Elgeyo/Marakwet County Charcoal Act, 2017 (No. 2 of 2018)

SPECIAL ISSUE Kenya Gazette Supplement No. 6 (Elgeyo/Marakwet County Acts No.2) NATIONAL COUNCIL FOR LAW REPORTING LIBRARY REPUBLIC OF KENYA KENYA GAZETTE SUPPLEMENT ELGEYO/MARAKWET COUNTY ACTS, 2017 NAIROBI, 4th July, 2017 CONTENT Act— PAGE The Elgeyo/Marakwet County Charcoal Act, 2017 1 ItIAL COUNCIL FOR LAW REPORTING RECEIVED 13 Nov zol9 140; 00X 10443 - 0910Q fi.SIRUEil, KENYA ilk: 71 /9231 FAX: 2712694 PRINTED AND PUBLISHED BY THE GOVERNMENT PRINTER, NAIROBI THE ELGEYO/MARAKWET COUNTY CHARCOAL ACT, 2017 No. 2 of 2017 Date of Assent: 27th June, 2017 Date of Commencement: 4th July, 2017 ARRANGEMENT OF SECTIONS Section PART I—PRELIMINARY 1—Short title and Commencement. 2—Interpretation. 3 — Application. 4—Object and Purpose of the Act. PART II—ADMINISTRATION 5—Establishment of County Environment Committee. 6—Composition of the Committee. 7—Functions of the Committee. 8—Powers of the Committee PART HI—COMMUNITY PARTICIPATION 9—Charcoal Producer Associations. 10—Roles of a Charcoal Producer Association. 11—Charcoal Producer Association Formation and Licensing. PART IV—ENFORCEMENT 12—The Enforcement Team. 13—Powers of the Enforcement Team. 14—Offences and Penalties. 15—Other Offences. 16—Use of Firearms. PART V —MISCELLANEOUS 17 —Compensation for Loss or Damage. 18 —Rules. SCHEDULES 2 No. 2 Elgeyo/Marakwet County Charcoal 2017 THE ELGEYO/MARAKWET COUNTY CHARCOAL ACT, 2017 AN ACT of the County Assembly of Elgeyo/Marakwet, to establish the County Environmental Committee to ensure enhanced and effective forest conservation, protection and sustainable charcoal production in the provision of economic, social and environment goods and services; and for connected purposes ENACTED by the County Assembly of Elgeyo Marakwet, as follows — PART I—PRELIMINARY Short title and Commencement 1. This Act may be cited as the Elgeyo Marakwet County Charcoal Act, 2017 and shall come into operation, upon publication in the Kenya Gazette. Interpretation 2. In this Act, unless otherwise requires — "deforestation" means the negative reduction of forest cover from the original status; "environmental impact assessment" shall have the meaning assigned to it under the Environmental Management and Coordination Act (EMCA 1999); "forest area" means any land declared to be a forestland under this Act; "county environment committee" Refers to a committee established under this Act, by the County Government to advise the ministry on all matters relating to the management and conservation of county forests; "forest officer" includes the Director, a forester, a disciplined officer of the service, or an honorary forester; "forest owner" means— (a) in the case of state forests, the Kenya Forest Service; (b) in the case of a county forests, the County Government; (c) in the case of private forests, an individual, association, institution or body corporate. "forest produce" includes bark, animal droppings, beeswax, canes, charcoal, creepers, earth, fiber, firewood frankincense, fruit, galls, grass, BM, honey, leaves, flowers, limestone, moss, murram, myrrh, peat, plants, reeds, resin, rushes, rubber, sap, seeds, spices, stones, timber, trees, water, 3 2017 Elgeyo/Marakwet County Charcoal No. 4 wax, withies, and such other things as may be declared by the county executive committee to be forest produce for the purpose of this Act. "license" means a permit or other written authorization issued under any of the provisions of this Act; "county forest" means — (a) any forest situated on trust land which has been set aside by the county Government pursuant to the provisions of the Trust Land Act; (b) any arboretum, recreational park or mini forest created under section 30 of the forest Act; and (c) any forest established as county forest in accordance with the provisions of section 24 of the forest Act. "private forest" refers to any forest owned privately by an individual, institution or body corporate; "protected tree" means any tree or tree species which have been declared under section 34 of the forest Act to be protected; "sustainable use" in relation to a forest, means the use of a forest and any of its natural resources in manner and to an extent which does not compromise the capacity of the forest and its use by future generations, and does not degrade the carrying capacity of supporting ecosystems; "woodland" means an open stand of trees less than 10 meters tall, which has come about by natural regeneration; "woodlots" means an open stand of trees less than 10 meters tall, which has come about by human planting; "tree" means any plant, shrub, bush of any kind and includes a seedling sapling or reshoot of any age or any part thereof; "enforcement team" means all law enforcers as defined by this Act. Application 3. This Act shall apply to all forests and woodlands in the county and private land within the County. Objects and Purposes of the Act 4. The objectives of this Act are to — (a) regulate production of charcoal; 4 No. 2 ElgeyolMarakwet County Charcoal 2017 (b) contribute to poverty reduction, employment creation and improved livelihoods through sustainable use, conservation and management of forests and trees; (c) contribute to sustainable land use through soil, water and biodiversity conservation, and tree planting through the sustainable management of forests and trees; (d) promote the participation of the communities, private sector and other stakeholders in forest management to conserve water catchment areas, create