Forest Management and Conservation in Kenya: a Study of the Role of Law in the Conservation of Forest Resources

Forest Management and Conservation in Kenya: a Study of the Role of Law in the Conservation of Forest Resources

FOREST MANAGEMENT AND CONSERVATION IN KENYA: A STUDY OF THE ROLE OF LAW IN THE CONSERVATION OF FOREST RESOURCES by JOHN KIPKOECH CHEBII submitted in accordance with the requirements for the degree of DOCTOR OF LAWS at the UNIVERSITY OF SOUTH AFRICA SUPERVISOR: PROF W. BRAY CO-SUPERVISOR: PROF F.D. P. SITUMA NOVEMBER 2015 CHAPTER ONE INTRODUCTION 1.1 BACKGROUND 1.2 PROBLEM STATEMENT 1.3 PURPOSES OF THE STUDY 1.4 CONCEPTUAL CLARIFICATION 1.4.1 FORESTS 1.4.2 MANAGEMENT 1.4.3 CONSERVATION 1.4.4 PRESERVATION 1.4.5 PROTECTION 1.4.6 INTERGENERATIONAL EQUITY 1.4.7 INTRAGENERATIONAL EQUITY 1.4.8 THE ROLE OF LAW IN THE SUSTAINABLE MANAGEMENT AND CONSERVATION OF FOREST RESOURCES 1.5 LITERATURE REVIEW 1.6 RESEARCH METHODOLOGY 1.7 FRAMEWORK OF THE THESIS 1.8 SUMMARY 1.1 BACKGROUND Forests form part of our most precious natural resources. They are essential to the continued balance and survival of the world’s ecosystem.1 Unfortunately, they have suffered from serious depletion in the past and unless vigorous steps are taken to conserve them, their future existence is threatened.2 Illustrative of the concern which the international community has in relation to this threat is the following extract from the report of the World Commission on Environment and Development which stresses the importance of forests for the conservation of biological diversity and ecological processes: The link between conservation and development and the need to attack the problem at source can be seen clearly in the case of tropical forests. Sometimes it is government policy, not economic necessity that drives the over exploitation and destruction of these resources. The direct economic and fiscal costs of this over exploitation, in addition to those of over extinction, are huge. _________________ 1 See Bucknum S “The US Commitment to Agenda 21: Combating Desertification-The Ecosystem Management Approach” (1998) 8 Duke Environmental Law and Policy Forum 305 306. 2See for example Bhargava V “Sustaining the World’s Forests: Managing Competing Demands for a Vital Resource” in Bhargava V (ed) (2006) Global Issues for Global Citizens: An Introduction to Key Development Challenges 305. 1 The result has been wasteful exploitation of tropical forests, the sacrifice of most of their timber and non timber values, enormous losses of potential revenue to the government, and the destruction of rich biological resources . Third world governments can stem the destruction of tropical forests and other reservoirs of biological diversity while achieving economic goals.3 Kenya’s policy in relation to sustainable forest management and conservation was first articulated in 1957 through Sessional Paper Number 7 of 1957: Report of the Game Policy Committee. This Policy was subsequently restated by the Government of Kenya in 1968 through Sessional Paper Number 1 of 1968 which stated that the: forest estate of Kenya ranks high as one of the country’s most important national assets in its protective aspect of climate, water and soil; as the source of supply of forest produce for all uses by the inhabitants of Kenya and as a revenue earner of high potential.4 This Sessional Paper came into existence after the enactment of the Forests Act,5 which was passed by the legislature in 1962.6 This was the principal legislation for the management, conservation and utilization of forests and forest products in Kenya. The new Forests Act 2005, delineates a policy of encouraging the use and improvement of the state’s forests and natural areas while simultaneously conserving and protecting these resources.7 The Act contains many innovative provisions to correct previous shortcomings, including strong emphasis on partnership working and the engagement of local communities.8 The Act has clear provisions on the role of local communities in sustainable forest management and conservation.9 The new law opens up a major opportunity to address the inequalities of the past and may improve the quality and sustainability of Kenya’s forests if properly implemented. ______________ 3See World Commission on Environment and Development (WCED) Our Common Future (1987) 548. 4See Republic of Kenya Sessional Paper Number 1 of 1968: A Forest Policy for Kenya (1968)1. 5Cap 385 Laws of Kenya (now repealed). 6First enacted in 1942 with various amendments and subsidiary legislation made thereto and finally repealed by the Forests Act 2005, being Act No. 7 of 2005(hereinafter referred to as the Forests Act). 7See sections 7 and 52 of the Forests Act 2005. 8See for example Republic of Kenya National Development Plan 2002 to 2008 (2002)124. 