By Dr. Kariuki Muigua, PhD (Leading Environmental Law Scholar, Policy Advisor, Natural Resources Lawyer and Dispute Resolution Expert from Kenya), Winner of Kenya’s ADR Practitioner of the Year 2021, ADR Publisher of the Year 2021 and CIArb (Kenya) Lifetime Achievement Award 2021.*
The rights of Indigenous Peoples are considered to be of special relevance to conservation for two main reasons: The first is that priority sites for biodiversity conservation frequently overlap with the territories of Indigenous Peoples. This is often because of Indigenous Peoples’ custodianship of those lands which has meant that they have retained their value for biodiversity; and secondly, Indigenous Peoples very often have a close relationship to the land and to nature and, therefore, conservation has the potential to affect that relationship – both positively and negatively.
It has rightly been observed that the livelihoods of indigenous peoples, custodians of the world’s forests since time immemorial, were eroded as colonial powers claimed de jure control over their ancestral lands, where the continuation of European land regimes in Africa and Asia meant that the withdrawal of colonial powers did not bring about a return to customary land tenure. This is despite the acknowledgement that the rights of indigenous peoples’ are often particularly relevant for conservation and sustainable use of natural resources, due to the frequent overlap of high biodiversity areas and indigenous lands, and the vulnerability of natural resource-dependent customary livelihoods to changes in access or use.
In addition, indigenous peoples’ traditional ecological knowledge, traditional systems of control, use and management of lands and resources, and traditional institutions for self-governance also contribute substantially to conservation. While across sub-Saharan Africa, natural resources remain central to rural people’s livelihoods with local norms and customs shaping people’s everyday forms of resource use, the commercial uses of natural resources often remain highly centralized, conditioned by government policies of the colonial and post-colonial eras. Notably, the term “indigenous knowledge” is generally used refer to how members of a community perceive and understand their environment and resources, particularly the way they convert those resources through labour.
Indigenous groups should be included in reforestation and forest management plans as they can potentially offer alternative knowledge and perspectives based on their own locally developed practices of resource use. Indigenous knowledge is the local knowledge that is unique to a culture or society, seen as the social capital of the poor since it is their main asset to invest in the struggle for survival, to produce food, to provide for shelter and to achieve control of their own lives. The SDGs recognises the importance of this body of knowledge as it has several goals that seek to incorporate the knowledge vested in indigenous people in order to achieve its main agenda. Indigenous knowledge has been hailed as capable of solving local problems, as it offers a resource to help grow more and better food, adds to maintain healthy lifestyles, and it provides opportunities to share wealth and prevent conflicts.
For instance, some commentators have observed that: with regard to agro-ecology, indigenous people practised mixed farming where organic manure in the form of plant remains, cow dung and urine, and chicken droppings was applied to gardens to improve soil fertility as they are good sources of organic fertilizer which tended to promote organic farming; the use of nitrogen fixing pulses in mixed cropping, growing of plants of different patterns, maturity and duration assisted significantly in stabilizing soil fertility and prevention of soil erosion; in addition, the practice was an effective way, biologically, of managing pests and diseases; it also conserved biodiversity of animal and biannual crops and plants while reducing labour costs; in addition, trees were planted in gardens to provide shade for the plants, to act as wind breaks, and also to demarcate people’s farmlands and homes; and as such, reviving organic agriculture would help conserve water, mitigate climate change and ensure sustained biodiversity.
Some of the main ways through which indigenous knowledge may be used in promoting biodiversity conservation include but not limited to: trees which were traditionally regarded as housing spirits or sacred were not be felled without performing rituals, thus achieving a protective effect on trees such as mugumo tree (Ficus natalensis/Ficus thonningii) among the Gikuyu community of Kenya; animals in a particular habitat may be regarded as sacred and are therefore protected from hunting; sacred groves or forests are pieces of land set aside for spiritual purposes, as shrines; traditional farming practices are champions in sustainable land and water management as they involve land rotation and shifting cultivation allowing the land for more than 10 years to restore its natural fertility; all over sub-Saharan Africa indigenous plants are used in preventing and curing diseases in plants, animals and humans thus guaranteeing their protection and conservation.