employment, reduce poverty and ensure sustainability of the forest sector; (e) promote dry land forestry to produce wood fuel, charcoal and non-wood forest products; (I) promote forest extension to enable farmers and other forest stakeholders to benefit from forest management approaches and technologies; (g) promote forest research, training and education to ensure sustainable charcoal production and; (h) promote adaptation and mitigation efforts in Climate Change. PART II—ADMINISTRATION Establishment of the County Environmental Committee 5. There is established committee known as County Environment Committee. Composition of the Committee 6. (1) The County Environment Committee shall comprise — (a) the County Executive member for Environment, who shall be the Chairperson; (b) a representative from the National Environment Management Authority (NEMA) whose area of jurisdiction falls wholly or partially within the county who shall be the Secretary to the Committee; (c) one representative for each of the Ministries responsible for the matters specified in the First Schedule of the Environment Management and Coordination Act; (d) two representatives of farmers or pastoralists within the county to be appointed by the Governor; 5 2017 Elgeyo/Marakwet County Charcoal No. 4 (e) two representatives of the business community operating within the county appointed by the Governor; (f) two representatives of the public benefits organizations engaged in environmental management programs within the county; and (g) a representative of every regional development authority whose area of jurisdiction falls wholly or partially within the county. (2) Appointments under this section shall be made in consultation with the relevant county organs that are representative of the nominees in the county. (3) The Governor, in making the appointments under this section, shall ensure — (a) equal opportunities for persons with disabilities and other marginalized groups; and (b) that not more than two-thirds of the members are of the same gender. (4) The members of the County Environment Committee appointed under paragraphs (c) to (g) of subsection (2) shall hold office for a period of three years and shall be eligible for re-appointment for one further term. Functions of the Committee 7. The functions of the County Environment Committee shall be — (a) vet and approve applications recommended by the Chief Officer Environment, from Charcoal Producer Association's, Transporters and individual farmers for the purpose of regulation; (b) review and recommend licensing of Charcoal Producer Association's; (c) review of Charcoal Producer Associations restoration plans; and (d) monitoring of tree planting events by the Charcoal Producer Associations. Powers of the Committee 8. The Committee shall have all the powers necessary for the performance of its functions under this Act and, in particular but without prejudice to the generality of the foregoing, the committee shall have power to — (a) approve and ratify all policies and restoration plans of the Charcoal Producer Associations; 6 No. 2 Elgeyo/Marakwet County Charcoal 2017 (b) revoke or suspend a license issued under this Act; and (c) partner with other organizations with similar functions to its own whether within the county or outside the County. PART III—COMMUNITY PARTICIPATION Charcoal Producer Associations 9. All commercial charcoal producers are required to organize themselves and form Charcoal producer Associations. Roles of the Charcoal Producer Associations 10. The roles of a Charcoal Producer Associations shall be to — (a) facilitate sustainable production of charcoal by Association members; (b) ensure that members implement the restoration and conservation plans; (c) develop and implement a code of conduct for its members for self-regulation; and (d) assist the County Government and Kenya Forest Service (KFS) in enforcing the provisions of this Act relating to sustainable charcoal production, transportation and marketing. The Charcoal Producer Association Formation and Licensing Requirements 11. (1) The charcoal producer association formation shall— (a) have a list of all members and their address; (b) prepare their constitution and rules; (c) register their association with the registrar of societies and compliance to all statutory requirements; (d) list operational areas of the group and their scope of work; (e) list the group's record of activities relating to charcoal production and transportation; (f) give information relating to land ownership; (g) give a record of the present activities on the land; and (h) forward the application to the Chairperson of the County Environmental Committee for review. (2) A charcoal Producer Association that meets all the requirements provided under sub section (1) shall be issued with a license. 