Liz Alden Wily is an independent land
tenure and community forest management
specialist in East Africa.
An examination of trends in new forest law in eastern and southern Africa towards involving communities in determining and managing the future of forests.
As the twentieth century drew to a close, many States in eastern and southern Africa had acknowledged shortcomings in their policies for forest management and had begun to implement new national forest policies and to enact new forest laws. The changes amount to a significant wave of reform.
South Africa, Lesotho, Mozambique, Zanzibar (United Republic of Tanzania), Zambia and Malawi have promulgated new forest acts since 1997. Kenya, mainland Tanzania and Namibia have new forest laws in draft. Ethiopia, Swaziland and Uganda are finalizing national forestry policies and intend to follow them with new legislation (see Table).
This article focuses on how the new laws provide for the involvement of people who live within or adjacent to natural forests in determining the future of the forest. These forest communities are generally rural, poor and dependent on forests (predominantly woodland, dominated by the miombo type) as integral to their agricultural or pastoral livelihood. The extent to which their land base includes rights over local forest is a matter of increasing concern to such communities.
The recent changes in forest policy and laws need to be seen in the context of wider shifts in development strategies in the region. First, a trend towards globalization is leading many States in the region to make legal and policy adjustments, particularly in the way they handle water and flora and fauna resources. Second, a sociopolitical trend towards democratization, although being realized unevenly, is broadly introducing civil society more fully into the governance of society and its resources (Alden Wily, 2000a). This latter trend is finding core legal expression in the drafting of new constitutions and a gradual expansion of local governance regimes.
Uganda has given legal recognition to customary tenure regimes and the rights that arise from these, enabling forest-adjacent people to benefit from local forest resources; here, rattan cane is used in local small-scale furniture industry
- FAO COMMUNITY FORESTRY UNIT/CFU000334/R. FAIDUTTI
A trend that has had even more direct effects on forest strategies is a movement towards land reform, with all but one or two States in the region changing the policy and legal foundation of rights over land (Alden Wily and Mbaya, 2000). Individuals and communities are gaining a greater role in the regulation of land rights with the creation of devolved bodies for administration and land dispute resolution.
Furthermore, some countries (Tanzania, Uganda and Mozambique) have given legal recognition to customary tenure regimes and the rights that arise from these, and others (South Africa, Malawi and Zimbabwe) are considering comparable proposals. One of the more radical results is an increase in the status of communal property rights in national law, with communal landholding modified into registrable "common private property" (Alden Wily, 2000b). An entirely new class of landownership, "commonholding", is beginning to appear.
New or proposed forest laws, policies, authorities and reserves | ||||
Country |
New or proposed national forest policy |
New or proposed forest statute |
Proposed core authority |
New or proposed classes of reserved forests |
Uganda |
Forestry Policy, 2000 (draft) |
To be drafted in 2000 to replace Forest Act Cap. 246 (1964) |
Semi-autonomous |
Central Forests |
Kenya |
Forest Policy, 1999 |
Forestry Bill, April 2000 (second draft) to replace Forests Act Cap. 385 (1962) |
Semi-autonomous Kenya Forest Service with multisectoral Management Board proposed |
State Forest Reserves |
Tanzania (mainland) |
National Forest Policy, 1998 |
Forest Bill, January 2000 (third draft) to replace Forest Ordinance Cap. 389 (1957) |
Semi-autonomous |
National Forest Reserves |
Zanzibar |
Forest Policy, 1995 |
Forest Resources Management and Conservation Act, 1996 |
Forestry Administrator (Government) |
Forest Reserves |
Ethiopia |
Federal Forest Policy, 1998 (draft) |
Forestry Conservation. Development and Utilization Proclamation, 1994 |
Natural Resources Department, Ministry of Agriculture |
National Priority Forest Areas |
Malawi |
National Forest Policy, 1996 |
Forestry Act, 1997 |
Forestry Department, |
Forest Reserves |
Zimbabwe |
Forest Reserves |
Forest Act Cap. 19:05 |
Parastatal Forestry Commission (1954) |
Demarcated Forests |
South Africa |
Sustainable Forest Development In South Africa, 1996 |
National Forests Act, 1998 |
