CHAPTER THREE LEGAL STRATEGIES FOR THE SUSTAINABLE MANAGEMENT AND CONSERVATION OF FORESTS
In the early days of environmental conservation, partnerships between business and environmental interests were normally forced.1 Government and environmental activists viewed strict regulation as the only way to achieve environmental goals. In the conservation field, the aim was to place certain critical natural areas outside the reach of development and carefully monitor resource areas like logging and agriculture. The fundamental question in the forest conservation debate is whether to conserve an area or to allow sustainable development within it.2
Conservation is normally based on preserving the natural habitat and its indigenous people, with a limited amount of economic growth and development allowed.3 Sustainable development, on the other hand, involves not only protecting the habitat and the people, but also allowing a type and level of development that can be sustained into the future with minimum damage to the people or the forest, subject to the ongoing maintenance of services and quality of natural resources.4
Forest conservation is multidimensional because the causes of forest clearance are interdependent. The task of stopping forest destruction is a difficult one particularly because it requires the resolution of complex issues like rising population, meeting the needs of the landless poor, and integrating forestry issues with other sectors of development. This chapter sets out the legal strategies that are applied in order to achieve sustainable forest management and conservation. In order to be effective, governmental programmes to protect and improve forests must be translated into legislative and administrative action.5 Since the Declaration of Principles for the Preservation and Enhancement of the Human Environment,6 there has, indeed, been an enormous growth in environmental laws and a range of specific policies available to the developing countries from which they could legislate in accordance with their requirements and preferences.7
There is no standard ‘recipe’ for assessing the content of forest law in developing countries. There are, however, a few essential instruments, which tend to play a key role regardless of the particular circumstances and the traditions of a country. The appropriate mix of approaches depends upon the country’s prevailing political, legal, cultural norms and development attitudes.8 This chapter examines the role of the law in the sustainable management and conservation of forest resources. It underscores the fact that law is necessary and inevitable, though generally not sufficient in itself, to shape social behaviour towards agreed goals.9 The chapter underscores the fact that law offers the strongest degree of protection to forest resources as it often offers the actual legal strategies to effect change, compliance and enforcement of plans of action.10 The challenge is how the law incorporates the principles of sustainable development into legal strategies to achieve sustainable forest management and conservation. This chapter identifies the functions of forest law as being to protect the threshold of sustainability in the utilization of forestry resources and ensuring intergenerational equity.11 The chapter demonstrates the fact that the core function of a good forest law must be the protection of the threshold of sustainability.
The chapter underscores the fact that the institution of the law provides the binding rules and the normative system for advancing the sustainable management and conservation of forest resources. The first part of the chapter examines the concepts for sustainable forest management. It briefly surveys some of the working definitions and tools of forestry management, while at the same time pointing out the role of law in conservation. The second part examines the basic principles of environmental law and their relevance to sustainable forest management conservation. It is argued that that legal norms such as the precautionary principle, the principle of prevention, the polluter pays principle and the principle of public participation in decision making, play an important role in sustainable forest management and conservation. The last part of the chapter identifies a set of strategies applicable as good conduct norms relevant for the attainment of sustainable forest management.
But first, an examination of the various concepts and principles of forest law and their role in sustainable forest management vis-a-vis the overall environmental goals will have to be made. The discussion in this chapter is general and the specific issues of relevance to Kenyan law will emerge clearly in chapter four. These principles will provide a basis for a critical appraisal of Kenya’s forestry law vis-a-vis the emerging principles of environmental law.
THE CONCEPT OF SUSTAINABLE FOREST MANAGEMENT AND THE LAW
It is essential that a working definition be provided for various key concepts in forestry management and determine how these relate to sustainable forest management. It is on the basis of these working definitions that the proper function of forestry law will be appreciated. It is submitted, finally, that the fundamental function of forest law is to ensure that the management and utilization of the forests ensure intergenerational equity and sustainability. These concepts are examined below.
Section 2 of the Environmental Management and Coordination Act12 defines the environment to include the physical factors of the surroundings of human beings including land, water, atmosphere, climate, sound, odour, taste, the biological factors of animals and plants and the social factor of aesthetics, and includes both the natural and the built environment.13 Elsewhere, the environment has been defined as the totality of nature and natural resources including the cultural heritage and infrastructure essential for socio-economic activities.14 In other words, the environment may be conceived as the total context of nature, where nature is defined as the earth’s geosphere, biosphere and associated processes. Thus, water, atmosphere, forests, wildlife, soil and the general flora and fauna are simply components of the environment.15
These are defined as the components of nature which are or can be used to satisfy the needs of human beings and other living species and include resources of the air, land, water, animals and plants, including their aesthetic qualities.16 It is against this background that the concepts of conservation, preservation and sustainable use of forest resources is to be understood, in view of the fact that forest resources are natural resources.