7 2017 Elgeyo/Marakwet County Charcoal No. 4 PART IV—ENFORCEMENT The Enforcement Team 12. For the purposes of this Act, the Enforcement team shall comprise but not limited to — (a) officers of the National Administration; (b) officers of the Kenya Forest Service; (c) officers of the Kenya Wildlife Service; (d) officers of the County Enforcement Department; (e) county Village, Ward and Sub-county Administrators; (f) authorized Community Policing Members; and (g) any other persons as the County Government may deem necessary for carrying out enforcement activities within the County. Powers of the Enforcement Team 13. The enforcement officers may — (a) demand from any person the production of an authority or license for any act done or committed by that person in a County or provisional forest, or in relation to any forest produce for which a license required under this Act or under any rules made hereunder; (b) require any person found within or without a County or provisional forest who has in his possession any forest produce suspected to have been taken from such forest, to give an account of the manner in which he became possessed thereof, and, where the account given is not satisfactory, arrest and take such person before a magistrate. (c) search any person suspected of having committed an offence under this Act or of being in possession of any forest produce in respect of which an offence has been committed, and arrest the person, seize conveyance, tent, hut or building under the control of that person or his agent or servant, Provided that no person shall be arrested under this section unless the enforcement officer has reasonable cause to believe that that person may fail to appear to answer summons, or unless that Person refuses to give his name and address or gives a name and address which there is reasonable cause to believe is false; and 8 No. 2 Elgeyo/Marakwet County Charcoal 2017 (d) search any vehicle Search any vehicle or any vessel and seize and detain any forest produce in respect of which there is reason to believe that an offence has been committed, together with any tools, equipment's, vessels, vehicles or livestock used in the commission of the offence; (e) confiscate any equipment or receptacle placed without authority in a County forest. Offences and Penalty 14. Any person who, without lawful authority— (a) marks any forest produce, or affixes upon any forest produce, a mark ordinarily used by a forest officer to indicate that the forest produce is the property of the County Government, or that it may or has been lawfully cut or removed; (b) alters, obliterates, removes or defaces any stamp, mark, sign, license, permit or other document lawfully issued under authority of this Act, or removes or destroys any part or a tree bearing the stamp or other mark used by any forest officer; (c) covers any tree stump in any County forest or any County alienated land with brushwood or earth, or by any other means whatsoever conceals, destroys, or removes or attempts to conceal, destroy or remove such tree stump or any part thereof; (d) wears any uniform or part of a uniform, or any badge or other mark issued under the regulations of the disciplined forces, or who in any other way holds himself out to an employee of a disciplined force; or (e) counterfeits or issues without lawful authority any license or document purporting it to be a license or document issued under this Act or any rules made hereunder, Commits an offence and shall be liable upon conviction to a fine of not less than two hundred thousand Kenya shillings, or to imprisonment for a term of not less than three years, or to both such fine and imprisonment. Other Offences 15. (1) Any person who — (a) commits a breach of or fails to comply with the provisions of this Act; (b) commits a breach of, or fails to comply with any of, the terms or conditions of a license issued to him under this Act; 9 2017 Elgeyo/Marakwet County Charcoal No. 4 (c) fails to comply with a lawful requirement or demand made or given by a law enforcement officer; (d) obstructs a person in the execution of his powers or duties under this Act; and (e) makes or is found in possession of charcoal in a county and/or private farmland without a license or permit of the owner as the case may be; Commits an offence and is liable on conviction to a fine of not less than fifty thousand Kenya shillings or to imprisonment for a term not exceeding one year, or to both such fine and imprisonment. (2) any person who, in any forest area — (a) introduces any exotic genetic material or invasive plants without authority from the County Government; (b) dumps any solid, liquid toxic or other waste; (c) grows any plant from which narcotic drugs can be extracted; or extracts, removes or causes to be removed, any tree, shrub or part thereof for export and;or (d) destroys or cuts doe an endangered species of tree, shrub or other plant thereof; Commits an offence and is liable on conviction to a fine of not less than three million or to imprisonment for a term of exceeding ten years, or to both such fine and imprisonment. Use of fire arms 16. (1) The County Government may, through the inspector General of police, make available to the County enforcement officers such firearms as may be necessary for the department to carry out its functions under this Act. PART V—MISCELLANEOUS Compensation for loss or damages 17. (1) Where a person is convicted of an offence of damaging, injuring or removing forest produce from any forest, the court may in addition to any other ruling order — (a) that such person pay to the forest owner, by way of compensation, a sum equal to the determined value of the forest produce so damaged, injured or removed and where the value cannot be estimated, ten thousand shillings for each offence; (b) if it is proved to the satisfaction of the court that the person so convicted is the agent or employee of another person, that other 10 No. 2 ElgeyolMarakwet County Charcoal 2017 person to pay by way of compensation to the forest owner, the value of the forest produce, unless after hearing that other person, the court is satisfied that the offence was not due to his negligence or default; (c) the forest