigenous human communities living in low density and in balance with the available resources.715 Similarly, category II of the same guidelines indicates that resource management should take into account the needs of the local people and these should be culturally compartible.716 Category III calls for protection of specific natural or natural/cultural feature which is of outstanding or unique value because of its inherent rarity, representative or aesthetic qualities or cultural significance. The cardinal objective of this category is to protect

711 Peluso, N. 1993. Coercing Conservation? The Politics of State Resource Control. Global Environmental Change 3 (2):199-217. 712 IUCN. 1996. World Conservation Congress:Resolutions and Recommendations. Gland:IUCN 713 Ibid. 714 Bromley, D.W et al. 1992. Making the Commons Work: Theory, Practice and Policy. San Francisco, CA: ICS Press. 715 IUCN. 1994. Guidelines for Protected Area Management Categories. Gland and Cambridge: IUCN 716 Ibid. 195 or preserve in perpetuity specific outstanding natural features because of their natural significance, unique or representational quality, and/or spiritual connotations. 717 On the other hand, category IV of the same guidelines is meant to deliver benefits to the residents that are residing within the designated areas. This is supported by category V, which emphasises the significance of continuation of traditional uses, practices, social and cultural manifestations that are intended to bring related benefits and contribute to the welfare of the residents residing within the designated areas.718 Lastly, category VI underscores the importance of conserving forest biodiversity while meeting the needs of the community, through a sustained flow of natural conditions and thus in practice limits the actual area in which community needs can be fulfilled to the one described as limited areas of modified ecosystems. The cardinal importance of enumerating the above guidelines for protected areas conservation is to alert nation-states such as Kenya, about the importance of local peoples’ knowledge and their role is the creation of protected area management. We therefore, do not need to re- mention that the above guidelines are aimed at encouraging governments in such nation-states to develop institutions that are tailored to meet the both national but most critically local circumstances in order to reduce the conflicts that arise out of unmitigated institutions, as illuminated by the Kakamega scenario. It also implies setting up Standard Operation Procedures (SOPs) that can facilitate institutional alignment.719 This is also embedded in the Convention for Biodiversity and highlighted by the conference of parties, as a response to the growing importance for the protected area. The two instruments underline the important elements of equity, participation and benefit sharing. It is also a move towards “alternatives” through the search for cognitive notions of individuals, society as well as facilitating community empowerment.720 This move may entrench resource management institutions rather than resist current forms of formal regulation as evidenced by the Kakamega case study.

717 Ibid. 718 IUCN. 1994, Opcit. 719 DFID. 1999. Shaping Forest Management: How coalitions manage forests. London: DFID. 720 Pavlich, G. The Power of Community Mediation: Community Formation of Self Identity. Law and Society 30(4):707-734. 196 8.5 Summary The findings that have been enumerated in this treatment, together with the literature that has been reviewed, have revealed that tropical resource management is an intersection of many elements. Most of the issues that have been highlighted in the study illuminate the fact that institutional concerns still form the fulcrum in understanding and reforming biodiversity resource management in Kenya and Kakamega in particular. In that regard we mention that the main objective of this study has been to establish and confirm whether there are different notions of biodiversity and how such notions are mediated. To meet this objective, the study has examined the various notions relating to biodiversity alongside institutional positions. The results, analysis and observations in this study are summarised in a conceptual diagram, in three different stages as presented below.

Stage I: Nature of institutions Figure 1 shows the two main levels of analysis that ought to be considered in understanding the structuring of resource institutions in Kenya and particularly in Kakamega. The national, sub-national and the local level. We also note that each of these levels is motivated by different mindsets that govern their thinking. The kind of thinking at the national/sub-national and local levels determines the structuring of institutions. Similarly the nature of these instructions explains the anticipated goals. Regarding the goals, our analysis revealed that both the local and national institutions have the same goal regarding the management of forest biodiversity in Kakamega. The two institutions aim at conserving the forest because of the nested benefits accruing from this natural resource endowment. However, we also noticed that the reasons for establishing the institutions were not always explicitly stated, although to a limited extent some similarities appeared. For instance, in the figure we note that the institutions at national/sub-national level are motivated by the fact that the forest contains globally threatened species. Similarly, the forest has high levels of biological diversity. In addition the forest provides high quality habitat for key species. It is also argued that the forest plays a very critical function of contributing systematically to the climatic conditions at the national and sub-national levels, yet the forest area is experiencing sharp economic and/or population pressure. In the final analysis, the government thinking is, gazetting the forest is the best option to conserve the forest. On the contrary, motivation for the institutions at the local level is buttressed in a number of arguments and these include the following: The forest provides a high level of subsistence and/or traditional use by the communities living around it. The forest also has great religious and spiritual significance to the communities residing around it. Furthermore, the forest has unusual features of aesthtic importance like springs geo and cultural heritage sites. Similarly, the forest has species of high social values such as medicinal and food retypes among others. In that regard the forest acts as the laboratory for the social ecological knowledge and learning. Lastly, the forest is a major contributor to the hydrological cycle that supports the agrarian economy on which the individuals/communities living around the forest depends. In