Department of Water |
Forest Nature Reserves |
Zambia |
National Forestry Policy, 1998 |
Forestry Act, 1999 |
Semi-autonomous Forestry Commission |
National Forests |
Lesotho |
National Forestry Policy, 1997 |
Forestry Act, 1998 |
Forestry Department |
Forest Reserves |
Namibia |
Forest Policy, 1998 |
Forest Bill, 2000 |
Directorate of Forestry, |
State Forest Reserves |
Mozambique |
Forest and Wildlife Act, 1999 |
Forestry and Wildlife Department, Ministry of Agriculture |
National Parks | |
Swaziland |
Forest Policy (draft), 2000 |
Forests Preservation Act, 1910 |
Forestry Section, |
Indigenous Forests |
Botswana |
Forest Act Cap. 38:04 (1968) |
Ministry of Agriculture |
Forest Reserves | |
The implications of these changes for community rights over local forest land are considerable. Forest communities, which over the course of a century had lost their most valuable forests through the creation of State reserves or through subdivision among individuals, are gaining a real opportunity to secure their remaining common forest resources in entitlements that are registrable and justiciable.
A less pronounced but supporting shift is found in the widespread redefinition of reserves and other government lands as property held by governments as trustees, not as private proprietors. Among other effects, these changes require that new forestry laws reframe the procedures for creating and revoking forest reserves, to feature greater accountability and alternative avenues for obtaining forest jurisdiction (Alden Wily and Mbaya, 2000).
The following examination centres first on the extent to which new forest law provides for communities to own forests, and second on the legal foundations being provided to allow them to manage forests, irrespective of forest ownership.
Forest policy-makers have begun to express doubts about State ownership of valuable forest lands, partly because of the recognition that many States have failed to protect the forests under their ownership and jurisdiction. State forest tenure has often been realized as virtual open access, and devolving public ownership to more local and more narrowly defined agencies may provide better management and greater accountability. Ownership provides a secure foundation for management regimes which is not easy to obtain where management responsibility is premised on a potentially transient set of access rights or a share in forest benefits.
The act of protecting a forest by setting it aside as a forest reserve remains strikingly intact in the new laws, irrespective of who creates or owns the reserve. Reservation is retained as a legally binding act which designates the forest land as thereafter dedicated to the purposes of forestry, to remain (or become) permanent forest.
Accordingly, many of the new laws provide for the removal of the forest from owners or custodians that fail to sustain this commitment. Where the owner or custodian is to be a legal entity such as a Forest Association (Kenya), a Village Council (Tanzania), a non-governmental organization (NGO), a Local Authority (Uganda), a trust or a Communal Property Association (South Africa) or a private company (Zambia), the potential for the owner to be sued for failure to sustain the forest is implicitly ensured.
In terms of core authority over forest matters, some shift is being seen towards more public involvement (see Table). Many of the new laws enhance the opportunity for privatization of commercial plantation forest estates, through direct sale or lease on certain conditions or through concessions. Private sector and non-governmental interests may also become forest owners in some circumstances, sometimes through the creation of forest conservancies. The most radical provisions in new forest law, however, are those that include forest communities as potential forest owners.
Lesotho. A main objective of the National Forestry Policy, 1997, and the Forestry Act, 1998, is the divestment of State Forest Reserves to the local level.
The Forestry Act states that after consulting with the appropriate local authority, the Chief Forestry Officer "shall advise the Minister on the transfer of ownership, control and management of any forest reserve to individuals, groups of individuals, communities, organizations or cooperatives". Transfer will be embodied in a written agreement "binding on both the parties and shall provide that the Minister shall have a right to reclaim the forest reserve if the said agreement is breached materially" [Section 11]. Liremo and matsema, small natural forest groves and woodlots previously vested in the Basotho Nation and given to local chiefs to administer, will now be declared Community Forests.
