CHAPTER ONE

  1. INTRODUCTION

The Concise Oxford dictionary defines conflict as “an incompatibility between opinions, principles etc”[1]. In this chapter I will elaborate a backdrop elucidation of the history of the Forest Act and the conflicts that emanate from such history.

1.1Historical Background on Enactment of Forests Act, Act No. 7 Of 2007[2]

The first forest policy[3] was written in 1957. It covered reservation, protection of the forest estate and sustainable exploitation of forests. Afforestation and conservation of forests in ‘African areas’ were to be encouraged, as was proper management of privately owned forests. The value of forests for public amenity and wildlife was also recognized.

The Forests policy was revised with a few modifications after independence in A Forest Policy

for Kenya in 1968 however notwithstanding, the 1968 forest policy focused on catchment management and timber production, with strong government control of the sector.

In 1979, when the Beijer Institute Report was published. It’s key feature was its disquieting forecast, that by the year 2000, there would be no tree left in Kenya, based on the then rate of felling of trees. This compelled dramatic actions to be undertaken that in the future they changed the scenario of forest management in Kenya.

The Government of Kenya initiated the formulation of Kenya Forestry Master Plan in 1991. The master plan among other things would guide the development of forestry sector in the next 25years. The Kenya Forestry Master Plan was adopted by Government in 1994.

Some of the salient issues identified for special attention, inter alia, include the need to overhaul the existing Forest Policy and the Forests Act (Cap 385).

Simultaneously the Kenya National Environment Action Plan was adopted in 1994 which also identified, inter alia, the need for new policy and legal framework for sustainable forest management.

After this reports the initial efforts to formulate a new forest legal and institutional framework began in 1996. The Draft Forest Policy which was developed with input from Price WaterHouse Coopers was a departure from the conventional centralized authority, thus, inter alia, proposing a shift in the management of plantation state forests as well as the indigenous forests. It proposed

the establishment of a semi-autonomous institution to be responsible for the protection and management of indigenous forests. However this policy fell short on the area of proposing an inclusive framework for community participation in the protection, conservation and utilization of forests.

Regrettably, the period between 1996 and 2001 Kenya lost much of its forests through political patronage. A number of forests such as Mt Elgon, Mau forest and others were opened for settlement schemes. In the process, there was rush by foresters to make the most out of the forests, and indeed, a number of them carved out big shanks of land for themselves and friends. The politicians were not exempted, and many of them would collude with the Forest Department and Commissioner of Lands for personal benefit at the expense of forests. In addition, corruption became rampant during this period as exhibited by loss of revenue generated from forest royalties and sale of timber never reached the Treasury. Because of lack of political will the Kenya Indigenous Forests Conservation Programme (KIFCON) with support from development partners and which championed stoppage of forest excisions for political expediency was discontinued in 1995.

Following concerted efforts by civil society and development partners the Forest Bill, 1999 was developed. In order to sensitize communities on the effect of the proposed law on their lives, civil society such as Kenya Forests Working Group (KFWG) and Forest Action Network (FAN) with financial support from the UK Department for International Development (DfID) undertook the process of community sensitization on the Bill. Arising from the community consultative meetings, the Forests Bill 1999 was revised giving rise to Forests Bill 2000.

The new Forests Bill 2000 had a specific chapter dealing with community participation. At the same time, in November 1999, the Government declared a 90 day suspension on timber harvesting in all 120,000 hectares of plantation state forests in the country. The aim was to allow auditing of the industrial forest plantations following concerns that harvesting and management practices were unsustainable and a threat to sustainable forest management and environmental conservation in general. Immediately after the suspension was lifted, an indefinite presidential ban on timber harvesting was imposed in March 2000.

However, it was felt that the fines proposed in the Bill were too high. In spite of this contentious issue, many stakeholders were eager to have the Bill enacted into law without further delays, having taken long enough time already to have it the way it was. The civil society vigorously campaigned for the Bill to be tabled in parliament.

