THE UNIVERSITY OF LEIPZIG

marine and fresh water resources and as well the ozone layer. 556 As earlier noted, the Act
creates NEMA as the agency responsible for the implementation of specified clauses of this
Act. In relating this act to institutional related aspects, Section 43 of the Act points out that the
interests of local communities customarily resident within and around lakeshores, wetland,
coastal zones, riverbanks or forest can be declared to be of protected interests. 557
The Act however, does not define what protected interests are and for whom. This
shortcoming as earlier pointed out, is consistent in most of the legal regimes. Since protected
interests are not well defined, utilisation and conservation becomes suspect. This same fact is
illustrated by Section 54(2) which states that a Minister in consultation with the lead agency
can declare an area of land, sea, or river to be a protected natural environment for the purpose
of promoting and preserving specific ecological processes, natural environmental systems,
natural beauty or species of indigenous wildlife or the preservation of biological diversity in
general. More still, using Section 54(2), the National Environment Management Authority
(NEMA) may issue guidelines and prescribe measures for the management and protection of
any area considered to be of environmental significance under the section. 558
An informed analysis of the above sections and several others portrays a picture of a legal
framework aimed at extreme formalisation of environment and biodiversity management in
particular. Though this is aimed at preventing further destruction of the environment and
biodiversity including that found in private and commonly owned resources, it may face a
dilemma of misperception. The Act is also at variance with informal institutions such as
customary law in the management of environment or biodiversity. More so, the Act curtails
customary rights of access to environmental resources and proposes no steps for
compensation to affected communities or individuals. 559
Therefore given such an evaluation, structuring and mediation of formal and informal
institutions co-existence in regard to biodiversity is of paramount importance. We ought to
appreciate March and Olson who put it that mediation between formal and informal
institutions is imperative because it constrains individual behaviour. 560 It also goes without
saying that institutions constrain the actions of individuals hence individual behaviours are
bounded to some degree. This similar situation can be likened to what Khadaha and Gurung
described as a catch–all strategy in relation to the Forest Nationalisation and Management Act
in Nepal. The duo mentions that when the Nepalese Government nationalised the country’s
Forests, it took away collective and individual control of local forest resources. Thus
communal responsibility for forestry management rapidly disappeared in the country. Forests
were converted into open access areas as a common property resource, with communities
having no stake in forest preservation. Yet at the time of nationalisation, the state was unable
556
The Kenya Environment Management and Co-ordination Act, Article 9(2)o.
557
The Kenya Environment Management and Co-ordination Act, Section 7.
558
The Kenya Environment Management and Co-ordination Act, Section 54(2).
559
The Kenya Environment Management and Coordination Act, Section 54(1).
560
March.E and J.P Olson .1984. New Institutionalism: Organisational Factors in Political life. American
Political Science Review 78: 9734-749.
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