THE UNIVERSITY OF LEIPZIG

the Constitution. The Constitutional provision for setting aside Trust Land is intended to
provide a mechanism for the direct involvement of the people in managing their resources.
This Chapter stipulates that Trust Land shall be vested in local authorities for the benefit of
communities resident in the area. 482
Chapter 9 of the Constitution also outlines the conditions and procedures under which Trust
Land may be set aside for other purposes through an Act of Parliament or through a request
from the President. This may be for the purposes of public utility, for the prospect of minerals
or any other purpose that a county council may deem to be of benefit to the people resident in
its area of jurisdiction. Trust Land represents the largest land area in Kenya and as of
December 1995 the total area classified as Trust Land was estimated to be 457,449 sq. km
representing approximately 78% of the total land area of Kenya. Some areas of Trust Land
are set aside as National Reserves under the Wildlife Conservation and Management Act
(Cap.376) and managed by the local authorities. An estimated 100,000 hectares of close
canopy forest is currently found on Trust Land outside these National Reserves. This is
approximately 7% of the total closed canopy forest area in Kenya. 483
Chapter V; Section 75 of the Constitution of Kenya recognises and provides protection from
deprivation of private property. This section specifies the conditions under which the rights to
private property can be forfeited, for example through compulsory acquisition by the
government. This provision can be used to protect forest catchment areas and can also provide
for measures intended to protect and preserve the environment from abuse, pollution and
degradation and to manage the environment for sustainable development. The section
inherently informs that projects relating to the environment have to be subject to a rigorous
national level decision-making. Such projects may include irrigation, power production,
industrial works, multi purpose water works among others. The above analysis shows that
environment and biodiversity protection issues must be explicitly located and therefore
fundamentally registered in the national constitution. It should further be noted that national
constitution by its very nature is a social contract aimed at promoting and advancing basic
interests and rights of the governed. Environmental rights fall under such a realm of rights
and as a matter of fact such basic rights need to be explicitly written in the national
constitution. 484
Furthermore, arising from the current threats to natural resources in Kenya, it is important that
such rights should be overtly mentioned in the country’s supreme governing law; more so in
an explicit, fundamental and bold character. 485 This would highlight the continuing
importance of such rights and imposing upon the state a solemn obligation to preserve and
protect environmental resources along traditional guardianship. Having pointed out how
political patronage contributed to the current biodiversity decline in Kenya, it is of glowing
482
The Constitution of the Republic of Kenya. Chapter 9 Section 114-120.
483
Wass, P. 1995. Kenya’s Indigenous Forests: Status, Management and Conservation. Nairobi:IUCN.
484
KIFCON. 1994. Kenya Indigenous Forest Conservation Programme: Phase I Report. Kenya IndigenousForest
Conservation Programme. Nairobi.
485
Edward, C. 1999. What did the Constitution mean for the early Americans? New York: St. Martins Press.
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