THE UNIVERSITY OF LEIPZIG

ights relating to biodiversity, a situation which usually degenerates into forced access to most
of the conserved resource regimes. 533 Given the existing institutional inadequacies and
inconsistencies, enforcement has largely become hard even in the post independence era. This
results from the varied users and uses of biodiversity, ranging from the provision of food,
direct economic benefits, to promotion of culture. 534
In light of the above, the different post independence legal regimes relating to biodiversity
management ought to have taken into consideration the aspirations of these different users. 535
Although the Kenyan Wildlife Services seems to portray this in its public memorandum, the
fact remains that biological diversity is strictly and closely controlled by government. Both,
the pre and the post-independence legal regime relating to biodiversity undermined and
consequently weakened the traditional institutions of natural resource management in
Kenya. 536 The new institutions of resource management alienated the local people hence
taking away conservation roles from the natives. 537 This is illuminated by the laws that were
finally enacted.
The existing legislations make mutual existence almost impossible and this in part explains
why cases of encroachment on biodiversity remain high. Thus, because of this state of affair,
the governmental biodiversity governance regimes have largely remained unmitigated and
subsequently less effective. Nagendra, like many scholars in the realm of biological resource
usage has pointed out that in governing common pool resources such as forests, there may be
conditions that tempt individuals to cheat and gain substantially higher benefits. This happens
especially when rule mitigation and compliance is weak. 538 In light of such a scenario,
resource commons in this regard are bound to be vulnerable to externalities. This significantly
obtains in the Kenyan resource regime structure.
5.5 Current legal and policy regimes in conservation of biodiversity
In the opening section of this chapter, we did mention that although biodiversity is an
important national resource, it does not appear in the provisions of the supreme law in Kenya.
Further still, there are no clear cut policies that are spelt out for conservation of biodiversity as
a resource. Furthermore, there are no provisions for local biodiversity notions. However,
issues relating to biodiversity conservation are entailed in scattered, divergent legal and policy
frameworks. This means that, in order to analyse the institutional approaches in biodiversity
management entails an evaluation of related acts and policies. The study will detail itself on
the following acts: The Forests Act, the Wildlife Conservation Act, the Agricultural Act and
the Environmental Management and Coordination Act.
533
Fischer.E Opcit.
534
Conservation awareness, The Daily Nation April 17 1997.
535
Kenya will not allow the hunting of Wildlife. The Daily Nation September 1997.
536
Ibid
537
The Kenya Wildlife Act Cap376 Section 34(c), of the laws of Kenya.
538
Nagendra, H. 2002. Tenure and forest conditions: Community forestry in Nepal.Terai. Environmental
Conservation 29:530–539.
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