Ramsar Convention on Wetlands’ Influence on National Wetlands Conservation and Management Policy and EMCA Wetlands Regulations of 2009.

By Ian Njathi

(LL.B., LLM, Dip in Law)

1. The world recently celebrated World Wetlands Day on 2nd February. This is a day to celebrate and raise global awareness as to the vital importance of wetlands to people and to the planet.

2. This day is also celebrated as the day when the Ramsar Convention was adopted in the City of Ramsar on 2nd February 1971. The Convention has been instrumental in promoting conservation and management efforts of wetlands globally and was the first modern treaty aimed at conserving natural resources.

3. Wetlands are described as areas permanently or seasonally flooded by water where plants and animals have become adapted and include swamps, marshes, peatland, mountain bogs, river banks, vegetated areas of impeded drainage or brackish salt or alkaline and marine water with depths that do not exceed 6 meters at low-tide and incorporates riparian and coastal zones adjacent to wetlands.

4. Wetlands are important and have a variety of uses such as; they are a source of freshwater, they provide filtration of harmful waste, act as a storage for carbon emissions, act as nature’s shock absorbers, guarantee food supply and livelihood sustenance as well as being critical for biodiversity.

5. Failure to protect wetlands has various consequences on human life and the ecosystem at large key among them is the extinction of countless flora and fauna species. Another consequence is the exacerbation of land degradation, siltation of waterways and enables water pollution.

6. Additionally, failure to protect wetlands leads to loss of livelihood and economic development as wetlands are a source of water which is crucial for development. Furthermore, failure to protect wetlands may further exacerbate climate change impacts such as increased water levels leading to displacement of people and animals.

Ramsar Convention of 2009

7. The Ramsar Convention on Wetlands (the Convention) was the first modern treaty aimed at conserving natural resources, particularly the protection of wetlands. The signing of the Convention took place in Iran in the city of Ramsar in 1971.

8. The decision to establish the Convention stemmed from the recognition of the interdependence of man and his environment while considering the fundamental ecological functions of wetlands as the regulators of water regimes and the habitat of various characteristic flora and fauna.

9. It also recognised that wetlands are resources of great economic, cultural, scientific and recreational value, the loss of which would be damaging to both man and the environment.

10. The broad aim of the convention is to halt worldwide loss of wetlands and conserve them through the wise use and management of the existing wetlands through international cooperation, policy making, capacity building and technology transfer.

11. The Convention called upon Contracting Parties to designate suitable wetlands within its territory for inclusion in a list of Wetlands of International Importance which is to be maintained by a Bureau established under the Convention setting out the boundaries of each wetland precisely describing and delimiting it on a map.

12. Additionally, the Convention calls for the planning and wise use of wetlands and exchange of information with the Bureau (organisation in charge of maintenance of wetlands). Article 4 of the Convention provides for the promotion of conservation of wetlands and waterfowl through the establishment of nature reserves on the wetlands and providing adequately towards the wardenning of such reserves.

13. Moreover, the Convention calls upon member states to increase the waterfowl population on the appropriate wetlands and promote training of competent personnel in the fields of wetland research management and wardenning.

14. Furthermore, the Convention provides that should a Contracting Party in its urgent national interest, delete or restrict boundaries of a wetland, it should compensate for the loss of wetland resources, create additional nature reserves for waterfowl and protect an adequate portion of the original habitat.

15. More to this, the Convention calls for consultation between Contracting Parties on the implementation of obligations arising from the Convention. This is particularly important for Contracting Parties that share a water system. Such states are called upon to support present and future policies and regulations concerning conservation of wetlands and their flora and fauna.

16. The Ramsar Convention’s implementation is reviewed and promoted at intervals of not more than three years at a conference of the parties. It is in this forum that discussions as to implementation of the Convention, addition and changes to the Wetlands list and adoption of other recommendations and resolutions promoting the functioning of the Convention are considered.

National Wetlands Conservation and Management Policy

17. Kenya has a variety of wetlands some of which are highly recognized and protected through the establishment of national parks and reserves, world heritage sites, important bird areas and Ramsar sites. These wetlands have various uses including the generation of income as tourist attractions and as a source of livelihood for various communities.