197 respect to the above thinking, the structure of traditional authority at the local level believe that local institutions should be structured to control access and regulate resource usage in and around the forest in order to conserve the forest biodiversity.

Stage 2: Explaining institutional dysfunction The above expositions demonstrate that, although there are two different levels of thinking, there is consensus regarding the need to conserve the forest biodiversity. The ultimate question that pops up is; why does the conflict between the two levels persist to the extent of creating a situation of institutional dysfunctioning? The answers to this question are positioned in process of institutional development and the ultimate implementation of the same instructions. There are many well-founded philosophical positions regarding institutional development which this study has highlighted. This stage has four main components. The first is the knowledge base that contains values, varied interests, models and information about the forest resources. We are aware that knowledge systems and the quality of information may vary remarkably from one level to another especially in a tropical resource country like Kenya. When reliable information is inadequate, and there are varied interests, the state institutional making machinery tends to base their actions on opinion and not facts. Beyond the debate on the institutional goals in which the role of values is apparent, this is an additional reason why models and values are so highly relevant. Values and models affect the policy-formulation process. The framing of the problem may in no doubt influence the selection of policy alternatives and recommendations, and may even constrain the selection of institutional instruments. For example, it is clear that the discussion about the use of forest gazetting and fines and fences method was highly influenced by colonial ideological considerations that went short of a holistic institutional dimension, and devoid of institutional participation. The remaining two components of this stage have to do with decision-making and implementation. If we were to take an extremely optimistic procedural position, it is critical to appreciate the fact that institutions regarding natural resource governance at the state level would best use the knowledge base to choose the best policies and to implement them in the best way. It is also paramount to bear in mind the pressure resulting from the contributing role of varied actors and actions, including those at the international level. The final outcome would be the best definition of institutions regarding natural resource governance, usage and related property rights. But, like we have earlier highlighted, because localised institutions have been ignored and sidelined in many ways, there has obtained a situation of conflicting as well as dysfunctional formal institutions. This is illustrated by the dotted rectangle, and the components therein, represent the institutional environment. The components that we have identified as playing a relevant role in determining the outcome of the institutional process are located inside the rectangle. Implementation problems are cardinal in this regard. Since institutions may be conceived as an equilibrium outcome, there may be multiple equilibrium,

198 initial conditions, path dependence, and cultural beliefs are allowed to play a significant role in selecting the equilibrium. We have highlighted the importance of interactions between formal and informal systems especially the initial rule conditions, rule protestation, participation and the problem of ranking. All these have a great impact on the institutional path.

Stage 3: Need for intuitional mediation At this stage we realise that there is need for technical evaluation of institutions. This evaluation would take into account the political, social, as well as the economic understanding of resource regimes. The evaluation of institutions is necessary so as to assess their effectiveness in achieving their goals. Like we have earlier suggested, genuine participation in the form of public deliberation should not be taken for granted when we talk of meaningful and durable institutional mediation. Our analysis indicates that there is no such a thing as genuine institutional mediation in Kenya. A purely “technical” assessment of institutions is a necessary prerequisite in order to avoid the above institutional dilemmas we have indicated. For example, we have identified a series of obstacles that institutions continue to face in the context of Kakamega. Our analysis further revealed that there have been no important feed- back channels between the institutional making machinery at the national/sub-national level and implementation outcomes at the local level and that, as a result, the framed formal institutions have suffered significant challenges, hence the institutional dilemmas. Therefore in order to highlight the importance of institutionalised participation in the form of a shared learning process, the figure points out that there are feedback mechanisms that need to be instituted. We consider, however, that these feedback mechanisms can be effectively utilized. We believe that the biodiversity crisis in Kenya and the Kakamega scenario in particular presents great stock of accumulated knowledge in form of a cause and effect analysis. However, this knowledge has not been properly incorporated into the stock of the institutional reforms that have been drawn. Much of the findings on the results of institutional reforms in Kenya reveal that most of the reforms were executed outside the intensions of real institutional mediation but rather conducted in the ambit of multilateral institutions which have a tendency to focus on common features and to reject the idiosyncratic ones. Therefore because the incentives to institutional framing are variegated, in the corresponding rectangles we included the need to re-shape, re-examine and re-rank institutional inputs after getting feedback from shared learning and participation. Most importantly we point out that external pressure, and “endogenous” feedback from elsewhere in the system, ought to be processed here before exit to the public. In sum we must re- emphasise that analytical efforts of the decision-making machinery at the state level tends to give a blind eye on local actors, a fact which keeps the local notions basically missing, even though it is important to ensure the consistency between national level institutions and local practices at the local level.

