Kenyan Forests and International Law
By Arie Trouwborst^*

Kenya has long prided itself as a conscientious actor in the international arena, not in the last place when it comes to the conservation and sustainable use of the natural environment. The Kenyan government has actively supported the development and implementation of many an international convention with bearing on the environment. Hosting oHostingkkthe headquarters of the United Nations Environment Programme (UNEP), its capital Nairobi is a prominent centre of international environmental law and policy. Recent events, however, have threatened to cast a shadow over this record of international performance.

At stake is the proposed excision of close to 170,000 acres (70,000 hectares) of public forest land by the government of Kenya. Thirteen forests are targeted, representing not only planted forest but also primary ecosystems. Among the areas implied are Mount Kenya, South Nandi and large parts of the Mau forest complex. The planned forest clearance, which has gotten under way in several areas already, is to benefit tea growers, loggers and squatters from other regions of the country.¹ However, particularly since Kenya’s forest cover has already dropped to a mere 1.7%,² any further encroachment is expected to have significant ecological, social and economic effects.³

The adverse impacts of deforestation and forest degradation, particularly where natural ecosystems are involved, are widely recognized. They include negative trends in numbers and diversity of flora and fauna, destabilization of local and global climate patterns, disruption of hydrological cycles, increased soil erosion, desertification, and the dislodgement of forest-dwelling peoples. Indeed, recent policy documentation of the Kenyan government itself affirms that the Mau and Mount Kenya forests "have aesthetic and cultural value, serve as water catchment areas and are particularly important for biodiversity conservation."⁴ Many of these forest functions are intimately related to various sectors of the Kenyan economy, including agriculture and tourism. In short, as one journalist put it, "few disagree that Kenya needs its trees."⁵ It is therefore hardly surprising that there has been substantial and widespread protest against the forest excisions. As part of their argumentation, opponents have suggested that the current plans of the government violate international agreements. The present concise analysis will contemplate the merits of this suggestion.

At the 1982 session of the United Nations General Assembly, Kenya formed part of a large majority of states that voted in favour of adoption of the World Charter for Nature.⁶ In doing so, it pledged to abide by the "conservation principles" set out in this instrument, the first of which states: "Nature shall be respected and its essential processes shall not be impaired."⁷ Other principles call for the avoidance of irreversible damage to nature, and the adaptation of agriculture and forestry practices to the natural characteristics and constraints of given areas.⁸

Two international instruments adopted at the United Nations Conference on Environment and Development (UNCED or Earth Summit), held ten years later in Rio de Janeiro, contain more provisions with a specific focus on forest issues. The first of these, the denominated Forest Principles,⁹ stresses the "vital role" of forest ecosystems in the provision of habitats to wildlife, homes to forest-dwelling peoples, photosynthesis, carbon sinks and reservoirs, protection of fragile ecosystems, watersheds and freshwater resources, as well as an array of timber and non-timber forest products, employment and recreation opportunities.¹⁰ The document recognizes, it is true, the "sovereign and inalienable right" of states to manage their forests in accordance with their own socio-economic necessities, and permits the conversion of forest land for other uses – provided that such management is based on rational land-use policies and consistent with the notion of sustainable development.¹¹ In the Rio Declaration on Environment and Development also forthcoming from the Earth Summit, the latter notion is defined as development that meets the needs of both present and future generations.¹² The Forest Principles specify these needs as "social, economic, ecological, cultural and spiritual human needs."¹³ In this respect, countries are called on to protect primary and old-growth forests "and other unique and valued forests of national importance."¹⁴

The other instrument of special significance for present purposes, the UNCED action programme for the twenty-first century Agenda 21, stipulates in its forests chapter that the maintenance of existing forest cover, with an emphasis on natural forest conservation, should be at the basis of national policies.¹⁵ It recalls the multiple functions of forests and iterates the need for a system of protected areas aimed at preserving representative ecosystems and landscapes, including primary and old-growth forests.¹⁶ Failure to conserve forests, it is acknowledged, results in "soil erosion, loss of biological diversity, damage to wildlife habitats and degradation of watershed areas, deterioration of the quality of life and reduction of the options for development."¹⁷ The World Charter for Nature, the Forest Principles, Agenda 21 and the Rio Declaration, all of which were supported by Kenya, are not legally binding in the strict sense of the word. They do, however, have a high political profile and signatories may be expected to deliver solid argumentation in order to justify inconsistent conduct.