Due to lack of political will the Forests Bill, 2000 was never presented to Parliament. It was not until 2003 that work on the Bill resumed and given due attention by the government, presumably because the new government elected on the platform of performance, wanted to act on the standing issues as per its promises to the electorate.

In 2003, Forests Bill 2000 was republished as Forests Bill, 2003 and presented to the Cabinet for approval. The Cabinet recommended further revision of the Forests Bill, 2003 and formulation of Forest Policy. In particular, the Cabinet sought the policy and Bill to address issues relating to riverine forests, charcoal and capacity building. At the same time, during the 2003 UNEP Ministerial meeting in Nairobi, some delegates were flown over various forests. During these excursions, they flew over Chinga Forest, Nyeri District, and observed widespread

cultivation in and around forests attributed to failure in shamba system. This led to the banning of shamba system as a way of stopping further forest degradation. In addition, foresters were sent on compulsory leave.

In January 2004, the Ministry of Environment and Natural Resources, in collaboration with the National Assembly with support from conservation NGOs and development partners held a consultative meeting with the Members of Parliament in Mombasa. The aim of the meeting was to sensitize members of parliament on the salient provisions of the proposed Forest Policy and Forests Bill, and solicit their support to pass the Bill when presented to Parliament. Members of parliament raised a number of issues for consideration. Some of the issues include recognition of the shamba system, leasing of plantation state forests and an effective framework for community participation in forest management.

In June 2004, a new version Forests Bill, 2004 was taken to parliament. It had minimal changes compared with the Forests Bill, 2003. Among other features, it provided for concession as a viable option in the management of plantation forests. It was not, however, clear with regard to Non-Residential Cultivation/shamba system.

Unfortunately, the Members of Parliament, ostensibly for political reasons voted against the Bill. This necessitated a fresh look at the Bill with the aim of incorporating as much as possible the issues raised by Members of parliament when they rejected the Bill. This gave rise to the Forests

Bill, 2005, which was finally presented to parliament for enactment in July 2005. Parliament subsequently approved the Bill. The draft Act did not come into effect immediately and was only formally Gazetted on February 9, 2007 vide Legal Notice No. 19 of 2007 by the then Minister of Minister of Environment and Natural Resources, Kibutha Kibwana.[4]

Of note worthy is that from the time research began to when the Act was enacted, it took over two decades.[5]

1.2History of Conflicts

The causes of the conflicts are relatively few and the key conflicts are perfectly captioned under the Wildlife Bill, 2011[6]. The Fourth Schedule of the Bill on Nationally Listed Endangered and Threatened Ecosystems, it lists the Mau Ecosystem[7] as among the “Vulnerable Ecosystems” to and the Mau Forest Complex among the “Endangered Ecosystems” which its major threats are listed as:

  1. Illegal logging;
  2. Encroachment;
  3. Human settlement;
  4. Fires;
  5. Charcoal;
  6. Burning and;
  7. Illegal grazing.

However these are not the only sources of conflicts. Politics and corruption are among the biggest hurdles that have actively aided in ravaging forests in Kenya. Some of other factors include:

Corruption

Corruption within the Government of Kenya and within its ranks had finally managed to cripple the forestry department and what little donor support that was provided to the country and as a result of this cancerous culture in the 1990’s donor fund to aid in forest conservation from the international community was withdrawn.

Lack of Funding

The domino effect of this was that the Forest Department (as it then was) operated for quite some period without adequate resources. The consequences of this was that the capacity of the Department to maintain state indigenous and plantation forests dwindled to a great extent and consequential to this was that there was a rampant increase in illegal activity within Kenya’s forests.