18. In as much as the wetlands remain as protected sites, they are still faced with a lack of proper and effective management mechanisms. As such they have faced degradation through unsustainable activities leading to pollution of those areas and this has negatively affected the flora and fauna inhabiting these areas.

19. Following this, Kenya sought a regime that would effectively manage and protect wetland areas. It is for this reason that the Kenya government ratified the Ramsar Convention in 1990 and in so doing enforced wetlands protection through the Environmental Management and Co-ordination(Wetlands, Riverbanks, lakeshores and Sea shore Management) Regulations of 2009 (Wetlands Regulation).

20. Before the enactment of the regulations, the National Wetlands Conservation and Management Policy was enacted in 2008 to act as a guide in the preparation of the Wetland Regulations.

21. The National Policy Framework was developed with a view to involving more actors to ensure an integrated and harmonized conservation and management regime by the government as well as other affected players.

22. The policy provided a framework for actions to improve institutional and organizational arrangements, address legislation and government policies, increase knowledge and awareness of wetlands and their values and address problems at particular wetland sites.

23. The policy aimed at enhancing conservation and wise use of wetlands as well as promoting recognition of wetlands as an integral component of the environment.

24. Prior to the enactment of the Wetlands Regulation, there were 77 sectoral pieces of legislation on wetlands inscribed in various Acts resulting in duplication of roles and confusion in the regulatory framework. The policy was formulated to guide the various aspects relating to wetland use and sustainable development as well as come up with a single regulation governing the management and conservation of wetlands.

Principles guiding the Policy

25. In order to address the challenges facing wetlands, the policy relied on the principle of wise use where following the significant contributions of wetlands, there was a need to integrate them into national economic planning for sustainable development.

26. Another principle used under the policy is the precautionary principle which follows, where there is insufficient data for decision making, it should not prevent the implementation of measures to mitigate and manage affected wetlands.

27. Additionally, the policy favoured a collaborative and participatory approach which involves all stakeholders at all levels including government, local community, civil and private groups in the conservation and management of wetlands.

28. In order to fully correspond to the Ramsar conventions international standards, the policy recommended tailoring the Wetlands Regulations to the recognition and consideration of the global dimension of environmental impacts of actions and policies in the protection, conservation and management of wetlands.

29. Lastly, the policy also ascribes to the polluter pays principle in the conservation and management of wetlands as persons who propagate the pollution of wetlands should meet the cost of cleaning up the pollution and also to the resource users.

Objectives of the Policy

30. The Policy sought to establish an effective and efficient institutional and legal framework in line with its guiding principles. This entailed examining the functions of wetlands, the challenges facing them, the current regulatory framework and how the new legal regime could be aligned to cater for both national and international aspects of conserving and managing wetlands.

31. Additionally, the policy sought to enhance and maintain wetlands for protection of biodiversity and improvement of the livelihood of Kenyans living next to these areas.

32. The policy sought to promote communication, education and public awareness to enhance appreciation and conservation of wetlands.

33. Another objective of the policy was to provide for research and monitoring mechanisms of wetlands to improve scientific information and knowledge base.

34. Furthermore, it sought to establish a national wetlands information management system and database.

35. It also sought to enhance capacity building within relevant institutions and personnel involved in conservation and management of wetlands.

36. It was also the policy’s objective to promote innovative planning and integrated management towards wetland conservation and management as well as promoting partnership and cooperation at regional and international levels for the management of transboundary wetlands and migratory species.

Importance, Significance and Values of Wetlands

37. Wetlands have various useful functions and services that they provide and as such it is necessary to protect them. The policy recognises the wetlands function of flood control and soil erosion prevention. In so doing, the policy proposes to enforce relevant regulations and laws that promote maintenance of ecological integrity of wetlands as well as supports the application of standard procedures and processes for developments with the potential of changing the status of wetlands.

38. The policy also recognises the discharging and recharging of both surface and ground water resources function of wetlands and thus promotes measures that ensure protection of water surfaces as well as encourage sustainable use of groundwater supply.