199

Figure 1: Conceptual Diagram

200

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220 Newspapers

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221 List of Tables Table 6.1 Sample characteristics 127 Table 6.2 Age of respondents participating in the survey 128 Table 6.3 Education of respondents participating in the survey 130 Table 6.4 Varying perceptions of local biodiversity in Kakamega 130 Table 6.5 Respondents named after animal species 134 Table 6.6 Why persons are named after different animal species. 135 Table 6.7 Responses regarding protection of cherished plants in Kakamega 148 Table 6.8 Individual responses regarding treatment condemned plants. 149 Table 6.9 Custodians of local knowledge 152 Table 6.10 Respondents perceptions of custodians of knowledge. 153 Table 7.1 Why people visited sacred places in Kakamega Forest 165 Table 7.2 How information about sacred places is transferred 165 Table 7.3 Transfer of local ecological knowledge in Sacred Places 167 Table 7.4 Why Respondents got plant species from sacred places 168

222 List of Figures and Maps Map 1 Map of Kenya 10 Map 2 Landsat ETM+ (7) satellite image 11 Table 1 Summary of primary legal documents and policy papers reviewed 27 Figure 1 Conceptual diagram 200

223 Appendices Appendix A: Local Institutional Mapping Questionnaire

Name of Interviewer…………………… Name of Interviewee …………………

Enumeration Area…………………………………………………………………….

Time at the start of Interview (24 Hour Clock)…………………

Time at the End of Interview (24 Hour Clock)…………………

Date of Interview…………………………

Section 1: Respondents Bio-data

Sub-Tribe Age M.Status Religion Education Occupatio Gender Division n 1.Ishuha 1.15-24 1.Married 1.Catholic 1.P.Grad 1.Doctor 1.male 1.Kabras 2.Wanga 2.25-34 2.Single 2.Aglican 2.Grad 2.Teacher 2.Femal 2.Ileho 3.Malagori 3.35-44 3.Widow 3.Pentecost 3.Tertiary 3.T.Driver 3.Navakholo 4.Kabras 4.45-54 4.Widower 4.ATR 4.Vocation 4.Farmer 4.Shinyalu 5.Bakusu 5.55-64 5.SDA 5.Second 5.Trader 5.Ikolomani 6.Batsotso 6.65-74 6.Muslim 6.Primary 6.C.Labou 6.Municipali 7.Tiriki 7.75-84 7.No Educ 7.UN.Emp 8.Marachi 9.Banyala 10.Bahaya 11.Kisa 12.Samia 13.Banyore 14.Marama 15.Iduha 16.Batura

What is the number of members in the family?

What is the distance from the forest (Please register distance in Km)

224

Section 2: Biodiversity Perceptions

2.1. Basing on your local (tribal, cultural or community) understanding of the surroundings, please how would you define the Kakamega forest environment

(1) Hunting ground

(2) Sacred forest of the community

(3) An area of agricultural potential

(4) Place of common ownership

(5) Habitat for rare plants and animals

(6) Others specify…………………………………………….

2.2. The table below shows a list of animals and their perceived significance to the community. We would like you to inform us of any particular relationship/significance of each animal to he members of community.

