JOINT FORESTRY MANAGEMENT POLICY ADVISORY NOTE

POLICY ADVISORY NOTE FROM THE NATURAL RESOURCES CONSULTATIVE FORUM
TO THE PERMANENT SECRETARY, MINISTRY OF TOURISM, ENVIRONMENT AND NATURAL RESOURCES
ON JOINT FORESTRY MANAGEMENT IN ZAMBIA

20TH JUNE 2005


1.0 INTRODUCTION

The Provincial Forestry Action Programme (PFAP II) has been supporting the Forestry Department (FD) of the Ministry of Tourism, Environment and Natural Resources (MTENR) to pilot joint forest management (JFM) in seven districts in Zambia.

The legislation and policy documents that form the base for piloting Joint Forest Management activities in Zambia are the Forestry Policy of 1998, the Forests Act of 1999, and the local forests (Control and Management) Regulations, Statutory Instrument No. 52 of 1999, all of which pre-date the commencement of JFM activities in Zambia. The legislation was thus largely drawn on the basis of experiences from other countries and assumptions on how these would apply to the Zambian situation.

The pilot is a learning process intended to establish collaborative management regimes in six forest reserves and one Open Area. For the past 18 months, the Programme has stalled due to the lack of an adequate legal framework to enable some aspects of JFM to be implemented. In the process of piloting JFM it has become clear that the legislative foundation for JFM contains a number of gaps and shortcomings that need to be addressed. This is because the Forests Act of 1999 which provides the legal framework for JFM is not yet in force. In particular, the issue of how communities may be empowered to collect licence revenue on behalf of government, and of how the benefits arising from JFM can be shared between the Government (FD) and the local communities remains to be addressed and tested in the field.

A number of other pertinent legal issues further remain to be addressed, mainly linked to the non-commencement of the Forests Act No.7 of 1999.

2.0 BRIEF TECHNICAL ANALYSIS

The Forests Act of 1999 must be brought into force through the passing of a commencement order under the hand of the Minister of Tourism, Environment and Natural Resources specifying an exact date of commencement.

The commencement of the Act will transform the forestry sector in the following manner:

a. Creation of the Zambia Forestry Commission to replace the Forestry Department
b. Transfer of user, control and management rights to participating communities and stakeholders through joint forestry management
c. Sharing of costs and benefits of forestry management with participating stakeholders
d. Progressive change in the role of the Forestry Commission

This change has not only administrative and financial implications, but also legal ones. The Forests Act lays down two key legal requirements – the issue of a commencement order to bring the Act into force and the need to comply with the transitional process elucidated within the Act from the commencement date of the Act.

The establishment of the Zambia Forestry Commission to replace the Forestry Department is critical to the implementation of the Act and therefore the Commission should be created within a reasonably short time from the commencement date. This means that before the commencement order is issued, the MTENR must be satisfied that the transition process (administrative arrangements and finances) has reached an advanced stage that will facilitate the establishment of the Commission at least within a month or two. This is because the implementation of the provisions of the Act is dependant on the Commission being in place within the shortest possible period.

The transitional provisions set out in the First Schedule of the Act have financial implications and relate to the following:

• Transfer of staff (all or some)
• Transfer of rights, obligations, assets from Forestry Department/Government to Commission
• Legal proceedings for and against Forestry Department/Government to subsist against the Commission

Under paragraph 10 of the Schedule, the Minister has power to transfer all or some of the officers from the Forestry Department to the Commission. This will mean the termination of staff contracts and settlement of terminal benefits for those that will not be transferred.

The transfer of assets and liabilities will include the transfer of any affairs, property, rights and obligations of the Forestry Department, as well as any legal proceedings, deed, bond or agreement entered into by Government in respect of the Forestry Department.

It is important to note therefore that financial, legal and administrative implications affect the setting of the date of commencement of the Act. The cost of restructuring the forestry sector in accordance with the 1999 Act has been estimated at K75 billion. To date, only about K30 billion had been set aside by Government for the purpose. Some activities leading to the creation of the Commission are being undertaken in accordance with the recommendations of the Forest Support Program. But six years from the time the Act was enacted, it is still not certain when the Commission will be established or when the Act will be activated by the MTENR.

There are two main problems that have been created by the delay to issue a commencement order:

• An enabling policy framework for participatory forestry management (Forestry policy of 1998) is in place but it is supported by outdated legislation in force whose main theme is State control and ownership (Forests Act of 1973, Cap 199). This has affected the implementation of JFM some of whose aspects relating to participatory management and cost and benefit sharing among stakeholders require a comprehensive and substantive legislative framework. Principles of effective collaborative forest management and real community empowerment cannot be realised in such an environment.

• During the piloting of JFM, legal problems that have been identified require the amendment of some of the substantive provisions of the Forests Act of 1999. These amendments can only be effected once the Act is in force.


3.0 RECOMMENDATIONS

3.1 OPTION ONE

The best option available is to continue piloting JFM using the 1973 Forests Act, Cap 199 of the laws of Zambia.

Section 2 of the Forests Act of 1999 defines JFM -

…‘the participation of stakeholders in the sustainable management of forest resources and the sharing of benefits derived therefrom.’

