TNRC Topic Brief Anti-corruption and equitable benefit sharing in Kenya’s wildlife and forest sectors: Gaps and lessons
Anti-corruption and equitable benefit sharing in Kenya’s wildlife and forest sectors: Gaps and lessons
Equitable sharing of the benefits of conservation is critical for the successful preservation of vital biodiversity and habitats. Evidence shows, however, that such benefit sharing is often contested and prone to corruption (Wynberg and Hauck 2014, Kariuki 2017, Adams 2019). While benefit sharing with local communities can invoke positive attitudes towards, for example, wildlife management, allocated benefits need to be fairly distributed among community members for this to occur (Groom and Harris 2008, Liang et al. 2018). This is often a challenge. Competition for natural resource benefits can result in a high level of corrupt rent seeking behavior (Kolstad et al. 2008), leading to elite capture that disproportionately distributes benefits to well-connected individuals in society (Mumma 2011). Governments and non-state actors must therefore ensure that anti-corruption measures in conservation are carefully designed and enforced to ensure the equitability of benefit sharing.
Benefit sharing in the context of Kenya’s wildlife and forestry sectors is complex. Land tenure arrangements (clearly defined and articulated land rights) are the basis for benefit allocation in Kenya, but communal tenure arrangements have had to contend with lack of legal recognition, protection, and enforcement of secure rights by the state. Without addressing this historical dispossession of communities and elite capture, the benefits from conservation accrue only to a few wealthy land owners. Indigenous Peoples and local communities, who bear the highest costs for living near wildlife and forest reserves (e.g., due to negative human-wildlife interactions), continue to receive disproportionately lower benefits for their conservation efforts (Chomba et al. 2016, Kahumbu et al. 2014, Booker and Roe 2017).
Kenya’s wildlife and forest sectors are vulnerable to corruption, which is exacerbated by weak institutional capacities of the government agencies in charge of these sectors and a lack of enforcement of existing laws (Felbab-Brown 2015, Otinga-Owiti et al. 2021). For instance, the law’s ineffectiveness in tackling poaching, human-wildlife conflict, and loss of biodiversity has been attributed to bureaucratic interference and massive corruption (Otinga-Owiti et al. 2021). One of the key targets of recent devolution of natural resource management (NRM) was to create equitable mechanisms for sharing revenue obtained from state protected areas (PAs) among stakeholders, especially local people living around these conservation areas. But a lack of accountability of local government to people continues to allow corruption, inefficiencies, and ineffectiveness (Cockerill and Hagerman 2020).
This TNRC brief explores the corruption challenges and risks in benefit sharing in Kenya’s wildlife and forest sectors. It aims to share anti-corruption lessons and experiences from benefit-sharing conservation initiatives in Kenya, reflecting on what these might mean for realizing more equitable benefit sharing mechanisms. Data used for this Brief was drawn from two sources: a review of relevant literature, and 15 key informant interviews with knowledgeable individuals working in the wildlife and forestry sectors in Kenya, including the Kenya Forest Service (KFS), Kenya Wildlife Conservancy Association (KWCA), Transparency International, and local and international NGOs.
Historic trends in Kenya’s wildlife and forest governance
Inequitable benefit sharing and corruption in forest and wildlife sectors are symptomatic of broader political developments in Kenya since before independence. From the late 1890s to 1963, the British colonial government created a system in which Africans did not have legal ownership rights to the land they customarily owned. Instead, they held only user rights. Institutions designed to manage African affairs established a paternalistic and top-down approach to land administration (Okoth-Ogendo 1999). This deliberately excluded indigenous people from decision-making and fully benefitting from wildlife, and instead utilized wildlife exclusively for exploitation and recreation (Otinga-Owiti et al. 2021, Kabiri 2010). For example, beginning in 1945, the colonial government gazetted a series of national parks and game preserves in and near Maasailand with an emphasis on developing these areas for the tourist industry (Sindiga 1984). The most immediate impact of these policies was increased competition for perennial surface water between communities and wildlife, negatively affecting Maasai livelihoods and resulting in conflicts (Sindiga 1984).
