Contents STRATEGIC ENVIRONMENTAL ASSESSMENT OF THE KENYA FORESTS ACT Background to the forestry sector. Background to the forestry sector

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1 Contents STRATEGIC ENVIRONMENTAL ASSESSMENT OF THE KENYA FORESTS ACT 2005 Background to the forestry sector, Introduction of the SEA of the Forests Act, Scope of the SEA, Analysis of the issues under SEA, Key findings and issues of the SEA, Potential challenges, Priorities for action, Lessons learnt, and Next steps. Background to the forestry sector At the time of the first European settlement in Kenya, there were substantially more closed forests than there is today. Forests were in widely scattered blocks mainly on the slopes and foothills of the higher parts of the south- western third of the country. The low country did not contain high forests except in a narrow strip at the Coast and along rivers. The total area of closed forests, in 1962, was 6,500 square miles(1,683,500 Ha.), excluding internal grasslands, This covered 2.7% of the total land area, Today, this has reduced to 1.7%. An overview Location and extent U g a n d a S u d a n T a n z a n i a E t h i o p i a I n d i a n S o m a l i a O c e a n Forests Africa Background to the forestry sector First comprehensive forest legislation was the Forests Ordinance Cap. 385 of 1942, enacted as An Ordinance to amend and consolidate the law relating to forests. In 1964, the Forests Ordinance was amended and adopted as the Forests Act Cap The Act only covered gazetted forests. There was no provision for participatory forest management. Process of de-gazettement of forest land is not watertight. The old Act therefore had adverse effects on forest management and governance in Kenya Background to the forestry sector Most of the failures of the old legislation were mainly institutional To remedy these inadequacies of the Act, KFMP initiated a consultative process to develop new policy and legislation that reflects the emerging local and global trends in the forestry sector. The output of this initiative which started in 1994 is the Forests Act no. 7 of 2005 which has been developed through a participatory process involving all stakeholders in the forestry sector in Kenya. It was passed by Parliament in August It received Presidential assent on 23 rd November

2 Introduction of the SEA of the Kenya Forests Act 2007 The Forests Act 2007 contains main innovative provisions to correct previous shortcomings, including a strong emphasise on partnerships, engagement of local communities and promotion of private investment. The Act was gazetted for implementation on February 9, The SEA process was initiated just before the implementation of the Act (April December 2006) The SEA was a collaborative process involving MENR, the Forest Department, stakeholders and consultants acting for the World Bank. Government of Kenya Forest Department SEA Participants MENR Reform Steering Committee Secretariat World Bank/Bank Netherlands Partnership Programme Stakeholders Donors Forestry Group Consultants Why SEA? Level of political economy is high (i.e( i.e,, there are many actors with different interests) Level of impact in the implementation process was also highly unpredictable Forests Act 2005 may be a good instrument to address current forest related problems BUT there are may be many unforeseen/unpredictable outcomes, HENCE the need of conducting a SEA to look at social, environmental, governance and institutional issues and develop priority action points to enhance implementation of the Act. Specific Objectives of the SEA of the Forests Act 2005 To inform, influence and strengthen the process of implementing the Act; To indirectly inform the policy dialogue regarding sustainable use of natural resources, To draw lessons to refine SEA applicable to natural resource management policies. SEA Consultants (FRR Ltd) Peter Nelson (SEA Specialist and Team Leader) Claire Ireland (Project Manager, Environment and Social Specialist) Paul Steele (Environmental Economist) Michael Gachanja (Forestry Specialist and acted as the liaison person to government (FD) Sharon Gordon (EIA/SEA Specialist) Sylke von Thadden ( Finance specialist) Prof. Patricia Mbote (Environmental lawyer) David Maingi (Forestry/economic Specialist) Scope of the work Conduct a rapid assessment of the political economy in which the Act will be implemented, Interview key informants and consult members of stakeholder groups, Conduct a rapid institutional, governance and financial assessment, to examine how services will be provided and management undertaken, Undertake a case study to quantify in economic terms the environmental and social impacts resulting from key elements of the Forests Act and validate the findings from the institutional, governance and finance assessments and illustrate the effects of existing financial and institutional arrangements on the implementation of the Act. 2

