ASB SEMINAR PRESENTATION SUSAN WAMBUGU

08/16/2011

Securing Land, Forest, Tree and Carbon Tenure for

REDD+(+) in Kenya

Introduction

Security of tenure has been identified as key in ensuring the success of REDD+

It is important to recognize and secure new kinds of property rights anticipated from REDD+ to ensure success of the programs

Land tenure, while forming the basis for granting rights to land and its resources, is insufficient and there is need to clarify and incorporate forest, tree and carbon tenure

Tenure reforms are an important vehicle for securing rights to land and land resources and present an opportunity to address these arising property rights.

A tension exists between the urgency of REDD+ and the slow nature of the reform process and there is need to identify ways to bridge the gap

Problem Statement

“Moving ahead with REDD+ initiatives in the absence of (this) clarity… could be counterproductive and lead to conflict and marginalization of weaker claimants.” (Mwayafu, 2010)

This is especially crucial in the African context where existing tenure systems are likely to pose a great challenge for emissions reductions and carbon sequestration projects. (Unruh, 2008)

Research Question and Hypothesis

To what extent have land, forest, tree, and carbon rights been articulated in Kenya’s tenure reform process policies as the country prepares for the implementation of REDD+?

Null: The tenure reforms in Kenya do not inhibit emission reduction

Aims of the Paper

Distinguish between land, forest, tree, and carbon rights and tenure in the context of emissions reduction,

examine the land, forest, tree, and carbon tenure requirements of REDD+, and

determine whether they align with tenure provisions as provided for by Kenyan reforms and make recommendations on any existing gaps between the two.

The Kenyan Context

Kenya is classified as low forest country (FAO 2002)

Many of the indigenous forests, which account for less than 2% of total land area are protected and managed by the State through its agencies, the Kenya Forest Service (KFS), and the Kenya Wildlife Service (KWS).

Drivers of deforestation have been the demand for agricultural land and development, as well as illegal logging and unsustainable use of the forests.

The country is estimated to lose about 12,000 hectares of forest each year therefore emitting approximately 1.6 million tons of carbon with an additional 406,000 tons of carbon lost from “other woodlands”.

• Gazetted (indigenous) forests form 1.7% of Kenya’s total land cover. Total forest cover about 6%

• Other forests are found on plantations and farms

• Only 20% of the land is suitable for agriculture while the rest is mainly arid and semi-arid

• No communities are allowed to reside within gazetted forests but many live adjacent to them

A Whole Landscape Approach

REDD+ as currently outlined does not maximize benefits for Kenya (low forest country)

Kenya more interested in + components (enhancing forest carbon stocks, conservation, and sustainable management of forests)

Deforestation and degradation outside forests prevalent

Leakage a real concern

A whole landscape approach such as REDD++ (REALU) is therefore more suitable

Reducing Emissions from All Land Uses (REALU/REDD++)

A definition that includes REDD+ and all transitions in land cover that affect carbon storage

Inclusive of trees outside forests, agroforests, plantations,and other natural forests not captured in current definitions

Proposes whole landscape approaches and accounting (AFOLU) as a way of minimizing leakage and definition / eligibility questions that may hamper the implementation of REDD+

Methodology

Desk review of reform documents:

Constitution of Kenya (2010)

Land Policy (2007)

Forest Act (2005)

Vision 2030

National Climate Change Response Strategy (2010)

Legal Notice 166

Desk Review of Project Documents

Kenya RPP

Kasigau Phase I PDD (Rukinga Ranch)

Imbirikani Ranch PDD

Key informant interviews with:

National REDD+ Coordinator

Green Belt Movement

Kasigau Corridor Project

Africa Wildlife Foundation

Tenure Requirements for REDD+(+)

Clarification of land and forest tenure Recognition of rights Enforceability

Allocation of carbon rights

Security of Tenure in REDD+(+)

Resource tenure – the system of rights, rules, institutions and processes regulating resource access and use – is key to shaping the distribution of risks, costs and benefits

Tenure usually taken to mean land tenure

Security of tenure is therefore “the certainty that a person’s rights to land will be recognized by others and protected in cases of specific challenges.” (reference)

Land tenure, however, may be insufficient for the purposes of REDD+ due to arising property rights in forests, trees, and carbon

Importance of Secure Tenure

Gives communities leverage when relating with government and the private sector regarding land and ensures equitable distribution of benefits from emissions reductions programs.