These trends continued after independence in 1963 with the adoption of a market-based vision of development that emphasized individual rights and the protection of private property (Republic of Kenya 1965). In the years that followed, communal lands were transformed into private property held by individuals or groups that, with some actors monopolizing better ecological endowments, initiated a process of unequal distribution of the means of production and a new concept of land ownership (Sindiga 1984).
At the same time, Kenya’s history since independence has also been characterized by the centralization and concentration of power in the presidency at the expense of countervailing institutions (Murunga 2007). This has encouraged forms of state intervention in the economy that benefit a few actors while gradually eliminating political and economic competition. Patronage has supported inefficiency and economic plunder in the civil service and state enterprises, for example, where the reward system has not favored hard work and innovation (Murunga 2007).
Kenya’s natural resource sectors are some of those most affected by these dynamics. From the 1980s through the 2000s, community rangelands, forests, and wetlands were reallocated to local farmers with the means to clear them, or they were co-opted by the government for private interests (Willy 2018). This, along with other illegal or irregular acquisitions of public land, became such a prominent concern that a presidential commission was established to document the level of wrongdoing in the land sector. The “Ndungu Report” found that between 1986 and 2002, over 200,000 illegal land allocations had occurred. Most involved excisions of public forests and their transfer to private hands (Ndungu 2002).
The post-2000 reform era in wildlife and forest governance
The problems of wildlife and forest governance pre-2000 contributed to loss of wildlife resources (e.g., a 44 percent decrease in mammalian fauna by the year 2000), degradation, and the deterioration of forest cover in Kenya (Jebiwott et al. 2020, Peltorinne 2004, Norton-Griffiths 2000). Systemic corruption involving political interference and irregular transfers of public resources (particularly forests) to private ownership and capture by local, regional and state elites, (Ministry of Environment & UNREDD 2013), continued to cut into natural resource revenues. It reached a point in the 2000s where many conservation interventions were seen as unlikely to have many positive impacts (Standing and Gachanga 2014).
In response, institutional reforms were initiated from the mid-2000s, with the most relevant of these following the constitutional change that occurred in 2010 (discussed further below). These reforms were motivated by mounting concerns with governance, biodiversity loss, and environmental degradation. Interest was also growing in community-based conservation initiatives that sought to raise awareness for the right of local communities to be recognized, included, and to benefit from conservation efforts (Cockerill and Hagerman 2020).
The most significant legal and institutional reforms in the wildlife and forest sectors during this period include the following.
- Constitution of Kenya, 2010: Article 69 (1) obliges the state to ensure sustainable exploitation of the environment and natural resources and the equitable sharing of the accruing benefits. Article 66 (2) requires parliament to enact legislation to ensure that investments in property benefit local communities and their economies. This means that the government must align all relevant wildlife and forestry policy and legal frameworks (either through amendments or enactment of new legislations) with the constitutional provisions seeking to provide benefits to local communities, in addition to combating corruption.
- Wildlife Conservation and Management Act (WCMA), 2013: This act of parliament provides for the protection, conservation, sustainable use, and management of wildlife in Kenya. Sections 70-74 provide that every person has the right to reasonable access to wildlife resources and to enjoy accruing benefits without undue hindrance. The act also devolves wildlife conservation and management rights, opportunities, and responsibilities to county governments, landowners, and land managers where wildlife occurs outside public conservation areas and sanctuaries. Section 76 (5) also requires that private investments in conservancies provide benefits such as infrastructure, education, and social amenities. But while section 76 (4) provides that a 5 percent share of benefits from national parks will be shared with local communities, this has not been operationalized.
- Tourism Act, 2012: Most of the benefits accruing from wildlife to communities are from tourism activities. This act provides that a national Tourism Strategy be developed every five years to provide an equitable benefit sharing framework in the tourism sector.
