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Having proposed that the suggested amendments to the Forest Management and Conservation Act 2016 (the Act) are not strictly necessary, we now discuss whether the proposed amendments are justified.
To recap, the Forest Management and Conservation (Amendment) Bill 2021 (the Bill) seeks to remove the review and recommendation process undertaken by the Kenya Forest Service (the Service) before a petition to alter a public forest boundary is presented to the National Assembly. This process is provided for in section 34(2A) of the Act which the Bill proposes to delete.
Whether the Act should be amended is not a purely legal consideration. Forests are dynamic ecosystems which play a vital ecological, cultural and economic role in Kenya. Key among the functions of Kenya’s forests is the regulation of the country’s water yield. Water yield from the “Water Towers” alone accounts for approximately 75% of the renewable surface water resources in the country. To date, the national forest cover loss has reduced water availability by an estimated 62 million cubic metres annually, which translates to an economic loss of approximately USD 19 million.
Economically, the forest sector contributes approximately USD 365 million to Kenya’s annual GDP. An assessment undertaken in three of the five “Water Towers” in Kenya revealed that the economic value of these ecosystems is approximately KES 339 billion annually. Additionally, the “Water Towers” are the main source of water for hydropower electricity generation in Kenya, which was estimated at 282.8 MW in 2019. Kenya’s public forests also have immeasurable cultural and social value for the surrounding communities and the country at large.
Kenya is losing forest cover at an estimated rate of 5,000 hectares per year. An analysis of the land-use changes between 1990 and 2015 revealed that Kenya lost 311,000 hectares of forestland during this period. Among the main drivers of this loss are the conversion of forest land to agriculture, settlements and infrastructure developments, as well as inadequate land forest and tenure security.
By seeking to strip the Service of its custodial and statutory obligations to protect public forests, the Bill significantly weakens the security of Kenyan forests. The proposed rationale for the Bill as a bid to streamline the petition process overlooks the Service’s crucial role in forest conservation and does not hold up as justifiable. Section 34(2A) of the Act does not supress the right to petition for change in public forest boundaries, nor does it stifle the use or enjoyment of forest resources for public purposes.
The claim that the Service does not approve the use of forest land for pure public purposes is factually incorrect. In respect to private sector involvement, the Service is empowered to issue authorisations for forest activities and routinely does so where appropriate. These authorisations take the form of permits, licences, (timber and special use), contracts, joint management agreements and concession agreements. For example, the Service has granted over 270 special use licences to permit various activities within public forests. These authorisations have been granted for dams, ecotourism facilities, fish farming, quarrying, telecommunication masts/bases, billboards, water weirs, hydro and wind power, tea farming, harvesting and way leaves. Given that the Service is empowered to grant such authorisations, the need to annex public forests for purported public use where a license or permit could instead be sought comes into question.
Forest land in Kenya needs to be protected to conserve existing biodiversity, guarantee water security and secure economic prosperity. Without the protection of the Service, Kenya’s National Strategy to achieve and maintain over 10% of tree cover by 2022 will become increasingly unattainable. The Service plays a vital role as an independent advocate of forest resources. The proposed amendments would amount to the usurpation of this role, which was put in place to protect the constitutional rights of all Kenyans. To ensure that forest resources are safeguarded for current and future generations of Kenyans, energy and resources should be focused on improving the current legislative framework rather than watering down the constitutional protections enshrined therein.
 Mapping of mangrove forest land cover change along the Kenya coastline using Landsat imagery, Pg 8
 Taskforce Report on Forest Resources Management and Logging Activities in Kenya, April 2018 <https://dc.sourceafrica.net/documents/119389-2018-Taskforce-Report-on-Forest-Resources.html> Pg 5.
 National Strategy for Achieving and Maintaining Over 10% Tree Cover by 2022, May 2019 <http://www.environment.go.ke/wp-content/uploads/2019/08/Strategy-for-10-Tree-Cover-23-5-19-FINAL.pdf> Pg 10.
 Mau Forest Complex, Cherangany Hills, and Mt. Elgon.
 National Strategy for Achieving and Maintaining Over 10% Tree Cover by 2022, Pg 10.
 National Strategy for Achieving and Maintaining Over 10% Tree Cover by 2022, Pg 13.
 Taskforce Report on Forest Resources Management and Logging Activities in Kenya, Pg 5.
 National Strategy for Achieving and Maintaining Over 10% Tree Cover by 2022, Pg 7.
 National Strategy for Achieving and Maintaining Over 10% Tree Cover by 2022, Pg 15.
 Section 8 (a), Forest Management and Conservation Act 2016 (No. 34 of 2016).
 Section 8 (c), Forest Management and Conservation Act 2016 (No 34 of 2016).
 The National Environment Management Authority estimates that the current national forest cover is 7.4% which falls below the 10% goal by 3.4% < https://www.nema.go.ke/index.php?option=com_content&view=article&id=306:towards-10-percent-tree-cover&catid=10&Itemid=462#:~:text=Kenya%20has%20a%20forest%20cover,of%20trees%20for%20charcoal%20burning>.