THE UNIVERSITY OF LEIPZIG

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importance that provisions relating to the environment and biodiversity for that matter should be well entrenched in the nation’s supreme governing law book. Within the constitution, environmental provisions may further be adduced in form of a declaration of public policy or as fundamental rights. While the former provisions normally prescribe enforceable rules, the fundamental rights expressly provide actionable obligations. However, often constitutional provisions have a combination of both. 486 The 1998 Constitutional Review Act grants the Parliament power to facilitate the comprehensive review of the Constitution by the people of Kenya and its eventual alteration. A reviewed constitution may have far reaching implications on existing legislation and institutions mandated with the management of biodiversity 487 resources in the country. The current constitutional amendment process in Kenya presents an opportunity to have significant contributions that relate to constitutional protection of the environment and biological diversity in particular. Accordingly Harrison notes that discussions can go to great length as long as formulations can lead to creation of effective and durable action plans for long-time environmental governacne. 488 Harrison cautions that actors involved should be committed in terms of funds and manpower. He calls for further government commitment, with all government departments and agencies pulling the same way to ensure consistency and durability. 489 In short, provisions concerning the environment and specifically biological diversity should be constitutionally entrenched like it is the case in Malawi and a host of other African countries, including Equatorial Guinea, Ethiopia, Burkina Faso, Malawi, Ghana, Lesotho, and South Africa. 5.3 The Ownership and usage of Biodiversity in the Kenyan context The biodiversity or environmental sector is divided into different aspects in the purview of usage and ownership. This is found at two levels. The first level is that of the state, if one looks at it from a state like perspective in form of central and regional or provisional governments. The other level is at the private and communal and/or local level arrangement. At the statist level, biodiversity is fragmented into different categories, governed by different sub-sectors and ministries. These range from biodiversity for agricultural usage, marine to food security and so on. 490 Coordination in regard to mandate among various agencies is not only minimal but also complicated and hard to achieve. The Ministry of Environment and Natural Resources is mandated to coordinate the ownership and usage of biodiversity as well as to steer the policies and programmes relating to the same. There is however little inter-sectoral coordination in as 486 Maarseveen, H and G. Tang. 1978. Written Constitutions: A computerised Study. Newyork: Oceania Publications. 487 Juma C. and J.B. Ojwang.1996. In Land We Trust: Environment, Private Property and Constitutional Change in Kenya. Nairobi: ACTS. 488 Harrison, P. 1989. The Greening of Africa. London. Paladin Grafton Books. 489 Ibid. 490 GOK. 1999. Sessional Paper No.6 on Environment and Development. Nairobi. 102
far as ownership is concerned. As a result several administrative divisions exist. This lack of coordination is visible and even multiplied at the policy level. 491 The case of Kenya Wildlife Services and the Forest Services affords a glowing example. Institutional disorder creates uncertainty, resulting into an unclear organizational mandate. 492 For instance, prior to 1988, parks were managed as a government department. From 1989– 1991 they were transferred to a corporate management organisation as a body incorporating some form of community involvement. However, this was not achieved because the basis of this shift was partly a philosophical one involving the concept of "parks without borders", yet at the same time maintaining the fines and fences paradigm. 493 Private or communal ownership of biodiversity is linked to land ownership. 494 This is difficult to regulate given the obscure regulatory legislation. This arises out of the fact that land has a multiplicity of uses and users. 495 It will be recalled that this is very typical of common pool resources and linked to Hardin’s tragedy of commons. As expected, it leads to inequities, uncertainties of various kinds as well as conflicts, given the fact that land ownership rights are in most cases skewed. 496 Furtherstill, it is important to note that when we talk of private ownership of biodiversity, we are inadvertently linking biodiversity to land rights which leads to unmitigated tapping and unregulated usage by the varied sections of society. This has far reaching repercussions on conservation efforts especially in the rural areas. It is further complicated by the fact that up to 80% of the populations in these areas use the land for cultivation and other livelihood activities. 497 Efforts to control the over exploitation of the nation’s biodiversity have already focused on the regulation through the legal and administrative control over its usage. These attempts have seen the amending of several of the existing legislative regimes that indirectly relate to biodiversity. These amendments include the new Forest Act, the amended Wildlife Act, the Water Act, the Timber Act, the Agriculture Act, the Environment Management and Coordination Act, the Chiefs Authority Act, the Tress pass Act and the Mining Act among others. Within these acts, issues relating to biodiversity ownership are still not well defined, a fact that renders their implementation an insurmountable task. For instance, like we noted earlier, private and local owners of biodiversity view it in form of land ownership. This makes it hard to draw a distinction between community land, public or private land. Sometimes the state has prevailed and used this complex situation to retain ownership of community land in 491 Fischer, E. 1996. Habitat Conservation Planning under Endangered Species Act: No Suprises and the Quest for uncertainty. University of Columbia Land Tenure Review 76:371-405. 492 Ostrom, E. 1986. An Agenda for the Study of Institutions. Public Choice 48(1): 3-25. 493 KIFCON. 1994. Opcit. 494 Ibid. 495 Okowa-Bennun, P and M.Mwangi. 1996. Land Tenure and Forest Resource Management in Kenya. In In Land We Trust: Environment, Private Property and Constitutional Change in Kenya, edited by Juma C. and J.B. Ojwang, 175-198. Nairobi/London Zed Books. 496 Bromely, D.W. 1995. Natural Resources Issues in Environmental Policy in South Africa. Madison: University of Winscosin, Land Tenure Centre. 497 David, S. 1997. House hold Economy and Traditional Agro-Forestry Systems in Western Kenya. Agriculture and Human Values.14:169-79. 103
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INSTITUTIONAL DILEMMAS IN TROPICAL
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Dedication This work is dedicated i
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7.4 COLLECTIVE COMMUNITY ACTION AND
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UNDP United Nations Development Pro
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1 Introduction 1.1 Introduction Ken
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are mediated into the national poli
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Giddens notes that linking agency a
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foreign exchange controls made the
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and to preserve the different fores
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Map 2: Landsat ETM+ (7) satellite i
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egimes. 46 Yet national regimes gov
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Institutions and Institutionalism:
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learn that in practice, the definit
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The above revelations show the disc
