14. Forests (Harvesting) Rules, 2009

The Regulations provide for rules guiding the harvesting of trees used in housing construction from forests.

Quick Link: https://new.kenyalaw.org/akn/ke/act/ln/2009/185/eng@2022-12-31

· These Rules were published vide Legal Notice No. 185 of 2009 and apply to commercial harvesting of timber in state forests, provisional forests, registered private forests, and local authority forests.

· Regulation 4 provides that no person may harvest timber in a state forest, provisional forest, a local authority forest or a registered private forest without a valid license except where: the tree has reached the final felling age; for purpose of selection thinning; for sanitary harvesting to remove the sick or dead ones; or reconstruction harvesting to cut down on non-productive ones.

· Regulation 8 even provides for the stump height and top diameter that is accepted before harvesting for both indigenous stock and cultivated plantations.

· The effect of these Rules is to increase the cost of timber by limiting its availability due to restrictions on felling and who can fell trees in forests, yet timber is a crucial construction material.

· Further and in this regard, the Ministry of Environment issued a moratorium or a ban on logging in all public and community forests in February 2018 to improve on the tree cover and reach the desired 10% as required by the Constitution.[1] This moratorium is still in place after it was extended and continues to limit supply of timber thereby increasing its cost.[2]

· Recent data indicates that while the ban on logging has helped improve tree coverage in the country, it has had consequences particularly on the construction sector. A study by Kenya Forestry Research Institute (KEFRI) shows that since the ban, the price of timber increased by 22.7 percent even though the construction and building industry in Kenya consuming in excess of 8 million cubic metres of timber every year.[3]

· In July 2023, the President of Kenya while addressing the public in Molo communicated the government’s directive to lift the six-year moratorium on logging in public forests allowing for the harvest of mature trees that were rotting. The moratorium which was imposed back in 2018 with the aim of curbing deforestation, particularly of indigenous trees by illegal loggers resulted in the increase of the cost of timber. This was mainly due to importation to meet timber supply deficit.

· Following a challenge on the lifting of the moratorium by environmentalists and civil society groups, the Environment and Land Court in Law Society of Kenya v Attorney General & 3 Others; Katiba Institute & 6 Others (Interested Parties) (Environment & Land Petition E001 of 2023), the Court held that:

a) Any law governing logging activities such as lifting of the moratorium on logging, should be subject to public participation; and

b) Declaration that the lifting of the moratorium on logging activities was a nullity as it lacked public participation.

· Relying on the reports by the Taskforce on Forest Resource Management and Logging and the Multi-Agency Oversight Team, the Court allowed for the disposal of 5,000 hectares of mature trees in accordance with the Environmental Management and Coordination Act, the Forest Conservation and Management Act, the Forest (Participation in Sustainable Forest Management) Rules 2009 and the Forest (Harvesting) Rules, 2009.

· Accordingly, there is need for a review of current licensing of forest logging as well as consideration to be given to lifting the moratorium on logging.

· There is also need to attract private sector players by expediting the approval of the concession policy and subsidiary legislation which will guide the concession management framework. In addition, incentive mechanisms should be availed to promote private sector and farmers’ investment in commercial tree growing to reduce pressure on public forests and readily provide more timber that may be used in the construction and building industry.

· Additionally, there appears to be competing and potentially conflicting policy objectives where the Government seeks to promote affordable housing agenda while adhering to the constitutional dictate of increasing forest cover. Attention should be devoted into how the two policy objectives can be harmonized through promoting sustainable forestry, instead of total ban on logging.

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[1] <http://www.environment.go.ke/wp-content/uploads/2018/11/4048264.pdf > The Government banned timber harvesting in 1999 up to 2012 and then imposed a second moratorium in 2018 to date. There was a partial lifting of the ban on logging in 2021 to allow for harvesting of mature trees.

[2] Barnabas Bii, ‘State at a crossroads as logging ban takes a toll on businesses’ (Business Daily, August 11, 2021) <https://www.businessdailyafrica.com/bd/data-hub/state-at-a-crossroads-as-logging-toll-on-businesses-3507206 >

[3]J Kagombe, J Kiprop, D Langat, J Cheboiwo, L Wekesa, P Ongugo, MT Mbuvi & N Leley, Socio-Economic Impact of Forest Harvesting Moratorium in Kenya Technical Report (KEFRI: Nairobi, June 2020) <https://mahb.stanford.edu/wp-content/uploads/2021/08/FinalReportonSocieconomicImpactsofTimberMoratorium-JUNE2020.pdf >