Legal Alert | Wildlife Policy, 2020 and Your Participation

Introduction
Following the promulgation of the Constitution of Kenya, 2010 (the Constitution) the Government of Kenya has been reviewing policies and legislation to align them with the Constitution. The Ministry of Tourism and Wildlife (the Ministry) has released a new Wildlife Policy, 2020 (the Wildlife Policy). The Wildlife Policy updates the existing wildlife policy, published in 1975, and aims to align the current wildlife conservation and management practices and legislation with:

  • the Constitution of Kenya, 2010;
  • the National Wetlands Conservation and Management Policy;
  • the National Climate Change Action Plan;
  • the Vision 2030 policy; and
  • various international treaties with respect to wildlife protection which Kenya is a signatory to.

In addition to aligning wildlife conservation management practices to recent laws and policies set out above, some of the factors which have also given rise to the need of a new wildlife policy have been  listed below:

  • increased human-wildlife conflict;
  • Kenya’s biodiversity has become a strategic national asset because of the revenues it rakes in from nature-based tourism; and
  • Kenya’s high population growth coupled with the rapid economic and infrastructure developments.

In this alert, we look at main areas of possible reform proposed by the Wildlife Policy. It is worth mentioning that the policy is very light on detail and does not set out specifics on how the proposed recommendations will be implemented.

Key Proposals
The following are key highlights set out in the Wildlife Policy:

  1. Creation of a fund to promote wildlife conservation and management

The revenue Kenya generates from tourism is directly correlated to wildlife. This necessitates the need to protect wildlife. Given this importance, the Wildlife Policy proposes to establish a fund to promote wildlife conservation and management. From the Wildlife Policy it is not clear which institution will manage the fund and how the funds will be generated. Some of the potential funding methods proposed under the Wildlife Policy include:

  • increasing allocation of funds set aside in the annual national budget;
  • leveraging and mobilizing wildlife conservation funding from the private sector; and
  • promotion of carbon trading and payment for ecosystem services.

Anticipated impact: Further levies could be imposed on tourism activities in order to fund wildlife conservation and management. Whether the levies will be imposed on parks and sanctuaries or on the hospitality sector in general is yet to be determined. From the Wildlife Policy it appears that a clear legal framework promoting the trade of carbon credits will be provided. This proposed carbon credits legislation should ideally give full force and effect to the Paris Agreement (which Kenya is a signatory to and has ratified). This will improve the participation of Kenya and its citizens in “climate finance” including carbon credit trading and green bonds

2. Restructuring of the Kenya Wildlife Service
The Kenya Wildlife Service (KWS) is the parastatal mandated with overall wildlife conservation and management in Kenya. The Government acknowledges that KWS’ broad mandate potentially conflicts with other stakeholders’ roles in the wildlife sector. The Wildlife Policy proposes reforms to assign and clarify the responsibilities of different participants (including county governments, communities and private landowners) in the wildlife sector. The Government proposes to restructure KWS to enable it focus more on protected areas management. The Government also intends to devolve the park management system to strengthen decision making at the park and reserves level.

 

Anticipated impact: KWS established in 1990, is active in many private wildlife sanctuaries and is involved in coordinating numerous wildlife conservation projects/programs between the private sector and communities. KWS’ replacement will have to be sufficiently capable and have the capacity to oversee and participate in these projects.

3. Land-use changes

The the National Land Policy, 2009 recognises “wildlife conservation” as a land-use option, however current land laws do not provide for this. The Wildlife Policy intends to align existing Kenyan land laws and wildlife management and conservation laws to provide for “wildlife conservation” as a land use option going forward.
Anticipated impact: This will encourage private sector involvement in wildlife conservation and management. The Wildlife Policy also seeks to come up with legal mechanisms for equitable sharing of wildlife benefits at all levels which may encourage private donations of land for wildlife conservation. 

4. Develop policy on infrastructure development in and around wildlife conservation areas
Given the controversy with respect to constructing infrastructure in or through wildlife sanctuaries the Government will now spell out guidelines and standards for the construction of infrastructure in and around wildlife conservation areas;.

Anticipated impact: The policy will hopefully help to protect the ecological integrity of national parks and reserves and provide certainty for the funding of affected infrastructure projects.

6. The creation of a register of non-state actors
Non-state actors include private sector actors, non-governmental organisations, community-based organisations who play a critical role in wildlife conservation. In order to promote an all-in-one approach in the implementation of policies programs and projects, the Government intends to create and maintain a register of non-state actors and civil society participants in the wildlife sector.

Anticipated impact: The recognition and coordination of non-state wildlife projects and conservation programs should assist in the equitable distribution of resources.

Conclusion
In light of the publication of the Wildlife Policy, the Ministry has made a call for submission of comments with respect to any proposed amendments to the Wildlife Conservation and Management Act, 2013. Should you have any comments in this regard we would be happy to submit them on your behalf to the Ministry. Please let us have these by 24 March 2021.


Should you have any questions regarding the information in this legal alert, please do not hesitate to contact Ian Gaitta or Dominic Rebelo.

 

Ian Gaitta
Partner
ALN Kenya | Anjarwalla & Khannaig@africalegalnetwork.com
Dominic Rebelo
Partner
ALN Kenya | Anjarwalla & Khannadjr@africalegalnetwork.com 

 

*Contributors Levi Muchai (Associate) and Lee Higiro Miano (Associate)

 


The content of this alert is intended to be of general use only and should not be relied upon without seeking specific legal advice on any matter.

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