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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.
Link : http://www.eastandard.net/archives/March/mon10032003/issue/issue10032003003.htm
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