The 1973 Act does not mention or refer directly to the concept of ‘participatory’, ‘collaborative’ or ‘joint forestry management’. At the time it was enacted, the government policy objective was to vest the ownership, control and management of all trees and forest produce on Zambian land in the State, this power being exercised on behalf of Government by the Chief Conservator of Forests. However, the Act envisioned the transfer or assignment of the ownership, control and management of specified forest areas to another person or authority and the delegation of the exercise of the powers conferred on the Chief Conservator of Forests to another person or authority in addition to forest officers.

1. Transfer of Ownership

Under section 3:

“…the ownership of all trees standing on, and all forest produce derived from the State Lands, Customary areas, National Forests and Local Forests is vested in the President on behalf of the Republic, until lawfully transferred or assigned under this Act or any other written law.”

Unfortunately, the Act does not have an enabling provision for the transfer of ownership of forests. Under the Lands Act of 1995, a person may acquire land but not natural resources, oil, mineral resources on it. They are vested in the State and the State reserves right of re-entry. (See Land Acquisition Act, Mines and Minerals Act)

2. Transfer of control and management

Under section 22:

“…the Minister may, by statutory instrument, assign the control and management of any local forest to any other person or authority, subject to such conditions as he may think fit.”

Section 30 states -

“… in the case of any State lands or customary area lying in the area of a local authority, the Minister may assign the control and management of licensed felling, cutting, taking and removal of major forest produce in or from such land to the local authority subject to such conditions, if any as he may think fit.”

3. Delegated Authority

Sections 22 and 30 confer delegated authority on other person or authority.

3.1.1 Limitations of the 1973 Statutory Provisions

Section 22 does not apply to open areas and plantations. More importantly, certain aspects of the JFM process cannot be implemented in its entirety especially those relating to sharing of costs and benefits in form of cash between Government (Forestry Department) and the local communities. Thirdly, the interpretation of the words ‘control’ and ‘management’ must fall within the context and overall scope of the Forests Act of 1973. Although the Minister has wide discretionary powers under the empowering provisions, these are limited by the scope of the Act. The methods of control of harvesting and managing forest resources permissible within the Act include:

• Licensing – Part VII of the Act
• Policing – Part XI and section 7 (honorary forest officers)
• Marking of forest produce – section 48
• Prevention of fire – section 67

The extent of the management role to be assigned can be translated using the current operations and administrative functions/role conferred upon the Forestry Department. These include -

• Forest planning
• Restoration
• Monitoring
• Reporting
• Forest development to sustain and increase forest cover (section 21 – purpose of local forest)
• Conservation (section 21)

In the case of benefits, in local forests, section 20 is instructive. It allows the enjoyment of rights, interests, easements and profits admissible through an established procedure within the Act, as long as these are not inconsistent with objectives and scope of the Act. These must be provided for in the declaratory orders/instruments under the hand of the President. Other benefits are free access to forest produce and access and user rights. Using this interpretation, for purposes of JFM, local communities, for instance may within a statutory instrument issued under section 22, be assigned the tabulated means and measures of control and management. However, the Act cannot be used to allow the sharing of monetary benefits between the Forestry Department and local communities, or indeed any other stakeholder.

Under section 32, the Minister has power to set and prescribe different fees for forest produce and licence fees. This provision could be used to the advantage of the local communities under JFM by enabling them to pay for reduced fees for forest produce and licences.

3.1.2 Recommendations

In view of the above explanation, it is recommended that the MTENR take the following steps as an immediate short-term solution prior to the commencement of the 1999 Act:

• Effect amendments to SI No. 52 of 1999 to include aspects of JFM as far as is possible within the context of the Forests Act of 1973. It is important that the Ministry appreciate that this should be provisional only because it is vital for JFM to be implemented under the 1999 Act. The issue of a commencement order should still be a matter of priority for the Ministry to effectively implement JFM as espoused under the 1998 Forestry Policy.
• Issue Gazette Notices to declare the current piloted areas as JFMAs
• Prepare amendments to the Forests Act of 1999 based on lessons learnt, that could be effected once the Act is in force.


3.2 OPTION TWO

In the absence of the above recommendation, the MTENR’s option is to continue piloting without a supporting legal framework until the necessary funds for the creation of the Commission are raised and the commencement order issued. The consequences are that under such an arrangement, control and management of forests cannot legally be imparted to local communities because the law demands that the assignment of the control and management must be done by statutory instrument under the hand of the Minister of Tourism, Environment and Natural Resources according to such terms and conditions as the Minister deems fit.


3.3 JUSTIFICATION FOR CHANGES

Option one is justified on the basis that the backing by legislation will guarantee the security, tenure and certainty of legal claims, interests and rights for the local communities.


4.0 BUDGET IMPLICATIONS OF THE RECOMMENDATIONS

There are no budget implications for the proposed recommendations.


AS OF 15 OCTOBER 2006, NO RESPONSE HAS BEEN RECEIVED BY THE NRCF FROM THE CO-CHAIRMAN OF THE NRCF, THE PERMANENT SECRETARY OF THE MINISTRY OF TOURISM, ENVIRONMENT AND NATURAL RESOURCES.