produce be removed, and any vessels, vehicles, tools or implements used in the commission of the offence, be forfeited to the County: Provided that the value of the forest produce shall be either the commercial value of the forest produce or the cost of repairing the damage caused to biodiversity as a result of the activities complained of. (2) Where a person is convicted of an offence of occupying or cultivating land in a forest area without a license, the court may, in addition to any other penalty imposed under this Act, order such person to remove any buildings, enclosures, huts or crops within a period to be specified in the order, and if the person so convicted fails to comply with an order within the period so specified, the buildings, enclosures, huts or crops shall be deemed to be the property of the State, local authority or forest owner, as the case may be, and may be disposed of as the State, local authority or forest owner may think fit: Provided, however, that expenses incurred as a result of keeping in custody anything seized or detained under this section shall be borne by the person whose property is seized or detained. Rules 1S. (1) The County Executive Committee Member for Environment may, or on the recommendation of the County cabinet make rules for or with respect to any matter which is necessary or expedient to be prescribed for carrying out or giving effect to this Act. (2) Without prejudice to the generality of the foregoing, rules may be made under this section for — (a) regulating the production, transportation and marketing of charcoal; (b) controlling the harvesting, collection, sale of and disposal of forest produce; (c) prescribing and reviewing the amount of fees payable under this Act generally or in particular case; (d) the circumstances in which licenses, permits, leases, and other agreement may be applied for, and the manner in which a person 11 2017 Elgeyo/Marakwet County Charcoal No. 4 to whom a license is granted may exercise a right or privilege conferred upon him / her by the license; (e) regulating the felling, working and removal of forest produce in areas where frees may be felled or removed; (f) providing for compulsory use of property marks by the County Government and owners of private forests for the purpose of identification; (g) regulating the establishment of charcoal based industries; and (h) providing for measures that enhance community participation in the conservation and management of forest at the local level. 12 No. 2 Elgeyo/Marakwet County Charcoal 2017 COUNTY GOVERNMENT OF ELGEY0/1VIARAKWET SERIAL NO FORM A APPLICATION FOR CHARCOAL PRODUCTION Name of applicant ID. NO Plot. No Sub-Location Location Division Tree species Bags of charcoal requested Purpose .Applicants sign Recommendation by Chairman charcoal producer association Recommended/Not recommended (Tick as appropriate) Signature and official stamp OFFICIAL USE Recommendation by Sub County Environment Officer Recommended/Not recommended (Tick as appropriate) If not recommended state reason(s) Name of Sub County Environment Officer Signature and official stamp Approval by the County Environment Committee: YES/NO (tick as appropriate) If No state reasons Chairman Name signature and official stamp Date SCHEDULES 13 2017 Elgeyo/Marakwet County Charcoal No. 4 COUNTY GOVERNMENT OF ELGEYO MARAKWET SERIAL NO FORM B CERTIFICATE OF ORIGIN FOR FARM FORESTRY PRODUCE Name of produce owner ID. No Plot No Village Location Division Sub County Species .Average Age (years) No. of trees felled Balance Young .Mature Planting configuration (Woodlot/Line Boundary/Random) Other species .Young Mature GENERAL REMARKS ON TREE FARMING I certify that the information given above has been authenticated in a site visit. Sub County Environment Officer Name Official stamp date issued Signature 14 No. 2 ElgeyolMarakwet County Charcoal 2017 COUNTY GOVERNMENT OF ELGEYO MARAKWET SERIAL NO CHARCOAL MOVEMENT PERMIT This permit is applicable to the movement of charcoal. 1. Sub county Division Location .Sub-Locatio 2. Mr/Mrs/Ms is Authorized to transport charcoal from to 3. Quantities of charcoal (should be more than 3 bags) 4. Point of origin for charcoal (Farm—be specific) 5. Vehicle registration Number 6. Date of Transportation 7. Date of expiry of the permit 8. Official receipt Number(s) 9. Name of issuing officer 10. Designation of the issuing officer 11. Signature of the issuing officer 12. Name of the officer supervising removal 13Signature of officer supervising removal This permit has been issued without any alteration whatsoever. DISTRIBUTION Original—To applicant. Duplicate—To be returned to issuing officer after endorsement by officer supervising removal. Triplicate —To remain in the book 15 2017 Elgeyo/Marakwet County Charcoal No. 4 CONDITIONS i. Only the original copy of the permit if valid for movement of charcoal ii. This permit is valid for a single journey and for charcoal only as specified in (3) above. iii. This permit can only be issued by the Director of Environment and Natural resources. iv. This permit does not apply to small Quantities (less than 3 bags) v. Officer supervising removal of charcoal must sign original and duplicate copies of permit to signify removal of produce specified in (3 above). vi. Issuing permits will be done during working days and not over weekends and public holidays. vii. Transportation of charcoal must be done during Day time hours (6 am- 6pm) viii. The charges will be as in the approved finance Act of Elgeyo/Marakwet County.