Arguably, while there is a need for deeper research to demonstrate to what extent indigenous knowledge rules are able to realize targets of sustainable use and the questions on effectiveness and efficiency of community based approaches to biodiversity conservation and management arise, in theory, when biodiversity can be maintained and monitored through customary laws, this is preferable over maintenance through codified law. Notwithstanding this, the provisions in the Protection of Traditional Knowledge and Traditional Cultural Expressions Act, 2016 offer a rare opportunity for the state to realize the vision of the 2030 SDGs by incorporating Kenyan communities’ indigenous knowledge in the roadmap to the achievement of the sustainable development agenda. By including these communities and their knowledge, any development policies aimed to benefit these communities will be more likely to not only respond to their cultural needs and preferences but will also enable them meaningfully participate.
Some commentators rightly argue that, despite any gaps in knowledge in the place of indigenous knowledge in biodiversity conservation for realisation of SDGs, the following indigenous and other traditional communities’ rights should be respected, in relation to the lands, territories, waters, coastal seas and other resources which they traditionally own or otherwise occupy or use, and which fall within protected areas, subject to agreements with the agencies in charge of national protected area systems, and in the context of agreed management regulations and plans: rights with regard to sustainable, traditional use of their lands and resources; rights to participate in management; rights to participate in decision-making; rights to participate in determining priorities and strategies for the development or use of their lands; rights to use their own traditional institutions and authorities to co-manage their lands and resources; rights to require that States obtain the free and informed consent of the respective communities, prior to the approval of any project affecting their lands and resources; rights to improve the quality of their lives, and to benefit directly and equitably from the conservation and ecologically sustainable use of natural resources; collective rights to maintain and enjoy their cultural and intellectual heritage, and the knowledge related to biodiversity and natural resource management; and rights not to be removed from the zones they have traditionally occupied within protected areas.
Some, however, argue that protected areas and community agriculture can indeed co-exist. As the number of crop species and varieties declines, local nitrogen-fixing bacteria, mycorrhizae, predators, pollinators, seed dispersers and other species that co-evolved over centuries with traditional agricultural systems die out. In addition, the use of fertilizers, pesticides and high-yielding varieties to maximize production and profits over the short term exacerbates this loss of biodiversity. Arguably, diversity of crop species and the diversity of varieties within a species have traditionally strengthened the resilience of agriculture, and Protected areas can contribute to this effort through maintaining wild relatives of crops. As such, the agricultural community should be seen as part of a larger and more comprehensive ecosystem which provides both goods and services from nature through a wellmanaged protected system. Fostering this positive relationship between agriculture and protected areas may however require broader adoption of the new approaches.
*This article is an extract from the Article “Fostering a Human Rights Approach to Biodiversity Conservation in Kenya” by Dr. Kariuki Muigua, PhD, Kenya’s ADR Practitioner of the Year 2021 (Nairobi Legal Awards), ADR Publisher of the Year 2021 and ADR Lifetime Achievement Award 2021 (CIArb Kenya). Dr. Kariuki Muigua is a foremost Environmental Law and Natural Resources Lawyer and Scholar, Sustainable Development Advocate and Conflict Management Expert in Kenya. Dr. Kariuki Muigua is a Senior Lecturer of Environmental Law and Dispute resolution at the University of Nairobi School of Law and The Center for Advanced Studies in Environmental Law and Policy (CASELAP). He has published numerous books and articles on Environmental Law, Environmental Justice Conflict Management, Alternative Dispute Resolution and Sustainable Development. Dr. Muigua is also a Chartered Arbitrator, an Accredited Mediator, the Africa Trustee of the Chartered Institute of Arbitrators and the Managing Partner of Kariuki Muigua & Co. Advocates. Dr. Muigua is recognized among the top 5 leading lawyers and dispute resolution experts in Kenya by the Chambers Global Guide 2022.
References
Muigua, K., “Fostering a Human Rights Approach to Biodiversity Conservation in Kenya,” Available at: http://kmco.co.ke/wp-content/uploads/2021/11/Fostering-a-Human-Rights-Approach-to-Biodiversity-Conservation-in-Kenya-Kariuki-Muigua-November-2021.pdf (accessed 10 May 2022).
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