Ministry of Environment and Natural Resources · ... Water and Natural Resources, ... in Kenya” by the Ministry of Environment, Water and Natural ... The National Climate Change

IUCN People and Landscapes Programme

Analytical studies and the Kenya REDD+ processA series of in-depth studies have been carried out in Kenya to inform formulation of the REDD+ strategy and implementation framework. This information note summarizes the study “Forest Governance, REDD+ and Sustainable Development in Kenya” and assists in disseminating the information to reach as many stakeholders

1 Synthesis of the report “The Final Legal Report: Forest Governance, REDD+ and Sustainable Development in Kenya” by the UNREDD Program and Ministry of Environment, Water and Natural Resources, Republic of Kenya.

as possible. REDD+ seeks to provide compensation to governments, communities, companies or individuals in developing tropical countries for actions taken to reduce GHG emissions from the forest sector. Its implementation involves the design and application of appropriate land and forest management practices, including enhanced forest sector governance, to support sustainable management of forest resources.

Information brief No. 1

WIDENING INFORMED STAKEHOLDER ENGAGEMENT IN REDD+

Forest Governance, REDD+ and Sustainable Development in Kenya1

Ministry of Environment and Natural Resources

Breifing note 1.indd 1 9/29/2015 8:56:23 AM

Forest Governance and Sustainable Development in Kenya Kenya’s forests occupy a total area of 3.5 million ha equivalent to 6.9% of Kenya’s total land area. The forestry sector contributes 3.6% to Kenya’s Gross Domestic Product (GDP)2 (UNEP, 2012) excluding ecosystem services. Forests are therefore important national assets because of their significant economic, environmental, social and cultural values.

Since the colonial era, forest governance has faced significant challenges. From 1942, when the colonial government appointed the first conservator, to the 1990’s, Kenya has witnessed a massive reduction in the country’s forest cover from 60% to just about 2% due to several factors including increased population, land use changes, inappropriate (weak) legal frameworks and corruption, among others. This was largely driven by the colonial “preservation and exploitation” policies, which also the post-independence governments adopted. Environmental issues were controlled by the government through a top-down approach.

After independence numerous initiatives were undertaken in environmental conservation and sustainable natural resource management.

A major policy shift in environmental governance in Kenya was witnessed in the run up to and after the Earth Summit held in Rio de Janeiro, Brazil in June 1992. The Rio Declaration and Agenda 21 exhorted governments to establish an effective legal and regulatory framework with a view to enhancing national capacities to respond to the challenges of sustainable development. This resulted in increased integration of environmental concerns into development planning and environmental law and policy formulation in Kenya. For example, The National Environment Action Plan (1994) stressed the need for a comprehensive environmental policy and law, and the Environment Management and Coordination Act (EMCA) was enacted in 1999 as a framework for environmental law. The Forest Act, 2005 enshrined participatory forest management through community forest associations (CFA’s). The Constitution of Kenya, 2010 has strong provisions on political and institutional matters associated with land, sound natural resource management and nature conservation. It has several implications on forest governance and the development of an appropriate legal framework for REDD+. The Constitution emphasizes the need for good governance and seeks to ensure synergetic relations between the national and county level governments in the management, utilization and equitable benefit sharing of natural resource.

Land Tenure and Forest Governance in KenyaAccording to the United Nations, land tenure is the relationship, whether legally or customarily defined, among people, as individuals or groups, with respect to land. Tenure defines the methods by which individuals or groups acquire, hold, transfer or transmit property rights in land. Secure land tenure will play a critical role in the design and distribution of benefits that may accrue from REDD+. In relation to forests, land tenure includes ownership, tenancy and other arrangements for the use or conservation of forests, trees, and forest resources. Kenya’s Constitution categorizes land as private, public or communal. The interplay between the different tenure systems will define carbon rights ownership in REDD+. In designing REDD+, the tenure regime adopted should also strive to satisfy various policy objectives such as:

Key issues• The brief underscores the cross-sectoral nature of REDD+.

The REDD+ mechanism although focused on forestry touches on land tenure, land use planning, protected areas and trade.

• The key challenges that may hinder Kenya’s implementation of REDD+ from a legislative perspective include:

• Lack of a National Environment Policy to guide the management of the environmental resources. REDD+ implementation will have to be preceded by a strategy.

• Insecurity and unreliability of tenure especially in relation to Community Land where most of the REDD+ activities are expected to be conducted.

• Lack of clarity and coherence on some forest related laws, including the criteria for defining “communities” in relation to ownership of community land, and the disconnect between the tenure regimes under the Forest Act 2005 and under the Constitution of Kenya 2010.

• Institutional challenges including lack of mutual supportiveness and cooperation among forest related institutions. This is expected to heighten with the entry of devolved government structure. Forest institutions are also affected by lack of adequate resources and insufficient funding.