South Africa. Two key thrusts of the National Forest Policy, 1996, and the National Forests Act, 1998, are towards the privatization of commercial plantation estates and towards community involvement in relation to the remainder of reserved and unreserved estates, mainly dry woodland. Constitutional commitments to the restitution of lands lost through racially discriminatory laws (1996) have had increasing influence on the strategies adopted. Thus while the National Forest Policy pledges to "examine whether restoration is feasible", the new forest law makes direct provision for the return of many State forests, of which a good number are subject to restitution claims.
The law notes Communal Property Associations as a likely framework into which such forests could be divested. In practice, however, this new construct has not been widely adopted for this or other common property developments (McIntosh et al., 1999). Interest is turning to arrangements whereby new community owners lease the forest back to the State or private sector interests to manage. Such arrangements already operate in respect of several wildlife resource areas, e.g. Richtersveld National Park, owned by local people but managed by the Parks Authority.
Zambia. The Forests Act, 1999, provides a relatively oblique opportunity for communities to resecure forests. Sections 15 and 23 permit the issue of rights, title or interests in National Forests and Local Forests, respectively, although "subject to terms and conditions". These would almost certainly require that the forest be maintained intact and used for forestry purposes.
Mainland Tanzania. Land and forest matters are not union matters in the United Republic of Tanzania; mainland Tanzania and Zanzibar make their own policies and laws on these matters. In mainland Tanzania, the draft Forest Bill, 2000 (soon to enter its fourth and final draft) gives the Minister for Natural Resources and the Environment the power to alter the status of a National or Local Authority Forest Reserve "to become a Village or Community Forest Reserve" [Clause 36]. This provision gains direct support from new land law (the Land Act, 1999) which sets out procedures through which land may be removed from the general or government class of land into Village Lands. Village Councils and community groups (among others) may also apply to lease a Government Reserve [Clause 27].
Kenya. The second draft of the Forests Bill (April 2000) provides opportunities to lease plantations within Forest Reserves for renewable periods of up to 66 years, although communities that have formed Forest Associations may only seek to lease those that are within Local Authority Forests, held by County Councils as trust lands.
Uganda. In contrast with the situation in Kenya, Uganda's new Constitution (1995) and Land Act, 1998, forbid the lease or sale of forests or other lands held in trust as reserves. However, they provide for this trust to be devolved to local governments, which in Uganda include not only District Councils but also Subcounty Councils and, in a less defined manner, Parish and Village Councils (Local Government Act, 1997). Moreover, the Land Act, 1998, makes it clear that a community may seek to have the status of a reserved area reviewed and potentially brought under its own immediate tenure and jurisdiction, and indicates that this is a condition for which forest and wildlife laws should make direct provision [Section 45].
Other countries in the region. In Mozambique, Malawi, Namibia, Zanzibar (United Republic of Tanzania) and Ethiopia no provision is made for the divestment of Forest Reserves from State to community. Indeed, in Namibia, the Forest Bill, 1998, proposed that State Forest Reserves and Regional Forest Reserves would also be creatable out of local communal lands, albeit subject to local consultation, and only when the Minister for the Environment and Tourism is satisfied that "effective management cannot be achieved through management of that communal land as a community forest" [Clauses 13 and 14].
More generous provision is being made to enable local groups of citizens to create their own "forest reserves" out of as yet unreserved lands. A common objective among countries in the region is to bring as much as possible of these forests, often previously denigrated dry woodlands, under clear protection.
United Republic of Tanzania. A new forest act in Zanzibar (1996) has made it possible for communities to form groups to apply to create a Community Forest Management Area from an already reserved or unreserved forest area. In the latter case, such groups could establish themselves as the owner of the forest.
The subsequent mainland National Forest Policy of Tanzania (1998) made a much clearer commitment to bring as much as possible of the 19 million hectares of unreserved woodlands on the mainland under clear and mainly local ownership, as village forest reserves. The draft Forest Bill elaborates the procedures by which whole villages or subgroups of village communities may respectively create Village Land Forest Reserves or Community Forest Reserves. These assume village-based communal tenure (provided for in the Village Land Act, 1999) or, in the case of Community Forest Reserves, ownership by the members of the group.
