Since 2018, Ndaragwa Member of Parliament Jeremiah Kioni has been pushing for a boundary variation of the Aberdare [Ndaragwa block] Forest LN. No.48/194 to allow for expansion of Ndaragwa township in Nyandarua county from 38.47 acres to 162.52 acres.

However, despite going through the due procedure as per the Forest Conservation and Management (FCM) Act passed in 2016 and subsequently amended through the Statute Law (Miscellaneous Amendment) Bill 2018, his wish is yet to be granted.

According to Act, forest boundaries variations can only be done by petitioning the National Assembly and such petition can only be forwarded to the National Assembly upon the recommendation of Kenya Forest Services (KFS).

“I filed a petition on behalf of the people of Ndaragwa, who desired a variation of a boundary so that we can build a headquarter. The direction I was given is that I needed to go through the due procedure so that the KFS eventually recommends the petition to the House. I have done all that. We have spent a lot of money to get the documents done and they are now stuck with KFS,” reads a section of the National Assembly Hansard Report of April 28, 2021.

Open for all

However, KFS has never recommended the petition. It is against this background, that the Parliamentary Procedures and House Rules Committee has initiated a move to amend the FCM Act. The Forest Conservation and Management Amendment Bill 2021 seeks to amend section 34 of the Act that protects forests from activities that may endanger any rare, threatened, or endangered species.

The bill seeks to delete section 34(2A) that compels those seeking variation of boundaries or excision of state forest to get KFS’s agreement. It also proposes to allow any person to petition the National Assembly for variations of boundaries and revocation of registration of a State forest or a portion of a public forest.

The bill also wants to insert some subsections immediately after subsection three. To be added are subsections (Three A, B, and C) that places an obligation on either the Clerk of the National Assembly or a Committee of the House to review the petition and ascertain whether it meets the requirements of the Act, the Petition to Parliament (Procedure) Act 2021 and the Standing Orders of the National Assembly. Following this review, they may either reject it if the petitioner fails to comply with either direction provided or may request any relevant additional information from the petitioner.

Strong opposition

The move, however, has been criticised by KFS and conservationists because the proposed amendment contravenes Petitions to Parliament (Procedure) Act 2012 section (3F), which requires that such matters be decided by parliament in consultation with a relevant state agency, in this case, KFS.

“We, the Kenya Forest Working Group, strongly oppose intended changes to the FCM Act and demand the said amendments be withdrawn forthwith for the sake of the conservation of our forests and well–being,” said Elizabeth Gitari, East Africa Wild Life Society Chairperson.

In the statement, the working group says, passing the amendments would mean the KFS will lose power to review and sanction proposed public forest boundary alteration before they are submitted to the National Assembly. This will greatly weaken the governance mechanism of our public forests and will be a major setback in their protection.

“Considering what Kenya has lost in the past, any change that weakens, rather than strengthens the mechanisms to protect our forests is ill-advised. Legislations that make it easy to vary forest boundary are a danger to forest conservation in Kenya,” she added.  

Peter Kinyua, KFS Board chairman, said the Forest Act of 2016 and in particular, Section 34(2) was carefully drafted to respond to the wanton destruction of forests experienced in the country in the 1990s and the 2000s, largely due to excisions of public forests.

“That section enables KFS to protect existing state forests for provisions of water conservation and of biodiversity and supply of other forest goods. Repealing it will reverse gains made over the past 15 years in restoring public forest and water catchment areas. Apart from that, the move will also deny Kenyans access to forest goods and services, which are critical to their survival,” said Kinyua.

A factsheet by the Natural Justice on this matter shows that while KFS’s various processes may cause a delay, the procedures are essential and speak to the values and principles of the constitution. If the amendment is allowed, there is no guarantee the process of varying boundaries will be subjected to Independent Environmental Impact Assessment or public consultation.

The current law requires KFS to make technical recommendations to Parliament on the effects of any proposed forest boundary variation or excision on endangered, rare and threatened species as well as ecologically sensitive areas. It further requires such variation to be approved by local forest conservation committees and that it undergoes Independent Environment Impact Assessment and full public participation.

Politicisation fears

“This amendment would result in the politicisation of the process hence sidelining key prior environmental safeguards and human rights considerations put in place by the law to ensure the integrity of our forests and biodiversity are respected,” reads Natural Justice’s statement.

The document indicates the amendment will remove key prior environmental, climate issues, and human rights considerations as an integral part of the petition process. Apart from that, the amendment does not encourage much-needed collaboration of other relevant administrative institutions, which are equally important when considering petitions, such as the National Land Commission, on issues of land and National Environment Management Authority on issues of environmental impacts among others.

“The amendment also does not resolve KFS’s administrative failures, which might better be resolved by introducing regulations or guidelines on how it executes its mandate and how its decisions may be challenged,” the document adds,

“We recommend that whichever body is bestowed with this power, provisions must be made to guarantee the inclusion of relevant stakeholders in the petition process, the mandatory requirement to conduct an independent environmental assessment and that proper oversight of the responsible institution is guaranteed,” reads another part of the same document.

According to Gitari, the proposed repeal of section 34(2A) will open avenues for the grabbing of public forest land something that will inevitably lead to the loss of forests. This will spell doom to our forestry sector and many other sectors that depend on ecological services provided by forests. It will also set a bad legal precedent to other natural resource-related policies and legislations such as Wildlife Conservation and Management Act 2013, among others that have similar provisions.

“KFS failure to recommend petitions that have directly affected some parliamentarians, and KFS delay in considering petitions forwarded to them, seem to be the primary justifications for the proposed amendment. The Parliament should know that the country’s natural resources should be protected and prudently managed for the benefit of current and future generations,” she added.