- Forest Conservation and Management Act, 2016: This act of parliament provides for the development and sustainable management, including conservation and rational utilization, of all forest resources for the socio-economic development of the country and connected purposes. Section 48 provides a mechanism of collaborative forest management, Community Forest Associations (CFAs), where communities co-manage protected forests with KFS. CFAs are expected to benefit from forests by extracting Non-Timber Forest Products (NTFPs), contracts to undertake forest operations, and the development of forest-based industries. Similarly, Section 55 requires private investors in forests to share the benefits of their investment with local communities through initiatives including, but not limited to, infrastructure, education, employment, and social amenities. Section 71 (2) (a) requires the Cabinet Secretary to make regulations and formulate guidelines for incentives and benefit sharing. However, the regulations have not been finalized to date.
Recently, lawmakers attempted to formulate an overarching framework for establishing and enforcing a system of benefit sharing between natural resource users, the national and county government, and local communities. However, the Natural Resources (Benefit Sharing) Bill 2018 has not been passed into law and is therefore not yet operational.
The evolving institutional and legal reforms have led to organized efforts to foster partnership and inclusive governance based on public participation, collective action, and conflict mitigation. Community-based conservation and the involvement of democratically-elected county governments in managing natural resources is expected to provide local people with opportunities to participate in decisions regarding local development projects — including in the governance of natural resources. In stakeholder platforms such as the Kenya Wildlife Conservancies Association (KWCA) and National Forest Program (NFP) under the Ministry of Environment and Natural Resources, member organizations build partnerships and share experiences, lessons, and opportunities. Evidence from elsewhere in the region indicates that such multi-stakeholder platforms have been successful in network building and knowledge dissemination (Mwihomweke 2021).
However, there are some institutional challenges. Multi-stakeholder platforms in multifunctional conservation landscapes may suffer from poor coordination among stakeholders, inadequate training and skills, a lack of awareness and information, inadequate funding, and mis-aligned incentives (Mugo et al. 2020). From the government side, Kenya’s Constitution (Republic of Kenya 2010) requires national and county governments to operate based on consultation and cooperation, but overlapping authorities and mandates across institutions and levels of government complicate this process and create opportunities for corruption (as explained in the next section). For example, Schedule 4 allocates environmental and natural resource policy to the national government, with the county government having the role of implementing national government policy. In the wildlife management sector, county governments manage wildlife reserves, while the Kenya Wildlife Service manages national parks. User rights or ownership over protected areas are still held by the national government because the resources are considered public goods (Ministry of Tourism and Wildlife 2020).
Corruption characteristics in Kenyan wildlife and forest sector benefit sharing mechanisms
Benefit sharing in Kenya’s wildlife and forest sectors is implemented across three main conservation approaches (see Table 1): protected wildlife areas, community conservancies, and community forest associations. This section addresses the manifestations of corruption in benefit sharing in these three approaches.
Policy and practice challenges in the three main conservation approaches
Protected wildlife areas
In protected wildlife areas, the primary mechanism through which communities benefit is local households’ access to tourism-related benefits, such as cash from providing cultural services and goods to tourists at protected area entrances (Mojo et al. 2019). Despite the Wildlife Act, however, interviewees revealed that a more formalized revenue sharing arrangement is still lacking. KWS and county governments responsible for managing national parks and game reserves sometimes implement development projects such as roads, schools, and bursary schemes for school children. However, interviewees noted that corruption in the wildlife agencies has limited the benefits that can accrue to local communities. This corruption in the protected estate can take many different forms, summarized in Table 2.
To respond to this corruption, the KWS established the Corruption Prevention Committee (CPC) in 2000. In subsequent years, several other policies and guidelines were developed. These include the KWS corruption prevention policy, a code of conduct for staff, and staff performance contracting. The KWS also receives anti-corruption support (funds, equipment, training) from the Ethics and Anti-Corruption Commission (EACC) and the UN Office for Drugs and Crime (UNODC). Interviewees noted that following this support, the KWS scaled-up sensitization on anti-corruption among its staff.
