Wart Hog was very excited a few weeks ago when news broke that a new Forests Act had been passed by the Zambian Parliament.
Wart Hog felt both nervous and excited at the same time when inspecting the new Act for the first time, it felt like a first time father seeing his new born baby after 16 years of trying to have one. You see for Wart Hog and others of his kind, who are forest dependent for their existence, the Forests Act of 2015 has been a 16 years labour of love.
For those of you too young to remember, the new Forest Act is meant to replace the ancient and outdated Forest Act of 1973, well technically the “still born” 1999 Forest Act. So you can understand how excited Wart Hog was to unveil the Forests Act, 2015 for the first time, and the crushing disappoint when the new born looked nothing like Wart Hog expected! I know, Wart Hog should be grateful to have a new Forests Act after trying for so long to upgrade, just move-on.
Reading through the new Act, Wart Hog now knows how all his neighbours felt after buying the slick new VWs to replace the smoking Land Rover 109s, only to be told later that their slick new cars were worse polluters than what they replaced. To get this into perspective, one should note that in June this year Wart Hog and other affected and concerned forest communities were asked to review the Forests Bill and provide comments and recommendations at the Committee Stage. However, to Wart Hog’s disappointment, most if not all of these recommendations were ignored and instead the Forests Act undermines the very estate it intends to protect in favour of big corporations at the expense of community livelihoods and biodiversity. So why is Wart Hog so disappointed?
In reading the initial Forest Bill, Wart Hog raised points of clarifications which  have been completely ignored. In addition, Wart Hog has been informed that all issues raised by other partners were completely ignored and the Forest Bill was adopted as the new Forest Act, 2015 without accounting for recommendations and suggestions. So Wart Hog wonders whether the committee stage consultation was a mere farce! In this article and the one to follow, Wart Hog will highlight some of the issues had been raised and have not been addressed in the Forests Act, 2015.
The proposed Forests Act No.4, 2015 addresses a need for sustainable forest management that Wart Hog has been advocating for a long time. Wart Hog believes that The Forest Act will go a long way in promoting sustainable forest management and ensuring equitable benefits flowing to the local communities from forest management, if the powers can address the identified twists.
The Forest Act, 2015 provides for the sustainable management of forests for the benefit of ecosystems and people, both local and national. However, the Forest Act also falls short of guaranteeing and safeguarding community rights and benefits from forest management, providing safeguards in the management of forests and guaranteeing the integrity of forest estates and boundaries. In addition, the Forest Bill maybe contradictory in some of the provisions, while it may be interpreted as giving unconstrained powers to the Minister as well as non-uniform grievous settling provisions.
Wart Hog raised a number of issues with the Forest Bill that have not been addressed nor acknowledged in the Forests Act No. 4 of 2015. Some key issues include the following:
Part I- Preliminary-
Section 2- Interpretation- “State Land” means all land in Zambia, other than customary areas, National Forests, Local Forests and land under leasehold tenure vested in any person; This definition should read:  “State Land” means all land in Zambia other than customary areas. Since the current land tenure system allows for only state and customary land and all the other subcategories fall under state land.
Part II- Forest Management and Development
Section 5- Provides for the Functions of the Forest Department
Subsection 2-
(f) provides for participatory forest management and (l) provides for the sharing of costs and benefits but does not specify in this provision how this will be done and is left at the discretion of the department. Detailed guidelines and safeguards will need to be developed to ensure these critical provisions are activated and functional under this bill
Subsection 4 (a)- provides for the promotion of community based natural resources management. This is another critical provision that will require guidelines upfront to operationalize the act.  Section 9- provides general principles of forest development and management- however, subsection 4 provides an out for the Director/ Minister from adhering to these standards and leaves it to the discretion of the Minister and or the Director. Standard guidelines and safe guards should be provided for the sustainable management of the forest estate in Zambia either under subsidiary legislation or some other means. The draft bill needs to prescribe this.
Subsection 4 should read: The criteria, indicators and standard determined under subsection (1) shall (instead of may)-
(a) apply to all forests;
(b) apply to all or specific forest types; and
(c) identify the boundaries of forests to which they apply
Part III- Forest Management and Development- National Forest
Section 10-provides for the creation and cessation of National Forest reserves by the President- this provision does not, however provide safeguards to avoid abuse and undue influence by powerful external influences particularly when it comes to cessation or degazetting of National Forests.
