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Indigenous communities uncertain over proposed change to Kenyan forest law

Kenya forest service

Yaaku rangers patrolling the Mukogodo Forest. Image courtesy of Kang-Chun Cheng.

  • Under an amendment proposed by Kenya’s parliament last November, members of the public would be able to directly petition parliament for changes to forest boundaries.
  • The change would effectively cut out the intermediary role currently held by the Kenya Forest Service (KFS) and the National Environment Management Authority (NEMA).
  • While some Indigenous leaders say this would make it easier for communities to contact parliament and overcome impediments the KFS may pose, others say the presence of the KFS is seen as better than nothing to halt petitioners seeking to open up forest lands for industrial or agricultural projects.
  • A senior KFS official says the service doesn’t always favor forest-dwelling people living in forests, but insists that KFS’s interests and those of Indigenous communities are the same.

NAIROBI — In November 2021, the Kenyan parliament proposed a bill that would effectively eliminate the Kenya Forest Service’s (KFS) role as an intermediary between petitioners and parliament in requests to alter forest boundaries.

Some Indigenous leaders and researchers say this change in the petitioning process will make it easier for Indigenous people to contact lawmakers about forest land rights. But environmentalists and community groups say it will remove safeguards around forest conservation and open ancestral territories to land grabs.

Paul Chepsoi, program director of the Indigenous organization Ngazi Initiative for Minority Trust, said he has a bad feeling about the proposal. He said many parties were seeking to excise and extort land, including the ancestral territories of Indigenous peoples.

“In most Kenyan forests, you will notice that most Indigenous communities either have ongoing cases or were disposed of their ancestral lands,” Chepsoi told Mongabay.

Kenya forest service
Lesi Kinyanyi Lentula, a Yaaku community member, at one of his beehives that he inherited from his father. He lives on the outer rim of the Mukogodo Forest. Image courtesy of Kang-Chun Cheng.

According to the National Assembly’s Procedure and House Rules Committee, the purpose of the recently proposed amendment, deleting subsection (2A) of Section 34 of the Forest Conservation and Management Act (FCMA) 2016, is to “streamline the procedure for petitioning Parliament.” Currently, petitioners such as forest peoples are required to go through the KFS instead of directly submitting their requests to parliament.

If passed, the bill could take away the KFS’s power to sanction the variation of boundaries of a public forest. This may grant anyone, including those whose actions could compromise the well-being of Kenya’s forests and water catchment areas, to petition parliament to change forest demarcations. Environmental organizations say this will “open up the forests for grabbing,” especially for agricultural purposes.

The Forestry Society of Kenya said this will fuel forest encroachment, amplify the risk faced by fragile forest ecosystems, and undermine Kenya’s conservation goals. Nature Kenya, Africa’s oldest environmental society, put out a similar statement voicing its concern regarding the amendment.

“It is dangerous to reduce the safeguards that protect our remaining forests by leaving the decision to parliamentarians alone,” the organization said. “Removing Kenya Forest Service from decisions on forest boundaries is ill-advised, ill-timed.”

Kenya forest service
Elephant sighting at the edge of the Mukogodo Forest. Image courtesy of Kang-Chun Cheng.

According to Nature Kenya, the amendment fails to consider all necessary social, economic and environmental safeguards, and presents a possible violation of the rights and wishes of local communities.

New petitioning process

The current petitioning process, through both the KFS and the National Environment Management Authority (NEMA), is a frustrating and inefficient one, according to some underresourced communities.

In an interview with Mongabay, John Samorai, program officer at the Ogiek Peoples’ Development Program (OPDP), called the current process broken. For instance, there are no viable communication channels at either the county level or targeting parliament regarding issues such as budget allotment, he said.

“Vital messages — particularly from Indigenous communities — stall indefinitely en route to parliament,” Samorai said. “We lack a contact in the government and representation. We write physical letters that we try to forward to politicians, or via email.”

Article 119 of Kenya’s Constitution states that every person has a right to directly petition parliament, including to enact, amend or repeal legislation. However, under the current framework of the FCMA, the KFS is essentially a delegate in the petitioning process.

Yaaku rangers overlooking a viewpoint in the Mukogodo Forest. Image courtesy of Kang-Chun Cheng.

“While concerns about the proposed amendment are well-intentioned, many may not be aware of the commitments to fair administration and inclusive governance the Constitution 2010 requires in Kenya,” said Liz Alden Wily, an independent land tenure and natural resources governance specialist.

Samorai said this intermediary role has resulted in bottlenecks.

“Many times, the community has seen KFS as an impediment to their land rights. We would rather not have them be part of the process,” he said. “Or, KFS [should undergo] radical reforms.”

A 2018 report by the Ministry of Environment and Forestry found that forest exploitation remains a rampant issue, even while the KFS is an intermediary in the land acquisition process. The KFS has often been party to ill-conceived excisions for private purposes and responsible for degradation within public forests. Key drivers to forest destruction throughout Kenya include unclear forest zonation and the KFS’s “institutionalized corruption … [a] system replete with deep-rooted corruptive practices, lack of accountability and unethical behavior.”

