Are the amendments to the Forest Management and Conservation Act 2016 really necessary?

The implication of the proposed amendments would be to usurp the functions of the Kenya Forest Service (the Service) relating to the consideration and recommendation on proposed alterations of boundaries of public forests and transfer this function to the Clerk of the National Assembly. If the Bill is enacted into law, the process of altering public forest boundaries would be handled by the National Assembly with no input from the Service.

The purported principal object of the Bill is to streamline the procedure for petitioning Parliament under the Act. This object implies that the process, as it currently stands, is fragmented due to the need for a review and recommendation from the Service.

However, section 34(2A) of the Act acts a safeguard more than a legislative hurdle, as evidenced by the guidelines that steer the decision of the Service when considering recommending a petition for the alteration of public forest boundaries. In making the determination, the Service must ensure that:

• the variation of a boundary or revocation has been approved by Forest Conservation Committee of the area.
• rare or threatened species will not be endangered.
• the value of the forest for water catchment will not be affected.
• biodiversity conservation, cultural site protection, educational, research and recreational roles will not be prejudiced.
• an Independent Environmental Impact Assessment has been conducted and no serious adverse effect that cannot be mitigated is likely.
• public consultation is carried out.

Additionally, the Service only makes recommendations in respect to petitions.  It is the Board of the Service and the Cabinet Secretary that make the decision on whether to forward the recommendation to Parliament.

A second proposed justification for the amendment is that it would provide unfettered access to parties to petition Parliament in accordance with Article 119 of the Constitution of Kenya, which provides for the right to petition Parliament on any matter within its jurisdiction.

However, the requirement for a review and recommendation by the Service is not a frustration on the Constitutional right to petition; instead, this mechanism upholds the State’s constitutional obligations in respect of the environment. Key among these is the obligation imposed on the State to ensure sustainable exploitation, utilisation, management and conservation of the environment and natural resources, and the equitable sharing of the accruing benefits.[1] This obligation aligns with the mandate of the Service to conserve, manage, and protect all public forests.[2]

As a result, the amendment, if passed, will remove a fundamental safeguard for the conservation of public forests contrary to the fundamental rights of every Kenyan, contained in the Constitution. Having looked at whether the change is required or justified, in our next article we focus on whether the change is fundamentally flawed or not.

[1] Article 69 (1) (a), Constitution of Kenya 2010.

[2] Section 8 (a), Forest Management and Conservation Act 2016.