By Ian Njathi
1. Forests are important natural resources that have been accorded a certain level of importance in the protection, conservation and management of the environment in Kenya. The main Act regulating forests in Kenya is the Forest Conservation and Management Act No 34 of 2016 (FCMA).
2. The FCMA was enacted to give effect to Article 69 of the Constitution of Kenya which provides for the development and sustainable management, including the conservation and rational utilization of forest resources for the social economic development of the country and connected purposes.
3. Forests are classified into three main categories in Kenya under section 30 of the Act and they include:
a) Public forests
b) Community forests
c) Private forests
4. They include those classified under Article 62(1)(g) which include forests in government game reserves, water catchment areas, national parks, government animal sanctuaries, and specially protected areas. They also include forests on land between high and low watermarks in all rivers, lakes and other water bodies.
5. All public forests are vested under the Kenya Forest Service subject to any rights granted to any person under the Act. Additionally, the Cabinet Secretary has the power on the recommendation of the Kenya Forest Board and after consultation with the National Land Commission, to declare through a Gazette notice any un-alienated public land or any land purchased or otherwise owned by the government to be a public forest.
6. They include forests on; land lawfully registered in the name of group representatives, land lawfully transferred to a specific community, land declared to be community land by an Act of Parliament, land lawfully held, managed or used by specific communities, ancestral land and lands traditionally occupied by hunter gatherer communities and land held as trust land by the County Government.
7. All community forests shall be vested in the community subject to any rights granted to any person under the Act. The Kenya Forest Service is responsible for registering all community forests and notifying the relevant county government of such registration.
8. Upon registration of a community forest, the community is encouraged to apply to the county government for any technical advice regarding appropriate forestry management practices and conservation. Additionally, the community may apply for funding subject to its availability for the development of the forest.
9. A benefit of owning or establishing a community forest is that, the community may apply to the relevant authority to be exempt from paying any land rates or charges associated to owning the land on which the forest is established.
10. They include forests on registered land held by any person under a freehold or leasehold tenure and can be owned privately by individuals, institution or body corporates for commercial and non-commercial purposes.
11. A person who owns a forest or is in the process of establishing one must register the forest with KFS who will then register the forest if it is satisfied that the forest meets the criteria set out under the Forest Rules. Upon registration, the owner of a private forest may apply to the county government for any technical advice regarding appropriate forestry management practices and conservation.
12. Additionally, the owner may apply for funding subject to its availability for the development of the forest and provided that the funds are obtained and utilized in accordance to the procedures set out by KFS.
13. Furthermore, a person owning or having established a private forest may apply to the relevant authority to be exempt from paying any land rates or charges associated to owning the land on which the forest is established.
14. The FCMA also provides for another classification of forest referred to as provisional forests. These are forests under the community and private forests classification which upon the recommendation of the KFS or relevant county government following their opinion that the forest has been mismanaged or neglected can be declared by the Cabinet Secretary to be a provisional forest by a notice in the Gazette.
15. A notice declaring a forest to be a provisional forest can only be made where the forest is an important catchment area or a source of water springs, is rich in biodiversity and contains rare and endangered species, is of cultural or scientific significance or supports an important industry and is a source of livelihood for surrounding forest communities.
16. Additionally, a provisional forest may be declared where the Director General of the KFS has issued a notice requiring a forest owner to undertake specific silvicultural (forestry) practices to improve the forest and the notice has not been complied with or the owner is unable to undertake the specified practices.
17. The KFS in collaboration with the owner of the forest, have the responsibility of managing the provisional forest for a period of three years during which time the profits accrued from running the forest will be paid to the owner less expenses incurred by the KFS in the management of the forest.
18. The provisional forest will revert to the owner upon satisfaction of the Board that the forest has been adequately rehabilitated and the owner has given an undertaking that they will efficiently manage it. In order to ensure that the forest is adequately managed, the Board will prescribe conditions that the owner should fulfil in accordance to the provisions of the Act.