These opportunities build directly on existing new practice in Tanzania, where 500 or more communities, village subgroups and sometimes extended households have established reserves (of which only one is nationally gazetted) on some 300 000 ha of mainly miombo woodlands (Alden Wily, 2000c). The speed of this development has encouraged those responsible for drafting the new forest law to make provision for a devolved form of gazettement, with the establishment of a Register of Forests in every district. In one district alone, more than 200 local reserves have been informally registered, prior to the enactment of the new law (Alden Wily, 2000c).
Mozambique. The new Forest and Wildlife Act, 1999, allows for communities to create their own forest reserves in the form of Areas of Historical and Cultural Value [Article 10], a construct which accurately describes the limitations of purposes for which these may be declared and used [Article 13]. Communities are named among those who may apply for "simple permits" or "concessions" (for periods of up to 50 years) over other unreserved forest areas [Articles 15 and 16].
Malawi. Part V of the Forestry Act, 1997, deals with the creation of what are termed Village Forest Areas, to be demarcated from customarily held lands. While these will be forests of poorer type, condition and value than those coopted into State Forest Reserves, they remain important to local people. The tenurial status of Village Forest Areas is ambiguous in the forest law, but the Commission of Inquiry into Land Matters (1999) has proposed a new basic land act which may eventually allow for these areas to be held as registered common property. This would be similar to provisions that have been made by new land laws in Tanzania, Uganda and Mozambique.
Lesotho. The forest law provides for Private, Community and Cooperative Forests to be created from lands allocated or leased from government, with the holder of the land guaranteed recognition as owner [Section 17]. A growing proportion of Lesotho's land area is leased. The law provides that if asked to assist in the management of local forests, the Forestry Department may charge for its services, emphasizing the intention to see the department evolve as a service rather than a forest-owning or managing agency.
Namibia. The most radical proposition of Namibia's draft forest law is to provide for Community Forests to be created from communal lands. Four vast mopane woodland areas originally demarcated as State Forests are now earmarked for this purpose. The exact terms under which communities will be regarded as their owners remains to be decided. A Communal Lands Reform Bill was rejected by the National Council in March 2000 and returned to the government for redrafting. One of its main shortcomings was its failure to provide means for securing grazing lands, woodlands and other such local communal properties as registered commonhold entitlements; instead, these properties would have been freely available for individual lease, and not necessarily by local inhabitants or customary owners.
Kenya. Most of the country's millions of hectares of unreserved dry woodlands are under County Council trust, held on behalf of pastoralists. A provision to allow communities to secure at least residual forests unwanted by the State as their own reserves was deleted from the second draft of the Forests Bill. The terms of reference of the recently created Commission of Inquiry into Land Law Matters (1999) suggest that the development of commonhold tenure may emerge from the commission's considerations, as has been the case with the Malawi Commission of Inquiry into Land Tenure (Alden Wily, 2000b).
Uganda. Uganda is still finalizing its new Forest Policy and has not yet begun to develop a new forest law. The new policy establishes a notion of a permanent forest estate which includes both Government and Non-Government Forest Reserves. The former will include the existing 1 million hectares of Central Forests and some 192 Local Forests already devolved to District Councils in line with national decentralization commitments (1997). The latter reserves will include those created by NGOs, private persons and especially communities. The construct of Community Forests is likely to emerge in future forest law.
Zambia. The capacity for communities to create and declare their own forest reserves is not provided in Zambian law. The Forest Act instead provides for communities to involve the State in the management and regulation of their own local forests and to participate in the management of the lesser class of government reserves, Local Forests, through declaration of a Joint Forest Management Area [Section 25].
Legal provision for communities to be involved in the management of forests is also common but is unevenly treated in the new laws. Some laws provide for communities to act as autonomous or designated managers, while others foresee them as peripherally involved in management and decision-making.
Zambia. The Forest Act proposes community involvement only in the context of Joint Forest Management Committees which manage the Joint Forest Management Areas mentioned above. These committees are required to include only three representatives from local communities, among a much larger cohort of local and central government representatives [Section 26]. No provision is made for local people to participate in the management of National Forests.