Ethnicity

Ethnicity is also another thorn which as rightfully noted by the world bank that:[8]

“Ethnicity provides an important dimension in politics and the desire of political leaders to ensure that their “own people” benefit from changes of government or administration has played a major role in decisions on land use in the past. Both national and local leaders previously sought to allocate forest land to the homeless. In practice the beneficiaries have often been supporters of the government of the day rather than rootless minority groups who largely constitute the homeless. The extent to which these changes have been driven by political motives and greed, as opposed to community interest, is an issue on which different political parties have their own views. Regardless of the underlying causes, the outcome is that substantial numbers of people live within forest reserves or in squatter camps to which they have been evicted.”

And the ethnicity is not only limited to the forest areas, even within the Ministry and the Forest Departments was (is) a casualty of the same.

Illegal Logging

Despite the ban on logging from natural forests was introduced in 1982 aiming to protect the remaining forest reserves, this has only been partially successful in preventing timber harvesting in indigenous forest. The expected outcome was/is that the cost of timber was/has driven up costs due to decrease in supply.

Some local companies/individuals due to the stringent application of the law have been forced to importing timber from other areas, for example neighboring Tanzania. However because the ideal costs of such imports and the fact that there exists demands in timber that the supply cannot meet then it is only natural to expect that there will still illegal loggers who will be willing to exploit the obvious lucrative ends.

Politics

The assault on the Mau forests began with colonialism, which established the first settlement schemes as early as the 1940s to protect the colonialists’ needs for fertile land in the so-called White Highland areas and beyond. Such schemes continued in the post-colonial period and culminated with the Moi regime’s actions of de-gazzeting parts of the Mau Forest to reward loyal politicians and entice the Kalenjin community to vote for KANU in the 1997 elections[9].

Before the 1997 elections the enactment of multi-party politics in 1991 threatened the political hegemony of the KANU regime that had been in power since Independence in 1963. To counter the growing threat of opposition parties and consolidate the Kipsigis voting bloc, the Moi regime triggered ethnic clashes to punish, uproot and disenfranchise non-Kalenjin opposition supporters in Rift Valley. The Kipsigis were then allowed to occupy the forest land left by the displaced Kikuyus, Kisiis and Luos.[10]

The Moi regime strategically used ethnicity and environmental stress as causal explanations for the ethnic violence and internal displacements.[11] “Majimboism” was labeled the cause for State- instigated ethnic clashes and political leaders fronting it as a federal system of government capable of empowering the original inhabitants of the Rift Valley Province[12].The ethnic clashes succeeded in intimidating and scaring away the ‘foreigners’ residing in the Rift Valley, leading to President Moi winning elections but thousands of members of the non-Kalenjin communities living in the wider Rift Valley areas of Kipkelion, Olenguruoni, Molo and Bomet, among others, were rendered landless. This marked the start of informalized violence, initially aimed at countering the violent evictions and the killings of the non-Kalenjin communities, especially the Kikuyu community, and culminated with the birth of the Mungiki movement.[13]

In 2005 by the Kibaki Government as recommended by the Ndung’u land report of 2004 ordered the evictions of settlers and squatters from the Mau forests but with Kibaki’s popularity dwindling in the Rift Valley after the evictions that provoked strong criticism from the region’s political elites, the media and human rights activists for the violation of basic rights of the evictees, including the Government’s failure to provide alternative settlements, absence of the court order authorizing evictions and inadequate eviction notice. But in October 2005 during the referendum campaigns, President Kibaki issued over 12,000 title deeds to the Ogiek community in Nakuru to influence the voters to support the draft constitution.[14]

During the 2007 elections to counter the strong ODM wave in Rift Valley, the PNU Government reversed the eviction orders and issued title deeds to the squatters, hoping to recover lost popularity and win the support of over 700,000 voters from the Kipsigis community.