Response 1 2 3 4 5 6 7 8 9 Codes

Brevity Prosperity History of events in family Tragedy Sign of luck Ancestry history Tragedy in communit y Good health Wisdom Snakes Monkeys Frogs Bees Termites Lions

Buffaloes

Lizards

2.3 Are there people that are named after those animal species in 8 above?

Yes = 1 No. = 2

Code Why people are named after such species Code The relationship with such species

225 1 Sign of luck 1 Sign of luck

2 Prosperity 2 Source of wisdom

3 3 Ancestry lineage History of events 4 Ancestry history 4 Cultural heritage 5 Sign of Good Health 5 Source of protection 6 Tragedy 6 Source of prosperity 7 Sign of inspiration 7 Source of inspiration 8 Others specify

2.4 Do people become protective of such species?

Yes = 1 No = 2

2.5 Are such people allowed to eat such species?

Yes = 1 No = 2

2.6 Are such people males or females?

Males = 1 No = 2

Code Which animal species are highly threatened? Code Which plant species are highly threatened 1 Monkeys 1

2 2 Lizards 3 3 Kobs 4 Snakes 4 5 Elephants 5 6 Lions 6 7 Leopards 7 8 Squirrels 8 9 Others specify 9

226 Section 3. Usage and management for biodiversity Species

3.1. Are such plant and animals species demanded/hunted for any special reasons?

Yes = 1 No = 2

Code Why are such animal species threatened? Code Why are such plant species demanded?

1 Community regards them as food 1 Community regards them as food

2 2 Demanded for Economic reasons Demanded for Economic reasons 3 3 Demanded for medication purposes Demanded for medication purposes 4 Used during circumcision ceremonies 4 Used during circumcision ceremonies 5 Used during cleansing ceremonies 5 Used during cleansing ceremonies 6 They are associated with good luck 6 They are associated with good luck 7 They are associated with bad omens 7 They are associated with bad omens 8 Cultures forbids such animals 8 Cultures forbids such animals 9 Others specify 9 Others specify

3.2. Are there penalties for such people who discrimatively hunt down such plant and animals?

Yes = 1 No = 2

Code Who enforces penalties for such crimes 1 The Community displinnery council

2 The village chief 3 Customary Law is used 4 The forest wardens 5 The tribal Head 6 Village council of elders 7 Parents 8 Others specify

227 Section 4. Community usage of the forest Environment

4.1. Do people commit the same clan again after the penalties have been served?

Yes = 1 No = 2

Code If yes to the question above what do you think is the reason for doing so? 1 The Community displinnery council is weak

2 Penalties so flexible and weak

3 Penalties cheap than offence

4 The forest wardens are corrupt 5 Culprits bribe their way out 6 Species are highly demanded 7 Customary Law is weak 8 Enforcement mechanisms are weak.

4.2 Are there special ceremonies in your culture that require the environment of a forest? Yes = 1 No = 2

Code What are such ceremonies in your Code How did you learn about such ceremonies culture that need the environment of a forest 1 1 Parents Chasing away of bad omens/luck 2 Intercession for community / tribe 2 School Peers

3 Ceremonies relating to circumcision 3 From News papers

4 Ceremonies regarding succession of 4 Clan meeting elders 5 Celebration of first born 5 Village peers 6 Chasing or condemnation of evil 6 Teachers spirits/members 7 Cleansing of members 7 Village elders

8 Cerebration of harvest 8 Village chief 9 Clan gatherings 9 Grand Parents 10 Celebration of birth of twins 10 Tribal chief

4.3. Have you ever taken part in such ceremonies? Yes = 1 No = 2

228

Code How often are such ceremonies performed? Code Who performs such ceremonies? 1 Monthly 1 Village chief

2 2 Clan Leader After every three months 3 3 Spiritual leader Bi-Annually 4 Annually 4 Traditional Healer 5 Others specify 5 Tribal Chief 6 6 Council of elders

4.4. Are there places referred as sacred within Kakamega forest?

Yes =1 No= 2

4.5 Are people allowed to visit such places?

Yes = 1 No = 2

Code If yes why are people allowed to visit such Code How did you learn about such sacred places spots? 1 Spiritual healing 1 Through my parents

2 Circumcision 2 My school peers

3 3 Local bulletin Carrying out Traditional rituals 4 Clan obligations/heritage 4 Clan meeting 5 5 Village peers Cultural ceremonies 6 Others specify 6 My grand parents 7 7 Village elders 8 8 My elders brothers/sisters

9 9 My school

4.6 Do people have great attachment towards such places?

Yes = 1 No = 2

4.7. Is the natural environment in such places protected?

229 Yes = 1 No = 2

4.8. Are there special species of plants got from such places?

Yes = 1 No = 2

Code How is knowledge about such places Code What special plants are got from such passed on to young ones? sacred places 1 1 Village chiefs Medical healing 2. 2 Tribal chief Blessing of people

3 Parents and relatives 3 Cleansing the community of evil

4 Clan meeting 4 Planting at home for prosperity

5 5 Planting at home for good luck Village elders 6 Local news bulletins 6 For protection