Forest – Land Exchange
19. The FCMA envisions a scenario where a landowner can become an owner of a forest through a land swapping deal. The Act provides that, upon consultations with the relevant government agencies, stakeholders and with the approval of the Cabinet Secretary, the KFS may exchange part of a forest area with private land following the consent of the land owner.
20. This exchange deal is possible where the KFS is of the opinion that the exchange enhances the efficient management and protection of the forest, the exchange is equitable to the KFS and the land owner through an independent valuation, an independent Environmental Impact Assessment has been conducted and the results show that no adverse impacts can be occasioned on the environment and that the forest does not contain rare or endangered species as well as not being a water catchment area or source of water springs.
Arboreta and Recreational Parks
21. The Act provides that each and every County Government has the responsibility of establishing and maintaining arboreta, green zones and recreational parks. The County Government is required to establish a recreational park in every market center within its jurisdiction.
22. The KFS will step in to facilitate and initiate the provision of technical assistance in their establishment and maintenance. Once established, the arboreta, green zones and recreational parks cannot be converted to any other use unless the County Department in charge of forests consults the residents of the area as to the conversion. Additionally, the County Department may consult with the KFS on the species of trees to be planted in the arboreta, green zone or recreational park.
Protection of Tree Species
23. The Cabinet Secretary in charge of forests may declare any tree species or family of tree species to be protected in the whole country or in a specific area. This is upon receiving the advice of the Kenya Forestry Research Institute and publishing an order in the Gazette declaring the protection status of the tree species.
24. When such an order has been made, no person is allowed to fell, cut, damage or remove, trade in or attempt to export in the tree species or family of tree species including abetting the commission of such acts.
25. However, the protection of the tree species or family of tree species can be reversed by the Cabinet Secretary on the advice of the Kenya Forestry Research Institute should it be established that the protection is no longer necessary.
26. Additionally, the Cabinet Secretary may prescribe regulations and guidelines for the protection and regeneration of a protected tree species.
Forest Management regulations and procedures
i) Institutional Framework
27. The Kenya Forest Service (KFS) is one of the main bodies in the management and protection of forests and is established under the FCMA 2016. It is this Act that has tasked the KFS with the responsibility of protecting, conserving and managing all public forests in Kenya.
28. Additionally, the KFS are tasked with preparation and implementation of forest management plans for all public forests and assisting in the preparation of management plans for community and private forests with consultation with the owners. Moreover, the Service is tasked with the registration and maintenance of a register of all forest management plans prepared for public forests.
29. The KFS are in charge of receiving and considering applications for licenses or permits in relation to forest resources or management of forests.
30. Furthermore, the Service is required to establish and implement benefit sharing arrangements and assist county governments to build capacity in forestry and forest management in the counties
31. The KFS in consultation with relevant stakeholders, are mandated to develop programmes for tourism, recreational and ceremonial use of public forests as well as promoting forestry education and training and collaborating with persons in identifying research needs and applying research findings in relation to forests and forestry.
32. The Service is responsible for managing water catchment areas in relation to soil and water conservation, carbon sequestration and other environmental services in collaboration with the relevant stakeholders.
33. The KFS are required to prepare Forest Status Report for the Cabinet Secretary once in every two years as well as a Resource Assessment Report once in every five years.
34. This is to aid in their function of considering and recommending to the Cabinet Secretary the establishment of public forests on un-alienated public land or any other public land and the determination and alteration of boundaries of public forests.
35. Additionally, the KFS is in charge of establishing forest conservancy areas for purposes of conservation and management and approving the provision of credit facilities and technical training for community-based forest industries, and the provision of incentives to persons for the sustainable utilization of wood and non-wood forest products.
36. Furthermore, the KFS is required to implement and enforce rules and regulations governing importation, exportation and trade in forest produce as well as developing, maintaining and regularly updating geographic information system (GIS) database of all forests in Kenya.
