International Lawyers Project
A Victorious Win Against the Weakening of Kenya’s Forestry Laws
Updated: Sep 9, 2022
Kenya’s forest ecosystems are enjoying a reprieve following the lapse of a proposed amendment to the Forest Conservation and Management Act, 2016 (the Act). The amendment threatened to reverse the gains made in achieving 8.3% forest cover and derail efforts towards the constitutionally set target of 10% tree cover.
In an unexpected move in November 2021, Kenya’s Parliament suddenly announced an unconstitutional repeal of a core safeguard in the Act. The Amendment proposed to amend the Act by deleting the requirement to lodge petitions to alter public forest boundaries with the Kenya Forestry Service (KFS) before submission to the National Assembly. Although the proposed amendment’s alleged objective was to streamline procedures to petition Parliament, the actual motivation for the proposed amendment reads differently. By taking away the mandate of the KFS, the National Assembly would be vested with broad discretionary powers in public forest boundary delineation. If passed, this repeal would have reopened the floodgates to industrial-scale destruction of this priceless planetary resource.
The Act was introduced to avert the decimation of Kenya’s forests witnessed in the years preceding and following Kenya’s independence. In 1895, forested land was estimated at 30% of total landmass. By 1963, the total territorial landmass under closed canopy gazetted forests had dropped to 3%. This figure plummeted further to 1.7% as a result of illegal and irregular excisions. These were characterised by an absence of legal notices, boundary plans, and environmental impact assessments.
The cases of excision drastically reduced when the Act came into force in 2007. The Act made it difficult to vary forest boundaries by involving the National Assembly in decisions to change boundaries. The legal framework protecting Kenya’s forests was further strengthened when the Act was aligned with Article 69 of the Constitution of Kenya (CoK) in 2016. The article provides for the development and sustainable management of forest resources for the socioeconomic development of the country. Since then, Kenya’s forest cover has been growing steadily thanks to such progressive laws and coordinated rehabilitation initiatives.
The International Lawyers Project supported the Kenya Forest Working Group (KFWG or the Coalition), a coalition of 35 respected Kenyan conservation organisations led by the East African Wild Life Society (EAWLS), in pushing back against the proposed Forest Conservation and Management (Amendment) Bill, 2021 through a well-coordinated advocacy campaign. ILP supported the Coalition in designing and implementing an emergency advocacy strategy which included supporting the Coalition in making representations to Parliament, proposing international best practice in forest protection policy and providing legal support in preparation for legal challenge of the amendment.
The highly successful advocacy campaign averted the passage of the destructive amendment, thereby ensuring the preservation of Kenya’s protected areas for present and future generations.
The Coalition held a series of virtual meetings and a 3-day workshop, with an aim of drafting a Memorandum to the National Assembly. The workshop was conducted with the help of ILP’s local volunteer lawyer, Getrude Kibare, who is an expert on forestry laws in Kenya. ILP also enlisted expertise from the international firms Ropes & Gray and Allen & Overy. The team of volunteer lawyers produced a report on international best practices on forest management and boundary alteration. The findings of this report strengthened the Memorandum to the National Assembly.
Participants of the Three-Day Parliamentary Advocacy Workshop against the Forest amendment in Nairobi, Kenya.
ILP simultaneously identified available litigation routes in Kenyan law to nullify this repeal on constitutional and procedural grounds. ILP’s volunteer lawyers worked together to prepare a constitutional challenge of the proposed amendment before the High Court of Kenya in case the amendment was passed. The legal team was prepared to immediately file a case to challenge the constitutionality of the law if enacted.
Members of the Coalition also discussed strategies for an effective communications and social media campaign to run parallel to the submissions. The Coalition developed information materials to support grassroots advocacy, posters and short videos for circulation on social media, and an online petition on Change.org that was signed by more than 3,500 people and institutions. The social media campaign gathered enough momentum that led to requests for interviews on national TV and radio outlets.
Interview with Elizabeth Gitari, a renowned Kenyan environmental lawyer and member of the Coalition on NTV Your World on 21 March 2022
Riding on the success of the social media campaign, the Coalition published an open letter to the President of Kenya in two widely read local dailies. The articles were published on the 21st of March 2022 to coincide with the International Day of Forests (IDF).
Following the well-coordinated advocacy efforts, the Coalition received its victory by way of lapsing of the amendment- on 9 June 2022, Parliament had its final sitting and adjourned without having passed the amendment.
The proposed amendment received wide international coverage, being dubbed a ‘threat to vital habitats’ by The Guardian, and ‘a danger to indigenous communities’ by Mongabay. The failure of the amendment has been celebrated as a victorious win for civil society groups campaigning to protect Kenya’s forests and a successful advocacy and lobbying campaign led by the Coalition. This is a sigh of relief for Kenya’s forests and a reflection of the deep understanding of the amendment’s implications on forestry sustainability by Kenyan citizens and institutions.
To ensure the amendment is not re-introduced in future, we are working with our partners on a Phase II campaign starting this Autumn. The second phase aims to provide technical and capacity building support to Parliamentarians. ILP and its Coalition partners will be concentrating their efforts on engagement with the newly elected Parliamentarians and Environmental Committee members, to support with training, gap analysis and policy briefs on best practice in forestry for legislative reforms. Should another Forest amendment ever come back we will be ready again with a team of lawyers prepared to litigate to defend Kenya’s forests.
To support or learn more about Phase II of this campaign please get in touch with Maria Cristina Mundin, Senior Projects Manager, at firstname.lastname@example.org