Compiled by Mutuso Dhliwayo-Zimbabwe Environmental Law Association

Background and Introduction

The forestry sector is a very important in Zimbabwe’s economy. Among the services it provides are timber, fuelwood, wood for charcoal-making and crafts, fodder, fruit, honey, medicinal plants, mushrooms, insects, bark, leaves and poles. Forest land also provides valuable protection for watersheds and wildlife habitat and assists in preventing soil degradation and erosion. However, over the years , the sector has been confronted by a multiplicity of challenges that have affected its ability to fulfil its potential in economic development and provision of environmental services.[1]These challenges that have resulted in forestry depletion include deforestation, illegal settlements, veldfires , mining activities, change of land use and an old and colonial piece of legislation in the form of the Forest Act[2] that is not based on the principles of Sustainable Forestry Management (SFM) that includes participation, partnerships, transparency, integrated approach and accountability.[3] Among all these problems, it is argued that veld fires are among the biggest contributors to forestry depletion. It is estimated that each year, Zimbabwe loses an average of 900,000 hectares to veld fires, most of them in resettlement areas.[4]

In 2010, the Forestry Commission reported that 79,000 hectares of protected indigenous forests were burnt. Thus, in response to this persistent challenge of veld fires, the Forest Amendment Bill (FAB) was crafted by the Ministry of Environment, Climate, Tourism and Hospitality Industry. The Forest Amendment Bill is currently before Parliament having been gazetted on the 6^th of December 2019. ZELA has been involved in forestry governance reforms under its Land and Natural Resources Programme.[5] This includes monitoring policy and legal reforms in the forest sector that includes the FAB. The legal and policy reforms in the forest sector in the form of the FAB are happening against a background of important developments that include the recognition of SFM principles to guide the management of forests, the development of the National Forest Policy and the adoption of 2013 Zimbabwean Constitution.

To that end, the ongoing reforms should build on the principles of SFM which includes participation by interested and affected stakeholders in the policy and decision-making processes, access to information and accountability. These are principles also find currency in the Constitution, the National Forest Policy, the Environmental Management Act and National Environmental Policy and Strategies. The objective of this blog is therefore to analyse the extent to which the FAB provide for these principles and its strengths and weaknesses. The FAB is currently before Parliament and it is hoped that the findings can feed into the ongoing policy reforms and help strengthen it before it is passed into law by Parliament.  

Analysis of the provisions of the FAB

The Forest Act is the primary piece of legislation governing the exploitation of forest resources in Zimbabwe. It was enacted in 1949. Its main objective is to establish a Commission for the administration , control and management of state forests. According to the Memorandum, the objective of the FAB are as follows:

1. To enhance the protection of forests from veldfires through the introduction of mandatory and hence deterrent sentences
2. To specifically recognise aggravating consequences of veld fires , such as death and damage to property and make provision for their prosecution in terms of the Criminal Law (Codification and Reform ) Act ( Chapter 9:23)
3. To introduce a multi -sectoral and decentralised approach to fire management that includes local authorities , AREX officials, the transport sector , gender structure and traditional leaders , among others
4. To enhance the regulatory responsibilities of the Forestry Commission

A look at the objectives of the FAB reveals its limitations. Its major focus is on the management of veld fires. This is a very narrow approach because while veld fires are certainly a big problem , they are not the only problems that are affecting the governance of the forestry sector. The other problems includes the lack of participation , lack of access to information and lack of  meaningful benefits by communities from the exploitation of forest resources that are found within their localities as envisaged by sections 13 (2) and (4) and 62 of the constitution.

Clause 2 amends section 5 of the Forest Act which provides for the constitution or composition of the Commission .The Forest Commission board is a very important policy decision making board and its composition  has always been criticised as not being representative and participatory enough.[6]  With regards to the composition of the board , the current Act provides that “ The Commission shall consist of not less than 3 and not more than 8 Commissioners appointed by the Minister after consultations in accordance with any directions by the President.[7] Clause 2 of the FAB seeks to address this by giving direction and guidance to the Minister on the composition of the Commission. It requires the inclusion of people holding recognised qualifications or demonstratable knowledge in forestry amongst other important qualifications in environmental planning and management , finance and management , business and administration , ecology and law”. This is welcome development as previously these other important qualifications were not considered.