3 Scope of the work Coordinate two stakeholders workshops among stakeholders to: - Identify key environmental and social priority concerns, intersectoral linkages and opportunities associated with implementation of the Act - Develop proposals on above concerns and linkages that take advantage of the social and environmental opportunities, - Develop a policy matrix to assist in the implementation of the Forests Act, - Develop an accountability and transparency framework so that stakeholders can know what's happening. Scope of the work Capture the lessons learned from the process of conducting the SEA, Conduct a final meeting with stakeholders to present the findings of the SEA, the main outputs and lessons learned. Share the SEA information with the team preparing the World Bank NRM Project ANALYSIS OF ISSUES UNDER SEA The SEA examined current risks confronting forests and the social well being of communities relying on these resources. The main methodology used was situation assessment on all the issues through literature review, interviews and discussions Information gathered was used to identify ways of improving institutional structures and governance process during forest reforms and strengthening the participation of communities and the private sector in forest management ANALYSIS OF ISSUES UNDER SEA The SEA process was essential in identifying key issues and priorities for action through dialogue, A key element of the SEA was reliance on the active participation of a wide range of stakeholders through workshops and one to one discussions. 1 2 DIAGRAM OF I-SEA I FOR FORESTS ACT Consider weaknesses of existing Act, Institutions and Practice Identify social, environmental and economic consequences 4 5 Make recommendations for improvements to institutions and procedures to the Reform Committee and Secretariat SEA Outline for the review of the Forests Act (Phase 1 screening and scoping) Inception Report Rapid assessment of political economy, analysis of the Forest Act, stakeholder analysis and literature review Scoping Report 3 Analyse content of the New Act and alternative mechanisms and rules for implementation Outputs Scoping Report (1+2 ) Situation Analysis (3 + 4) SEA Report of Findings (5) 1 st Stakeholder Consultative Workshop -Identify SEA priorities -Assess the extent of potential opportunities and risks in delivering priorities - Propose ways of enhancing opportunities and avoiding/mitigating risks 3

4 SEA Outline for the review of the Forests Act (Phase 2 situation assessment) Financial and economic assessment Ist Stakeholders workshop Environmental and Social assessment Political, institutional and governance assessment SEA Outline for the review of the Forests Act (Phase 3 and 4 setting of SEA priorities and development of alternatives and summing up) Report on stakeholder consultation, assessments and case study 2nd stakeholder consultative workshop: -Proposals for addressing priority concerns -Set priorities for policy action matrix -Set accountability and transparency framework Case Study To validate the above and fill any gaps in information GOK Review and agreement of main report including policy action matrix Report on stakeholder consultation, assessments and case study 3 rd workshop to present and get agreement on final policy matrix and accountability framework 4 th Meeting facilitated by KFWG for KFS to agree on time bound milestone on the policy actions: and report publication Environmental Issues Focus was on the nature of forest resources in Kenya vis a vis application of policies, rules and regulations. To establish the nature and extent of forest cover to gauge the types of environmental impacts Environment assessment was enriched by the social assessment due to their close interlinkages. Social Issues The following steps were followed in order to ensure social issues are adequately addressed throughout the whole Forests Act implementation process - Understanding the cultural features and social implications in the context of the new Forests Act - Responding to the perceived needs of those affected by the new Forests Act and developing proposals to address concerns - Seeking to reach poor and disadvantaged populations and seeking to integrate them into the implementation process Social Issues - Recognising the roles and needs of women as well as men, and seeking to establish equal participation and benefit in the design of rules and regulations to accompany the new Forests Act - Encouraging participation of all stakeholders in the longer term implementation process and seeking to empower local communities to engage. Economic and financial Issues Analysis of the forest resource base (both indigenous and plantation forests). Analysis of forest expenditures, revenues and projections. Analysis of forest benefits and their distribution. Impact of the Forests Act 2005 on plantations, indigenous forests and NTFPs management Analysis of various management options (by KFS, local communities and private sector). 4

