THE UNIVERSITY OF LEIPZIG

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.
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