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2.3Policy and Legal Context

  1. Of crucial significance to their long term viability, Kenya’s Forest Reserves have relatively little long term security, as they can easily be de-gazetted. National Parks and National Reserves, on the other hand, are managed to conserve biodiversity. As such they must be created by an Act of Parliament and are therefore harder to degazette.

  2. However, the Government of Kenya has taken a number of key steps to improve forest conservation, including through both the promulgation of a revised Forest Policy and Forest Act, which places a greater emphasis on forest conservation to protect biodiversity and sustain ecological services, and the creation of the Kenya Forest Service, a parastatal that has a mandate, and increasingly resources, for conservation.

  3. The Government of Kenya is committed to protecting biodiversity. The major policy tool guiding national development in all sectors is the National Development Plan (NDP), which takes into consideration all other plans and strategies from various sectors. Of relevance are the Poverty Reduction Strategy Paper, the Economic Recovery Strategy Paper, the National Biodiversity Strategy and Action Plan, and other relevant strategies e.g. Kenya Wildlife Service Strategic Plan and the Forest Masterplan.

  4. Kenya completed its Biodiversity Country Study in 1992 and finalized its National Biodiversity Strategy and Action Plan (NBSAP) in 2000. The NBSAP provides a strong basis for strategic planning to harmonise the targets of the National Development Plan with the sustainable development of the country’s natural resource base. The NBSAP has outlined strategies to address the afore-mentioned issues, which may be summarised as:

  • Identify and fill gaps in the PA network

  • Strengthen conservation measures in PAs, including strengthening in-situ biodiversity protection

  • Address the conservation needs of endemic and threatened species

  • Review and strengthen policy and legal frameworks for conservation

  • Strengthen government’s decentralisation process

  • Foster partnerships between government, NGOs, private and public sectors

  1. Vision 2030 states that Kenya’s main forests constitute five water towers (Mount Kenya, the Aberdares Range, the Mau Escarpment, the Cherangani Hills and Mount. Elgon), which cover more than one million hectares and form the upper catchments of all main rivers in the country.

  2. Vision 2030’s visualization for the environmental sector is “a people living in a clean, secure and sustainable environment”. The vision is inspired by the principle of sustainable development and by the need for equity in access to the benefits of a clean environment. The country will intensify conservation of strategic natural resources (forests, water towers, wildlife sanctuaries and marine ecosystems) in a sustainable manner without compromising economic growth.

  3. Crucially, Kenya intends to have achieved 10 per cent forest cover by 2030. In addition, specific measures will be adopted to promote bio-prospecting activities such as research and development of commercial products such as drugs, cosmetics and detergents. The overall goal in forest conservation is to increase the current forest cover by 50 per cent. This will include significantly improving the contribution of forest goods and services to the economy and providing a base for the growth of the forestry sector. Regarding wildlife conservation, the goal is to fully protect all important wildlife areas. This will sustain the anticipated high growth rate of the tourism sector (Republic of Kenya, 2007).

2.3.1Environmental Policy and Coordination

  1. The Environmental Management and Coordination Act (No. 8 of 1999) is legislation that provides for the establishment of an appropriate framework for:

  • Management of the environment and sustainable development

  • Improved legal and administrative coordination of the diverse sectoral initiatives aimed at management of the environment

  • EMCA is the principal instrument of government in the implementation of all policies relating to the environment.41

  1. The implementing agency of the Act is the National Environment Management Authority (NEMA) working in close consultation with sectoral lead agencies such as Kenya Forest Service in the forestry sector.

  2. The main legislation that governs the protection and management of forests in Kenya was previously the Forests Act (Cap. 385 of 1968). However, because of the limitations of the Act in addressing contemporary issues relating to the sustainable management of forests, a new Forest Act (2005) was passed by parliament and subsequently gazetted.