It further seeks to harmonise the Forest Act with the principles of gender balance as provided for in section 17 of the Constitution by requiring that if the Chairperson of the Commission is a man, then the Deputy shall be a woman and vice versa. It further requires that in appointing the commissioners , the Minister shall endeavour to ensure that at least half of the membership so appointed comprises of women. This is a very positive development as one of the weaknesses / gaps that has been laid against the Forest Act is the failure to include gender. However, the composition of the Commission board can be improved by including communities and youths. These are currently not included. The concept of gender balance in forest management is further enhanced Clause 4 of the amendment which states that in the appointment of the Chief Executive Officer and Deputy , the commission shall endeavour to ensure that these are people of different sexes. So if the CEO is a man, then the Deputy will be a woman and vice versa . The gender principle is further enhanced through Clause 5 which amends section 27 A of the Forest Act which requires the Commission in its appointment of staff members “ to ensure equitable gender distribution”.

The protection of forests against veld fires is enhances through Clause 3 which empowers the Forestry Commission to issues orders to people  acting ultra vires the provisions of the Forest Act to undertake or adopt such measures as specified in the orders.

The amendment of section 68 helps to speed dispute resolutions between land owners or occupiers regarding the creation of fireguards. Currently the disputes have to be referred to the Secretary in the Ministry of Environment and this is time consuming . The amendment decentralises dispute resolutions and empowers forest officers to work with environmental officers which is quicker and saves time and resources . Section 69 is amended to decentralise the management of fireguards regarding their widening. Currently , the prescribed width is 18 meters and in those instances where this is not enough , the order to increase the width is issued by the Minister of Environment.  This is time consuming and the amendment decentralises this by giving the power and authority to increase the fireguard width from the current 18 meters if need be to forest and environmental officers who are based at the local level. The Minister will become an appeal authority and it is a criminal offence to fail to comply with their orders.

Section 70 is amended to makes it a criminal offence for anyone who starts a fire on another person’s land or a vacant piece of land and fail to extinguish such fire. While the current position is that it is requirement for the person who would have started it to put it out, it is not a criminal offence not to do so and the amendment changes this position by criminalising it under section 78.

Section 72 is amended by clause 9 to provide for liability for either the servant who acts under the directive of his or her employer to start a fire or both of them. Both will be criminally liable under section 78. Section 75 is amended to require a person who sees a fire on another person’s land and has good reason to believe that that fire maybe dangerous to life or property , to take steps to warn such owner or occupier of the dangers posed by the fire to land and property. It’s a criminal offence to fail to take heed of such warning. However, there is a proviso that the criminal penalties only arises if the fire results in actual harm to life or property.

Section 78 is amended to introduce major offences for causing veld fires. In the event where veld fires have been deliberately caused , the criminal offence can result in imprisonment for a period of not less than 5 years and in any other case, this may result in imprisonment for a period not less than one year. In some instances imprisonment can be a period of not less than two years or less than 6 months or both imprisonment and fine.

Smoking and negligent use of matches is a major cause of forest fires and section 81 is amended to introduce mandatory penalties for offences related to smoking and negligent use of matches and now attracts imprisonment for a period of three months.

Section 89 is also amended to bring in a multidisciplinary approach to the management of veld fires. This is done by giving the Minister powers to consult other Ministers when coming up with regulations for the management of veld fires. The other Ministers that maybe consulted include the Ministers responsible for Agriculture , local government , transport , energy , women affairs , Mines and any other relevant Ministry. This is a very good provision as this helps to have an integrated management of forest resources . Forest management is hinged on cooperation from a number of other Ministries and stakeholders.

Conclusion

The FAB has a stronger provisions on veld fires management. This is achieved through strong deterrent penalties which are mandatory and decentralisation of dispute resolution. These provisions help in the management of veld fires. It also has some very strong provisions on gender both in terms of the constitution of the board and at management and staff level. Gender equity is very important when one takes into account the impacts of forestry governance on women. The requirement for certain skills and professions that the Minister should consider and be guided by in the appointment of board members is another positive provision of the FAB. However, it misses out on other important issues that relates to sustainable forest management which stakeholders had hoped would be addressed through this amendment. These include the participation of interested stakeholders like communities , civil society organisations and youth in the policy and decision making bodies like the Forest Commission Board. Access to information is also very important and there are no clear provisions on this. Hopefully these can be considered before the FAB is approved by Parliament.

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[1] Food and Agricultural Organization, 2015

[2] Chapter 19:05

[3] Southern Africa Development Community Protocol on Forestry

[4] Zimbabwe’s Fifth National Report to the Convention on Biodiversity

[5] Zimbabwe Environmental Law Association, 2017. Legislative Reforms for Zimbabwe’s Forestry Sector. A Review of the Forest Act and the Communal Land Forest Produce Act. ZELA also participated in the development of the National Forest Policy under the Forest Forces Project

[6] Refer to ZELA’s research on Forestry

[7] Section 5