Kenya’s post-independence environmental history has been plagued with arbitrary excisions of public forests resulting in endangered water catchment areas and threats to biodiversity conservation.
Kenya has sought to ensure the sustainable development and management of her forest resources via the enactment of the Forest Act, 2005. Further protections to Kenya’s forests were legislated following the repeal of the Forest Act by the Forest Conservation and Management Act (FMCA) 2016.
As such, the FMCA 2016 obligated the petitioner of any proposed variation or excision of a forest boundary to be accompanied with a recommendation from the Kenya Forest Service (KFS) before being finally submitted to the National Assembly. The recommendation shall be provided pursuant to KFS ensuring that any proposed variation does not endanger threatened biodiversity or ecological sensitive areas. In addition, the variation or excision of the public forest must have undergone independent environmental impact assessments and full public participation.
The FMCA (Amendment) Bill seeks to discontinue the authority of the KFS to review and sanction any proposed alteration or excision of public forest boundaries. The Bill was proposed by the National Assembly’s Procedure and House Rules Committee and gazetted on 19th November 2021. The Bill instead opts for petitions for the variation or excision of public forest boundaries to comply with the FMCA 2016, the Petition to Parliament (Procedure) Act 2012, and the standing orders of the National Assembly.
The proposed amendments to the FMCA are concerning due to the numerous Members of Parliament and Governors that have been agitating for restructuring of public forest boundaries to accommodate their unsettled populace. Drawing further suspicion is the timing of the amendment, being tabled on the eve of an election year.
Kenya’s environmental stakeholders, from both the public and private sector, have expressed their disapproval of the proposed amendment to the FMCA.
The Cabinet Secretary for the Ministry of Environment and Forestry, Keriako Tobiko in a letter to the Speakers of the National Assembly and the Senate declared the Ministry’s strong opposition to the amendments. The letter stated the position of public forests as national assets, thereby requiring the widest possible public participation for their variation or excision. Furthermore, the Cabinet Secretary stated his disapproval that the Ministry did not receive communication of the amendments through official channels, but rather through public media. The Ministry recommends the retention of the FMCA provisions in their current form, therefore opposing the proposed amendment.
The Kenya Forest Service’s (KFS) memo contained similar sentiments to those within the letter from the Ministry of Environment and Forestry, equally deciding to oppose the amendments. The memo stated that the proposed amendment would highly compromise the protection of existing public forests, and significantly jeopardizes the achievement and maintenance of a tree cover of at least 10 percent of Kenya’s land area. The KFS recommends the retention of the FMCA provisions in their current form.
Kenya Forestry Research Institute KEFRI, Kenya Water Towers Authority. National Environment Management Authority (NEMA) have all opposed the proposed amendment stating that if passed, the provisions could reverse the gains made over the past 15 years in restoring our public forests and water catchment areas.
35 private sector environmental stakeholders, through the Kenya Forest Working Group, made a joint statement strongly opposing the proposed amendments to the FMCA, urging the Parliamentary Committee to withdraw the amendment, and calling on Members of Parliament to reject the amendment should it be debated.
The universal opposition to the amendments demonstrates Kenya’s environmental sector’s commitment to the preservation of public forests, reaffirming that the ecological benefits from forests should benefit all generations.