Namibia. The Forest Bill encourages local involvement in State and Regional Forest Reserves only to the extent of requiring that adjacent communities be consulted during the formulation of Management Plans [Clause 12]. Community Forests are not necessarily to be managed by the local community, but by a body that "the Minister reasonably believes represents the interests of the persons who have rights over the communal land and is willing and able to manage the communal land as a community forest" [Clause 15]. A number of the gazetted wildlife conservancy initiatives are in fact managed by NGO or private-sector interests, with local people participating only as beneficiaries of access, employment opportunities and/or a share of revenue generated in the area (Jones, 1999).
Mozambique. The Land Act, 1997, demonstrates a commitment to local participation in determining the future of natural resources [Article 21]. The Forest and Wildlife Act, 1999, permits the State to delegate its all-embracing forest management powers to local communities as well as to the private sector and associations [Article 33]. In addition, the law creates a new type of forum, Local Resource Management Councils, designed to include representation from the local community. The mandate of these local councils specifies that the main purpose of community involvement is to ensure "participation in the exploitation of resources and in the benefits generated through such utilization" [Article 31].
This benefit-sharing orientation builds on early community forestry projects. Several newer initiatives are more concerned to root local involvement in community-based management regimes (Alden Wily and Mbaya, 2000; Anstey, 2000). This principle is amply provided for in the Land Act, but its delivery in practice is proving difficult because of the high costs of entitlement, the fragmentation of communities after years of dislocation and a deficiency of democratic local-level socio-institutional organization (Kloeck-Jenson, 1999).
South Africa. The new Forest Policy and law make specific commitments to local community participation in the management of all kinds of forest. The National Forests Act (1998) permits communities to apply or be invited to manage a State Forest "or any other protected forest area, jointly with an organ of State or alone" [Section 29]. The Minister may enter an agreement with the community [Section 30]. The national policy explicitly supports community-based forest management of the large area of woodlands and bushlands that are in former homeland areas, but does not develop frameworks for this.
Most of Kenya's millions of hectares of unreserved dry woodlands are under County Council trust, held on behalf of pastoralists
- FAO/11287
Malawi. Although rural people are not permitted to resecure or acquire national Forest Reserves, new policy and law is much more encouraging of their involvement in the protection, management and use of the same forests. The Forestry Act encourages the Director of Forestry to enter into agreement with local communities "for implementing management plans mutually acceptable to both parties" [Section 25]. Communities may, among other things, seek to use bare or degraded parts of the reserves for tree planting programmes, with their ownership of the trees ensured [Sections 36 and 37]. Local management of Village Forest Areas is assumed, although the law makes it difficult for a village head and the community to declare such an area without an agreement with the Forest Department [Section 31].
A mangrove forest in Mozambique, where the Forest and Wildlife Act, 1999, permits the State to delegate its all-embracing forest management powers to local communities
- FAO COMMUNITY FORESTRY UNIT/CFU000232/R. FAIDUTTI
United Republic of Tanzania. As noted above, the 1996 Forest Resources Management and Conservation Act of Zanzibar encourages communities to form Community Forest Management Groups which may seek to manage any kind of forest [Section 36]. As independent legal entities, these groups may be granted enforcement powers through agreement with the Forest Administrator, and they may be sued if they breach the terms of agreement. Several groups already manage state and local mangrove forests through this mechanism (Alden Wily and Mbaya, 2000).
The most pronounced intention to permit local people to become forest managers is provided in the upcoming mainland Forest Bill of Tanzania. The law explicitly states the objective to devolve forest management to "the lowest possible level" [Clause 3]. Management Plans, required for all Forest Reserves, must specify how forest-adjacent communities will be involved [Clauses 17 to 19]. Local communities may apply to manage either National or Local Government Forest Reserves [Clauses 34 and 36], as autonomous managers or as comanagers with the government. A reserve managed under a Joint Management Agreement will be declared a Village Forest Management Area, as distinct from Village Land Forest Reserves, where communities are owner-managers. In Village Land Forest Reserves, government foresters are bound to offer guidance to which villagers must pay due regard, yet "without being required to comply" [Clause 41].