• Lack of a mechanism for sharing REDD+ benefits

Recommendations• Inclusion of specific provisions on REDD+ in the relevant laws

and policies.

• Clarifying the roles and mandates of all the forest sector institutions in order to avoid overlaps and incoherence.

• Crafting the rules for access and use rights and for benefit sharing.

• Defining a national Criteria and Indicators (C&I) for sustainable forest management.

• Finalizing legislation on community land and other Acts that actualize the national land policy.

Introduction Laws and institutions provide an overall framework that enables and guides public and private sector activities to meet forestry related goals. Kenya is implementing its Vision 2030 in which sustainable development is a key theme. Kenya has also developed its National Climate Change Response Strategy in which efforts to reduce emissions from deforestation and forest degradation, conserving , sustainably managing existing forest and enhancing its carbon stocks (REDD+) constitutes a key component. As Kenya prepares for REDD+, an enabling legal environment is necessary to enhance REDD+ activities, promote investment and ensure equitable REDD+ benefit sharing. To support this process, this information brief was developed based on legal report “Forest Governance, REDD+ and Sustainable Development in Kenya” by the Ministry of Environment, Water and Natural Resources, which identifies and analyzes the challenges and opportunities for REDD+ law reform and implementation in Kenya and gives recommendationsfor strengthening Kenya’s legal framework relevant to REDD+.

2 UNEP (2012). The Role and Contribution of Montane Forests and Related Ecosystem Services to the Kenyan Economy. UNEP

Breifing note 1.indd 2 9/29/2015 8:56:23 AM

• Efficiency in land use by providing a smooth functioning land market and permits maximum productivity of land resources for all types of uses. The system should also be responsive to various changes on demand;

• Equity by ensuring that the tenure system provides reasonable access to all groups especially those of low income or vulnerable groups;

• Compatibility with other policy instruments dealing with economic development and must not contradict existing legislation; and

• Continuity so that it avoids abrupt breaks in the existing political and cultural set up.

Forest related policiesForest governance refers to the process of formulation, administration and implementation of policies, legislation, regulations, guidelines and norms relating to best practices for sustainable management of forests at local or national levels.

Kenya’s first forest policy was developed in 1968. This policy eventually became obsolete and a draft policy developed from mid-1990’s to early 2000’s becoming the main reference point in terms of articulation of key issues and objectives in the forest sector. However, widespread public concern over the alarming rates of deforestation necessitated the enactment of the Forest Act, 2005 and the coming into force of a Forest policy in 2007. Key features of the Act and policy are the creation of a Kenya Forest Service (KFS) to replace the Forest Department, enhanced civil society participation and partnerships in forest management, new benefit sharing arrangements and the recognition of the important role of forests in livelihoods and sustainable development. The Country is in the process of finalizing Forest Policy (2015) and Forest Act (2015), and so revising the 2005 Act. The main features of Forest Policy (2015) include:

• Enactment of a revised forest law to implement the policy.

• Mainstreaming of forest conservation and management into national land use systems.

• The clear division of responsibilities between public sector institutions.

• The devolution of community forest conservation and management, implementation of national forest policies and strategies and the deepening of community participation in forest management through the strengthening of community forestry associations, and the introduction of benefit-sharing arrangements.

• The preparation of a national strategy to increase and maintain forest and tree cover to at least 10% of the total land area and for the rehabilitation and restoration of degraded forest ecosystems, and the establishment of a national forest resource monitoring system.

• The adoption of an ecosystem approach for the management of forests, and recognition of customary rights and user rights to support sustainable forest management and conservation.

• The establishment of national programmes to support community forest management and afforestation/reforestation on community and private land.

• The preparation of national standards for forest management and utilization, and the development of codes of conduct for professional forestry associations.

Other policies include

• National land policy• Energy policy• Draft forest policy• Draft National Environment policy• Kenya National Biodiversity Strategy and Action plan

Forest Institutions/key institutions involved in forest management

• At the national Level – Ministry of Environment and Natural Resources, Kenya Forest Service, Kenya Wildlife Service.

• At the County Level – County Government. • Local communities and non-state actors like NGOs.

• The introduction of a chain-of-custody system for timber and wood products, and legal origin and compliance certificates for exporters of timber and wood products.

Kenya’s Vision 2030 aims at “a people living in a clean, secure and sustainable environment.” This objective provides a strong foundation for improving environmental management, including forest governance, in Kenya. Vision 2030 is therefore a critical pillar for the success of REDD+.