However, although the process for contacting parliament would be easier under the proposed amendment, Indigenous groups say they will still face issues without the KFS as an intermediary.

“Going through KFS is more secure, even though it’s true that the KFS is corrupt, parliament is another animal you can’t trust,” Chepsoi said.

Kenya forest service
Yaaku rangers at sunrise at Bokish lookout point, near Dol Dol town. Image courtesy of Kang-Chun Cheng.

“In parliament, people are elected for about five years before moving on, while the KFS state officers have permanent contracts. In this sense, parliament is unstable for managing forests. The KFS still has the power to go to high court and nullify forest boundary changes by claiming that they weren’t consulted by due process. The court can then order that inappropriately developed [structures] be demolished.”

Juliana Lorisho, an Indigenous Yaaku activist living in the community’s ancestral forest, the Mukogodo Forest, said the removal of the KFS will make the Yaaku more vulnerable and prevent the return of key lands. Lorisho said she fears a less bureaucratic process could make bribery more direct while opening access to anyone. Theoretically, anyone would be able to petition parliament to request changes in any forest boundary — including those with more resources and means than most Indigenous communities.

“The amendment fails to improve an already flawed procedure for considering petitions that request the alteration of the boundary of a public forest, including extending it into private or community lands,” said Alden Wily, adding that the amendment is constitutionally sound but itself requires changes.

As it stands, the amendment would allow anyone to petition for the alteration of Indigenous forest lands and ancestral territory perimeters, not just those of public forests. Most key public forests are under claim by Indigenous forest peoples as “community lands” under the Constitution, and any change in boundaries will directly impact other forest-adjacent communities. Without the KFS mediating communications, changes to the boundaries of a community forest may not only be done for conservation purposes, but also industrial ones.

Kenya forest service
Salma at a sacred site in the Mukogodo Forest, where the Yaaku come to cleanse themselves or pray. Image courtesy of Kang-Chun Cheng.

Alden Wily said it’s critical that the proposed amendment remove any flexibility in the requirement to carry out consultation in these affected community areas.

‘Both parties want forests to remain forests’

Leonard Mindore, executive director of the Program for the Heritage of Ogiek and Mother Earth (PROHOME), is among those who say the KFS has not been a strong conservation partner of Indigenous communities. He points to the eviction of more than 400 Ogiek families from their homes in Mariashoni and Nessuit in the southwest of the country in 2020. However, he said he supports the opposition to this particular amendment as he believes that the presence of the KFS in the process is better than nothing.

Kenya forest service
Yaaku rangers patrolling the Mukogodo Forest. Image courtesy of Kang-Chun Cheng.

“[The bill] would pave the way for forest excisions and the subsequent scramble for Kenyan forests by land speculators,” Mindore said.

The KFS has occasionally evicted forest dwellers from ancestral lands in a bid to guarantee the integrity of forests.

In an interview with Mongabay, Alex Lemarkoko, the KFS’s head of protection and security and a member of the Indigenous Ilchamus people, said the service’s fundamental interest is in preventing changes in land use within forests, such as converting forest land for agricultural cultivation or Indigenous settlements.

The KFS’s interpretation of forest community land outlined in the Constitution does not permit people to live in the forest, Lemarkoko said.

“Kenya’s forests are not expansive enough to accommodate people living there,” he said. “Research and studies have indicated that so-called forest-dwelling communities have actually changed their lifestyle, such as a hunter-gatherer [turning] to livestock keeping and farming, which doesn’t allow them to continue living in the forest sustainably.”

However, in the case of the Yaaku people, Lemarkoko said the group has set itself apart from other Kenyan forest dwellers by maintaining minimal interference within their highly fragile dryland forest ecosystem by not allowing other non-forest-dependent communities to enter.

“For this particular matter regarding the removal of [subsection] 2A, KFS’s interests and that of Indigenous communities are the same,” Lemarkoko said. He added that all Indigenous groups support the retention of the KFS in the petitioning process. “Both [parties] want forests to remain forests.”

Kenya forest service
Sheep roaming the Mukogodo Forest for grazing. Livestock keeping is a practice the Yaaku adopted upon assimilation with the Maasai, a practice now at times done in forests. Image courtesy of Kang-Chun Cheng.

According to Samorai, there are issues both with the way the forest act is currently outlined and with the proposed amendment.

“We are worried that should the amendment be passed, we would return to former times when it was easier to gazette and lose huge chunks of land to agriculture and settlement,” he said.

Mindore called for addressing the issue of corruption within the KFS as part of resolving representation issues. Currently, activists and each community’s council of elders convene to make arrangements to speak to the KFS directly, making for tenuous proceedings.

When asked for alternative strategies that balance both ecological conservation and the rights of forest dwellers, Alden Wily said all rural communities should be given the option to earmark and set aside forested lands as protected community forests.


Banner image: Yaaku rangers patrolling the Mukogodo Forest. Image courtesy of Kang-Chun Cheng.

Related listening from Mongabay’s podcast: We look at the major forest and conservation trends coming out of 2021 and 2022 with Mongabay founder and CEO Rhett Butler, and IUCN senior program officer, Swati Hingorani. Listen here:

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