Letter to the Editor

Forests regulatory text, context: Part 2


FOLLOWING the exposition of the captioned discourse in the Zambia Daily Mail of Thursday, September 15, 2016, this article focuses on a comparative analysis of the Forest Acts of 1973 and the Act of 2015.

Many commentators, non-governmental organisations (NGOs), scholars, researchers and forest entrepreneurs have cited the law as the major hindrance in the forest sector. However, for the first time in the history of the Republic of Zambia, we have no law to blame for our failure to engage in sustainable forest production or for our failure to organise ourselves for sustainable forest production.
We can no longer cite legal text for our failure to manage the unprecedented rates of deforestation. But we only have the regulation of social context to focus on for now if deforestation rates have to be stalled.
The 1973 Forests Act was well designed to protecting trees. But protect trees from what? The wrongdoersForests Act of 2015 has gone further to answer that question – to protect trees from utilitarian and instrumental human action.
The former Act was built on a 19th Century technicist paradigm of environmental law, focusing primarily on protecting environmental media in isolation of the external factors that threaten the media. The latter is built on a 21st Century paradigm of environmental law – a holistic combination of protecting environmental media and regulating the human agency that threatens the media.
As such, the latter Act goes further than the former to protect trees (environmental media) from the utilitarian and instrumental human action. The former approach would easily lead to the creation of lawlessness – when community members, who once freely accessed the forests become isolated from the forests by legal text.
The latter approach brings the potential lawlessness, such as poaching into the regulatory matrix of the community, which ultimately prevents the creation of such vices as poaching.
Understandably, the Forests Act of 1973 was enacted in a socialist state-based on command-and-control regulation at a time when the country was still swimming in an abundance of indigenous forests, a national common resource which now suffers from the tragedy of the commons.
The tragedy itself became a significant indicator of how blunt the law had become in the face of trends after 1990 following the effects of structural adjustment programme and the liberalisation of the economy, which equally sparked huge job losses in the mines (John Lungu and Alistair Fraser 2006).
Common resources like forests became the only alternative social safety nets to cushion a large population of unemployed people who took charcoal burning and timber logging as the easiest, most lucrative and non-loss-making businesses.
But regulating human action under such contexts cannot be achieved without a comprehensive understanding of ethical, religious, socio-economic, technological and political influences that inform human behaviour. Yet understanding these factors is one thing, and not enough – capturing them into regulation is another thing, even more difficult.
Deforestation, like any other form of environmental degradation is les commune (an issue that involves people, emerges within societal jurisdictions involves and affects communities). In essence, the legal text of the Forests Act 2015 rightly defines the what, but forest regulation must then define the how of legal text in order to implement substantive legal text into a socio-economic context.
Hence, if we can no longer blame the law for our failure to manage deforestation, what would we cite it for? The country’s failure to manage deforestation today should not be because of the poor state of an unresponsive piece of legislation, but rather it may only be because the regulators have failed to manage the mobilisation and organisation of forest producers around the resource.
A case in point is with the regulation charcoal production and trade, which constitutes a large part of forest use (CIFOR 2013). Is it feasible to regulate charcoal production by targeting individual producers or by regulating producer groups of charcoal burners? The CIFOR study highlights this as part of the deforestation thorn in Zambia’s flesh.
As such, the country’s failure will no longer be in the law, but in failing to respond to the spirit of the law. Difficulties in managing deforestation may now be premised on the failure to respond to the socio-economic context targeted by legal text in the Act.
Having been consulted in the development of statutory regulations for charcoal, saw milling and forest carbon trade and management, the author can comfortably assert, from an informed perspective, that the challenge of managing forests is now relegated to the design of regulatory mechanisms that respond to both legal text and social context.
This is unlike in the Forests Act of 1973, where much of the architecture of the legislation needed to be repealed to create room for sustainable forest management. Now that such room has been legally created, no longer shall we see legal text as the fundamental problem but rather our management of social context as a key issue.
Deforestation can no longer be a technical issue relegated to foresters, but rather it will be determined by how the foresters respond to the socio-economic dynamics of forestry, particularly, the organisation of forest producers around the resource.
The author is UNFAO national consultant, market analysis and development of community-based forest enterprises.


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