The Legally Permissible Traditional Customary Uses of Wildlife and Forests under Kenyan Law

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.