Mainland Tanzania has the most developed community forest jurisdiction in the region, which gives the local community powers to manage the resources within its local sphere
- FAO/17691/A. CONTI
New provisions for the involvement of citizens in the future of forests in eastern and southern Africa vary widely: from a total lack of provision in Zimbabwe and Botswana, to ambivalent provision in Zambia and Kenya, to generous provision in Lesotho, Namibia, Zanzibar and mainland Tanzania.
Mainland Tanzania has the most developed community forest jurisdiction in the region - in policy, upcoming law and practice. The new Tanzania law clearly sets out the local powers and responsibilities of Forest Management Committees, the instruments with which they may enforce the management regimes they devise and the mechanisms for making forest managers accountable, not just to national interests but to their own constituents - ordinary citizens in the local area.
In this respect, the Tanzania forest law draws extensively on the considerable powers already vested in elected village governments, including the right to promulgate by-laws which are binding on all persons seeking to enter or use the community-managed forests, not just on members of the community (Alden Wily, 2000c). The draft Forest Bill introduces these village by-laws as an instrument of management by communities, to be used even when communities manage government-owned reserves.
It appears that one of the reasons for the rapid advance of community-based forest management in Tanzania is this foundation in which the local community is precisely identified, endowed with a socio-institutional form supported in law and given powers to manage itself and the resources within its local sphere or mandated into its care. Lesotho and Uganda, with more recent laws extending governance to the grassroots (1996 and 1997, respectively), have the beginnings of a comparable foundation on which to develop local forest management powers.
The forest laws of other States in the region reflect the absence of this foundation. Some have sought to overcome the lack by creating new institutions in their new or proposed forest laws - Forest Associations in Kenya, Management Authorities in Namibia, Joint Forest Management Committees in Zambia, Village Natural Resource Management Committees in Malawi and Local Resource Management Councils in Mozambique. South African forest law looks tentatively to Communal Property Associations or trusts. All of these institutions are insufficiently defined in the laws and are unlikely to acquire significant powers to enforce management decisions. Except in Malawi, these agencies are not even necessarily community based.
Ultimately, the provision of such powers and authority will determine whether local communities will be mere cooperators in State-directed management or defenders and managers of forests in their own right. Forest law will almost certainly have to encourage stronger local government law if community management is to be realized in more than incidental ways.
Bibliography
Alden Wily, L. 2000a. Land tenure reform and the balance of power in eastern and southern Africa. Natural Resource Perspectives, No. 58, June 2000. London, Overseas Development Institute.
Alden Wily, L. 2000b. Reconstructing the African commons through the modernization of customary tenure. Paper presented to the Eighth Biennial Conference of the International Association for the Study of Common Property, Bloomington, Indiana, 29 May-4 June 2000.
Alden Wily, L. 2000c. The evolution of community-based forest management in Tanzania. In Participatory forest management - a strategy for sustainable forest management in Africa. Proceedings of the International Workshop on Community Forestry in Africa, Banjul, the Gambia, 26-30 April 1999. Rome, FAO.
Alden Wily, L. & Mbaya, S. 2000. Land, people and forests in the 21st century. The impact of land relations on the role of communities in the future of forests in eastern and southern Africa. IUCN and Natural Resources Institute, UK. (in press)
Anstey, S. 2000. History matters: institutional change and CBNRM in Sanga District, northern Mozambique. Paper presented to the Eighth Biennial Conference of the International Association for the Study of Common Property, Bloomington, Indiana, 29 May-4 June 2000.
Jones, B.T. 1999 Community management of natural resources in Namibia. Issue Paper No. 90. London, IIED.
Kloeck-Jenson, S. 1999. Locating the community: administration of natural resources in Mozambique. Land Tenure Center, University of Wisconsin-Madison, Madison.
McIntosh, A., Barnard, J., Wellman, G., Vaughan, A., Sejake, S., Cliffe, L. & Palmer, R. 1999. Review of the Land Reform Support Programme for Department of Land Affairs, DFID, EU and Danida. Pretoria.