The KWS has also recently set up an integrity office to facilitate independent investigation of corruption, as well as a direct phoneline where citizens can anonymously report suspected corrupt activities. They also established a new forensic lab to test wildlife products to aid the prosecution of wildlife crimes. Interviewees noted that these efforts had raised the profile of anti-corruption within the organization, leading to investigations and dismissal of some staff for involvement in corruption. Despite these efforts, however, cases of wildlife crime are perceived to take too long to prosecute, with this believed to embolden those engaged in illicit wildlife activities (Kahumbu et al. 2014). When successful prosecutions occur, these are mainly limited to low-level wildlife traffickers (Wildlife Direct 2018).
Although the laws detailed above all recognize the crucial role of communities in conserving wildlife for posterity and have had some positive impacts, little has been done in terms of institutionalizing participation and equitable benefit sharing of wildlife resources from protected areas. This is a direct outcome of four main challenges:
- First, implementation of compensation for human-wildlife conflict and benefit sharing for communities surrounding state protected areas has been slow. The Ministry of Environment and Natural Resources has not yet developed and implemented subsidiary regulations and guidelines needed to put WCMA provisions on access, incentives, and benefit sharing into action. The WCMA also has important gaps in relation to procedures for compensation claims following human-wildlife conflict (Weru 2016).
- Second, bureaucratic delays and inefficiency continue within enforcement institutions like the Department of Wildlife and KWS. This has reduced the relative effectiveness of otherwise positive reforms (Otinga-Owiti et al. 2021).
- Third, relevant actors, primarily the KWS, have failed to carry out the public education required to improve awareness and understanding of the relevant laws and provisions, including those relating to community involvement, compensation for human-wildlife conflict, and benefit sharing especially for local communities living around state PAs (Otinga-Owiti et al. 2021).
Finally, the sector has lacked a coordinated and integrated approach to NRM and instead worked through compartmentalized institutional silos (USAID 2017). Even with devolved governance, the management of wildlife and forestry sectors fall under multiple and myriad institutions and legal frameworks. KWS, county governments, and other agencies have overlapping jurisdictions and insufficient understanding of their own legislative frameworks, policies, and procedures. This had led to “turf wars” between various environmental law enforcement agencies (Weru 2016).
Community Forest Associations
As with the wildlife sector, forests were historically managed through a centralized approach by which the Forest Department excluded local communities from co-managing and benefiting from forest resources. Reforms via the Forest Act (2005) and the Forest Management and Conservation Act (2016) have, however, begun to entrench community participation and the sharing of benefits through Participatory Forest Management (PFM) of protected forests. Both public and communal forests can form part of the protected estate, and both KFS and county governments are expected to co-manage the forests with local communities. Private forests are managed by individuals or organizations but are also required to institute benefit sharing arrangements with local communities.
Successful PFM requires well-governed Community Forest Associations (CFA), which are institutions through which communities are empowered to participate in forest projects and management and engage the state agency in charge of protected forests, the KFS (Kairu et al. 2018). However, CFA formation and subsequent operation have been complex and embedded in hierarchical and bureaucratic procedures. As a result, only 99 CFAs had been registered by 2018 out of a possible 325 (Kairu et al. 2018). This suggests that a large proportion of forest-dependent communities in Kenya were not fully able to contribute to governance of their forests. The situation seems to be improving, however. According to information provided by WWF Kenya, as of writing around 300 CFAs have been registered with 215 considered “active.”
Even as gaps in the implementation of existing policies and laws reportedly begin to close, corruption also appears to limit benefits to communities living near forests. Typical corrupt practices within CFAs, as described in Table 2, include collusion and bribery between forest officials and community members in the allocation of legal harvesting rights and illegal harvesting of forest products, elite capture of large-scale forestry concessions or investments, and direct pilferage of revenues.
A lack of information is one of the most significant constraints to anti-corruption efforts in the forest sector. The roles and responsibilities of different stakeholders, the number of permits issued, and revenues collected by the KFS have not been made clear (Ministry of Environment and UN-REDD Programme 2013). While current legislation broadly outlines the state’s obligations in providing public access to information, the specific requirements remain vague. As one interviewee observed: “there is need to increase awareness among CFA members on what participatory forest management is and how they can come together to benefit from forest resources.”