Section 12- Purpose of National Forest
For (d) the management of major water catchments and head waters, subject to the Water Resources Management Act 2011. This provision needs to expressly prohibit exploitation of and development in headwater forests
Section 13- rights in national forest-
Subsection 2- who does the minister consult?- There is need for a broad based technical panel and a call for comments  as a minimum level of consultation or inquiry before a decision is entered
Subsection 3- prohibition of shifting cultivation- what of cultural value and rights. There is need to define what is meant by shifting cultivation for the purpose of this draft bill
Subsection 6- This needs to be subject to a technical committee with the relevant skill sets who may be appointed by the minister with the mandate to receive public input and comments. There is need to consider other alternatives to entering the rights other than excising it from the national forest, including but not limited, to setting up of conservation easement- allowing for enjoyment of some rights but with the Forest Department retaining development rights and any other rights that may alter the forest reserve, its functions, connectivity, and provision of ecosystem goods and services.
Subsection 8- This may be construed as contradictory to the other provisions under this section including subsection 3
Section 15- granting of rights-
Subsection 1 gives too much discretion to the Minister and does not specify who or the level of consultation required- previous experience has shown that such a provision is difficult to enforce and or monitor its application and may be subject to abuse.
Subsection 2- There is need to expressly provide for an approved EIA before granting of the right and this would ensure that the Forest Bill is consistent with other legislation that put this as a requirement for licensing. An approved EIA and Environmental Management Plan should be one of the conditions before the granting or consideration of any rights
Subsection 3- Subsection 3 assumes that mining is superior to any other land use and or surface rights including forestry. This assumption allows for uncontrolled destruction and alteration of National Forests and may result in abuse.
Section 21- Control and Management of Local Forest
Subsection 1 The Minister assumes all the control and power to assign the control to a local community or JFM committee, after consultation with local community- this does not provide safeguards for protecting community rights and the role of the community in the decision making process. In addition, there is little incentive for the community to participate in the JFM set-up. There is also need to provide specific guidelines on the minimum level of consultation required before the decision can be rendered.
Subsection 2- Provides for a local authority to apply for the control and management of a local forest.
Can a Chiefdom apply in the same manner as the local authority
Can this provision also be extended to sub-district units such as CBOs, local trusts, producer groups, cooperatives, etc
Section 23- Restrictions in Local Forest
Subsection 1- prohibited activities without a license or permit- the provisions do not specify whether cultural and traditional use for a local forest are prohibited- such as collection of non-timber forest products- mushroom, caterpillars, medicinal plants, rattan, etc.
To what extent can licensing and permitting be devolved to the smallest sub-district management unit? If this is not done then enforcement will be difficult and only serve to criminalize access to the local forest for the community and will preclude households access for community for subsistence and household use
This also applies to such prohibited activities as (d) grazing; (f) enter or be found; (g) collect any bees, comb-honey or beeswax- can community members use their local structures to gain access legally?
Section 24- Establishment of Botanical Reserve- There is need to apply the standard guidelines and safeguards for establishment/ cessation of a Botanical Reserve as indicated for a national forest
Subsection 2- Compensation for a Botanical Reserve in a private forest- Could this also apply to a community forest and forests on customary land where the local community has claim and user rights?
Subsection 5- prescribing of guidelines for the use, conservation, preservation and management of botanical reserves- there is need for standard guidelines and safeguards to allow access and to protect the Botanical Reserve’s integrate.
Section 26- Registration of private forest- the conditions under this section should also be applicable when granting rights in local and national forests
Section 27- Entitlement of owner of registered private forest- the entitlements under this section should also be applicable for JFMs, community forests, and local and national forest reserve rights holders
Sub-section 3- harvesting without a license or permit- how will this be monitored and enforced? If the private forest reserve owner can harvest the Forest Department has no basis for monitoring whether or not the harvesting is sustainable and the forest reserve is being managed for the purpose for which it was established.