5 Institutional and Governance Issues Forest sector stakeholders analysis: Present situation (before the Act and situation proposed in the Act) Analysis of institutional/governance risks and opportunities in transforming the forestry sector from the current situation to the desired situation. Analysis of formal and informal institutions in Kenya and how they support or hinder the introduced changes in the Forests Act 2005 Analysis of forest governance issues vis a vis the Forests Act How can historic problems of corruption and lack of transparency and accountability be overcome in the implementation of the Act? Key Findings (Environmental assessment) One of the key emerging issues is the recognition that environmental issues and stakeholder interests vary greatly between the different forest resource types The cross cutting nature of environmental issues such as water catchment management, wildlife, agriculture, land tenure and land use policy etc are all relevant to the new Act, yet they do not necessary fall under the management of KFS In the new Act, forests will be managed through forest conservancies whose boundaries are ecosystem based and therefore different from the current administrative boundaries. It is not clear how management will relate to the existing administrative boundaries and therefore the need to harmonise different approaches. Key Findings (Social assessment) Ensuring that the forest policy is approved to shape the implementation of the new Act is crucial to achievement of the social objectives Establishment of clear and transparent mechanisms for benefit sharing is critical to local community engagement in forest management There are going to be winners and losers in the implementation of the Act. Negative impacts on the losers should be minimized Best PFM practice in Kenya and in the region should be incorporated to ensure that the desired positive social impact is achieved Rules and regulations to support the implementation of the Act should recognise the social and cultural value of Kenya s forests to its people. Meaningful community participation and decision making are needed if the new Act is to have positive impacts to the livelihood of Kenya s s people. Key Findings (Economic and financial) Currently, revenue generated by forests is not enough to cover management costs incurred. However, the Act has the potential to raise revenues and make KFS self sustaining. Low revenue collection is partly attributed to weak and inefficient ent forest administration, poor royalty assessment and collection system The revenue collection was Kshs 501 m. Efficient revenue collection could bring Kshs 1.6 billion the first year of the commencement of the Act. This could increase by 173% to Kshs 4.3 billion after about years. Forestry sector is under funded. Efficient running of KFS will require additional funding for realization of the sector full potential Analysis of various management options showed that partnership management option between KFS and the community or private sector as the most practical scenario given the current political, l, economic and environmental considerations. Key Findings (Institutional and Governance) Political will needed in the implementation of the Act Clear ToRs for KFS staff positions is needed, recruitment process should also be transparent There is need to develop clear incentives that will create opportunities for local communities to generate income from forests and on-farm forestry There is need for institutional strengthening of KFS and other institutions involved in the implementation of the Act There is need to monitor the implementation of the Act. Key issues relating to the implementation of the Act Analysis of Risks Continued inadequate political commitment could further some of the existing effects of previous legislation (e.g( e.g,, forest excisions and illegal logging). Corruption which left a demoralized Forest Department and reduced its capacity to manage forests effectively resulting to excessive exploitation of highly sensitive forest resources. Population increase that is placing greater strain on scarce land resources. 5

6 Key issues relating to the implementation of the Act Assessment of Opportunities The New Act and draft Forest Policy provide a strong basis for change and greater emphasis on partnerships Change involves transformation of FD to a semi autonomous KFS. Change also involves improved forest management through increased accountability, transparency and revenue generation. Implementation of the Act is occurring at a time when the national political climate is emphasizing improved governance and reduced corruption. There are also major opportunities for reactivating the commercial forest sector and creating employment Potential challenges in institutional structures and governance Adequate staffing and funding of KFS Development of subsidiary legislation Operational mandate of KFS Priorities for action Analysis of powers, functions and duties of the Board and Director of the KFS and the individual responsibilities of the service set out in the Act (to address the risks and deliver the opportunities) requires several actions Priorities for action: - Strategic management and planning of KFS - Enabling community participation and benefit sharing - Enabling investment in the forest sector An outline on what may be required is provided in the policy matrix. Key elements of strategic planning and management of KFS Enabling proper governance (including transparency and accountability) of the KFS, Ensuring proper strategic planning of the forest resources of Kenya, Realizing the economic value of these resources by the nation. Key elements of community participation and benefit sharing Ensuring that all forest communities, and community adjacent to forest areas, are properly involved in decision making and implementation activities. Developing a policy on how women and excluded groups will be engaged in community forest associations. Equitably sharing the costs and benefits of the forest sector among communities, private sector, and government. Protecting indigenous and customary access and use of forest resources. Enabling equitable and fair partnerships. Key elements in enhancing investment in the forest sector Creating an enabling environment for private investment (both corporate and community) in the forest sector. Enabling and strengthening partnerships. Improving transparency and accountability. 6