7 Clan head 7 Others specify

4.9 Have you ever visited such sacred places?

Yes = 1 No =2

Code If Yes what were the reason for why you Code Which are the commonest age sets in visited these Ceremonies 1 1 Curiosity 10-14 2. Spiritual Healing 2 25-34 3 Clan ceremony 3 35-44 4 4 55-64 Forest Tour 5 Traditional rituals were being performed 5 75-84

6 Others Specify 6 Others specify

230

Section 5. Management of local knowledge and Land for biodiversity

Code Who are the custodians of local Knowledge Code How are such people perceived? in this place? 1 1 Village chief Protectors of cultural norms

2. Traditional priest 2 Sources of wisdom 3 Tribal chief 3 Spiritual leaders

4 4 Parents/relatives Extensioners of cultures 5 5 Villages elders Guardians of society

6 Others specify 6 Others specify

Code How have you used such knowledge to Code How is such knowledge transferred? protect the forest? 1 Knowledge used to plant such species 1 Mother to child 2 Careful use of such species 2 Father to child 3 To teach members about the importance 3 Grandparents to children of such species 4 To avoid picking such species 4 Clansmen to clan members 5 Replacing species which are over used 5 Village elders to young ones 6 Teach children about the importance of 6 Local news bulletins the forest 7 Others specify 7 Others Specify

Code How was land acquired in this place? Code How is land presently acquired? 1 Land is inherited 1 Land was inherited 2 Land is purchased 2 Land was purchased 3 Land is customary land 3 Land was customary land 4 Land is free hold 4 Land was distributed by the tribal chiefs 5 All land is distributed by the Tribal chief 5 Land was free hold 6 Through negotiation with the clan elders 6 Land was acquired through conquest 7 Others specify 7 Land was acquired through negotiation 8 8 Land was acquired through kinship 9 9 10 10

231 5.1 Is it easy to allow other non-members to acquire the land in this area?

Yes = 1 No = 2

5.2 Are there any special cultural practices related to acquiring land?

Yes = 1 No = 2

Code What practices are related to land Code Why are women not allowed to own land in acquisition? this area? 1 Cleansing of the land 1 Cultural does not allow 2 Cutting down of trees perceived to bed of 2 bad luck Land belongs to men only

3 Planting trees of good luck 3 Land is very expensive for women to acquire

4 Sacrificing for the ancestors 4 Women have bad luck 5 Killing of animal perceived to be of bad 5 Land belonged to the community luck 6 Invitation to participate in the first harvest 6 Women don’t take part in land discussions of the season 7 Land is not given to non members 7 Others specify 8 Land is not given to women 8

5.3. Are there particular crops in this area that are grown by men only?

Yes = 1 No = 2

5.4 What are some of those crops? Please list such crops

1. ………………………… 3…………………………………………….

2………………………………… 4 …………………… ……………………….

Code Who is responsible for growing of food Code What explains such division of crops in the family responsibility? 1 Wife 1 Men have good luck 2 Husband 2 Women have good luck 3 Both husband and wife 3 Women are supposed to bless the food 4 Both girls and boys 4 Cultural responsibility of women to feed the family 5 All members of the House hold 5 Cultural responsibility of men to feed the family 6 Boys only 6 Men grow cash crops only 7 Girls only 7 Boys have good luck 8 Casual Labourers 8 Girls have good luck 9 Others specify 9 Others specify

232 Code Who is responsible for growing of Code What explains such division of income crops in the family responsibility? 1 Wife 1 Men are the heads of the home 2 Husband 2 Women bad luck 3 Both husband and wife 3 Men are supposed to bless only the food crops 4 Both girls and boys 4 Men are the owners of financial resources 5 All members of the House hold 5 Cultural responsibility of men to feed the family 6 Boys only 6 Men’s responsibility to grow cash crops only 7 Girls only 7 Boys have good luck 8 Casual Labourers 8 Girls have good luck 9 Others specify 9 Others specify

What do you do to plants perceived to Code What do you do to plants perceived to be of Code have of bad luck good luck 1 Burn them down 1 Protect such plants 2 Cut them down 2 Construct home near them 3 Leave the land where such plants are 3 Plant them in the garden 4 Avoid such plants 4 Plant such plants in great numbers 5 Curse such plants 5 Teach children how to care for such plants 6 Do not plant such plants again 6 Prune then and replant them in the forest 7 Avoid planting food near such plants 7 Others specify 8 Others specify 8 9 9 5.5 Do you have any cultural significance for places such as rivers, lakes, springs?

Yes= 1 No= 2

If yes how significant are such places to you?