37. The Kenya Forestry Research Institute (KEFRI), is another important institution in the protection, conservation and management of forests in Kenya. The Institution is established under the Science, Technology and Innovation Act, 2013, and is the agency in charge of forestry research and development.
38. KEFRI is mandated to develop research and development programmes to provide information and technologies for sustainable development of forestry and allied natural resources.
39. The Institute, in consultation with relevant organizations is responsible for the preparation of forestry research and development strategies for the country, conducting expert training courses in forestry and allied natural resources, disseminating research findings to support forestry development in the country and counties and participating in the development and monitoring of national forest standards.
40. Additionally, KEFRI is required on a regular basis to compile and submit a report to the Cabinet Secretary relating to forestry research and development.
ii) Joint management of forests
41. The FCMA provides that a forest owner may enter into an agreement with any person for the joint management of any forest, the terms and duration being set in the agreement.
42. Such an agreement may include a term allowing or disallowing the parties to it from using the forest or any part of it in order to ensure the conservation of biodiversity.
43. In such a case where the agreement allows or disallows the use of natural resources of the forest, the agreement must contain modalities of payment of compensation for any loss incurred by the affected party.
iii) Management of indigenous forests
44. The Act provides for the management of indigenous forests and woodlands and calls for them to be managed on a sustainable basis for the purposes of conservation of water, soil and biodiversity, riparian and shoreline protection, cultural use and heritage, recreation and tourism as a habitat for wildlife in terrestrial forests and fisheries in mangrove forests, sustainable production of wood and non-wood products, carbon sequestration and other environmental services education as well as for research purposes.
45. In order to enforce and implement their conservatory and management function, the KFS in consultation with the forest conservation committee of the area will prepare forest management plans for the indigenous forest.
46. Additionally, the Service may enter into any joint management agreement with any person government agency, institution or forest association to better protect and conserve, manage and protect indigenous forests.
iv) Management of plantation forests
47. In addition to indigenous forests, the Act provides for the management of plantation forests in a public forest shall on a sustainable basis for the production of wood and other forest products and services for commercial purposes.
48. Where the KFS is satisfied that all or part of a public forest which makes up a plantation forest may be efficiently managed through a licence, concession, contract or joint agreement, it may advertise in at least two daily newspapers of national circulation calling for applications from interested persons for the management of the public forest.
49. An applicant for the management of a public forest is required to submit the application together with a proposed management plan for the forest. Should the applicant or any interested party be aggrieved by the decision of the Service in reference to the application may appeal to the Environment and Land Court within sixty days of the decision.
50. The KFS in approving a licence, concession, contract or joint management agreement for the management of a plantation forest must consider the interests of the local communities and ensure that they are in compliance with the Constitution, the FCMA and any relevant written law.
v) Forest Management Agreements
51. The KFS in the operation of its management function and exercising its powers to delegate some of its functions, may tender and receive applications from any person, institution or organization and through a competitive process, approve and enter into an appropriate management agreement for all or part of a public forest.
52. The contents of the management agreement entered into must specify the period for which the forest shall be managed, the terms and conditions under which the applicant shall manage the forest, any royalties and charges payable in respect thereof to KFS, the mechanism for settlement of disputes arising in respect of the agreement, the circumstances under which the agreement may be terminated (termination clause) and the benefits which the applicant shall extend to the local community.
53. The purpose of the management agreement is to accord the applicant the privilege of management and control of forests and as such it must not be deemed to transfer or to vest in any person, institution, or organisation any right of ownership of any land declared to be a public.
54. Additionally, the management agreement does not have the power to convert a public forest into a settlement area. In order to ensure that the Service’s powers are not abused, The Cabinet Secretary may prescribe Regulations to give effect to the Service’s power to enter into management agreements.
vi) Concession on Public Forests
55. The Service has the power to grant concessions where it is satisfied that utilization of a public forest can be done in an efficient and effective manner. However, the concessions are subject to the provisions of the Constitution, the FCMA and any other relevant written law.