Section 29- Community forest Management Group- this should not be restricted to a village or rural communities and should take cognizance of the communities within urban areas++++++
Section 30- Recognition of Community Forest Management Group-
Subsection1- provides for a group living in the vicinity of a forest to apply for recognition and requires the consent of the area chief- this section does not account for interested parties who are in urban areas and are desirous of forming a community forest management group.
Subsection 2- there is need to recognize groups intent on protection or conservation of a forest for ecological, cultural, or aesthetic value.
Subsection 5- provides for a community forest management group that is aggrieved to appeal to the Minister- this is inconsistent with the provisions of section 34 (3) where the group can appeal to the high court if aggrieved- the appeal should allow for an independent determination of the grievance and as such, the appeal should be to the High Court
Section 31- Community Forest Group Recognition
Subsection 2- there is need for wider consultation and to expressly include consultation of the local community or and forest boundary communities.
Under the provisions of this Act and the definition of the Forest as provided in Part I, section 2, a rural community using forest products for subsistence is considered illegally harvesting unless and until the group forms a community forest group and the group is accepted and registered by the Director. This provision criminalizes most of the rural communities and is completely unrealistic. Section 36- Declaration of Joint Forest Management Area
Subsection 2- Consent of local community or land owner- this requirement should be extended to the granting of or recognition of rights in a national, local, or botanical reserve as well
Section 37- Joint Forest Management Committee
Subsection 1- (a) this does not account for JFMs to be set-up in urban areas. As such, this should read: a chief’s representative or local administration representative-
Subsection 1- identifies a total of 7government representatives (8 if you consider the Chief as part of the local authority administration, 1 private sector (license/ permit holder) and 4 (3 if you remove the Chief’s representative) community representatives- this tilts the balance in favor of government agencies and does not signal desire for a truly joint forest management. There would be no incentive for the community to participate.
There is need to increase community representation on the committee and for the government agencies to play an advisory and backstopping role if and when required.
Section 39- Benefit Sharing- this section does not provide sufficient direction on benefit sharing and provides only vague reference to sharing of revenue between the forest department and the JFM unit with the JFM share to be used to meet committee and Forest Department administration costs
Subsection 1- establishes a fund to which a percentage of the funds from the JFM revenue should be deposited. However, the share of the revenue is not specified. This needs to be explicitly stated such as adopting a formula similar to: 40-40-20- a split of 40% each for the Forest Department and the JFM unit with 20% retained by the JFM unit for forest management and administration.
Subsection 2- provides for disbursement from JFM fund to meet cost of services by committee and forest department
There is no provision for community around JFM to access funds from JFM or benefit from revenue generated
Need to specify how the “40%” of the JFM share will benefit the community- invested in sustainable livelihood activities; establish revolving fund; value addition and marketing of forest products from JFM, etc.
Subsection 8- Any benefits from the JFM area shall be shared among stakeholders according to the JFM plan- this provision is vague at best and subject to multiple interpretation. There is need to develop benefit sharing mechanisms, standards and guidelines to safeguard the interests of the local community
The Forests Act No. 4 of 2015 has been developed in good faith and provides a good starting point for joint forest management and increased community participation in forest management. If some of the provisions could be tightened to allow for improved community access and benefit sharing, the Forest Act, 2015 would go a long way in assuring household resilience and contribute to rural poverty alleviation. Wart Hog has highlighted a number of sections and provisions that would require further work. Given the critical role of forests and forest products in the livelihoods of both rural and urban households, it is critical that this Act champions community access and benefit sharing in forest management. In addition, the Act needed to provide for specific safeguards and guidelines for the management and development of the forest estate in Zambia. In addition, and given the critical role that forests play in the protection of critical and sensitive ecosystems, the Act needed to define high priority and or nationally endangered or threatened ecosystems for exclusive protection and exclusions zone for any form of development. This could have included but not be limited to headwater forests for all the major rivers; national and locally important river sources; mountain and escarpment forests subject to landslides and other catastrophic erosion events; areas important for the protection of endangered species and cultural values.
So as you can see, Wart Hog is happy with the new born baby but still has misgivings and questions about the child’s paternity!
Wildlife & Environmental Conservation Society of Zambia
P.O. Box 30255, Lusaka, Zambia.
Telefax: 260-211-251630, Cell: 0977-780770
E-mail: wecsz@coppernet.zm