Unlike the international declarations just discussed, treaties (or conventions) are agreements that are legally binding on states that have become parties to them. The overarching legal framework in the field of nature conservation is formed by the Convention on Biological Diversity, which was adopted in May 1992, notably in Nairobi.¹⁸ When the government of Kenya ratified the agreement two years later, it committed itself to the conservation and sustainable use of the biological diversity (that is, the variability of species and ecosystems) resorting under its jurisdiction.¹⁹ Under the terms of the treaty, Kenya is to promote the protection of ecosystems and natural habitats, respect the traditional lifestyles of indigenous communities, and is expected to use nature only "in a way and at a rate that does not lead to the long-term decline of biological diversity, thereby maintaining its potential to meet the needs and aspirations of present and future generations."²⁰ It is difficult to see how the proposed excisions could qualify as such sustainable use, given the likeliness of substantial forest biodiversity decline associated with them. To illustrate this with two examples: the fate of Turner’s eremomela, a small bird species endangered on a global scale, is closely entwined with the future of the South Nandi Forest Reserve; whereas scheduled forest conversion in the Hombe area of Mount Kenya would close off a crucial migration route of African elephants.

World Heritage

Another multilateral agreement of obvious relevance is the 1972 World Heritage Convention.²¹ This instrument is concerned with so-called cultural and natural heritage, i.e. monuments and areas that are deemed to be of "outstanding universal value" in terms of beauty, science and/or conservation. Departing from the premise that any deterioration or disappearance of such heritage constitutes "a harmful impoverishment of the heritage of all the nations of the world," the treaty’s purpose is to safeguard it from the threats of "damage and destruction" that are increasingly posed to it by "changing social and economic conditions."²² When the state of Kenya expressed its consent to be bound by the agreement, it accepted the obligation to do all that is in its power – "to the utmost of its own resources" – to identify, protect, conserve and transmit to future generations of Kenyans and other world citizens the cultural and natural heritage situated on its territory.²³ Besides, all contracting parties are held to submit inventories of candidate areas for inclusion in the "World Heritage List" that is maintained under the Convention.²⁴ One of the three Kenyan entries that have to date been admitted on this prestigious list is precisely the Mount Kenya National Park/Natural Forest, which was inscribed, inter alia, for its "diverse forests, which illustrate outstanding ecological processes."²⁵ Ironically, the only other Kenyan inscription of natural heritage (the third listing concerns cultural heritage), Lake Turkana, is also likely to suffer from the current excision plans. One of several lakes dependent on the catchment area of the Mau mountain forest, its water quality and level are expected to be affected substantially by upstream logging.

This brings into play the 1971 Convention on Wetlands of International Importance (or Ramsar Convention),²⁶ which requires states parties to conserve wetlands on their territory, especially with an eye on their function as waterbird habitat. It entered into force for Kenya in October 1990. The Ramsar Convention, in a way not unlike the World Heritage Convention, awards a central role to a "List of Wetlands of International Importance". Adverse impacts on two of a handful of Kenyan wetlands appearing on this list, Lake Nakuru and Lake Baringo, are among the feared consequences of the deforestation plan under scrutiny. Situated downstream from the Mau forest, the negative impacts on hydrology just described for Lake Turkana are predicted for these lakes as well. Thus, more than half the number of Kenyan natural sites that are listed under the two major international conventions just discussed stand to be negatively affected by the forest excisions.

Notably, Lake Baringo was inscribed as recently as 10 January 2002 – well after the excisions were announced. The other site involved, Lake Nakuru, is Kenya’s second most popular national park and renowned for its exceptional flamingo concentrations. Besides, the most important breeding area for lesser flamingoes, Lake Natron, also has its headwaters in the targeted portions of the Mau forest. It is located across the border in Tanzania and was added to the Ramsar Convention list by that country in July 2001. For cases such as the present, in which a water system shared by two or more states parties is under threat, the Convention specifies a duty of consultation.²⁷ An additional norm that may be of relevance in this transboundary context is the fundamental duty of states "to ensure that activities within their jurisdiction or control do not cause damage to the environment of other States," laid down, inter alia, in the Rio Declaration, the Forest Principles and the Convention on Biological Diversity.²⁸

The importance of preserving wetlands for waterbird conservation is also fully acknowledged by the parties to the 1995 Agreement on the Conservation of African-Eurasian Migratory Waterbirds (or Waterbirds Agreement), which was ratified by Kenya in June 2001.²⁹ It is doubtful whether the significant stress that forest excisions are likely to put on the bird species frequenting the region’s wetlands, like the lesser flamingoes and great white pelicans of Lake Nakuru and Lake Natron, would be compatible with this treaty.³⁰ Under its terms, Kenya is committed to avoid degradation of wetlands under its jurisdiction, particularly of those which meet "internationally accepted criteria of international importance", such as the Ramsar Convention sites of Lake Nakuru and Lake Baringo.³¹ Any loss of waterfowl habitat ought to be compensated.³²