56. In order to be granted a concession by the KFS, the proposal must be subjected to an independent environmental impact assessment and public consultation must be undertaken and completed for the KFS to grant concessions.
57. The party being granted a concession is required to comply with the guidelines or management plans prescribed by KFS, prepare environmental and social impact assessments as may be required, prepare a concession area forest management plan that shall include inventories, reforestation or replanting programmes, annual operation plans and community user rights and benefits, protect the concession area from destruction and encroachment by any other person, ensure that the forest areas under their management are maintained for the conservation of biodiversity, cultural or recreational use, maintain the physical boundaries of the concession, take precautions to prevent the occurrence or spread of forest fires in connection with the operations within or outside the concession area, ensure that all structures and facilities constructed or operated in connection with any activities are maintained according to the conditions of the licence as well as paying the applicable land rent, fees and other charges for utilizing forest resources within the concession area.
58. The concession is required to indicate the nature of the concession, including its physical location and boundaries, and the purpose for which it is granted.
59. The party who has been granted a concession (grantee) is personally responsible for any loss or damage, including the negligence of the grantee’s employees, arising from their operations on the land for which the concession has been obtained.
60. The Service may, by notice in the Gazette, withdraw a concession where a grantee breaches any of the conditions prescribed by law or prescribed in the concession agreement.
61. A grantee is required to provide a bond or some other form of financial security referred to as “an Environmental Protection Bond” which should be an amount sufficient to cover the costs associated with the implementation of the environmental obligations of the holder of the concession and shall be in the form and amount determined by the Cabinet Secretary in charge of forestry having regard to the particular characteristics of the concession.
Incentives for increasing forest investment and tree cover
62. Subject to Article 66 of the Constitution, investors in forests are required to share the benefits of their investment with local communities by applying various options including but not limited to infrastructure, education, employment and social amenities as a result of using forest for their investment.
63. A prime example of an incentive to forest investors is that, the Cabinet Secretary for the National Treasury, may on the recommendation by the Cabinet Secretary in charge of forests, propose tax and other fiscal incentives to increase investments in forest land use and forest resource utilization in order to promote forest conservation and management, and to prevent or abate forest degradation.
64. The tax and fiscal incentives, may include; customs and excise waiver in respect of imported capital goods or tax rebates to forest industries and other establishments investing in plants, equipment and machinery for improved resource utilization and for using other energy resources as substitutes for hydrocarbons.
65. In addition to this, an exemption from payment of all or part of the land rates and such other charges as may be levied in respect of the land on which a private forest is established as well as income and other tax deductions to landowners in exchange for the establishment of a forest conservation easement.
66. Furthermore, the Cabinet Secretary shall plan and execute programmes necessary for observing the national tree planting week and the International Day of Forests in order to increase the forest cover and promote proper silvicultural(related to forests and forest products) practices and forest conservation, management and protection.
Licensing and trade in forest products
67. The KFS has the discretion of inviting the private sector to participate in sustainable management of forests under their jurisdictions and as such may issue authorisations for forestry activities through permits, timber licences, special use licences, contracts, joint management agreements or concession agreements.
68. However, where a preexisting authorisation has been issued, the service will not issue a new authorisation unless there is a mutual agreement between all the parties involved.
69. The Service, with a view to ensuring that a transparent and efficient system exists in the issuance of authorisation of licenses and permits for forest activities, will publish in the Gazette a chain of custody system for the verification of the origin of forest products from public, community and private forests as well as the compliance of the license holders.
70. Additionally, the KFS may upon request by the county government support the process of establishing and maintaining a chain of custody for the county government.
71. Moreover, the KFS is obligated to be in compliance with the relevant public procurement and asset disposal laws in place when issuing authorisations.
