Archive 2003


Monday, March 10, 2003

A glaring case of policy contradictions

When the Ogiek in 1999 filed a case in the High Court to stop the government from evicting them from Tinet forest, the government opposed the application on grounds that the forest was an important water catchment area. But only a year later, the government inexplicably sought to excise huge chunks of the forest, writes Kibe Mungai

The state of the Kenya environment is a massive national scandal. When I was a law student at the University of Nairobi between 1992 and 1996, I used to pass through Kinale Forest on my way to and from my Nakuru home at least 10 times a year. And I remember there would always be either mist or rain within and around Kinale forest. Today mist or rain are conspicuous at Kinale forest by their absence. The plight of Kinale forest is not an isolated case. Two years ago President Mwai Kibaki, then the leader of official opposition, lamented that Sagana River in Nyeri District was only 30 per cent of its former volume.

As a lawyer the foremost thought that crossed my mind is whether there is anything the law can do to curb the imminent environmental catastrophe. Upon reflection I am not very optimistic - for until the day when the law trumps politics in Kenya’s way of life we may never live safe from the dangers of environmental catastrophes.

For three reasons it is easy to play politics with forest matters. First, Kenya’s forest cover is so small that it is the subject of great public interest and sentiment. Secondly, the minimal forest cover is located mainly in the high potential agricultural areas and is therefore a natural target for land grabbers and the landless. Thirdly, the laws governing conservation, use and management of forests give the govennnent a lot of discretionary powers so that there are practically no effective barriers to detrimental envirormental activities that have the sanction of the government in power.

An inquiry into the role of the law in forest conservation and management should begin with a caveat - that although law can and should play an important role, it suffers from definite limitations. Two limitations immediately spring to mind.

First, forest conservation and management are at bottom issues of resource allocation and necessarily politics and economics have a greater role to play. Secondly, the very best of laws is almost invariably enacted to serve or promote the interests of specific groups and not the whole society. Put differently, however a law is drafted it will always serve interests of specific groups more than others. As a case in point, land laws in colonial Kenya were primarily enacted to serve and promote settler interests.

Historically, the Kenyan law has been an accomplice to the plunder of forest resources and decimafion of forest cover. This is because the primary objective of the law since Kenya became a colony was to keep and consolidate land and its various resources within the hands of the ruling class which is essential for political control in an agrarian society. This indeed explains the antagonistic relationship between Government and local communities on usage of forest resources. Thus so long as law is perceived by ordinary people to be aiding and abetting the interests of one group over another, it loses legitimacy in their eyes and they lose incentive to protect what is supposed to be collective or public property.

Let us now consider the Forest Act Cap 385, laws of Kenya. The Act provides for the establishment, control and regulation of central forests and forest areas in Nairobi area and on unalienated Government land. Section 4 of the Act empowers the Minister for the time being in charge of the environment and natural resources to (a) declare any unalenated Government land to be a forest area; (b) declare the borders of a forest and from time to time alter those boundaries; and (c) declare that a forest area shall cease to be a forest area. To do any of these drastic actions the Act merely requires the Minister to publish a twenty-eight days’ notice of the intention that strikes his fancy. A declaration under Section 4(l) that a forest shall cease to be a forest area ought to precede any settlement or alienation of such land in accordance with provisions of the Goverrnnent Lands Act. Unfortunately, in practice the Gazette notice comes after the event - that is after cessation of a forest area after allottees have built homes, schools and churches.

Kenyans will recall that when in 2001 the Government expressed its intention to excise 68,000 hectares of indigenous forest then Environment Minister Francis Nyenze took refuge in the assertion that 90 per cent of the forest areas he intended to excise was already settled land, where even title deeds had been issued.

In other words, the Minister was effectively saying that whatever the law may say about the procedure of excision of forest land, the Government could overlook the law and issue title to legitimize unlawful allocation of forest land.

