Kenya Using Constitution to Reverse Forest Loss

10 September, 2010, mkihu

Many Kenyans know that there is need to entrench environmental protection in the supreme law, and that is what they have done

Over three decades ago Kenya had 15 per cent of its surface area covered by forests. Today its primary forest cover has been reduced to a mere 1.7 per cent.

This destruction of forests has subjected many of the country’s 38.6 million people to great hardships. Many rivers have dried up completely and others have become seasonal. Drought seasons have become acute and more frequent and so has the dying of animals.[frax09alpha]

But these are not the only costs of the forest loss; the pronounced dry seasons continue to greatly affect the agricultural production and the supply of electric power in a country that derives 70 per cent of its electric needs from hydro-electricity power.

However, there are now hopes that things could change for the better after Kenya included key environmental provisions in the country’s new constitution that, among other things, obligates the State to increase a tree cover of at least 10 per cent of the land area.

The new constitution was promulgated on August 27, 2010, bringing to an end 20 years of agitation for change to restore good governance after years of misrule and corruption that witnessed the most powerful people allocate themselves thousands of hectares of forest land.

Fundamental changes

Up to four articles in the new constitution specifically address environment, and many local and international environmentalists including the peace noble laureate Prof Wangari Maathai are happy that the provisions will bring fundamental changes and reforms needed to improve environmental management.

Article 69 outlines eight obligations of the State in respect to environment: The State shall ensure sustainable exploitation, utilization, management and conservation of the environment and natural resources and ensure the equitable sharing of the accruing benefits.

It shall work to achieve and maintain a tree cover of at least 10 per cent of the land area of Kenya and also protect and enhance intellectual property in, and indigenous knowledge of, biodiversity and the genetic resources of the communities.

The State shall also encourage public participation in the management, protection and conservation of the environment; protect genetic resources and biological diversity; establish systems of environmental impact assessment, environmental audit and monitoring of the environment; eliminate processes and activities that are likely to endanger the environment; and utilize the environment and natural resources for the benefit of the citizens.

The new constitution, which was passed by 67 per cent of the voters in a referendum held on August 5, 2010, also allows any person whose right to clean environment has been infringed to move and seek legal redress in court, for instance, an order to restrain another party, to compel him/her or to seek compensation.

Such proceedings shall not be characterized by undue technicalities common in other kinds of lawsuits; the clause says that the complainant will not have to show that he or she has incurred loss or suffered injury. This provision is particularly important because it has been difficult for a person to successfully challenge illegal acquisition of a conserved public land by a private developer since the judges often declare such applicants as lacking a legal basis.

Another important element is the new clauses is inbuilt enforcement mechanisms of the environment rights; the law requires that any agreements related to transfer of natural resources to a private entity or organization shall be subjected to an approval by the parliament thus reducing the powers of the president and the ministers who previously made such decisions without consulting people or the parliament.

According to Kenya Indigenous Forests Conservation Programme (KIFCON) the closed canopy indigenous forests cover about 1.24 million hectares. The main forests include Mau, Mt Kenya, Mt Elgon, Cherengany and Aberdares. The forests accommodate up to 50 per cent of tree species in the country, 40 per cent of the larger mammals and 30 per cent of birds. The indigenous forests are particularly valuable in that they are habituated by rare animals and plants that are hard to find anywhere else.

The alarming rate of destruction of these forests climaxed in around the year 2000 when the government of President Daniel arap Moi declassified 87,000 hectares of forests to allegedly settle landless people some of whom had already been farming on the edges of the forests on a temporary basis.

Looming catastrophe

It turned out that the aim of settling the landless people was a mere excuse, but the real aim was grabbing of the said areas by highly placed government officials close to the president. Last year an investigation report of the forest allocation scandal compiled by the current government finally named all the prominent people who benefited from the forest lands.

According to a joint report of the United National Environment Program (UNEP) and the Government of Kenya, up to 9,813 hectares (9,295.72 hectares indigenous forest and 517.87 hectares plantation forests) were cleared between 2003 and 2005. In the preceding period of 2000-2003, another 7,084.24 hectares (most of it plantation) had been destroyed.

Following warnings by UNEP of the looming catastrophe, the government moved to halt the destruction of the forests by ordering out 20,000 families from Mau forest in 2009 and since then an extensive tree planting exercise has commenced.

A nationwide campaign dubbed “Save Mau” got widespread support from the corporate bodies and even the communities affected by the drying up of rivers.

But as the country tries to correct the previous mistakes of environmental mismanagement, many Kenyans know that there is need to entrench environmental protection in the supreme law, and that is what they have exactly done, if to ensure no leader in the country shall tinker with environment matters in future.

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