72. In order to be eligible to be granted authorisation for any forest activity by the KFS, one must fulfil certain conditions set out in the Act for instance; one must possess the capacity to enter into binding agreements with the Service, have the technical and financial capabilities to undertake the forest activities sought in the authorisation and if the person applying for an authorisation is a foreign investor, they must complied with all the laws at the time being in force relating to investments by foreigners.
73. Where the authorization is for a timber license, special use license, contract, joint management agreement or concession, the person seeking authorisation must demonstrate capacity to enter into contracts, possess technical capacity to undertake forestry activities demonstrated by the employment of technical staff, access to equipment, satisfactory past performance and a record of statutory and regulatory compliance.
74. Additionally, the applicant must also possess financial capacity which involves solvency and good business practice demonstrated by applicant’s financial statement for up to three years and tax compliance certificates where applicable.
Export and import of forest products
75. The FCMA prohibits the exportation, importation, re-exportation or introduction of any forest products into or from Kenya without a valid permit issued by the Service.
76. Additionally, the Cabinet Secretary with a view to ensuring the effectiveness of the prohibition may by notice in the Gazette publish regulations as to the exportation and importation of forest products and may also declare forest products that are prohibited from exportation and importation.
77. Any person who fails to observe the Notice made by the Cabinet Secretary will be guilty of an offence and will be liable on conviction to a fine not exceeding one million or to imprisonment for a term not exceeding three years, or to both such fine and imprisonment.
Enforcement and Compliance
78. The duty to enforce and ensure compliance of the laid down laws and regulations is placed on the Chief Conservator of Forests and any other authorized officer of the KFS.
79. They are required to demand from any person to produce an authority or licence for actions done that normally require authorisation or license in a national, county or provisional forest, or in relation to any forest products for which requires a licence.
80. Furthermore, they may require any person found within a national, county or provisional forest and in possession of forest products suspected to have come from the forest, to account for the manner in which they came to be in possession of the products failure to which they are authorized to arrest and arraign the individual in a court of law with competent jurisdiction.
81. Additionally, the Chief Conservator of Forests and authorized KFS officers are authorized to search any person and/or vehicle suspected of having committed an offence or who are in possession of any forest produce suspected to be in their possession as a result of having committed an offence. Consequently, the officers may arrest the suspect, seize and detain any baggage, package, parcel, conveyance, tent, hut or building as well as tools used in committing the offence belonging to that person, agent or servant.
82. However, a suspect will not be arrested unless the officer has reasonable cause to believe that the suspect may fail to appear to answer a summons or the suspect refuses or gives a name and address that is false.
83. The officers may seize and detain any livestock found in a national, county or provisional forest without any person in charge of them and may also confiscate any equipment or receptacle placed without authority in a national, county or provisional forest.
84. The Chief Conservator of Forests and authorized KFS officers may enter any private forest registered under the FCMA in order to assess the forest’s condition.
85. Additionally, the officers may enter the premises of any forest-based industry or forest produce dealer to inspect any forest produce placed or found within the premises to satisfy that the industry or dealer is abiding by the provisions of a licence issued under the Act.
86. However, due regard shall be given to the rights of the proprietor during such inspection.
87. The officers are required to take all reasonable steps to prevent the commission of an offence under the Act; and where qualified to do so, administer oaths and take sworn testimony for the purposes of an investigation conducted under the Act.
88. In order to enforce the compliance of the Act and subsidiary legislations, any officer of the Service who is of or above the rank of Sergeant Forest Ranger shall have the same powers conferred on a police officer under the Criminal Procedure Code and the National Police Service Act, 2011.
89. Furthermore, the Service Officers are authorized by the Cabinet Secretary in charge of firearms and the Inspector General of Police to carry firearms to assist in the enforcement of the provisions of the Act in the protection, conservation and management of forests.