However, the proposed Natural Resources Benefit Sharing Bill outlines specific anti-corruption principles and would improve the regulatory environment. It would include transparency, inclusivity, equitable benefit sharing, accountability, and participation in managing natural resources, including wildlife, gazetted forest and biodiversity resources. However, because the bill has not been passed, public participation and transparency in benefit sharing in Kenya are still limited in practice (Kairu et al. 2018).
Lessons learned and the way forward
Despite comprehensive natural resource benefit sharing and anti-corruption frameworks, corruption continues to pervade Kenya’s natural resource sectors. This review shows that simply strengthening policy and legal frameworks is insufficient to reverse historical disenfranchisement of local communities, reduce corruption, and develop a strong sense of ownership and commitment to conservation. Multiple strategies are now needed to reduce the opportunities for corruption in forest and wildlife benefit sharing frameworks.
- Benefit sharing is a political decision that the government (both nationally and locally) can choose to prioritize. Changes to inequitable revenue sharing practices should be specified and codified in the law. However, implementation gaps in recent institutional and legal reforms demonstrate that they are necessary but insufficient. Developing and implementing subsidiary guidelines and regulations for the Wildlife Conservation and Management Act and Forest Conservation and Management Act is a necessary first step; the final step would be actual enforcement of the specified benefit sharing mechanisms.
- Reforms to benefit sharing fundamentally affect the balance of power among participating stakeholders. Kenya’s benefit sharing in conservation has been characterized by inequalities, corruption, and insufficient political will to address and include Indigenous Peoples and local communities. Reforms to benefit sharing mechanisms, especially those seeking to empower local citizens and facilitate meaningful participation of communities, must address power dynamics and resistance from powerful stakeholders who will seek to protect their interests.
- Lack of sufficient political incentives to address corruption in benefit sharing mechanisms and institutional silos are significant roadblocks to progress. Government institutions responsible for renewable natural resources have insufficient incentives to tackle corruption in these sectors, reflecting the globally-common problem with prioritizing environmental crimes and recognizing their significant impact (Williams 2019). Additionally, where anti-corruption initiatives have been initiated, poor synergies between the different agencies (KFS, KWS, conservancies, criminal justice systems, etc.) have limited the effectiveness of anti-corruption efforts. Breaking these silos and increasing collaboration where responsibilities overlap should be a priority.
- Revenue transparency is essential. Without adequate mechanisms for all stakeholders to access information on revenue collection, conservation projects will continue to face corruption risks. Conservation projects must demonstrate transparency in the collection, management, and use of revenues. Integrated revenue systems that capture real-time park/forest entry fees or payments in high-end conservancy lodges operated by commercial operators could help limit corruption risks in revenue collection and sharing. These technologies could include electronic technology-supported revenue collection and declaration systems (e.g., e-filing, verification, publication, disclosure forms). Donors supporting conservation projects should pressure key stakeholders to develop and implement integrated revenue management systems that would enable the equitable and transparent collection and sharing of benefits from conservation.
- A multistakeholder engagement platform is crucial for monitoring grievances pertaining to benefit sharing arrangements. Multistakeholder approaches for bringing together national and local actors can help both address corruption (through increased accountability) and enhance benefit sharing by securing the inclusion of vulnerable groups and promoting access to information about revenues. Such initiatives could promote dialogue, learning, and collaboration towards agreed goals, as well as implementation standards for better sector governance and performance (Søreide and Truex 2013).
 Land collectively owned or where multiple rights over lands and natural resources co-exist, such as rangelands, fisheries, and wetlands.
 The Forest (Community Participation in Sustainable Forest Management) Rules, 2020, aims at clarifying community involvement in participatory forest management and the manner in which Forest Associations may exercise their rights. These rules have yet to be gazetted and are therefore not operational.