Better biodiversity maintenance, community livelihoods and carbon sequestration, and improved forest cover

Investments in secure tenure have been identified to yield benefits several times more than similar investments in REDD and to cost less (Hatcher

increased sense of personal security, preservation of cultural identities, and reduced or mitigated conflicts over resources between communities; and increased investments in the community

Land Tenure

Land tenure is defined as “the relationship, whether legally or customarily defined, among people, as individuals or groups, with respect to land.” (FAO, 2002)

Generally categorized as:

state

private

communal

open access

These categories often overlap and sometimes conflict

In Africa, tension exists between formal and informal kinds of tenure

Formal tenure

Informal Tenure

Forest Tenure

Forest tenure determines who can use what forest resources for how long and under what conditions

Forest Ownership Structure

(FAO, 2008)

• Most African forests (83%) are still controlled by central government

Forest areas owned by individuals or communities tend to be small (10%)

Forest Tenure cont’d

Much of forest tenure combines elements of traditional forest management with government-controlled exploitation and/or conservation of forest resources (FAO, 2008). Other forms of tenure also exist.

Successful tenure reforms have been associated with democratized rather than centralized systems

Concern that REDD+ favors a centralized system of governance (Phelps et al, 2010)

Fragility, lack of clarity, resistance to change, and a weak supporting environment identified as constraints to tenure security and diversification

Tree Tenure

Addresses trees that fall outside forest areas and planted trees

There is a strong notion that tree-planting/cutting signifies land claim (Unruh, 2008)

In addition, useful trees and forest resources are viewed as complexes of rights in which different parts of useful trees at different periods of time, differ in terms of who owns, loans, borrows, inherits, uses, or disposes of them (Unruh, 2008)

Carbon Tenure

Carbon rights have emerged as a novel form of land interest under REDD+.

Usually refers to the rights to benefit from REDD+ activities and is often associated with efforts to determine which actors have rights to own carbon as property. (Mwayafu, 2010)

Where property rights of local communities are yet to be settled, introducing carbon rights over land used and occupied by these people may have the potential to further compromise their tenure and use of land. (Fry, 2008)

Where they are well developed, they are usually registered on the land title for permanence.

Land, forest, and tree tenure have implications for how carbon rights are conferred and governed (Norton Rose, 2010)

Distinction between land, forest, tree, and carbon tenure: An example of Cameroon

In Cameroon, land is either state or privately owned. However, only 3% of the land is privately owned

Access to forests is gained through local “customary” systems of tenure

Natural forests belong to government but planted trees belong to the one who plants them

State exercises rights over trees in private fields so little incentive to plant trees

Carbon rights likely vest in the State

Key findings (from review of tenure reforms)

Security of land tenure identified as critical for development and incorporated in key reforms

Resource tenure is highlighted in the land policy but there in no specific reference to forest, tree or carbon tenure

Reforms have been fairly consistent in providing clarity and providing for institution strengthening

Aggressive campaign for re-forestation and afforestation e.g. requirement that farmers ensure at least 10% of their land is under tree cover

Key findings (from REDD+ and other Carbon Projects)

National REDD+ program headed by KFS

Rukinga Ranch (coordinated by Wildlife Works)

Imbirikani Ranch (coordinated by Africa Wildlife Foundation)

Mt. Kenya and Aberdare range (coordinated by the Green Belt Movement)

Lessons Learned

REDD+ considered a means of achieving better forest management rather than an end in itself

Avoided costs of deforestation cannot be covered by REDD+ therefore other AGIs included in project design

Land tenure is the most important and influential – whoever owns the land owns the trees and very often, the carbon stored in the trees

Individual tenure considered the most secure while tenure in lands held by local governments in trust for communities considered least secure

Carbon rights are defined on a project-by-project basis, sometimes negotiated

Preliminary Conclusions

Varying tenure systems means that allocation of rights and therefore benefits will vary across projects

Tenure arrangements do indeed vary even within the same class of tenure system

Type of tenure system does not seem to adversely affect implementation of REDD+(+) as long as there is clarity and an agreement on benefit-sharing

While current reforms are a step in the right direction for providing security of tenure, much is yet to be done to clarify and secure resource rights

Recommendations

Strengthen community organizations and use e.g. cooperatives

In Kenya, REDD+(+) projects shouldbe accompanied by some form of income generating activity geared towards improving livelihoods – carbon credits alone are insufficient to cover opportunity costs

Reforms should encourage the registration of carbon rights on titles to encourage permanence

Enforcement needs to be strengthened for tenure systems to gain legitimacy with the community

THANK YOU