39. Wetlands nutrient and toxic substance retention by wetland vegetation leads to the improvement of the quality of water resulting in water purification. Additionally, sediment retained in wetlands protect downstream areas such as dams from siltation. It is for this reason that the policy calls for institution of measures for efficient waste management from point sources and enforcement of relevant regulation of laws related to environmental pollution.

40. Wetlands also act as carbon storage areas thereby reducing global warming. If not protected the retained carbon is released to the atmosphere. In light of this, the policy promotes and supports conservation measures to maintain wetland ecosystem health as well as measures discouraging the drainage of peatlands.

41. Wetlands act as important wildlife habitats and centers of biodiversity. The policy seeks to protect these habitats and calls for measures regulating developments that may negatively impact these areas.

42. Wetlands also act as sources of various energy production models such as hydroelectric power. However, in a bid to protect these delicate areas, the policy calls for adoption of alternative energy sources to reduce pressure on wetlands to maintain their ecological integrity.

43. Wetlands are important sites for scientific research and education. It is for this reason that the policy calls for the establishment of wetland education centers countrywide as well as publishing regular education and research materials.

44. An important function of wetlands is they act as mediums of transportation and thus the policy calls for the promotion of measures encouraging the use of efficient and sustainable water transport as well as the use of environmentally friendly technology to minimize pollution.

45. The policy calls for the promotion of traditional indigenous knowledge in wetland management as well as community participation and the conservation of wetlands religious and cultural significance.

46. Being a natural habitat for fish and other food products, the policy calls for promotion of efficient techniques and technologies for harvesting and processing fish in wetlands. Furthermore, it calls for conservation measures to protect fish nurseries and breeding grounds.

47. Wetlands are sources of mineral resources such as sand and salt. The policy calls for the regulation in the production and extraction of mineral products and also the rehabilitation and restoration of degraded mining sites.

48. The policy also recognises that wetlands offer tourist and recreation facilities such as game reserves and hotels it thus calls for the development of nature friendly facilities that also help in conservation and management of the wetlands areas.

Policy strategies in addressing challenges facing wetlands

49. The policy recognises that there are challenges facing the conservation and management of wetlands and as such has prepared strategies and identified areas that require the enforcement and implementation of regulations.

50. The policy noted that reclamation and conversion of wetlands due to human settlement and industrial development as one of the challenges facing wetlands and could negatively impact them if developments are allowed.

51. It provided the exemption that greater public interest must be demonstrated and such developments and reclamation must be subject to environmental assessment, cost benefit analysis and wider stakeholder consultations.

52. Additionally, they called for provisions to be in harmony with the integrity of wetlands and maintain functions of the wetland as well as the prohibition of undesirable plant species that would negatively impact the hydrology of the wetland and the prohibition of the uncontrolled burning of wetland biomass.

53. The overexploitation of wetland goods and services resulting in decline of service as well as quality and quantity of products delivered from wetlands was another challenge that the policy addressed and in so doing called for strict regulation and limiting the abstraction of water and exploitation of wetlands’ goods and services.

54. Additionally, the policy called for the establishment and periodical review of sustainable production capacities of different goods and services as well as developing site specific participatory management plans to guide the use of wetland resources.

55. The policy also considered pollution, eutrophication and salinization of wetlands as one of the challenges facing conservation and management efforts and called for extra measures to protect riverbanks and lake shores through regulation and treatment of effluent. Additionally, they called for the promotion of environmentally friendly methods of farming and promotion of public awareness as well as the enhancement of coordination and enforcement of sectoral laws to reduce nutrients, silt and pollutants in wetlands and ensure there was proper waste management.

56. The proliferation of invasive alien species has altered the biodiversity characteristics and diminished the service provided by wetlands for example the introduction of Nile perch in Lake Victoria led to decimation of the indigenous fish thereby affecting the biodiversity of the fish supply. In order to counter this, the policy calls for prohibition of the introduction of alien invasive species without the approval of their potential impact. Furthermore, the policy calls for management of the conditions conducive for proliferation and establishment of the species as well as development and enforcement of guidelines, regulations and procedures to control their introduction. The policy also calls for conducting public education and awareness campaigns on the dangers of alien species as well as researching on the alien species to develop strategies to manage them.