  3. This was developed with extensive stakeholder input and consultations, and seeks to provide for the establishment, development, conservation and sustainable use of forest resources. The Act vests all forests in Kenya in the control of the state except those on private lands, but proceeds to recognize the customary right of use by local communities of forest produce for subsistence use. In this respect, the Act categorizes forests into state forest, local authority forests, private forest, nature reserves, arboreta, recreational parks and mini-forest42

  4. In order to achieve its forest management objectives the Act established a number of organs:

  • Kenya Forest Service, whose task is be to assume the responsibility for the overall management of forests in Kenya;

  • Forests Board, responsible for managing Kenya Forest Service;

  • Forest Conservation Committees, whose task is proper and efficient management of forests;

  • Community Forest Associations, whose task is to participate in the conservation and management of a state or local authority forest;

  • The Forest Management and Conservation Fund, whose main purpose is to augment the meagre resources made available by government for forest conservation and management activities through the national budget;

  1. The duties of the KFS are primarily to promote establishment, development, conservation and utilization of forests in Kenya. These duties are being achieved through establishing forest conservation areas or forest divisions for ease of management; development of forest management plans; entering into conservation agreements; granting of concession licences and other licences; declaring certain forests as provisional forests and a Presidential decree on the protection of specific trees.

  2. The Act provides for user rights to be vested in local communities through management agreements entered into between Community Forest Associations and the Kenya Forest Service. The user rights primarily provide for the enjoyment of customary rights protected under the Act: collection of medicinal herbs; harvesting of honey; harvesting of timber or wood for fuel or for other domestic use by an individual; grass harvesting and grazing; collection of forest produce for community based industries; ecotourism and recreational activities; scientific and educational activities; undertaking of agro-forestry practices; contracts to assist in carrying out specified silvicultural operations; development of community based industries; other benefits as may be agreed upon between the association and the service.

  3. Part IV of the Act creates structures for community participation in forest management. Section 45 (1) of the Act states that a member of a forest community may, together with other members or persons resident in the same area, register a community forest association under the Societies Act. Subsection (2) states that an association registered under subsection one may apply to the Director for Permission to participate in the conservation and management of a state forest or local authority forest in accordance with the provisions of this Act. Section 46 (1) states that an association approved by the Director to participate in the management or conservation of a forest or part of a forest shall:

  • Protect, conserve and manage such forest or part thereof pursuant to an approved management agreement entered into under this Act and the provisions of the management plan for the forest;

  • Formulate and implement forest programmes consistent with the traditional forest ser rights of the community concerned in accordance with sustainable use criteria;

  • Assist the Service in enforcing the provisions of this Act and any rules and regulations made pursuant thereto, in particular in relation to illegal harvesting of forest produce.

2.3.2Water Policy

  1. The Water Act sets out provisions for protecting catchments from deforestation. The Minister may designate protected catchment areas, within which activities may be regulated as necessary. However, the Water Act does not provide for control of other land uses that may degrade the catchment through soil erosion. The Agriculture Act, on the other hand, does provide a framework for dealing with these problems, although these provisions seem rarely to be implemented. Control of water pollution is covered, in a general sense, by the Water Act. However, the legislation is deficient, since it does not lay down water quality and discharge standards or provide powers for these to be defined. It also does not provide for water quality monitoring.

2.3.3Wildlife Policy

  1. The Kenya Wildlife Service has drafted a new wildlife policy to replace that produced in 1975. The new policy takes into account the crucial importance of biodiversity for sustaining human life, as well as the increasing conflicts between wildlife and people, and supports a conservation approach based on the integration of biodiversity management and human activity. It recognises that the principal guardians of wildlife and those who decide its fate should be the primary beneficiaries of conservation.

  2. The Wildlife Conservation and Management Act provides the legal guidelines for the protection, conservation and management of wildlife in Kenya. It covers all matters relating to wildlife, including protected areas, activities within protected areas, control of hunting, import and export of wildlife, enforcement and administrative functions of wildlife authorities. The Act (as amended in 1989) sets up the Kenya Wildlife Service to implement its provisions.

  3. The Act allows the establishment of National Parks, National Reserves and local sanctuaries (the last two categories being under local authority control), as well as sanctuaries on private land. It also empowers the minister in charge of wildlife in Kenya to alter park boundaries, and to degazette National Parks through a stipulated procedure. Importantly, this procedure requires explicit approval by the National Assembly following a 60-day notification period. Arbitrary degazettement of National Parks is thus unusual, in contrast to the situation for forest reserves.

  4. Under the act, National Parks are managed by KWS through regulations that prohibit various activities within them. Regulations for specific National Reserves and local sanctuaries are to be drawn up in consultation with local authorities. The act also provides for the partial or complete protection of particular animals, mainly mammals and birds, though in an amendment in 1981 several species of reptiles (notably marine turtles), amphibians and butterflies were included. The act does not mention any protected plant species, though plants (and particularly forests) that occur within National Parks are protected. Also included are law enforcement regulations and penalties for offences committed within National Parks.
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