1……………………………………..2…………………………………………

3………………………………………4………………………………………..

5………………………………………6……………………………………..

5.6. Are there animal species that are not supposed to be eaten?

Yes = 1 No = 2

5.7. Please give examples of such species

1……………………… 3. ……………………………

2………………………… 4 ……………………………………

233 Section 6: Knowledge on Formal Rules governing Biodiversity

6.1 Are there particular rules you know of that govern access to forestry resources in Kakamega forest?

Yes = 1 No = 2

6.2. If yes in 67 above, please indicate what are such rules are?

1………………………………………………………………

2……………………………………………………………… 3………………………………………………………………

4……………………………………………………………..

6.3. Who enforces such rules?

1……………………………………………………………………………………2… ………………………………………………………………………………….3…… …………………………………………………………………………….…

6.4. Do you find some of these rules favourable to your cultural, social and economic interests? Yes = 1 No = 2

Why do you think these rules are favourable to your cultural, social economic interests? ……………………………………………………………………………………. …………………………………………………………………………………….

6.5. Do you think the forest authorities know about your cultural interests?

Yes = 1 No = 2

6.6. Are there any community user groups in your community?

Yes = 1 No = 2

6.7. What are some of those community user groups?

1……………………………………………………………………………………. 2……………………………………………………………………………………

3……………………………………….. ………………………………………….. 4……………………………………………………………………………………… Thank you very Much for your Time

234

Appendix B. Schedule of organizations and respective Key Informant Persons interviewed

1. National Environmental Management Authority (NEMA) Interviewed Mr Joseph Masinde, (officer in charge of Environmental information and Education) and Peter Kamau (In charge of Economic benefit sharing instruments) -Discussion on how the EMS fit in the national strategies for biodiversity restoration, How responsibilities are shared, biological economic benefit sharing. 2. The Forest department (FD) Karuri Interviewed Mr. Eric Nahama–Conservator of Forests (Local policy development) and Mr Paul Wanyiri – Conservator of Forests (International partners and policy Liaison) -Discussed on issues relating to the ongoing forestry bill in Keya, whether policies provide for guidance on issues relation to management of common biodiversity points, the roles of privates sector and the capacity of communities to participate in formal institutional design, integration of local institutional interests in forest conservation laws and policies. 3. Kenya Wildlife Services (KWS), Nairobi Interviewed Dr. Kasiki Samuel, Research Scientist, KWS -Discussed on the national and regional and local priorities relating to biodiversity management. The mediation of policies between the Forest Department and KWS, Community concerns on the usage of local biodiversity 4. National Museums of Kenya (NMK) Nairobi Held an interview with Mrs Dorothy Nyingi, Research Scientist at NMK -Discussed on the place of NMK as a national institution in the management of National Biodiversity, NMK’s role in the liaising with other partner institutions in the drafting of national biodiversity strategies and what scope is there for flexible application of such strategies. 5. International Center for Research and Agro-Forestry (INCRAF) Interviewed Mrs Sarah Wangi (In charge of Information at INCRAF) -Discussed on the role of international interests I the restoration of national Biodiversity, the role of international organisations in the national biodiversity strategies, the mediation national and international interests regarding biodiversity restoration.

6. Kenya National Centre for Indigenous Knowledge (KENRIK) Interviewed Dr. Matanga, Director, KENRIK - Focused on the role of indigenous knowledge systems in the preservation of Biodiversity, their role of formal rules in the integration of this knowledge systems, KENRICK’s role and plans in the advocating for indigenous biodiversity interests

7. Integrated National Resource Project of Kenya ( INRP) Interviewed Mr. Kiunga Kareko, Project Co-ordinator, 235 -Focused on the actual capacity of NGO and CBOs in the planning and implementation of Projects relating to Biodiversity, whether such do such plans make reference to wider societal competing interests as regards biodiversity resources and utilisation, what are the positions of advocacy in relation to local resource users and how are mitigated at national level action planning. 8. Centre for Biodiversity, University of Nairobi Held discussions with Dr. H. Oyieke, Director, of the Centre - The discussion was based on the national regional and local priorities relating to Biodiversity. What targets are defined, basic service levels for Biodiversity restoration and preservations, what purposes for which biodiversity is preserved and how those purposes mediate with the societal and cultural behaviours of the local people? 8. Ministry of Environment and Natural Resources Interviewed Prof. Wangare Mathai on what procedures are there for biodiversity quality testing and monitoring, the role of patrimonial politics in biodiversity degeneration, t he history of biodiversity decline and t her own role as an individual in the struggles for the restoration of national biodiversity, which institutions are responsible for policy development in the realm of biodiversity and how successful they have been 9. Faculty of Law University of Nairobi and ACTS Centre Interviewed Prof. Patricia Kameri Mbote, Discussed the legal and policy regimes relating to biodiversity resources in Kenya, the framing of such regimes in a historical and contemporary context, how property right band rewards relating to biodiversity are and ought to be distributed. The critical legal and policy contradictions in the regimes relation to biodiversity in Kenya. 11. Western Provincial Administration. Interviewed Mr. A. Famba, Provincial Agricultural Officer and Officer Discussed issues relating to the provisions for biodiversity in the palling for agriculture and the intersectoral linkages in the usage of local biodiversity in Kakamega. The relevant legal frameworks regard natural resource usage in the Agro- Biodiversity sector and how they are mediated with local interests and demands