Offences and penalties
90. The Act provides for some of the activities that will be deemed as offences by the KFS and any person contravening them will be liable on conviction to a fine not exceeding one hundred thousand shillings or to imprisonment for a term not exceeding six months, or to both such fine and imprisonment. such offences include;
a) Felling cutting, taking, burning, injuring or removing any forest produce;
b) Being or remaining in a forest maintained and managed by the KFS between the hours of 7 p.m. and 6 a.m. unless using a recognised road or footpath, or taking part in cultural, scientific or recreational activities;
c) Erecting any building or livestock enclosure, except where the same is allowed for a prescribed fee;
d) Smoking, where smoking is by notice prohibited, or carrying or throwing down any fire, lit kindle, match or other lighted material this also includes setting fire to, or assisting any person to set fire to, any grass or undergrowth or any forest produce
e) De-pasturing or allowing any livestock to be in the forest;
f) Clearing, cultivating or breaking up land for cultivation or for any other purpose such as constructing a road or path through the forest;
g) Entering any part of the forest which may be closed to any person;
h) Collecting any honey or beeswax, or hanging on any tree or elsewhere any honey barrel or other receptacle for the purpose of collecting any honey or beeswax, or entering a forest for the purpose of collecting honey and beeswax, or having any equipment designed for the purpose of collecting honey or beeswax;
i) Possessing or introducing any chain saw or logging tools or equipment in the forest;
j) The offences also include damaging, altering, shifting, removing or interfering in any way whatsoever with any beacon, boundary mark, fence notice or notice board located in the forest premises.
91. Additionally, any person who commits a breach of, or fails to comply with the provisions of the FCMA, or the terms and conditions of a licence issued to him or her under the Act or fails to comply with a lawful requirement or demand made or given by a forest officer, commits an offence and is liable on conviction to a fine not exceeding fifty thousand shillings or to imprisonment for a term not exceeding six months, or to both such fine and imprisonment.
92. Furthermore, the same conviction discussed above can be levied to any person who obstructs a person such as an officer of the KFS in the execution of his or her powers or duties under the Act.
93. Moreover, any person who makes or is found in possession of charcoal in a national, county or provisional forest; or in community forest, private forest or farmlands without a licence or permit of the owner as the case will be, will be guilty of an offence and liable on conviction to a fine not exceeding fifty thousand shillings or to imprisonment for a term not exceeding six months, or to both such fine and imprisonment.
94. The Act provides that any person who wilfully or maliciously sets fire to any public, provisional, community or private forest commits an offence and is liable on conviction to a fine not exceeding one hundred thousand shillings or to imprisonment for a term not less than one year, or to both such fine and imprisonment.
95. It also provides that any person who operates a sawmill in a manner contrary to those prescribed in the rules made under the Act commits an offence and is liable on conviction to a fine not exceeding one million shillings or to imprisonment for a term not exceeding three years, or to both such fine and imprisonment.
96. The Act further provides that any person who, in any forest area introduces any exotic genetic material or invasive plants without authority from the forest manager, dumps any solid, liquid, toxic or other wastes in a forest without authority of the forest manager, grows any plant from which narcotic drugs can be extracted or extracts, removes, or causes to be removed, any tree, shrub or part thereof for export; commits an offence and is liable on conviction to a fine not exceeding three million shillings or to imprisonment for a term not exceeding ten years, or to both such fine and imprisonment.
97. The FCMA is an efficient and effective legislation covering various aspects of forest conservation, protection and management and this also includes solving disputes where the Act provides that any dispute that may arise in respect of forest conservation, management, utilization or conservation shall in the first instance be referred to the lowest possible structure under the devolved system of government as set out in the County Governments Act, 2012.
98. In order to ensure that no matter goes unresolved, the Act further provides that matter should be referred to the National Environment Tribunal for determination, pursuant to which an appeal subsequent thereto shall, where applicable, lie in the Environment and Land Court as established under the Environment and Land Court Act, 2011.
99. This shows that the Act not only provides for various scenarios but also relies on other Acts to offer solutions to matters that may affect the conservation, protection and management of forest adding to the universality of the Act.