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technologies. This kind of thinking
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The social movement’s notion arti
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1.8 Methodology The choice of resea
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Sources of data Data for this study
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knowledge, opinions, notions in rel
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2 Theoretical Considerations 2.1 In
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opposed to particularistic in the i
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constraints have to be applicable t
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process is a product of both extern
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position also influences actors’
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to a specific choice problem, which
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communications and authority relati
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the subsequent lack of general or s
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generally. Historical institutional
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can have remarkable consequences at
Page 59 and 60: myths and ceremonies devised by man
Page 61 and 62: In light of the above postulation,
Page 63 and 64: among inter ethnic relations. 273 D
Page 65 and 66: also important for maintaining the
Page 67 and 68: what sort of environment is left fo
Page 69 and 70: Rittberger called it “institution
Page 71 and 72: of governance. 314 For instance, fo
Page 73 and 74: and his claims. Hence it is the fun
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Page 77 and 78: environmental externality function
Page 79 and 80: Wear observes that the enhancement
Page 81 and 82: 4 Biodiversity, local decentralisat
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Page 85 and 86: national level. At the local level
Page 87 and 88: declared a ban on felling indigenou
Page 89 and 90: 4.2 Institutionalism, local decentr
Page 91 and 92: iodiversity change been altered, bu
Page 93 and 94: We shall use the term participation
Page 95 and 96: known as community forest user grou
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Page 99 and 100: upholding of the social values and
Page 101 and 102: The social-cognitive dimension can
Page 103 and 104: as goods and certain services, and
Page 105 and 106: In summary, in this chapter we have
Page 107 and 108: This is compouded by glowing struct
Page 109: the Constitution. The Constitutiona
Page 113 and 114: maximum spring discharge level. 501
Page 115 and 116: During pre-colonial times, issues o
Page 117 and 118: whose boundaries could not be alter
Page 119 and 120: Although Kenya’s policy and legal
Page 121 and 122: egeneration thereof or biodiversity
Page 123 and 124: marine and fresh water resources an
Page 125 and 126: In addition, the director of Agricu
Page 127 and 128: Gottfried suggested that natural re
Page 129 and 130: Based on the review and analysis of
Page 131 and 132: Furthermore, issues of monitoring a
Page 133 and 134: players, especially given the role
Page 135 and 136: household was 6. Adults are here de
Page 137 and 138: eadily available for the researcher
Page 139 and 140: It is imperative to appreciate that
Page 141 and 142: tragedy for the entire household, c
Page 143 and 144: Table 6.6 Why persons are named aft
Page 145 and 146: the extreme lowland side, the area
Page 147 and 148: on the forest biodiversity is neith
Page 149 and 150: settling around the Mount Elgon are
Page 151 and 152: concluding the ceremonies with the
Page 153 and 154: Gender, cropping systems and labour
Page 155 and 156: ural livelihoods, it became the foc
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Page 159 and 160: Like we have earlier noted, most of
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When asked how such people (Custodi
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7 Historical and Sociological Insti
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Biodiversity and customary law in K
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education and a majority of social
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Put in the context of Kakamega, it
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with one of the Tirirki elders, the
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places, there was an array of reaso
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Further still, it was discovered th
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7.4 Collective community action and
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development of various community re
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Other scholars in the area of prope
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for instance, where common property
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8 Summary and Conclusions 8.1 Recap
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Conclusions The overall objective o
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already exits within the Luhya reso
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sense, the community conserved area
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management such as Kakamega, these
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We have already indicated that like
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prohibiting the use of natural reso
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economic and cultural values with a
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The wider and long-term implication
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will make it much more difficult to
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8.5 Summary The findings that have
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initial conditions, path dependence
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References BOOKS Adrian, P. 2003. T
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Downs, R. E. and S. P. Reyna. 1988.
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Kanyinga, K. 1994. Ethnicity, Patro
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Neisser, U. 1967. Cognitive Psychol
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Strathern, M. 2000. Environments wi
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Reardon, T and Vosti, S. A. 1995. L
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Krhoda, G. 1998. What Ails Kenya's
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Strathern, M. 1996. Potential Prope
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Colchester, M. 2003. Conservation P
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Murombedzi, J. 1998. The Evolving C
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Newspapers The Daily Nation Karura
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List of Figures and Maps Map 1 Map
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Response Codes Snakes Monkeys Frogs
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Section 3. Usage and management for
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Code How often are such ceremonies
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Section 5. Management of local know
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Code Who is responsible for growing
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Appendix B. Schedule of organizatio
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The interviews focused on the confl
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Appendix D. Bibliographic schedule
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Versicherung Ich versichere, dass i
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THE UNIVERSITY OF LEIPZIG

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