Degazettement and Denotification of Protected Wildlife Areas in Kenya and

TanzaniaABCG Meeting, Washington, DC, Nov. 11,

2010

Dwasi Jane, OCRA, UONjakinyidwa@yahoo.co.uk

Objectives of Presentation

• Share findings• Share information on new developments that

have impacts on both degazettement and denotification in Kenya and their impacts

• Terminology :• Degazettement – bringing the existence to an

end• Denotification – down-grading

The Study• Objectives- review, evaluate and document policies,

laws and actual practice of D & D of PWA to determine:

• Methodology – literature review, key informant interviews, case studies

• Isolated reports on related subjects but very little literature on degazettement and denotification

• Difficulty in accessing government records• Research questions – PP fair & democratic?, allow

PP? the practice of DD; does practice conform to law & policy?

Findings on The Structure of WL PAs in Kenya and Tanzania

Kenya• Only 2 types of PWAs – NPs and GRs• NPs – 29 – various sizes• GR – 34 – various sizes• Ownership and management – KWS & Las• Community conservancies/ private ranches? –

voluntary regulations – outside the scope of the study

Findings on The Structure of WL PAs in Tanzania

• Key feature – Tanzania has five main categories of PAs :

• National parks, marine parks& reserves, species protected areas, game reserves, game controlled areas, Ngoro Ngoro Conservation Area and wildlife management areas (WMA) – more than 60 different kinds of Pas across the country

• Each category is governed by a distinct Act of parliament, eg, National Parks – NPAct

• All are governed by other laws, eg, EMA /04

Findings on The Structure of WL PAs in Tanzania: Cont.

• Key features – central government ownership and control of all WL resources in the country

• However, no single central government authority/agency in charge – management structure comprises various government agencies – Ministry of Nat Res & Tourism, with various govt. agencies below, eg, TANAPA,

NNCAA, Wildlife Division within the Min. of Nat Res, etc

Findings on Policies

• Significance of policy: authoritative statements indicating government recognition of specified challenges and national goals and setting out government commitment to address the challenges, along with proposed measures for address of challenges & realization of goals.

• Usually, policies specify the requirement of law, among other measures, to address specified matters.

Findings on Policy: Cont.

• Significance of policy: Directs and informs subsequent government efforts to address specified challenges and realize specified goals.

• provides an indication of the legal landscape one should expect for matters of concern

Findings on Policy - Kenya

• Key policy question: does it authorize D & D, allow PP, cost/benefit analysis, etc?

• Policy on Wildlife Management in Kenya – 1975 – Sessional Paper # 3/75

• Attempted to accommodate various interests existing at the time of its creation – communities, government, tourism, park-adjacent communities, etc – includes provisions for public participation

• Specifies policy objectives

Findings on Policy: Kenya (D & D)

• Denotification – Policy has no express provision for denotification. However, it allows regular review of land uses, including use of PWA to determine the most productive use – may down grade a NP to allow multiple uses

• Degazettement – Expressly provides for abolition of NPs and GRs – proposed by the President and approved by the National Assembly

Findings on Policy: Tanzania (D & D)

• Arusha Manifesto – sets the tone – “we will do everything in our power to make sure that our children’s grand children enjoy this rich & precious inheritance”

• Wildlife Policy of 1998• Wildlife Policy of 2007• Tanzania’s policies have no provisions for degazettement or

denotification• WL policy is in favour of maintaining existing WLPAs and

creating new ones- • Is there provision for PP? only refers to private sector

particip. in wildlife management and investment

Findings on the Law: Kenya

• Key question: might the law in one or both of the countries have changed the policy positions with regard to D and D? allow PP?

• Kenya – WMCA – 1976 – sections 7 & 8– authorize both D & D

• Section 7 authorizes the Minister to declare an area existing as a national park or game reserve to cease to exist as such after following prescribed procedure.

Findings on the Law in Kenya

Procedure for Degazettement:• Minister’s consultation with the competent

authority (KWS, respective LA);• Issue a public notice of intention to degazzete;• In the notice, invite public comments – 60 days• EIA – EMCA – major change in land use• Seek Parliament’s approval• Issue degazettement notice

Findings on the Law in Kenya

Procedure for Denotification• Once an area ceases to exist as a NP, section 8 of

the WMCA may be applied to begin and complete the process of establishing a GR in an areas formerly a NP – consultation with competent authorities, invitation of public comments, issuance of a gazzete notice declaring an area to be a GR.

• No outright denotification – a NP has to first “cease to exist” as such.

Findings on the Law in Tanzania: Degazettement and Denotification

Degazettement – consider the various categories of PAsand provisions of the respective laws: National parks – can be degazetted – section 4 of the NPA – Parliament must approve degaz. by an Act of

Parl. authorizing the President to revoke the proclamation for its establishment + EIA & SEA;

-marine parks – section 10 of MP & Reserves Act – Parliament must resolve to revoke its establishment + EIA & SEA;

Findings on the Law in Tanzania: Degazettement and Denotification

Degazettement: Cont.-NNCA – NNCA Act is silent on D & D;-WMA – WMA Regulations of 2005 – may cease

to exist, procedure is prescribed-Game reserves and game controlled areas can

also be degazetted under the respective statutes

Findings on the Law in Tanzania: Degazettement and Denotification

Denotification• NP can be down graded but must be approved by an

Act of Parliament;• NNCA – cannot be downgraded• Game reserve – can be down graded – require

Parliamentary approval• Game Controlled Areas – can be downgraded, say, to

WMA• WMA – not “downgradable ” – being the lowest levels

of WL management.

Overall findings: Practice of D & DKenya:• Only one case of denotification – amboselly – hotly contested;• Only one case of total degazettement – Ngaai Ndethya National

Reserve• Four cases of partial degazettement – Maasai Mara, Marsabit,

Kiunga MNR, Kisiti, Watamu• In none of the cases was the procedure prescribed by law

followed;• Procedures are, in law and policy, democratic – allow public

participation but not in practice• In all the cases, degazzettement resulted in transfer of public

land to private individuals & entities – WPA size reduction

Overall findings: Practice of D & D

Tanzania• No case of degazettement or denotification of a NP• 4 Pas (one GCA and 3 GRs) degazetted by legal

notices without following legal procedures and for unspecified reasons – No PP allowed in the process

• Defacto degazettement of many GCAs – many are thoroughly degraded by human activities but no govt. restorative action

• General tendency to create more PAs

Overall Recommendation on Degazettement & Denotification

• In both countries, care ought to be exercised to ensure that any proposal for justifiable degazettement or denotification does not attract land grabbing by private persons

New constitutional developments in Kenya and likely impacts

• Make it harder to degazette or down grade PWAs

• D & D of game reserves would require approval of the respective county governments, first – Art 62(2), then approval by an Act of the national Parliament – art 62(4)

• Sovereign power belongs to the people – Article 1

New constitutional developments in Kenya and likely impacts

• Art. 62 (4) – can only use public land in terms of an Act of Parl. Specifying the nature of use

• Public land within the jurisdiction of counties are vested in the counties, to be administered by National Land Commission