TITLE:
The Legally Permissible Traditional Customary Uses of Wildlife and Forests under Kenyan Law
AUTHORS:
Nixon Sifuna
KEYWORDS:
Traditional Customary Uses, Legally Permissible, Wildlife, Forests, Witchcraft, Witchcraft Act, Kenyan Law, Taina
JOURNAL NAME:
Open Journal of Forestry,
Vol.11 No.3,
July
8,
2021
ABSTRACT: Kenya
like most of sub-Saharan Africa is reliant predominantly on agriculture and
natural resources; which include land, water, minerals and fisheries, but the
most dominant of which are wildlife and forestry. Unlike minerals which are by law vested in the
government and can only be extracted by it and not the citizenry, wildlife and
forestry are resources that the citizens may utilize in their day to day lives
to meet their needs. Apart from their consumptive uses, there are also
non-consumptive uses and values of wild animals and forests; such as their
intrinsic ecological value as gene banks, as well as their scenic value for
viewing. These are essentially conventional values and uses. They are largely
formal and universal ones that are universally obtaining across the world irrespective of the levels of civilization or cultural identity,
and are even compatible with modernity. Apart from these, there are some wildlife
and forestry uses which are unique to the typical African way of life as part of old traditional
customs that have existed from earlier times. These are what are in this paper
referred to as “traditional customary uses”. These uses are largely informal,
rudimentary and archaic. They are nevertheless critical in the endemic African
way of life and represent the inextricable rudimentary technologically bereft
relationship between the African people and their natural resources. Under the
country’s existing laws, some of these uses are prohibited and criminal
sanctions prescribed to enforce their proscription, hence cannot be enjoyed or
practiced. There are however others that the law has either expressly allowed, or not prohibited, hence may be lawfully
enjoyed or practiced. These are what this paper has referred to as the legally
permissible traditional customary uses; and are the ones that are its subject.
As for wildlife, in the year 1977, the Kenya Government by a Legal Notice in
the Kenya Gazette imposed a ban on all forms of hunting of wildlife. The ban is still in force. This therefore means that hunting is illegal, as legal prohibition has
in effect prohibited all and any form of off-take or killing of wildlife. By
implication therefore, under Kenyan law, only non-consumptive uses of wildlife
may be enjoyed, and not the consumptive ones. These include viewing as well as
socio-cultural and spiritual uses. In Kenya
therefore, the only permissible traditional customary use of wildlife is its
non-consumptive use for socio-cultural and spiritual purposes; subject of
course to the existing legal prohibition on witchcraft under the Witchcraft Act (Cap 67 Laws of Kenya). This
piece of legislation has prohibited the practice and promotion of
witchcraft. This in effect means that the
socio-cultural and spiritual uses of wildlife though legally permissible, will
be enjoyed, provided it is not for witchcraft purposes. With regard to forests,
this author has identified the following five as their legally permissible
traditional customary uses under Kenyan law: Socio-cultural and spiritual
(consumptive and non-consumptive) use, other than for witchcraft; use in
herbal folk medicine, other than for witchcraft; use for human food and
livestock fodder; use for firewood; and use as raw material in construction and
traditional craft. Notably, in Kenya, traditional customary use is subject to
the existing legal prohibition on witchcraft. Further, while it is the legally
permissible use category that is the focus of this paper, the author
nevertheless discusses the prohibited traditional customary uses as well. This
paper is based on literature survey as well as data obtained from the author’s
previous research whose primary data and findings have been published in recent
times. It also draws from the documented research and diverse documented views
of other commentators on the subject.