57. Different tenure systems have led to diverse uses and management regimes that have affected conservation and management efforts. In order to counter this, the policy calls for appropriate regulations and legislation for proper conservation and management of wetlands including natural wetlands under private ownership. The policy also calls for wetlands classified under Ramsar Convention to be declared as public resources. Further to this, wetlands under private ownership classified as Ramsar sites should be subject to compensation.

58. Additionally, the policy also calls for the delineation of appropriate buffer zones and control of human activities as well as regarding land resulting from receding natural wetlands as unalienable state land.

59. The policy calls for the establishment of Wetland Conservation Areas for the maintenance of their functions and for the fragile wetland ecosystems to prohibit consumptive uses. Additionally, the policy calls for the development and implementation of appropriate management plans through consultative processes for wetland reserves.

60. The policy also caters for wetlands of international importance and as such calls for the domestication and institutionalization of the Ramsar Convention. Moreover, it calls for the identification and listing of wetlands fulfilling Ramsar criteria as Ramsar sites and ensuring that such sites are effectively managed and ecological integrity is maintained.

61. The policy also calls for the restoration and rehabilitation of degraded wetlands that have been impacted by drainage, pollution, sedimentation, introduction of exotic species among other negative impacts and as such land uses and developments on those lands should be managed to ensure sufficient inflows and reduced pollution and siltation occurs.

62. The policy recognised that the use of artificial wetlands was minimal despite their potential for waste water treatment among other uses. It thus called for the promotion of the use of artificial wetlands in various sectors as a means of reducing pressure on natural wetlands. Furthermore, it called for the establishment of fishponds in local communities and diversification of hydro power reservoir resources.

63. The policy noted the need for collaborative measures in the management of transboundary wetlands and thus called for development of harmonized regional approach for sustainable management as well as sharing of the benefits of transboundary wetlands.

Legal and Institutional Arrangements

64. The policy noted that the government had taken steps towards the enactment of legislations related to conservation and management of wetlands and this included the Environmental Management and Coordination Act of 1999, the Lake and Rivers Act (Cap 409) and the Water Act of 2002 which deal with management, and conservation and control of water resources as well as strategies and regulations such as the EMCA Water Quality Regulations which deals with the regulation of effluent discharge into aquatic bodies.

65. However, even with legislation in place, it was noted that degradation of wetlands continued to take place. It is for this reason that the policy recommended that there should be implementation of the National Wetlands Policy through the development of appropriate legislations dealing with wetlands.

66. Furthermore, it called for reviewing Environmental Impact Assessments (EIAs) on proposed developments in wetland areas as well as the development of wetlands conservation and management guidelines.

67. With regard to the institutional arrangement, the policy called for the establishment of a National Institute to spearhead and coordinate the implementation of the policy. It also called for the setting up of site management committees and stakeholder management plans to conserve and mange wetlands at both the national and local levels.

68. The policy called for appropriate mechanisms for achieving harmonization of various sectoral policies that touch on wetlands to be put in place. Moreover, it called for mainstreaming the provisions of relevant international conventions and agreements touching on the management and conservation of wetlands into the existing legal and institutional framework. In addition to this, it called for promoting synergy and coordinated national approach towards domestication of multilateral Environmental Agreements relevant to wetlands.

Environmental Management and Co-ordination (Wetlands, Riverbanks, Lake Shores and Sea Shore Management) Regulations 2009

69. Following the ratification of the Ramsar Convention and the enforcement of the National Wetland Policy, the Kenya government via Legal Notice No. 19, enacted the EMCA Wetlands Regulations of 2009 which had the main goal of enforcing the policies laid down under the National Wetlands Policy which was based on the Ramsar Convention to protect, conserve and manage wetlands in the country.

Objectives of the Wetlands Regulations.

70. The Wetland regulations has under section 4 laid down the objectives that it seeks to achieve and they include the provision for conservation and sustainable use of wetlands and their resources.

71. Secondly, the regulation seeks to promote the integration of sustainable use of resources in wetlands into local and national management of natural resources for socio-economic use.