FORESTS AND THE CONCEPT OF CONSERVATION
Conservation is a management concept meaning the management of renewable resources sustainably and the avoidance of waste in the use of nonrenewable resources.17 The concept of conservation is purposive, based on specific objectives and clearly perceived benefits and it is a fundamental requirement for sustainable development.18 Sustainable use of renewable resources which includes forests, means use which maintains or enhances forest resources in a manner which meets the needs of the present generation without compromising the ability of future generations to meet their own needs.19 Biologists and resource economists operationalized the idea of conservation by coining the principle of maximum or optimum sustainable yield to determine the point which is not to be exceeded by utilization.20 Indeed, the Kenya Forest Service has defined sustainable use, in relation to a forest, to mean the use of the forest and any of its natural resources, in a manner and to an extent which does not compromise the capacity of the forest and its use by future generations and does not degrade the carrying capacity of supporting ecosystems.21
Forests form part of our most precious natural resources. They are essential to the continued balance and survival of the world’s ecosystem.1 Unfortunately, they have suffered from serious depletion in the past and unless vigorous steps are taken to conserve them, their future existence is threatened.2
Illustrative of the concern which the international community has in relation to this threat is the following extract from the report of the World Commission on Environment and Development which stresses the importance of forests for the conservation of biological diversity and ecological processes:
The link between conservation and development and the need to attack the problem at source can be seen clearly in the case of tropical forests. Sometimes it is government policy, not economic necessity that drives the over exploitation and destruction of these resources. The direct economic and fiscal costs of this over exploitation, in addition to those of over extinction, are huge.
1 See Bucknum S “The US Commitment to Agenda 21: Combating Desertification-The Ecosystem Management Approach” (1998) 8 Duke Environmental Law and Policy Forum 305 306.
2See for example Bhargava V “Sustaining the World’s Forests: Managing Competing Demands for a Vital Resource” in Bhargava V (ed) (2006) Global Issues for Global Citizens: An Introduction to Key Development Challenges 305.
1.2 PROBLEM STATEMENT
1.3 PURPOSES OF THE STUDY
1.4 CONCEPTUAL CLARIFICATION
1.5 LITERATURE REVIEW
1.6 RESEARCH METHODOLOGY
1.7 FRAMEWORK OF THE THESIS
CHAPTER TWO THE RATIONALE FOR THE SUSTAINABLE MANAGEMENT AND; CONSERVATION OF KENYA’S FORESTS
2.2 DISTRIBUTION OF FORESTS IN KENYA
2.3 THE IMPORTANCE OF KENYA’S FORESTS
2.4 THE CAUSES OF DEFORESTATION
2.5 THE VALUE OF LEGAL PROTECTION FOR SUSTAINABLE FOREST MANAGEMENT AND CONSERVATION
CHAPTER THREE LEGAL STRATEGIES FOR THE SUSTAINABLE MANAGEMENT AND CONSERVATION OF FORESTS
3.2 THE CONCEPT OF SUSTAINABLE FOREST MANAGEMENT AND THE LAW
3.3 BASIC PRINCIPLES OF ENVIRONMENTAL LAW AND THEIR APPLICATION TO SUSTAINABLE FOREST MANAGEMENT AND CONSERVATION
3.4 THE ROLE OF LAW IN THE SUSTAINABLE MANAGEMENT AND CONSERVATION OF FOREST RESOURCES
3.5 LEGAL STRATEGIES TO IMPLEMENT SUSTAINABLE FOREST MANAGEMENT AND CONSERVATION
CHAPTER FOUR THE POLICY AND THE LEGAL REGIME RELATING TO SUSTAINABLE FOREST MANAGEMENT AND CONSERVATION IN KENYA
4.2 THE EVOLUTION OF FOREST POLICY IN KENYA
4.3 SUSTAINABLE FOREST MANAGEMENT AND CONSERVATION STRATEGIES
UNDER KENYA’S LEGAL FRAMEWORK
4.4 WEAKNESSES OF KENYA’S FORESTRY LAW
CHAPTER FIVE CONCLUSIONS AND RECOMMENDATIONS
5.4 THE WAY FORWARD
GET THE COMPLETE PROJECT
FOREST MANAGEMENT AND CONSERVATION IN KENYA: A STUDY OF THE ROLE OF LAW IN THE CONSERVATION OF FOREST RESOURCES