Mr. Siahanya. The Provincial Environment Officer Discussed how the Provincial government is mandated to support service provision in the area of biodiversity management, whether lcal councils are allowed to propose and implement bye-laws relating to biodiversity usage, Legal frame work relating to usage and access to common resource regimes( e.g registration, licensing of new resource points, spacing requirements between users etc)

Mr. K. Moi The Provincial Forestry Officer

236 The interviews focused on the conflicts regarding the usage of natural resources and the major parties involved, whether policies allow or promote community choice regarding the usage of Biodiversity resources in Kakamega. How the choices are framed, screened and their role as local government actors in attaining this.

12. Kakamega Didtrict Administration

The District Natural Environmental Officer-Mr K. Walingo Interviewed him on issues regarding What standards and norms are monitored in the management of the local level biodiversity, how are they monitored and enforced. What legal requirements for those who are found to contravene. How is local community and district interests mediated and framed under the local government arrangement for natural resource usage?

Kenya Wildlife services (KAKAMEGA).Mr.I Mwangu Discussed issues relating to Community usage of wildlife resources and how the wildlife regimes at the local and national levels do cater for these varied interests. How the KWS and Forest Department do mitigate legal and policy conflicts in Kakamega. How the two regimes are used in the governance of these biodiversity resources

The District Forestry Extension Officer, Mr P. Mirambo.

The interviews focused on the conflicts regarding the usage of natural resources and the major parties involved, whether policies allow or promote community choice regarding the usage of Biodiversity resources in Kakamega. How the choices are framed, screened and their role as local government actors in attaining this.

237 Appendix C. Fact files about Kakamega Forest, Kisere and Malave Reserves

Forest officially covers 240kms square but only 40kms square are densely forested, largely because of clear felling for plantations; Biodiversity: 380 species of flora, 330 species of birds, variety of mammals including 11 species of primates. Up to 20% of Kakamega’s animal species are found nowhere else in Kenya; Resource: local people collect medicinal plants, honey, firewood, building material and Water It is estimated that the forest could be completely destroyed within 20 years. • Cattle grazing • encroachment Action: - list compiled by KFWG & EAWLS - who is doing what - proposed excision but not degazetted - Kakamega Biodiversity Action...currently implanting educational programme - Any monitoring going on? - 400a given to Nyayo Tea Zone KFWG Minute 45/3/99: • Volunteer technical team to address the issues has attracted four people • PRA undertaken by Resource Projects in Kakamega and Vihiga Districts. Get to know the history of the forest, perception of the community, relationship between community and govt. & develop recommendations for the future of the forest. Eg. Maragoli, the problem started when license to carry out selective harvesting was given to outsiders. The locals then stormed the forest to clear fell. In Ilundi Hills of Kakamega, harvesting is still going on resulting in open areas for grazing. • Workshops involving representative groups from the different sections of the forest, local administration and FD (they pulled out) will be organised. Later, this process will bring in the DDCs of both districts and then the local community to determine the way forward. • Publication “The Way” focusing on Western region. This will be very useful in disseminating info and issues on the forest. • Contact: Wilberforce Okeka, guide and coordinator of Kakamega Environmental Education Programme (KEEP) • 12/9/96 -28199ha ,600 ha lost due to illegal activities. Cost of re-afforesting of 1 ha is 10000 Kshs Kisere Forest Reserve • North of Kakamega, Kisere covers only 471ha. Was once connected to Kakamega • Since 1984, has been under the protection of KWS • Suffers little from degredation and never been commercially logged • High biodiversity including de Brazza’s monkey • Problems: cattle grazing in the glades in the north, and small scale illegal timber removal. • Contact: Mr. Nixon Sagita, guide based at Buyangu Malava Forest Reserave • fallen from 150,000ha to 20,000ha • 330 bird species, rich biodiversity. • Jan, 50-75a lost per day • almost no logging. Mainly settlement • main forest: 12,000ha gazetted, 6,000ha not.62 • some excisions • faces mass erosion