7 Policy Action Matrix Priority Area 1: Strategic Planning and Management of Forests in Kenya Policy Action Matrix Priority Area 1: Strategic Planning and Management of Forests in Kenya Policies/Actions Milestone It is recommended that the Process of interim period between formation appointment of a of the Board and appointment (by Director to begin by the Board) of a Director should July 2007 be no more than one year. It is recommended that the Board National should appoint a Director to the advertisement for the KFS following national post of Director of advertisement of the post and KFS by June 2007 selection of the successful and appointment of candidate by the full Board. the Director by July 2007 The draft strategic plan prepared by the Forest Department (FD) should be reviewed and finalized by the KFS at the earliest opportunity Stakeholders to be involved KFS Board Ministry of Environment and Natural Resources (MENR) and KFS Board A five-year strategic KFS, private plan to be revised and sector, civil adopted by the KFS society by June 2007 and organizations revised every two- Expected Outcomes Transparent and open recruitment process Transparent and open recruitment process An operational KFS strategic plan Policies/Actions Together with other stakeholders, KFS should develop procedures and contents of forest management plans Milestone Stakeholders Forest management manual KFS, published by December Conservancy 2007 committees and NGOs Arrangements for recruiting Clear job descriptions staff to the KFS should be published for senior KFS published well in advance and staff by December 2007 clear job descriptions should be prepared The new Forestry Policy should Forestry Policy given a be approved by the Parliament new sessional paper as soon as possible and kept number and approved by under review. Parliament by December 200 KFS Board of Directors MENR, Expected Outcomes Transparent process of development of forest management plans in place Staff morale improved New Forestry Policy in place Policy Action Matrix Priority Area 2: Enabling Community Participation and Cost Benefit Sharing Policies/Actions Milestone Guidelines should be prepared on Guidelines to be the establishment of community provided by forest associations (CFAs( CFAs) ) and the December 2007 rules that should apply to formation and registration of associations. Stakeholders to be involved Communities, NGOs, KFS Expected Outcomes Empowered communities that understand the role and opportunities Introduction of rules to ensure fair election and representation of CFAs on area conservation committees. Formation of umbrella forums for NGOs, all CFAs and Forest Conservancy CFAs well coordinated and fairly represented at conservancies by Committee FCC June 2008 (FCC), universities Undertake studies within each Forest Conservancy Area to identify the specific community benefits that can be promoted in these areas Studies of community benefit undertaken by June 2008 KFS, NGOs, CFAs, universities, local communities Policy Action Matrix Priority Area 3: Enhancing Investment in the Forest Sector Policies/Actions Each of the forest management plans should include an investment strategy Milestone Stakeholders to be involved Develop a number of KFS, CFAs, business plans for different private sector forest sites to be ready by June 2008 KFS should prepare model Preparation of model concession contracts and agreements laying out agreements and make rights and responsibilities these available for parties of different parties and products covered by December 2007 Urgent steps are required to promote restructuring of the forestry industry and to raise overall standards. Set up a Forest Industry Forum by December 2008 KFS KFS in consultation with all stakeholders Expected Outcomes Investment plan linked to forest management plans Transparent contracting Forest Industry Forum established Lessons learned Key characteristic of the Kenya SEA process: The diversity of the team members and the focus on major forest issues enhanced the SEA process. As a new process in Kenya, it opened weaknesses in implementation of the Act and provided ideas on how to handle them during implementation of the Act. The future of SEA: More time should be allocated with government officials and the focal institution in the SEA process. The main output of the SEA output (Policy Matrix) should be closely monitored to enhance change for the better. Key factor for a SEA to be useful in government actions: Creation of a good working relationship with government from the onset. Lessons learned Getting to hear views from weaker and vulnerable stakeholders. Getting them to share their views/ideas in workshops involving high level participants does not usually work. Though there was representation of community groups by their leaders in workshops, this may not in reality mean that the vulnerable groups were represented. Ground consultations in diverse areas should therefore enrich the SEA process. 7

8 Lessons learned Role of stakeholders: The governments role especially at the Forest Department level was to guide the SEA team on policy actions already been undertaken by the reform committee and the department and like other stakeholders, own the process. Local community involvement enables the SEA team to conceptualise their capacity limitations and inadequacies in implementation of the Act. Donors (more the WB) played a key role in identifying actions to be funded by the bank. Other donors expected to also use the matrix on this. The role of the SEA team was more of a facilitation one to generate ideas from stakeholders. Next steps The Kenya Forest Sector Reform Secretariat should be the coordinating body for the implementation of the SEA s policy action matrix. Follow up workshops to monitor the implementation of the Act to be conducted. New KFS to work with development partners to agree on how different components of the SEA policy action matrix will be funded. To ensure that the matrix is a living document, it should be made accessible to all key stakeholders and efforts made to periodically update the status of specific actions in the matrix. 8