Kenya’s National Climate Change Response Strategy, 2010, aims to steer Kenya onto a climate-proof, low carbon development path. It identifies the forestry sector, through REDD+, as one of the key sectors in which to implement climate change mitigation actions. The National Climate Change Action Plan (2013-2017) takes forward the implementation of the strategy. It gives a detailed breakdown of actions to be undertaken, institutions that will implement specific activities, time frames and costs. Planned activities cut across many sectors including health, agriculture, forestry and wildlife, environment, tourism, regional development authorities, water and irrigation, energy, roads and transport, gender, youth and sports, education and ICT. Many of the proposed activities will support Kenya’s REDD+ process by promoting afforestation, reforestation or forest conservation. Other policies and strategy related to forest include:

• The National Land Policy• National Environment policy• National Energy policy• The Green economy strategy

Forest related laws • The Constitution of 2010; Chapter 5 deals with land and

environment matters. • The Forests Act 2005; is the main statute governing forest

management and conservation in Kenya.• The Energy Act; provides the regulatory framework for

energy in Kenya. Biomass is a key source of energy for many households in Kenya.

• The Land Act 2012; consolidates and rationalizes land laws in Kenya and provides for the sustainable administration and management of land and land-based resources.

• Environment Management and Coordination Act (EMCA) 1999; provides an appropriate legal and institutional framework for the management of the environment as well as an administrative co-ordination of the diverse sectoral initiatives necessary to improve national capacity for the management of the environment.

• The Water Act 2002; provides for the management, conservation use and control of water resources of which forests are key.

• Wildlife (Conservation and Management) Act 2013; safeguards protected areas against grabbing.

• Agriculture Fisheries and Food Authority Act No. 13 of 2013; promotes soil and water conservation and prevents the destruction of vegetation.

• National Museums and Heritage Act, No. 6 of 2006; enables gazettement of areas of historical importance and threatened heritage e.g. the Kayas at the coast

• Fisheries Act, 1991 (Revised 2012); regulates trout fishing in the forests and protects fish breeding areas and is relevant to mangrove management at the coast.

Breifing note 1.indd 3 9/29/2015 8:56:23 AM

IUCN Eastern and Southern Africa Regional Programme

Key recommendations for continuing legal reform

• Inclusion of specific provisions on REDD+ in the relevant laws and policies .

• Clarifying the roles and mandates of all the forest sector institutions in order to avoid overlaps and incoherence.

• Crafting the rules for access and use rights and for carbon rights benefit sharing.

• Defining a national Criteria and Indicators (C&I) for sustainable forest management.

• Finalizing legislation on Community Land. The legislation should inter alia, define “community” and “community land” in a way that promotes both sustainable utilization of forests and inter-ethnic cohesion.

For more information contact: IUCN ESARO – [email protected]

Analysis of key issues Key governance issues for REDD+ include:

• Landuseandsustainabledevelopment – It is increasingly recognized that conservation is good development as highlighted by the draft Sustainable Development Goals. Balancing environmental conservation imperatives with the many competing land uses, remains, however, a major challenge. Alignment is needed to ensure environmental conservation, green economic growth and enhancement of people’s livelihoods. This calls for the strengthening of tenure, land use laws and aligning them to national sustainable development goals.

• REDD+andlandtenuresysteminKenya–Addressing land tenure in an equitable and secure manner will be critical for the success of REDD+. Land tenure in REDD+ determines the extent to which the legal framework recognizes and protects forest-related tenure including rights to carbon; the extent to which the legal framework recognizes customary and traditional rights of Indigenous Peoples, local communities and other forest users; consistency between formal and informal rights to forest resources; and the extent to which the legal framework provides effective means of resolving disputes by due process.

• Clarity and coherence of laws and policies for REDD+in Kenya – As REDD+ is cross-sectoral, there is need for information sharing and coordination of all the forest related sectors to work together on different goals towards achieving REDD+ success. Policies and laws will also need to be harmonized to achieve coherence. National forest governance structures will also need to be strengthened for REDD+ to be successful.

• Adequacy of the institutional framework – REDD+ implementation will require strong institutions with clear mandates and sufficient capacity to govern REDD+ activities. Coordination among these institutions will be necessary with each playing its assigned role. Funding to forestry institutions will also needs to be increased to enable them to deliver.

• Carbon rights and benefit-sharing in REDD+ – Equitable benefit sharing will ensure not only sustained emissions reductions, but also realize substantial benefits to the forest communities and avoid making vulnerable people worse off. Benefit-sharing mechanism will be based on carbon rights. Defining carbon rights will therefore need to be prioritized.

Kenya therefore needs to review and analyze its preparedness with respect to legal, policy and institutional aspects of the Cancun Agreements and REDD+ activities, guidance and safeguards as it begins to implement the evolving international REDD+ mechanism.

Breifing note 1.indd 4 9/29/2015 8:56:23 AM