238 Appendix D. Bibliographic schedule of policies and legislation

The Agriculture Act, Chapter 318, Revised Edition 1986 (1980). The Antiquities & Monuments Act, Cap. 215 of 1984 The Chief’s Authority Act, Cap. 128 of 1970 (revised 1988) The Coast Development Authority (Cap. 449). The Constitution of Kenya The Constitution of the Republic of Uganda, 1995. The Constitutional Review Act, 1998 The Environment coordination and Management Act The Environment and development Sessional paper No 6 The Ewaso Ng’iro North River Basin Development Authority (448); The Ewaso Ng’iro South River Basin Development Authority (Cap. 447); The Fisheries Act, Cap. 378 of 1989 The Forest Policy (1968) The Forest Policy (1994) The Forests Act, Chapter 385 (revised 1982) The Forest Bill 2005 The Forest Act 2005 The Government Lands Act, Cap. 280, (revised 1984) The Kerio Valley Development Authority (Cap. 441) The Kakamega District Strategic Plan on Environment The Kakamega District Working paper on environment and development The Lake Basin Development Authority (Cap. 442) The Land (Group Representatives) Act (Cap. 287) of 1968 (revised 1970) The Land Adjudication Act Cap. 284 of 1968 (revised 1977), The Land Planning Act, Cap. 303 The Local Government Act, Cap. 265 (revised 1986) The Mining Act, Cap. 306 of 1940 (revised 1987) The Physical Planning Act The Registered Land Act, Cap. 300 of 1985 (revised 1989) The Tana Athi Rivers Development Authority (Cap. 443); The Timber Act, Cap. 386 of 1972 The Trespass Act, Cap 294 of 1963 (revised 1982) The Trust land Act (Cap. 288) of 1962 (revised 1970), The Water Act, Cap. 372 of 1951 (revised 1972) The Water Policy, 1999 The Wildlife (Conservation and Management) Act, Chapter 376, Revised Edition 1985 (1977). The Draft Forest Bill, 1998 The Environmental Management and Co-ordination Bill, 1999 The Land Adjudication Amendment Bill, 1999

239 Curriculum Vitae Persönliche Daten: Name: Fredrick Kisekka-Ntale Geburtsdatum: 27. Juli 1976 Geburtsort: Mengo, Uganda Staatsangehörigkeit: Ugandisch Familienstand: Verheiratet

Schulbildung: 1983 – 1989 Nkoyoyo Boarding Primary School, Matale 1990 – 1993 St. Charles Lwanga Senior Secondary School, Kasasa 1994 –1996 Mackay Memorial College, Natete

Studium: 1996 – 1999 Makerere University, Kampala 2000 – 2002 Makerere University, Kampala Seit Oktober 2004 Kreuzberg Sprachschule, Bonn Seit April 2005 Promotionsstudium an der Universität Leipzig

Berufspraxis: Seit Februar 2000- September 2004 Sozialwissenschaftler, Makerere Institute of Social Research.

Forschungsaufenthalt im Kakamega Forest, Kenia: August 2005 – Oktober 2005 Mai 2006 – Oktober 2006

240

Versicherung

Ich versichere, dass ich die vorliegende Arbeit ohne unzulässige Hilfe Dritter und ohne Benutzung anderer als der angegebenen Hilfsmittel angefertigt habe; die aus fremden Quellen direkt oder indirekt übernommenen Gedanken sind als solche kenntlich gemacht.

Weitere Personen waren an der der geistigen Herstellung der vorliegenden Arbeit nicht beteiligt. Insbesondere habe ich nicht die Hilfe eines Promotionsberaters in Anspruch genommen. Dritte haben von mir weder unmittelbar noch mittelbar geldwerte Leistungen für Arbeiten erhalten, die im Zusammenhang mit dem Inhalt der vorgelegten Dissertation stehen.

Die Arbeit wurde bisher weder im Inland noch im Ausland in gleicher oder ähnlicher Form einer anderen Prüfungsbehörde vorgelegt und ist auch noch nicht veröffentlicht worden.

Leipzig, den 22.Januar.2008

Unterschrift

Fredrick Kisekka-Ntale

241