EXISTING LEGAL FRAMEWORK ON BIODIVERSITY
The management of biodiversity is currently provided for under a number of international frameworks. The frameworks have been adopted in Kenya
Internationally the management of Biological diversity has a history dating back to the 70s and that history indicates that the management of biological diversity on the whole has been sectorial in nature in many of the countries including Kenya. It has focussed on managing bio-diversity through the regulation of specific aspects of biological diversity.
- An early convention is the Convention on International Trade in Endangered Species known as CITES. CITES was adopted in 1974 in Washington DC. It focuses on regulating cross-border trade on species which are in danger of extinction.
- The second Convention is the Ramsar Convention. This is a 1971 Convention adopted in Ramsar, a city in Iran. It is a convention on Wetlands of International importance as Waterfowl Habitat that protect biological diversity.
- In 1992 the Convention on Biological Diversity (CBD) was adopted in Rio De Janeiro in Brazil. It established a comprehensive framework for the management of Biological Diversity.
There are many other conventions and protocols which Kenya is party to they include:
- African Convention On The Conservation Of Nature And Natural Resources (1968)
- Convention on the Conservation of Migratory Species (CMS) (1979)
- World Heritage Convention,
- the Cartagena Protocol on Biosafety of CBD
- Nagoya Protocol on access to genetic resources of CBD
The government of Kenya has enacted several policies and legislation to help streamline the activities of institutions which manage biodiversity resources ie address protection of individual species, the protection of ecosystems and also promote sustainable use of resources in Kenya.
Constitution of Kenya, 2010. Part 2. Environment and natural resources, Section 69. Obligations in respect of the environment
(a) ensure sustainable exploitation, utilisation, management and conservation of the environment and natural resources, and ensure the equitable sharing of the accruing benefits;
(b) work to achieve and maintain a tree cover of at least ten per cent of the land area of Kenya;
(c) protect and enhance intellectual property in, and indigenous knowledge of, biodiversity and the genetic resources of the communities;
(d) encourage public participation in the management, protection and conservation of the environment;
(e) protect genetic resources and biological diversity;
(f) establish systems of environmental impact assessment, environmental audit and monitoring of the environment;
(g) eliminate processes and activities that are likely to endanger the environment; and
(h) utilise the environment and natural resources for the benefit of the people of Kenya.
(2) Every person has a duty to cooperate with State organs and other persons to protect and conserve the environment and ensure ecologically sustainable development and use of natural resources.
Section 70. Enforcement of environmental rights
Section 71. Agreements relating to natural resources
Important Policies and Legislations framework
- The Wildlife Management Policy and Wildlife Conservation and Management Act, 2013. provide for the protection, conservation, sustainable use and management of wildlife in Kenya
- The Forest Policy and the Forest Conservation and Management Act, 2016. to give effect to Article 69 of the Constitution with regard to forest resources; to provide for the development and sustainable management, including conservation and rational utilization of all forest resources for the socio-economic development of the country
- Fisheries Management and Development Act, 2016 (No. 35 of 2016) provide for the conservation, management and development of fisheries and other aquatic resources to enhance the livelihood of communities dependent on fishing and to establish the Kenya Fisheries Services.
- Environmental Management and Co-ordination Act, 1999 (Cap. 387) provide for the establishment of an appropriate legal and institutional framework for the management of the environment
provide for the establishment of the National Environment Management Authority(NEMA) .The role of NEMA is to supervise and coordinate all matters relating to the environment, and to serve as the principle instrument of Government in the implementation of environmental policy. Its functions are to coordinate the activities of environmentally relevant bodies in order to promote rational use and sustainability
- Wetlands Conservation and Management Policy and Environmental Management and Co-ordination (Wetlands, River Banks, Lake Shores and Sea Shore Management) Regulation, 2009 (Cap. 387) make provision for the management, conservation and sustainable use of wetlands and wetland resources and the sustainable utilization and conservation of (resources on) river banks, lake shores, and the seashore.
- Environmental Management and Co-ordination (Conservation of Biological Diversity and Resources, Access to Genetic Resources and Benefit Sharing) Regulations, 2006 (L.N. No. 160 of 2006). These Regulations concern the conservation of biological diversity in Kenya and the control on access to genetic resources of Kenya
- Environmental (Prevention of Pollution in Coastal Zone and other Segments of the Environment) Regulation, 2003 (Cap. 387). These Regulations concern the prevention of pollution that can affect the coast, in particular oil pollution.
- The Science, Technology and Innovation Act No. 28 of 2013 recognize Kenya Marine and Fisheries Research Institute (KMFRI) KMFRI as a national research institution under section 56, fourth schedule. to undertake research in “marine and freshwater fisheries, aquaculture, environmental and ecological studies
- Kenya Agricultural and Livestock Research Act of 2013, Establishes the Genetic Resources Research Institute (GeRRI) for conserving and sustainably use plant genetic resources, animal and microbial genetic resources.
- Kenya Water Towers Agency Order, 2012 (L.N. No. 27 of 2012). This Order establishes a state corporation to be known as the Kenya Water Towers Agency. The Agency shall, among other things: (a) coordinate and oversee the protection, rehabilitation, conservation, and sustainable management of water towers; (b) coordinate and oversee the recovery and restoration of forest lands, wetlands and biodiversity hot spots (i.e. unique habitat with rare and diverse animals, organisms and endangered species, which is under threat of extinction)
- Agriculture (Farm Forestry) Rules, 2009 (Cap. 318). These Rules, made by the Minister for Agriculture, upon consultation with the Central Agricultural Board under section 48 of the Agriculture Act, require farmers to establish and maintain farm forestry on at least ten percent of every agricultural land holding. One of the objectives of the Rules is to preserve and sustain the environment and combating climate change and global warming. Other declared objectives include: the conservation of water, soil and biodiversity; the protection of riverbanks
- Agriculture Act (Cap. 318). to promote and maintain a stable agriculture, to provide for the conservation of the soil and its fertility and to stimulate the development of agricultural land in accordance with the accepted practices of good land management and good husbandry.
- Land Act, 2012 (No. 6 of 2012). makes provision for a wide variety of matters regarding public and private land and community land (as defined respectively by Articles 62, 63, 64 and 260 of the Constitution), and in particular provides of the sustainable administration and management of land and land-based resources.
- National Museums and Heritage Act (Cap. 216). to provide for the establishment, control, management and development of national museums and the identification, protection, conservation and transmission of the cultural and natural heritage of Kenya
- Traditional Knowledge and Culture Expressions Act 2016,seeks to enable communities to control the use of culturally significant and economically valuable knowledge and expressions. Biodiversity and indigenous knowledge are important resources for Kenya’s economic development, as recognized in the Constitution (Article 11(2)(c)