A regional agreement of substantial purport for the matter under scrutiny is the African Convention on the Conservation of Nature and Natural Resources of 1968.³³ Its provisions on flora protection expressly stress the need for the conservation and wise use of forest land.³⁴ In particular, the state of Kenya – contracting party of old – must, when designing plans affecting forest regions, take due account not only of socio-economic interests, but also of "the importance of the vegetation cover for the maintenance of the water balance of an area, the productivity of soils and the habitat requirements of the fauna."³⁵ The relevance of the Convention’s articles on soil, water, fauna, protected species and conservation areas is also a given, albeit in a more implicit manner.³⁶ For instance, the agreement’s list of totally protected species, whose habitats must be safeguarded as a matter of priority, names several forest-dwelling species as well as pelicans and flamingoes.³⁷ In addition, deleterious effects of any land use practice on aquatic habitats must be minimized.³⁸ Again, these obligations not only apply to the affected Kenyan forests themselves, but also to areas downstream, the ecology of which may well be destabilized by erratic river flows. The animal population of the Masai Mara National Reserve, one of Africa’s most famous game parks, represents just another example of a community dependent on the Mau forest complex for its water supply. Notably, Kenya would be allowed to deviate from the duties set out in the African Convention were this to be in the "paramount interest" of the state.³⁹ Kenyan government and society are the judge of that.

Mount Kenya and Mau rank high among Kenya’s forests of critical importance to water conservation, and embody two of what are sometimes referred to as the nation’s five remaining "water towers". Their highland forests absorb, store and gradually release rainwater. Thus, in the wet months the occurrence of flooding and corresponding topsoil erosion is reduced, while during the dry season streams still hold water and superficial water tables are maintained. The importance for downstream areas of this regular flow of the web of rivers that emanates from Mau and Mount Kenya has as yet been highlighted above. Forests have, moreover, a moderating effect on local and regional weather patterns. Indeed, the severe drought that tormented Kenya in the year 2000 was partly linked to the nation-wide lack of forest cover.⁴⁰

Drought and erosion are the standard ingredients of desertification. The 1994 Convention to Combat Desertification, ratified by Kenya in 1997, obliges its parties to "adopt an integrated approach addressing the physical, biological and socio-economic aspects of the processes of desertification and drought."⁴¹ Affected states must take measures against desertification within the framework of sustainable development policies, and address its underlying causes.⁴² The region-specific annex for Africa that was added to the convention commits Kenya to the implementation of a national action programme aimed at ensuring the conservation of natural resources, including forests.⁴³ Allegedly, however, recent forest clearance in the Eastern Mau region is already impacting on local weather conditions and has turned permanent streams into seasonal ones, damaging agriculture and fisheries and threatening lakes with siltation.⁴⁴ Further excisions are likely to exacerbate this situation.

As mentioned before, forest ecosystems not only regulate local and regional climate, but also exercise a substantial influence on the global climate. They remove carbon dioxide from the atmosphere, thus decreasing concentrations of this greenhouse gas. The soils and biomass of, especially, old-growth forests represent huge carbon reservoirs. When they are logged, this carbon is released into the environment again. By ratifying the 1992 Framework Convention on Climate Change, Kenya has taken on the duty to promote the conservation and enhancement, "as appropriate," of sinks and reservoirs of all greenhouse gases, including forests.⁴⁵

A possible reply by the government of Kenya to the suggestion that it may be acting in violation of one or more of the international obligations outlined above, could be to call in question the likelihood or gravity of any environmental harm that may ensue from the planned deforestation. It may well argue that causal links between additional forest excisions and such harm have not been conclusively proved. Precisely with an eye on this kind of argumentation, the preamble to the Convention on Biological Diversity states that "where there is a threat of significant reduction or loss of biological diversity, lack of full scientific certainty should not be used as a reason for postponing measures to avoid or minimize such a threat."⁴⁶ The World Charter for Nature and the Rio Declaration apply this idea, which is commonly referred to as the precautionary principle, to nature and the environment in general,⁴⁷ as do the Waterbirds Agreement and the Climate Change Convention in their own respective issue areas.⁴⁸ Besides, there are strong indications that the precautionary principle has evolved into a norm of customary international law, that is, general international law which is binding on all states (as opposed to treaties, which only legally affect states that have expressly agreed to be bound by their terms). A related duty that has not been mentioned yet is the one prescribing the carrying out of a proper environmental impact assessment (EIA) before embarking on potentially harmful activities, especially where these may have transboundary effects.⁴⁹

This contribution has highlighted some of the most relevant rules of international environmental law that are prima facie applicable to the forest excision controversy in Kenya. The more extensive analysis needed to make any definitive statements cannot be provided here for considerations of brevity. On the face of it, however, the available evidence indicates that it would require very convincing arguments to maintain that the present-day forest policy of the state of Kenya is not seriously compromising several of its obligations under public international law.

Utrecht, February 2002

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