Forest cover in Kenya accounts for only about 7.4% of the total land area,[1] well below the constitutional aspirations of tree cover of at least 10%.[2]

 

7 February 22

The Forest Conservation and Management Act, 2016 (the Act) is the primary piece of legislation regarding conservation and rational utilisation of forest resources in the country. The Act was assented to on 31 August 2016 and became operational on 31 March 2017.

In 2018, the Act was amended through the introduction of section 34(2A)[3]. The effect of the amendment was to place the Kenya Forest Service (the Service) as the first point of contact for any person wishing to petition the National Assembly for a variation to the boundaries of a public forest. The intention prior to the passing of the Act and the subsequent amendment in 2018 was for the Service to be involved in any proposed variation to public forest boundaries. This function aligns with the custodial role of the Service of conserving, protecting and managing all public forests in accordance with the Act.[4] Consequently, a petition for a variation can only be forwarded to the National Assembly upon the recommendation of the Service. Prior to recommending the petition, the Service is mandated to consider the requirement for an independent environmental impact assessment as well as to include public participation, all in the interest of preserving Kenyan forests.

The Forest Conservation and Management (Amendment) Bill 2021[5] (the Bill) now seeks to delete Section 34(2A). The effect of such an amendment would be to shift the role of reviewing petitions for variation of boundaries of public forests from the Service to the Clerk of the National Assembly. The proponents of the amendment argue that the change will streamline the procedure for petitioning Parliament under the Act and that the current requirement of a recommendation by the Service unnecessarily limits the rights of any person to petition Parliament as provided for in the Constitution.[6]

If section 34(2A) is removed, it will alter the powers and functions of the Service, which acts as an independent safeguard to petitions to vary the boundaries of public forests. Although the Constitution provides that every person has a right to petition Parliament, this is not an absolute right and must be read in conjunction with the other rights provided for in the Constitution. In a series of upcoming articles, we will look into whether the change is required or justified or if it is fundamentally flawed.

[1] Taskforce Report on Forest Resources Management and Logging Activities in Kenya (2018)
[2] Article 69 (1) (b), Constitution of Kenya 2010.
[3] Statute Law (Miscellaneous Amendment) Act 2018
[4] Section 8 (a), Forest Conservation and Management Act, 2016
[5] Forest Conservation and Management (Amendment) Bill, 2021
[6] Article 119 of the Constitution of Kenya 2010

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This article was authored by:

  1. Luisa Cetina – Director, ALN Kenya | Anjarwalla & Khanna
  2. Dominic RebelloPartner, ALN Kenya | Anjarwalla & Khanna
  3. Charlotte Patrick-PatelSenior Associate,  ALN Kenya | Anjarwalla & Khanna
  4. Kelly Nyaga – Trainee Lawyer, ALN Kenya | Anjarwalla & Khanna

 

Authors