Following the post election violence over 700 people were killed within Rift Valley province and over 26,400 Kenyans were displaced. There was wide banishment of multitude of forest workers from Mau and the surrounding forest stations and this lead to serious encroachment and destruction of the forests by raiders interested in wood and farmland. The majority of over 10,290 “encroachers” evicted in 2005 took advantage of the political crisis and returned to the forests and allocated themselves pieces of land.[15]

The Ndung’u Land Report has since been revisited and in a renewed effort to conserve the Mau a task force to chart the way forward on the volatile Mau issue was formed. It submitted its report in June 2009 which was approved by both the Cabinet and Parliament with recommendations to evict squatters from the Mau Complex, setting the stage for further fragmentation of political elites in the Orange party and pre-2012 elections political re-alignments[16].

Population

There are also constraints due to population growth. In 1994 when the Ministry of Environment and Natural Resources conducted the study, Kenya’s population was barely above 20 million. More than two and a half decades later (2012) the population is above 40 million. Yet the resources have not increased to matchup the needs.

The graphs below shows

  1. Projected Population Growth in Kenya
  2. Projected Growth in Demand for Fuel Wood
  3. Demand for Wood versus Projected Supply
  4. Cost of Imported Timber in Billion Ksh

These are as projected by the Ministry of Environment and Natural Resources.

Table 6: Projected wood supply and demand in the high-potential and medium-potential districts under the master plan scenario (‘000 m3) From Kenya Forest Master Plan, 1994
1995 / 2000 / 2005 / 2010 / 2015 / 2020
Sustainable wood supply
Indigenous forests / 1942 / 1916 / 1909 / 1909 / 1909 / 1909
Forest plantations / 2149 / 2600 / 2402 / 2840 / 3245 / 3815
Farms and settlements / 7437 / 10386 / 13375 / 16421 / 19479 / 22553
Subtotal / 11528 / 14902 / 17686 / 21170 / 24633 / 28277
Farms as % of the sub-total / 64 / 70 / 76 / 78 / 79 / 80
Wood from clearings & substitutes / 1648 / 1917 / 2118 / 2430 / 2754 / 3086
Total wood supply / 13176 / 16819 / 19804 / 23600 / 27387 / 31363
Wood demand / 15084 / 18024 / 21041 / 24294 / 27786 / 31527
Wood surplus/deficit / - 1908 / -1205 / -1237 / -694 / -399 / -161

1.3STATEMENT OF THE PROBLEM

The overall research problem addressed in this study is a formal analysis and investigation aiming to understand the implementation of the Forests Act, Act No. 7 of 2007.

The research will focus on documentary review of the Act (Forests Act), the Subsidiary Legislations enacted under the Act, germane literature and Acts that are interrelated to forest allied conflicts.

1.4OBJECTIVES

The objective of this research is to critically examine the implementation of the Forests Act and the related agencies founded and empowered under the Act. The research will endeavor to enquire in to the actual practice in relation to the implementation and enforcement of the Forests Act and how forest related conflicts relate to the Act.

The researcher also aims at providing appropriate recommendations on what, how, when and what should be to ensure that the objectives of the Act are met.

1.5 RESEARCH QUESTIONS

The research is intended to evaluate the following hypothesis;

  1. What are the important contents of the Forests Act?
  2. What are the background documents to the Forests Act?
  3. What are the related Legislation and how do they do they relate in the management of natural resources and do the related legislation cause a multiplicity of functions and Laws?
  4. How is the implementation, enforcement and adjudication of the Act being conducted by relevant Government agencies and interested parties?

1.6SIGNIFICANCE OF THE RESEARCH

The research aims on being an eye opener on the implementation of the Act (5 years down the line). It will elucidate how far its objectives have been met and if not what are the impediments facing its implementation. That aside the research will highlight the evolution of forest related conflicts that can be attributed to the implementation of the Forests Act.

1.7LITERATURE REVIEW

At this juncture it is vital that it be stressed that due the fact of time constrains and the sporadic nature of the empirical research there is an immense dearth of relevant facts (findings) which though available cannot be availed at this juncture but upon a full research are sure to be unearthed.