9See sections 5, 22, 36, 41 and 46 of the Act. 2 The Forests Act is grounded on the assumption that forests play a vital role in the stabilization of soils and ground water, support the conduct of reliable agricultural activity and play a crucial role in protecting water catchments in Kenya and moderating climate by absorbing greenhouse gases. The legislation further recognizes that forests provide the main locus of Kenya’s biological diversity and a major habitat for wildlife and acknowledges that forests are the main source of domestic fuelwood for the Kenyan people.10 Sessional Paper Number 1 of 1968 has now been replaced by a new forest policy.11 The new forest policy observes that since 1968, the country has experienced a major decrease in forest cover, which has resulted in reduced water catchments, biodiversity, supply of forest products and habitats for wildlife.12 Kenya adopted a framework environmental law in 1999, being the Environmental Management and Coordination Act,13 which has been hailed as a major landmark in environmental law making in Kenya.14 It provides for the establishment of an appropriate legal and institutional framework for managing the environment. Nevertheless, environmental discussions in Kenya have proceeded on the basis that environmental regulations are scattered along sectors and that forestry issues should be distinguished from environmental issues.15 The integration of forestry issues into development planning and management requires that laws that have an impact on the environment, and forestry in particular, should be harmonized and the powers of the respective departments and ministries strengthened.16 _______________________ 10 See the Preamble to the Forests Act 2005, Act No. 7 of 2005. 11Republic of Kenya Sessional Paper Number 9 of 2005 on Forest Policy (2005). 12Ibid 1. 13Act No. 8 of 1999. 14See for example Okidi C O & Mbote P K (eds) The Making of a Framework Environmental Law in Kenya (2001) 85. 15See Republic of Kenya Sessional Paper Number 3 of 2009 on National Land Policy (2009) 24. 16See for example Republic of Kenya Kenya Vision 2030: A Globally Competitive and Prosperous Kenya (2007) 104. 3 Concurrently, the institutional capability of the ministries, departments and regulatory bodies should be strengthened to enable them to cope with the challenges of sustainable development.17 The Kenya Forest Service is established under the Forests Act and is charged with the management, conservation and utilization of forests and forest products.18 Besides the Kenya Forest Service, other major institutions are the National Environment Management Authority which is established by the Environmental Management and Coordination Act, 19 local government bodies and the private sector. The Forests Act, being the latest enacted statute in the area of environmental management in Kenya, should have harmonized and synchronized the institutional and legal mandates for forestry management within the framework for sustainable development.20 Situma rightly observes that the Forests Act fails to bring about harmony with the result that there are conflicts of institutional mandates for forestry between the National Environment Management Authority and the Kenya Forest Service.21 The Act fails to clarify the role of the National Environment Management Authority in respect of the creation of forests, the variation of state or local authority forests, or the exchange of forest areas with private lands, despite the fact that these actions have fundamental environmental implications.22 It is also noted that the Forests Act fails to entrench the principles of sustainable forest management such as public participation in the development of policies and plans and does not effectively consider issues of _______________________ 17As an example of the sectoral nature of the law, other statutes such as the Timber Act 1972, Cap 386 Laws of Kenya, regulate the export, sale, grading, inspection and marketing of timber. Forest resources regulation is also provided for by the Plant Protection Act, Cap 324 Laws of Kenya (Revised edition 1979) and the Seeds and Plant Varieties Act, Cap 326 Laws of Kenya (Revised edition 1991) and also the Agriculture, Fisheries and Food Authority Act, Act No. 13 of 2013, Laws of Kenya. 18Act No. 7 of 2005, Section 4 thereof. 19Act No. 8 of 1999, Section 7 thereof. 20See Situma FDP “Forestry Law and the Environment in Kenya” in Okidi C O et al (eds) (2008) Environmental Governance in Kenya: Implementing the Framework Law 235 241. 21Ibid. 22Ibid. 4 intergenerational and intra-generational equity.23 Thus, a central theme of this thesis is sustainable forest management, which effectively integrates the biological, social and economic factors which influence decisions to ensure that the values derived from Kenya’s forests, meet present day needs while at the same time ensuring their continued availability to long term development needs.24The law itself

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