When the law was blatantly disregarded to plunder forest resources and reward political patronage, Kenyans must wonder whether such titles are worth the papers they are written on. Indeed reasonable people must wonder whether the Rule of Law commands respect for such title or utter disregard of them.

Consider the political and legal disputes revolving around Tinet Forest which is part of Mau Forest block. In 1999, representatives of the Ogiek Community filed a case in the High Court (Francis Kemai & Others versus the Attorney General & 3 Others - Nairobi HCCC No. 238 of 1999).

The facts of the case were as follows: About 5000 members of the Ogiek community applied in the High Court for among others two declarations namely, that their eviction from Tinet forest by the Government contravenes their rights to the protection of the law, not to be discriminated against, and to reside in any part of Kenya; and secondly, that their right to life had been contravened by the forcible eviction from the Tinet Forest. The Community also sought compensation from the Government.

Let us put the Ogiek Case in the present context. Tinet Forest is part of the forests generally referred to as Mau Complex or Mau Forest block that includes South West Mau Forest, Transmara, Ol Pusimoro, Maasai Mau, West Mau, Kilombe, Tinderet, North Tinderet, Maji Mazuri, Timboroa, Lembus, Chemongorok and Metkei. Tinet itself is part of the Southwest Mau Forest where Nyenze sought to excise 24,109 hectares. It bears noting that the forest block known as South West Mau Forest, which reportedly covers 84,000 hactares, forms the main catchment area for lakes Victoria, Nakuru, and Baringo. It is also the source of many streams and rivers including Mara, Ewaso Nyiro South, Perkera, Rongai, Kerio and Nyando. In a word, the ecological value of the Mau Complex forests is inestimable.

Turning to the judgement in the Ogiek Case, the Government opposed the application among others on the ground that Tinet Forest is a water catchment area. The learned judges captured the case of the State as follows: “Concerning the position taken by the applicants that they are completely landless, the respondents say that is not the true position, and that archival administrative records availed from our National Archives show the contrary and that the colonial Government resettled them elsewhere along with other Wadorobo people. But after the said resettlement elsewhere, some people entered the Forest of Tinet, with an intention to dwell there without any license given by the forests authority on behalf of the Government. The unauthorized occupation of the forest has been followed by numerous evictions since the date of the gazettment of the forest as such. The government’s 1991-1998 plan to settle all landless persons (including some Ogiek people) was purely on humanitarian considerations, but the programme did not materialize when it was later found that to go ahead with it would necessarily result in environmental degradation which adversely affect the role of the forest reserve and a water catchment area, with dire consequences for rivers springing from there which, presumably sustain hmnan life, the fauna and the flora there and down-stream and their environs. So the plan was shelved, at least for the time being.”

After a careful analysis of the facts and the law, the learned judges dismissed the applicants’ case. With apparent foreboding, the judges hastened to add that, “the eviction is for the purposes of saving the whole Kenya from a possible environmental disaster; it is being carried out for the common good within statutory powers . . . In the context of this case, we know no safe way for this country and for these litigants, than dismissing this case with costs to the respondents”.

For good measure Justices Samuel Oguk and Richard Kuloba who delivered the landmark ruling added: “There is a failure to realise that the unsustainable utilization of our natural resources undermines our very human existence. In grappling with our socioeconomic cultural problems and the complex relationship between the environment and good governance, we must not ignore the linkages between landlessness, land tenure, cultural practises and habits.

“Land titles, land use, and natural resources management, which must be at the heart of policy options in environmental, constitutional law and human rights litigation such as this one . . . Indeed, a legal system which provides extensive and simplified procedures for converting public land to private ownership, or which gives a reckless access to public natural resources, with little or no regard for ecological and sustainable social developmental impacts, is a national enemy of the people. We must all be ecological ignorance free; and a justice system, which does not uphold efforts to protect the environment for sustainable development, is a danger to the enjoyment of human rights.”

The fact that a year later the Kanu Government sought to excise the same forest it was objecting in the High Court case is a clear indicator of the contradictions that characterize the laws on environmental matters.

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