72. Thirdly, the regulation strives to ensure the conservation of water catchments, control of floods as well as preventing and controlling pollution and siltation of wetlands from activities and developments that are impactful to the well-being of the wetland ecosystem thereby protecting wetlands as the habitat of various aquatic and semi-aquatic species of flora and fauna.

73. Additionally, the regulation also seeks to provide a framework for public participation in the management of wetlands and enhance education, research and related activities on the conservation of wetlands.

74. In order to ensure that wetlands are properly conserved and managed from impactful developments, the Wetland regulations call for mandatory Environmental Impact Assessment and Environmental Audit for all activities likely to have adverse impact on wetlands.

75. Additionally, the Regulations provide for special measures essential to promote respect for the preservation and maintenance of knowledge innovations and practices of indigenous and local communities embodying traditional lifestyles relevant for the conservation and sustainable use of biological diversity.

Environmental Principles envisioned in the Wetlands Regulations

76. Being one of the objectives of the Wetland Regulations, public participation is highly encouraged in the management of wetlands to ensure that the views of the public with regard to developments, conservation efforts and management of the wetland area are taken into consideration and also ensures that there is sufficient public awareness among the local community living in the area surrounding the wetland.

77. Additionally, the principle of international cooperation in the management of environmental resources as proposed in the Ramsar Convention is observed in the management of all wetlands in Keya especially if the resources are shared by two or more states such as Lake Victoria.

Institutional Framework

78. The Wetlands Regulations in line with the Wetland Policy, establishes two committees that play a special role in the protection and conservation of wetlands. The Standards Enforcement Review Committee, is responsible for advising the authority (NEMA) on the use, management and conservation efforts and processes of wetland resources and the District Environment Committee which is responsible for coordinating, monitoring and advising on all aspects of wetland resource management within the district level.

Declaration of areas as Protected Wetlands.

i) Declaration by Cabinet Secretary.

79. The Regulations give the Cabinet Secretary in charge of environment the power to declare an area to become a protected wetland, where the area showcases national and international significance based on its biological diversity, ecological importance, landscape, natural heritage and aesthetic value.

80. The Cabinet Secretary may declare an area as a protected wetland in consultation with the relevant lead agency or on the recommendation of NEMA or on its own motion, registered civil society organisation or an individual. Upon which the declaration must be gazetted and the information circulated in a newspaper in the local area.

81. Following the declaration and communication of the declaration of a protected wetland, a taskforce is set up to collate the views of the community living in the surrounding areas as well as the preparation of a wetland management plan and Strategic Environmental Assessment of the management plan to ensure that the plan is sound and efficiently and effectively protects and conserves the wetland area and its resources.

82. Where the Authority is pleased with the findings, they will submit the recommendations to the Cabinet Secretary for gazettement of the wetland.

ii) Declaration by petition by lead agency, civil society groups and individuals.

83. The regulation provides for instances where a lead agency, member of the public or registered civil society group may initiate the process of declaring an area as a protected wetland.

84. This is done through a petition to the Authority who will then consider the petition and call for the preparation of a wetland management plan and Strategic Environmental Assessment, the cost of which will be borne by the petitioner.

85. Should the Authority decline to declare an area as a protected wetland, they must communicate to the petitioners their decision with reasons within sixty days of their decision to decline.

Management of Wetlands.

86. The Authority in consultation with the lead agency is mandated to prepare and maintain an inventory of wetlands and also ensure that there is a development of wetland management plans to prevent and control degradation of wetlands.

87. The inventory maintained by the Authority contains a variety of information regarding wetlands including; the location, flora and fauna in the area, soil and hydrological characteristics, existing and current uses of the wetland, conservation status, land tenure system of the wetland and any other factor relevant to the wetland.

88. Additionally the authority is in charge of periodically inspecting the wetlands and in consultation with the relevant lead agency change the boundaries of the wetlands and ensure that the information in the inventory is current and updated regularly.

89. The regulations limits certain activities in areas that have been declared as wetland areas and the activities that are permitted are limited to research, eco-tourism, restoration and enhancement of the wetland and any other activity that has been specified in the management plan.

90. Section 11 of the regulations provide for the sustainable uses of wetlands that are allowed. They include; subsistence harvesting of papyrus, medicinal plants trees and reeds, any cultivation that is not likely to adversely affect the wetland, fishing subject to the provisions of the Fisheries Act, hunting subject to the Wildlife (Conservation and Management) Act, collection of water for domestic use, small scale fish farming and livestock grazing.

91. Section 42 of EMCA provides a list of prohibited activities on wetlands such as erecting, reconstructing, altering, extending or removing any structure in a wetland land; drilling or tunneling the river or any other wetland; introducing any plant or animal species; directing, draining or blocking any river or wetland and depositing any substance that is likely to adversely affect the wetland. The regulations reiterate the prohibition of the activities without a permit issued by the relevant lead agency and an EIA licence issued by the authority.

92. A temporary licence valid for three months and subject to a further renewal of three months may be granted by the lead agency after consultation with the Director-General in instances where there is a need to use water for emergency situations pending availability of alternative sources of supply or when a special research project requires use of the wetland.

93. With a view to ensure that everyone plays a part in conserving and managing wetlands, the regulations provide that land owners, occupiers and users adjacent to wetlands have a duty to prevent the degradation or destruction of wetlands and maintain the ecological and other functions of the wetlands surrounding them. Failure to do so, one would be committing an offence.

94. The regulation provides for the management of river banks, lake shores and sea shores and calls for the Authority in consultation with lead agencies to identify river banks, lake shores and sea shores that are at risk from environmental degradation and prepare and maintain an inventory in order to take measures necessary to prevent and reduce the degradation as well as promote soil conservation measures such as bunding, terracing, mulching, tree planting, zoning and planning among other conservatory efforts.

95. The regulation further provides that for any project that may have a significant impact on a wetland river bank, lake shore or sea shore, an EIA must be carried out in accordance to the provisions laid down under EMCA. Additionally, the regulations call for the developer to carry out Environmental Audits and the Authority to carry monitor such activities.

96. Where wetlands have been degraded, the Director General may issue Environmental Restoration Order to allow wetlands to regenerate. Additionally, an inspector may issue Improvement orders to any person where the inspector has reasonable cause that the person is violating the provisions of the regulations.

97. Any violations as to the provisions of the regulations is an offence and the offender shall be liable on conviction to imprisonment for a term and/or a fine as provided for under EMCA.

Conclusion

98. The Ramsar Convention has greatly influenced Kenya’s regulatory framework on Wetlands conservation and management. This can be seen in how the wetlands policy and regulations have been formulated, for instance the keeping of a national index as to the status of various wetlands borrows heavily for the Ramsar list of which some of the wetlands in Kenya fall.

99. Having come from a multi sectoral legislative regime to a more specialized regime of wetlands protection, there is room for direct and unambiguous efforts of wetlands conservation and management. This is accomplished through the wetlands focused legal and institutional framework.

100. However, given that the wetland is a shared resource the roles and duties of other agencies such as the National Lands Commission, the Kenya Wildlife Service among others cannot be overlooked in the protection and conservation of wetlands as each of these institutions play equally important roles in ensuring that both the wetlands and their ecosystem are well protected.

101. The National Wetland Policy also helped in outlining the areas that required more attention particularly the legal regime, the management efforts required and how public participation plays a great role in ensuring that wetlands are well protected and managed. Additionally, the policy statements created a foundation for the enactment of the Wetlands Regulations to oversee the protection, conservation and management of Wetlands in the country.

 

References:

Art 1, Ramsar Convention of 1971
Art 2(1),Ibid
Art 5, Ibid
Section 5, Environmental Management and Co-ordination (Wetlands, Riverbanks, Lake Shores and Sea Shore Management) Regulations 2009
Section 5(e), Ibid
Section 5(f), Ibid
Section 5(f), Ibid
Section 6 and 7, Ibid
Section 8(1), Ibid
Section 9, Ibid
ibid
Section 10, ibid
ibid
ibid
Section 8(2), Ibid
Environmental Management and Co-ordination Act
Section 12, Environmental Management and Co-ordination (Wetlands, Riverbanks, Lake Shores and Sea Shore Management) Regulations 2009
Section 13, ibid
Section 14, ibid
Section 18,ibid
Section 21,ibid
Section 22, ibid
Section 26, ibid